A daily digest of immigration-related federal court decisions from around the United States.
Immigration Litigation Update 7th Cir finds VTC use violated right to examine evidence | 7th Cir finds VTC use violated right to examine evidence |
|
|
| Thursday, 03 July 2008 | |||||
|
Rapheal v. Mukasey (7th Cir. 7/3/08) MANION Rovner Evans The 7th Cir. issued a 24 page decision which upheld VTC hearings against a facial due process challenge, and found no evidence in this case of interference with lawyer-client relationship (because no attempt to consult during the trial); but found that VTC violated the right to examine evidence because Petitioner couldn't examine a document admitted by the Govt into evidence. In other holdings, the CtApp found the Gontcharova standard for corroboration had been statutorily overturned, but found that because Real ID says that a credible asylum applicant may be granted asylum without corroboration, that it was incumbent on Board to address credibility. It rejected the argument that she couldn't reasonably produce corroborating documents, stating that she would at least have to explain what she tried before her explanation could be accepted (but noted that since the case is being remanded, that she can produce any new evidence on remand).
Liberian asylum applicant was found not credible by IJ, who also found that she didn't present corroborating evidence. Board didn't address credibility, but affirmed for lack of corroboration.
1. Upholds VTC vs facial challenge. No court has ever held that Congress has violated the due process clause by authorizing removal hearings to proceed via video conference. See Eke, 512 F.3d at 382. In fact, the Fourth Circuit found that a video conference hearing satisfied the due process requirement set forth in Mathews v. Eldridge, 424 U.S. 319, 333-34 (1976), and provided the petitioner with an “opportunity to be heard at a meaningful time and in a meaningful manner,” even though the three-hour hearing “was plagued by communication problems.” See Rusu v. INS, 296 F.3d 316, 319, 324 (4th Cir. 2002).
2. Found that VTC didn't interfere with lawyer-client ability to converse, where no attempt to do so during the hearing (analyzed under 1229a(b)(4), not due process). Rapheal claims the use of video conferencing interfered with her ability to consult with her attorney because her attorney was forced to either be with her at the distant site, or be in the courtroom where she would have superior access to evidence and the ability to confer with the court and opposing counsel. Rapheal also claims that the video conference arrangement prevented her from conferring confidentially with her attorney. Although attorneys might not like having to choose between sitting beside their clients or before the IJ, under either scenario the alien receives the benefit of legal representation. Moreover, there is nothing in the record in this case to indicate that the video conferencing interfered with Rapheal’s attorney’s representation. To the contrary, the transcript of the hearing demonstrates that Rapheal was ably represented. Rapheal counters that the video conferencing prevented her from consulting confidentially with her attorney. However, neither Rapheal nor her attorney at any time during the hearing requested to talk in private. Therefore, Rapheal cannot now complain that she was prevented from conferring confidentially with her attorney. Accordingly, under the circumstances of this case we conclude that Rapheal’s statutory right to legal representation was not violated.
3. Here, statutory right to examine evidence was violated because she couldn't examine the document that she allegedly initialed. Whether a video conference allows aliens a reasonable opportunity to examine the evidence against them will depend on the circumstances. In most cases, documents can be properly examined from afar by the alien. Or those documents might not be material to the case or the IJ’s decision.fn4 In this case, however, the Record of Sworn Statement (“Immigration Report”) was material to Rapheal’s case, and the IJ relied on it in finding Rapheal not credible. * * * [T]he Immigration Report proved highly relevant to Rapheal’s case and the IJ’s decision. Rapheal claims that given the weight the IJ placed on this handwritten notation, she should at least have had the opportunity to review the document, but was unable to do so because of her remote location. While the transcript in this case reflects references made to the Immigration Report, nowhere does it indicate that Rapheal was actually able to see the document. Moreover, the record contains only a written transcript of the proceedings, so we have no video recording to determine whether Rapheal was shown the Immigration Report, and if so, whether she was able to adequately view the document. Under these circumstances, we must conclude that the IJ denied Rapheal her rights under 8 U.S.C. § 1229a(b)(4)(B) to a reasonable opportunity to examine evidence used against her. FN4 - Of course, the government could always arrange to have a second set of documents available at the distance-site for review by the alien.
