Ramos v. Ashcroft

U.S. Court of Appeals for the Seventh Circuit

2004 U.S. App. LEXIS 11692

Petitioner Miguel Angel Ramos filed a timely petition for review in the Seventh Circuit after the Board of Immigration Appeals dismissed his appeal of a removal order.  The Department of Justice made a motion to transfer the case to the Eighth Circuit, pursuant to a statute requiring an appeal to be filed in the circuit where the immigration judge “completed” the proceeding.  The Court confronted the issue of where a proceeding is “completed” when it involves teleconferencing between two locations.

Ramos, his lawyer, witnesses, and the government’s lawyer attended a hearing in Council Bluffs, Iowa via teleconference with an immigration judge who issued a removal order from his chambers in Chicago.  The DOJ argued that a proceeding is “completed” where the lawyers and witnesses appear for the proceeding, not where the court issues the order.  The Seventh Circuit disagreed.  In the absence of a regulation on the issue, the Court noted that the statute itself examines where “the immigration judge completed the proceedings.”  Here, this occurred in Chicago, where the judge issued the order and also where the parties filed all of their motions.  The Court analogized the situation to one where just because a federal judge conducts a hearing by teleconference with a prisoner does not mean that the prisoner’s appeal lies in the circuit where the prison is located.  Therefore, the Court denied the DOJ’s motion to transfer.

Finally, the Court chastised the DOJ for filing its motion to transfer on the day its brief was due while requesting more time to file a brief if its motion were denied.  The Court condemned this practice as a “self-help extension,” unauthorized by any rule.  Instead, a party should request an extension in advance but may not substitute a motion for a brief.  A motion to transfer should have been filed within a month or two after Ramos filed his petition.  The DOJ waited five months, after Ramos had already served his brief.  The Court explained that if it had granted the DOJ’s motion, Ramos would have to suffer the cost and inconvenience of preparing a new brief in line with the Eighth Circuit’s rules and past decisions.  Rather than dismissing the DOJ’s motion on timeliness grounds, the Court gave the government an extra week to submit its brief.

*****

Al Kouri v. Ashcroft

U.S. Court of Appeals for the Eighth Circuit

2004 U.S. App. Lexis 6070

The Petitioner, Chehade Dib Lichas Al Kouri, is a Lebanese citizen who appealed the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture.  The Eighth Circuit Court of Appeals heard the appeal and remanded for a new hearing.

The Petitioner claimed that soldiers in Lebanon beat him because of his refusal to transport weapons and due to the fact that he was Christian.  He tried to enter the U.S. with a fraudulent visa and was detained and placed in removal proceedings by the Immigration and Naturalization Service.  The Petitioner subsequently sought asylum and was denied by the IJ.  During the removal proceedings, the Petitioner’s attorney filed a motion to withdraw.  After granting the motion, the IJ informed the Petitioner that he could proceed with or without an attorney.  The Petitioner opted to proceed pro se and the IJ refused to grant the Petitioner a continuance.  The withdrawn attorney had handed the Petitioner his 200-page application for asylum.  The Petitioner, whose native language was Arabic, was given ten minutes to review the application and was then asked by the IJ under oath if the contents were truthful.  During the hearing, the IJ instructed the Petitioner only to respond to the questions that were asked of him.  The IJ denied asylum based on his finding that there were discrepancies between the Petitioner’s testimony and his application.  The BIA affirmed.

The Eight Circuit Court of Appeals granted the petition to review and remanded the case based on its finding that the Petitioner was denied his Fifth Amendment Due Process rights when there was a fundamental procedural error and that such error resulted in prejudice.  A fundamental procedural error existed because the IJ only permitted the Petitioner to answer presented questions and did not allow the Petitioner to elaborate and fully explain.  Also, the Petitioner did not have reason to believe that his testimony needed to be as complete as his application because the IJ told him that he had read it.  The appellate court found that the situation was compounded by the fact that the Petitioner was given so little time to prepare. 

Due Process is only violated in this situation if the fundamental procedural error has resulted in prejudice.  The Court said that there is prejudice when the IJ gives an inadequate explanation of the hearing procedures and fails to elicit pertinent facts that prevent the petitioner from offering evidence relevant to the claim.  Given that the Petitioner was not able to fully develop his testimony due to the IJ’s instructions, the Court determined that the fundamental procedural error did in fact result in prejudice towards the Petitioner.  Finding that the Petitioner’s Due Process rights were violated, the Court remanded the case for a new hearing.