Saturday, November 10, 2007

Quinter-Salazar v. Gonzales, 506 F.3d 688 (9th Cir. 2007)

Reports of erecting fences on the southwestern border of the United States, introducing high tech electronic surveillance and adding border patrol personnel all designed to stem the flood of illegal aliens usually result in heavy media coverage. But we rarely read reports of immigration decisions written by the Ninth Circuit allowing a massive leak in the border tide. In immigration cases, except for constitutional claims or questions of law, Congress has severely limited the jurisdiction of federal appellate courts by enacting the Real ID Act (8 U.S.C. 1158 (a) (3); 106. In Ramadan v. Gonzales, 427 F. 3d 1218;1222 (9th Cir. 2005) the Immigration Judge (IJ) hearing the evidence had decided that the only issue in the case was an allegation by Ramadan that despite her non compliance with timelines mandated in the statute, changed circumstances, i.e., a factual issue, entitled her to asylum in the United States. The IJ refused to grant asylum. Ramadan appealed the decision to the Ninth Circuit and the only legal question was whether her application for asylum qualified as a question of lawas required by the statute. A three judge Ninth Circuit panel originally heard the appeal and wrote that Ramadans application for asylum based on allegations of changed circumstances does not present any question of law and dismissed the petition for asylum. That decision was withdrawn, rewritten, and read . . . a changed circumstances determination falls within the term questions of law; Ramadan II, 479 F.3d 646 (9th Cir. 2007). In a word, the panel wrote a complete reversal of its original opinion. The U.S. Government appealed and asked for en banc (full court) hearing to rectify this egregious change. An insufficient number of judges agreed to a rehearing. Here is the dissent concurred in by eight other dissenting judges: In a feat of interpretative creativity, the Court in this case has transformed a discretionary determination [finding of facts] of an Immigration Judge (IJ) into a question of law, thereby claiming jurisdiction over a swath of immigration cases hitherto beyond our purview . . . Congress has expressly withdrawn our power to review such discretionary determinations [by the IJ judge] and by reviewing the merits of the IJs ruling, the panel has transgressed the clear limits of our constitutional jurisdiction. For this reason, and because the panels opinion conflicts with the decisions of the seven other circuit [courts] that have considered this issue, I must dissent . . . Ramadan is more than mere statutory interpretation of the Real ID Act. The court reverses its original decision and reaches an opposite result enabling it to expand its jurisdiction. Withdrawing an opinion unilaterally and rewriting it to not only repudiate the original opinion but to confer jurisdiction on the court is a serious question of separation of powers. Congress has unambiguously intended to limit judicial power to review immigration cases and the Ninth Circuit panel engages in statutory hairsplitting to reach its result. No doubt the Supreme Court will review this case. There is another troubling economic issue. First, the IJ judge hears the evidence; the Ninth Circuit hears the appeal; the Ninth Circuit reverses its decision and writes another decision; the Ninth Circuit denies a hearing of the full court and dissenting judges write a dissent. The U.S. government will undoubtedly appeal. At what cost to the taxpayer for the work of immigration judges, the courts and their staff involving a single illegal immigrant? Perhaps the only saving grace of this case is, ultimately, the Ninth Circuit denied Ramadans petition on grounds of insufficient evidence of changed circumstances. *** Quintero-Salazar v. Keisler, 2007 WL 2916162 (9th Cir.) Quintero-Salazar pled guilty in California state court to two counts of engaging in sexual intercourse with a minor (statutory rape), served his sentence and was placed on probation. Subsequently detained by the INS when returning from Mexico, he appeared before an immigration judge who found him removable from the United States based on his conviction [by plea] of a crime of moral turpitude, a crime qualifying as an aggravated felony under immigration law. 8 U.S.C. 1101 (43) defines an aggravated felony as . . . murder, rape, or sexual abuse of a minor. In a 2-1 decision the majority held statutory rape is not a crime of moral turpitude. The dissent cites three prior Ninth Circuit cases specifically characterizing statutory rape as a crime involving moral turpitude and an "aggravated felony," i.e. as murder, rape or sexual abuse of a minor warranting removal of the offender; U.S. v. Gomez-Mendez, 486 F.3d 599 (9th Cir. 2007); Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir.1995); Gonzales-Alvarado v. INS, 39 F.3d (9th Cir. 246 (1994). The majority ignores all these decisions and defines moral turpitude in its own way.