Sunday, July 13, 2008

Tourchin (not precedential): BIA Must Analyze Each CAT Claim Before Ruling There Are No Valid Claims

Tourchin v. Mukasey (3d Cir. May 7, 2008) (not precedential)
Nos. 02-3821 and 05-4686
277 Fed. Appx. 248, 2008 WL 1962273
Judges Smith, Hardiman, and Cowen
(opinion written by Judge Cowen)

The Third Circuit overturned the BIA's ruling in the case. The Third Circuit did not criticize the rulings by Immigration Judge Alberto J. Riefkohl, it only criticized the BIA.

The immigrant lost before IJ Riefkohl and then hired a lawyer who lost with the BIA but for some reason did not argue for a claim under CAT (the Convention Against Torture). The immigrant filed a motion to reopen with the BIA and claimed that his lawyer on appeal was ineffective by not raising the CAT claim in the BIA appeal. The BIA denied the motion to reopen -- and the Third Circuit criticized how the BIA decided the motion to reopen.

In his motion to reopen, the immigrant argued that if his lawyer on appeal had raised the CAT claim, he would have had a viable claim for CAT protection. He argued that he feared torture if he returned to his country either because (a) corrupt people and poor prison conditions or (b) KGB threats against the immigrant and his loved ones that included killing someone in front of the immigrant to prove their threats were serious.

The Third Circuit criticized how the BIA ruled that the first theory was insufficient to merit CAT protection even if it could be proved but did not say a word about whether the second theory was viable. Its conclusion that the immigrant did not offer any viable theory was improper because it did not analyze all of the theories that the immigrant put forward.

Good thing the Third Circuit was there to force the BIA to make a ruling that addressed all of the issues that the immigrant was raising. From reading the Third Circuit's decision, it does not seem like the BIA did a thorough job of reading the immigrant's arguments. Perhaps there is some merit to people's criticism of the quality of the BIA's work...

For Tourchin, Andrea Farinacci and Staci Schweizer argued the case with help from Melissa Kimmel of Howrey in DC.  For the government, Ada E. Bosque argued with help from John M. McAdams, Jr., John D. Williams, and Douglas E. Ginsberg of OIL along with Peter G. O'Malley of the US Attorney's office in Newark, NJ.


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