Demjanjuk v. Mukasey (6th Cir. 1/30/08)
ROGERS sutton bertelsman (dct)
In case of denaturalized citizen, found to have been a guard at Nazi concentration camps, United States v. Demjanjuk, 367 F.3d 623, 627 (6th Cir. 2004), 6th cir rejected arguments that the Chief Immigration Judge was without authority to conduct a removal hearing after the denaturalization. [But, one wonders, what of Accardi v. Shaughnessy, 347 U.S. 260 (1954)? Wasn't the utterly strange designation of Chief Judge Creppy something like the ""public prejudgment" in Accardi that made "fair consideration of petitioner's case by the Board of Immigration Appeals ... impossible"? Accardi, 347 U.S. at 264.
http://www.ca6.uscourts.gov/opinions.pdf/08a0054p-06.pdf
Facts: then-Chief Immigration Judge Creppy appointed himself to preside over the removal proceedings regarding John Demjanjuk, who had been previously denaturalized (see United States v. Demjanjuk, 367 F.3d 623, 627 (6th Cir. 2004) - he had been extradited to Israel as alleged "Ivan the Terrible" guard, but that was procured through fraud by Govt, he was aquitted in Israel, and the denaturalized overturned sua sponte). New allegations are that he was a guard in other concentration camps, and was not Ivan the Terrible.
1. CIJ Creppy was authorized to preside over removal hearings
Pursuant to 8 U.S.C. § 1229a, proceedings for deciding an alien’s admissibility or deportability must be conducted by an “immigration judge.” The term “immigration judge” is defined in 8 U.S.C. § 1101(b)(4) to mean “an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 1229a of this title.” CIJ Creepy met all of the elements of this definition. First, it is uncontested that CIJ Creppy was an attorney. Second, it is evident from Creppy’s certificate of appointment as CIJ that he was appointed by the Attorney General to serve within the EOIR. The certificate, signed by then Attorney General Janet Reno, provides that Creppy was to serve as CIJ in the “Office of the Chief Immigration Judge, Executive Office for Immigration Review.”
Third, Creppy’s appointment as CIJ constituted an appointment as an administrative judge. Although the Immigration and Naturalization Act does not define “administrative judge,” it is clear from the term’s ordinary meaning that it encompasses the position of CIJ. This court “read[s] statutes and regulations with an eye to their straightforward and commonsense meanings.” Henry Ford Health Sys. v. Shalala, 233 F.3d 907, 910 (6th Cir. 2000). In its normal use, the term “administrative judge” is understood to refer to an Article I judge who presides over executive agency proceedings. The CIJ is a judge, by the terms of his title, and was appointed by an executive official, the Attorney General, to serve in an executive agency, the EOIR. Common sense thus advises that CIJ Creppy was an administrative judge.
The designation of “Chief” before “Immigration Judge” in Creppy’s job title does not change this understanding. Demjanjuk essentially asks this court to ignore the plain meaning of the words “Immigration Judge” because Creppy’s title also included the word “Chief.” The latter term, however, denotes merely that the CIJ is the head immigration judge, and, as such, may be responsible for performing duties beyond those performed by other immigration judges. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 387 (2002) (defining “chief” as “accorded highest rank”). The word “Chief” does not somehow alter the fundamental meaning of the words “Immigration Judge” to make this position entirely managerial, as Demjanjuk claims it to be.
Fourth, and finally, CIJ Creppy was qualified to conduct immigration proceedings, including those for removal. As noted, § 1101(b)(4) provides that an “immigration judge” should be “qualified to conduct specified classes of proceedings, including a hearing under section 1229a.” The parties dispute the significance of this language, in particular the meaning of the term “qualified.” The Attorney General contends that this clause requires simply that the appointee be “capable of” presiding over immigration hearings. Demjanjuk, on the other hand, reads this language to require that the Attorney General have specifically “appointed” a judge to conduct removal proceedings in order for that party to be considered “qualified.”
Because CIJ Creppy was “qualified” in both senses of the term, we need not decide which of these interpretations is correct. If “qualified” means “capable of,” or “able to,” then there is little doubt that Creppy was qualified to preside over removal hearings. Demjanjuk does not suggest that Creppy was unable to conduct immigration proceedings effectively, nor does anything in the record so suggest.
2. Fact that Chief IJ isn't mentioned in regs is not dispositive
Demjanjuk argues that § 1003.10 did not grant removal authority to Creppy, since this section does not specifically mention the position of CIJ. This argument is unpersuasive. As discussed, the term “Chief” does not change the basic meaning of the words “Immigration Judge.” Because any reasonable person would assume that the position of Chief Immigration Judge is a mere subcategory of immigration judge, the absence of any mention of the CIJ in § 1003.10 is not significant. Nor is it telling that § 1003.9, which describes the CIJ’s duties, did not, at the time, list presiding over immigration hearings as one of the position’s responsibilities.3 Although that section only mentioned certain supervisory functions, it made explicit that the position “[was] not limited” to such duties.
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Officials must consider a multitude of issues in delegating authority and drafting regulations. Although they should make their best efforts to do so, they simply cannot anticipate every scenario that may arise or challenge that will be made. It is understandable that an official might take for granted something that is abundantly clear and that has long been understood to be the case. To hold that a delegation will always be ineffective where it does not spell out the obvious would place too onerous a burden on these officials and encourage parties to seek out the slightest of ambiguities in order to evade the law.
Petitioner's attorney: John H. Broadley (who has represented Demjanjuk for years)