4. Did not reach claim that IJ abused discretion in refusing to order an in-person hearing, but commented that the decision to use VTC "seems strange" and suggeste an in-person hearing on remand. [W]e note that although video conferencing is available and satisfies constitutional and statutory standards, in this case the government’s decision to hold a video conference seems strange because the government had to transport Rapheal a greater distance to participate in the video conferencing than the distance it would have had to bring her to attend the hearing live before the IJ. On remand, we encourage the IJ to consider anew Rapheal’s request for an in-person hearing, given the logistics involved in this case.
Preliminary Holdings: 5. Found that Real ID Act overturned Gontcharova v. Ashcroft, 384 F.3d 873, 877 (7th Cir. 2004), but that Board needed to specifically rule as to credibility in order to satisfy new statutory standard. Under the REAL ID Act, if the fact-finder determines that an applicant should provide corroborating evidence, corroborating evidence is required unless the applicant cannot reasonably obtain that evidence. Moreover, under the REAL ID Act, corroborating evidence may be required even if the applicant is credible. 8 U.S.C. § 1158(b)(1)(B)(ii). By codifying the corroboration rule, Congress removed any doubt as to the validity of that rule. Thus, the Gontcharova three-part test, established for purposes of assessing the validity of the INS’s debatable interpretation of the corroboration rule, no longer controls. Although Gontcharova no longer controls, given the nature of the Board’s ruling (along with the IJ’s to the extent we consider it), we conclude that, in this case, the Board needed to consider Rapheal’s credibility before ruling on the need for corroborative evidence. That is because in ruling that Rapheal needed to provide corroborative evidence (given the conflicting documents in the record), the Board treated Rapheal as if she were not credible. The Board did this, though, without first reviewing the IJ’s credibility finding. * * * Had the Board found Rapheal credible, that would mean that the immigration officials had incorrectly noted Kocoker as Rapheal’s maiden name, and the disparity would not serve as a basis for requiring corroborative evidence. * * * While the REAL ID Act provides that the government may require corroborative evidence even if the petitioner is credible, it also provides that “[t]he testimony of the applicant may be sufficient without corroboration, but only if the applicant’s testimony is credible, is persuasive and refers to specific facts.” 8 U.S.C. § 1158(b(1)(B)(ii). Thus, if the Board (or IJ) had found Rapheal’s testimony credible, Rapheal might not have been required to provide corroboration. Yet on appeal, the Board bypassed the credibility finding, while presenting the conflicting facts as if she were not credible.
6. Found that Petitioner might have obtained additional corroboration, and would at least have had to explain what she tried to do. [CR: note that she was detained during this time] FN2 It is reasonable to believe that Liberian libraries or the newspaper publishers themselves retain older newspapers, or universities in other parts of the world that study Liberia maintain a collection of Liberian newspapers or television broadcasts. Likewise, it is possible that Rapheal could obtain some evidence to corroborate her and her family’s identity and other aspects of her testimony. In noting these possibilities, we are fully cognizant that documentation in disordered nations and Third World nations is not “as regular, multicopied, and ubiquitous . . . as in the United States.” Hor v. Gonzales, 421 F.3d 497, 501 (7th Cir. 2005). However, Rapheal bears the burden of showing that corroborative evidence is not reasonably obtainable and she must do more than just say, in effect, I couldn’t get any supporting evidence. Moreover, as noted below, see infra at 22-23, corroborative evidence is the only hope for Rapheal if the IJ finds that she is not credible and, thus, there is a need for Rapheal to explore every possible avenue for corroborative evidence.
7. Refused to require IJs to give notice to an individual of necessary corroboration, before making adverse finding. To hold that a petitioner must receive additional notice from the IJ and then an additional opportunity to provide corroborative evidence before an adverse ruling, would necessitate two hearings—the first to decide whether such corroborating evidence is required and then another hearing after a recess to allow the alien more time to collect such evidence. This would add to the already overburdened resources of the DHS, and such an approach would seem imprudent where the law clearly notifies aliens of the importance of corroborative evidence.
Atty: Erin Ziaja (pro bono for NIJC)
Powered by !JoomlaComment 3.12 Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved. |
|||||
| < Prev | Next > |
|---|