Thursday, September 11, 2008

Lin: Can Challenge Any Issue The BIA Considered On Its Own Accord

Lin v. Mukasey
No. 06-2883
Sept. 11, 2008
Judges Fuentes, Chagares, Van Antwerpen
Decision by Judge Chagares

The Third Circuit softened the exhaustion doctrine in this case, in line with a number of other circuit courts. The exhaustion doctrine is the doctrine of requiring the exhaustion of administrative remedies. Circuit courts at times do not want to listen to the appeal of an issue where the immigrant did not raise it to the BIA because the immigrant did not take every step possible to ask the BIA to address the issue.

Congress prohibits circuit courts from reviewing removal orders unless the immigrant has exhausted all administrative remedies that were available as of right. The Third Circuit does not apply this rule in a draconian way. If the issue is straightforward, a mere mention in the Notice of Appeal is enough. For example, questioning the IJ's credibility determination is enough to inform the BIA of mistakes hovering around the IJ's findings, such as the reliance on a statement at an airport interview. Also, claiming ineffective assistance of counsel is enough even if you did not specifically claim there was prejudice. See Yan Lan Wu v. Ashcroft, 393 F.3d 418 (3d Cir. 2005); Bhiski v. Ashcroft, 373 F.3d 363 (3d Cir. 2004).

If the BIA addresses an issue, you can appeal it to the Third Circuit (even if you did not raise it to the BIA). There is a circuit split but the vast majority agree you can appeal it if the BIA considered the issue. Agreeing includes the 1st, 2d, 6th, 7th, 8th, 9th, and 10th Circuits (and in a way the D.C. Circuit also). Only the 11th Circuit seems to hold otherwise.

In a way, this is deference to the BIA -- if the BIA somehow discerned that a particular issue needed analysis, then the circuit court should also agree that the issue was fairly presented to the BIA for analysis and therefore the administrative remedy was adequately exhausted. This also meets the policy behind the exhaustion doctrine -- the BIA was given a chance to address the issue because the BIA in fact did address it.

Ok, that was the fascinating part of the case -- whether the circuit court had jurisdiction over the issue the BIA addressed on its own accord. The rest of the decision, quickly denying the immigrant's appeal on the issue the BIA addressed, is not that noteworthy. The Third Circuit upheld the Third Circuit and IJ Mirlande Tadal on finding the immigrant to be not credible.

Thomas V. Massucci of New York, NY represented the immigrant.
Edward J. Duffy conducted oral argument and worked with Alison M. Igoe and Peter D. Keisler for OIL of the Justice Department.


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