Stolaj v. Holder (6th Cir. 8/19/09)
ROGERS Thapar (dct) - Moore concurring in the result
The Petitioners were Albanians whose asylum applications had been mysteriously approved out of the New York Asylum Office by an AO supervisor later charged with accepting bribes. The Asylum Officer was convincted in 2000. Mr. and Mrs Stolaj had adjusted to LPR status in 1998 (though their LPR status was presumably backdated one year, per 8 CFR 209.2(f)); the NTA against the Stolaj family wasn't issued until 2003, just less than 5 years after the grant of LPR status.
That didn't stop the Sixth Circuit from purporting to agree with the 4th, 8th, and 9th cirs, Asika v. Ashcroft, 362 F.3d 264 (4th Cir. 2004); Kim v. Holder, 560 F.3d 833, 836-38 (8th Cir. 2009); Monet v. INS, 791 F.2d 752, 754 (9th Cir. 1986); Oloteo v. INS, 643 F.2d 679, 681-83 (9th Cir. 1981), as well as the AG. Matter of Belenzo, 17 I. & N. Dec. 374 (A.G. 1981), Matter of S—, 9 I. & N. Dec. 548, 557 (A.G. 1962), as against the Third Circuit. Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996); Garcia v. Attorney General, 553 F.3d 724 (3d Cir. 2009). There is a circuit split on the issue of whether there is a statute of limitation for removal proceedings based on fraud in obtaining LPR status, which is currently the subject of a cert petition. The Sixth Circuit indicated that it agreed with the majority, particularly disputing with the Third Circuit that this reading would leave the rescission statute without a purpose:
[T]he Third Circuit did not sufficiently credit the important role played by the statute of limitations on rescissions even though it does not apply to removal proceedings. As the Fourth Circuit explained, the five-year statute of limitations on rescission of status has a meaningful role because the INA provides far fewer procedural protections for rescission proceedings than for removal proceedings.
[CR: this has always struck me as a weak argument. First, if there is any response from the person whose status is sought to be rescinded - or a simple request for a hearing - that person is given a hearing before an IJ which doesn't seem to have procedurally weaker protections than regular removal proceedings. 8 CFR 246.3, 246.4. Second, to the extent that any of the basic fundamental fairness protections of removal proceedings don't apply to rescission (and I can't think of any that don't), that would strike me as constitutionally problematic - can you take away someone's LPR status without notice and a reasonable opportunity to be heard?]
The 6th Cir also rejected the argument that asylum status needed to be terminated prior to removal proceedings, applying Matter of Smriko, 23 I. & N. Dec. 836 (BIA 2005) to hold that asylees do not have "immunity" from removal due to their status.
The 6th Cir upheld the denial of a subpoena, finding that the Stolaj's didn't show that they had made a "diligent attempt" to locate the witnesses. It found no constitutional problem with the refusal to permit cross-examination, because the confrontation clause doesn't apply in removal proceedings. [Did no one cite 8 USC 1229a(b)(4)(B) (guaranteeing the right to cross-examine governmental witnesses)? So sad... - CR]
Finally, the 6th Cir summarized the evidence and found that substantial evidence supported the IJ's finding that the Govt had proven its case by clear and convincing evidence.
Judge Moore concurred, finding no need to reach the disputed 5 year issue, in light of her assessment that the Stolaj's were removable for the act of obtaining asylum by fraud, which was precedent to and independent of, any LPR fraud.