tag:blogger.com,1999:blog-2399750140932278409.post4040451170096576210..comments2024-01-02T04:16:32.146-08:00Comments on The Insightful Immigration Blog – Commentaries on Immigration Policy, Cases and Trends: BURNING DOWN THE HOUSE: THE SECOND AND THIRD CIRCUITS SPLIT ON WHETHER ARSON NOT RELATING TO INTERSTATE COMMERCE IS AN AGGRAVATED FELONYCyrus D. Mehta & Associates, PLLChttp://www.blogger.com/profile/02968992345997982326noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-2399750140932278409.post-15053828978700904792014-08-26T06:46:53.719-07:002014-08-26T06:46:53.719-07:00Matt,
I am aware that the Board applies the law ...Matt, <br /><br />I am aware that the Board applies the law of the circuit where the IJ sits-- hence my conclusion that for the moment, "if a noncitizen is convicted of burning down a house, whether an arson conviction for that burning is found to be an aggravated felony may depend on whether the noncitizen is placed into removal proceedings in New York or Connecticut, on the one hand, [that is, the Second Circuit] or in New Jersey or Pennsylvania, on the other [that is, the Third Circuit]." I am also aware, and perhaps should have been clearer, that the Board has been known to continue to follow vacated precedential decisions. However, the Board has also been known to acquiesce in court decisions rejecting some of its precedents, such as in Matter of Silva, 16 I&N Dec. 26 (BIA 1976), where the BIA acquiesced in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), or Matter of Marcal Neto, 25 I&N Dec. 169 (BIA 2010), where the BIA overruled Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), after its rejection by several Courts of Appeals.<br /><br />What seems odd to me is for a federal court to ignore the vacating of a precedent decision by a sister circuit and in effect either give the BIA's nonprecedential decision deference to which Rotimi (and related cases in some other circuits) would not entitle it, or give deference to the "zombie" BIA decision which as a formal matter no longer is extant, having been vacated. Once one Court of Appeals has vacated a precedential decision, it would, I think, be logical for other courts to say that the BIA must decide, precedentially, whether to acquiesce in that first Court of Appeals decision or not, or else lose the deference to which precedential decisions are entitled. If the BIA wants to, for example, bring Matter of Bautista back from the dead in Matter of Luna Torres, and follow it outside the Third Circuit, it would still be able to do so under my proposed approach, but it would have to make a deliberate and precedential choice to do so rather than acquiescing in the Third Circuit's decision. In some cases, the BIA may indeed choose to revive a precedent even after its rejection by multiple circuits, along the lines of Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), where the BIA reaffirmed Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), after its holding had been rejected by multiple Courts of Appeals, and indicated that Koljenovic would continue to be followed in circuits that had not rejected it. In other cases, however, the BIA might choose to reverse course and follow the Court of Appeals decision, as in Matter of Silva and Matter of Marcal Neto-- and in some cases the BIA might find some third approach that incorporated the wisdom of the circuit court decision without following it exactly, as in Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011), where the BIA overruled Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), in part following its rejection by some circuit courts. Forcing this sort of precedential reconsideration by the BIA seems to me both more advisable from a policy perspective because it will sometimes prompt acquiescence and national uniformity, and more respectful as a formal matter of the circuit court decision that vacated the BIA precedent decision in the first instance.<br /><br />Thanks for your comment, however. This may be something I need to elaborate upon further in an update or further blog post, if my first attempt to raise it is being misunderstood by such experienced and illustrious readers as yourself.David A. Isaacsonhttp://www.cyrusmehta.com/Sub.aspx?MainIdx=ocyrus200591701543&SubIdx=ocyrus200835122922noreply@blogger.comtag:blogger.com,1999:blog-2399750140932278409.post-34675291320443704822014-08-25T21:09:59.227-07:002014-08-25T21:09:59.227-07:00The premise of your article is incorrect. The Boa...The premise of your article is incorrect. The Board applies the law of the circuit where the immigration judge sits. Matter of K-S-, 20 I. & N. Dec. 715 (BIA 1993); Matter of Anselmo, 20 I. & N. Dec. 25 (BIA 1989). As a result, when a precedent decision of the Board is struck down by a circuit court, that precedent decision continues to be followed by the Board in all other circuits unless the Board renders a new decision. For instance, Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005), was heard by an Immigration Judge in the Second Circuit. After the Second Circuit struck down Matter of Blake in Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007), the Board continued to rely upon Matter of Blake outside of the Second Circuit until it was struck down by Judulang v. Holder, 132 S. Ct. 476 (2011).Matthew L. Guadagnonoreply@blogger.com