The Petitioner sought adjustment under 245(i) - he was allegedly grandfathered in by a religious worker I-360 filed in 1997, which was eventually denied - though a different I-360 filed in 6/01 was approved. IJ found that she couldn't look at later I-360, and refused to consider new evidence.
CtApp agreed that "approvable when filed" only means "legally meritorious," no requirement that petition actually be approved. But second I-360 didn't itself suffice to show that first petition was approvable, and question of whether IJ erred in refusing to permit more evidence to be introduced wasn't properly before the CtApp because it wasn't raised in the opening brief. No "fundamental miscarriage of justice," because Petitioner could have responded to INS RFE
Gregory, dissent:
Fundamental miscarriage of justice ("unconscionable") for IJ to inexplicably refuse to consider evidence, and for that to be the direct cause of removal of the Petitioner.
[CR - seems like the atty who handled the case below should have exhausted remedies on this point, in BIA appeal - wouldn't reopening be an option?]
The parties agreed to let the State Department investigate a Cameroonian asylum claim; the investigator wasn't told it was an asylum case, and there was no evidence that he acted to protect the confidentiality of the applicant. The IJ admitted the State Dept's summary of the findings. The 6th Cir reversed, finding:
(A) The disclosure of information violated 8 CFR 208.6 because (1) the oral agreement in court was not an "agreement in writing" to waive the confidentiality provisions, (2) though the summary didn't clearly say that confidentiality was violated, the questions asked, the answers given, and the lack of confidentiality instructions to the investigator, give rise to the reasonable inference that it was violated; and (3) there was no need for consulate to specifically state that she was an asylum applicant, since Govt could have concluded that from the information. Therefore, CtApp remanded to permit a new application based on the violation of the confidentiality provisions.
(B) The admission of the document violated due process and was fundamentally unfair, because it was multiple hearsay, it gives no evidence of how the information was gathered (so as to be able to assess the probity of the information), and the IJ appeared to rely on the State Dept's reputation in deferring to those findings.
(C) Error was prejudicial, because the rest of the credibility analysis wasn't supported by substantial evidence, the IJ would probably have reached a different conclusion if he didn't think the docs were false, and if past persecution had been established, would have given rise to presumption of future persecution.
A Petition for Rehearing or Rehearing En Banc was filed in the Fourth Circuit, in a case which held that no constitutional right exists to effective representation of counsel, and that failing to inform the client of a final Board decision (so that they might Petition for Review) is not within the purview of the Board.
Plurality - 5-4 to find authority for executive detention of lawfully present alien, alleged enemy combatant - but also 5-4 (1 vote shifting) that due process requires stronger procedural protections.
Traxler (shifting vote, deciding 5th vote)
The 4th Cir found that the Congressional resolution authorizing force against Al Queda authorized the seizure of a lawfully present alien from his home in Illinois (currently in naval brig in S Carolina) - but held that DP required the Govt to show why the normal procedural protections aren't acceptable, and why hearsay is the best and most reliable evidence. Four judges would have upheld the detention, either because it is constitutional or because he didn't respond when given the chance to provide evidence in his favor. Four judges (Motz) would have struck down the detention as unauthorized by law. Judge Traxler found detention authorized but that DP requires greater protections.
The Petitioner filed a late Petition for Review, after his previous atty failed to check his mailbox in time for a Petition for Review to be filed - Petitioner also filed a Lozada mtn to reopen, but the Board refused to reopen and reissue, finding post-BIA decision atty malfeasance beyond its realm. The CtApp found (a) that the late-filed PfR was untimely, (b) that there was no harm in the address the Board used, (c) that the Board had no obligation to reissue an opinion where it hadn't made a mistake, and (d) that police visit to house in Cameroon did not create reasonable fear. The CtApp also agreed with Board that it had no authority to consider atty incompetence post-BIA decision. However, based on the "zipper clause" of 1252(b)(9), it found that it (the CtApp) had jurisdiction to consider the ineffective assistance. But it held that there is no constitutional right to an administrative remedy for ineffective assistance:
It is a basic principle of American constitutional law that * * * the Constitution applies only to the federal government which it creates and, via the Fourteenth Amendment and certain other clauses, to the governments of the several states. The Supreme Court long ago held that the rights guaranteed by the Constitution "cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings." It follows that an alien’s counsel cannot violate his client’s Fifth Amendment rights unless he can be said to be engaging in state action. * * *
Simply put, Afanwi’s counsel was not a state actor, nor is there a sufficient nexus between the federal government and counsel’s ineffectiveness such that the latter may fairly be treated as a governmental action. To the contrary, Afanwi’s counsel was privately retained pursuant to 8 U.S.C. § 1362, and his alleged ineffectiveness — namely his failure to check his mailbox regularly and to file a timely appeal — was a purely private act. The federal government was under no obligation to provide Afanwi with legal representation,46 and there was no connection between the federal government and counsel’s failure to check his mail. Thus, Afanwi’s counsel’s actions do not implicate the Fifth Amendment, and accordingly counsel’s alleged ineffectiveness did not deprive Afanwi of due process.
Fourth Circuit 
