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Court Backs Down From Stern Rebuke of Board
By JOE CELENTINO
CHICAGO (CN) - The 7th Circuit's criticism of the Board of Immigration Appeals last month may have been somewhat misguided, a new unsigned opinion from the court shows.
The development comes in the petition for asylum by a married Macedonian couple, Gjorgji Naumov and Ivanka Stanojkova.
Naumov and Stanojkova belonged to the Slavic ethnic majority in Macedonia, but Naumov refused to report for military duty when he was drafted in 2001 because he disapproved of the government's effort to suppress the country's Albanian minority.
A few months after Naumov's scheduled report date, three men broke into the home where the couple was living with Naumov's parents. After knocking out the parents with a chemical spray, the attackers beat Naumov's head with a gun and ripped the pajama top off his pregnant wife to fondle her breasts. The men said Naumov and Stanojkova were "betrayers of Macedonia" because Naumov "did not participate in the war" suppressing Albanian insurgents.
Naumov and Stanojkova fled to the United States without a visa and petitioned for asylum under the Convention Against Torture. Their petition reached the 7th Circuit after being denied by an immigration judge and Board of Immigration of Appeals.
Judge Richard Posner authored the court's original opinion, released on July 14, which included fiery criticism of the proceedings. Posner explained that Stanojkova's administrative appeal had been reviewed by a single member of the Board of Immigration Appeals. Normally three members sit on such panels.
"The couple asked for asylum and other relief, but the immigration judge denied all relief and ordered them removed to Macedonia," Posner wrote at the time. "The Board of Immigration Appeals affirmed in a perfunctory opinion by a 'panel' consisting of one member of the board."
But new revisions to this decision, filed Wednesday, eliminate all references to a single-member board. It would appear that the 7th Circuit panel misunderstood the proceedings. All mentions of the single board member were replaced with references to the "board" as a whole.
A Justice Department spokeswoman told Courthouse News Service after the release of the original decision that a three-member panel issued the Board of Immigration Appeals decision, but she would not explain the court's discrepancy.
In the original opinion, Posner had also criticized the lack of standards for evaluating persecution in asylum cases.
"The result, well-illustrated by the administrative opinions in this case, is capricious adjudication at both the administrative and judicial level, generating extraordinary variance both in grants of asylum in similar cases at the administrative level and in reversals by courts of appeals of denials," Posner wrote.
"Responsibility has by default devolved on the courts ... yet only provisionally - only until the board assumes the responsibility - to try to create some minimum coherence in the adjudication of claims of persecution, as we have tried to do in this opinion," he added.
The 7th Circuit declined to comment on the amended opinion, issued on behalf of Judges Ilana Rovner, Diane Wood and Richard Posner.
A call for comment to the Executive Office for Immigration Review was not immediately returned.
By JOE CELENTINO
CHICAGO (CN) - The 7th Circuit's criticism of the Board of Immigration Appeals last month may have been somewhat misguided, a new unsigned opinion from the court shows.
The development comes in the petition for asylum by a married Macedonian couple, Gjorgji Naumov and Ivanka Stanojkova.
Naumov and Stanojkova belonged to the Slavic ethnic majority in Macedonia, but Naumov refused to report for military duty when he was drafted in 2001 because he disapproved of the government's effort to suppress the country's Albanian minority.
A few months after Naumov's scheduled report date, three men broke into the home where the couple was living with Naumov's parents. After knocking out the parents with a chemical spray, the attackers beat Naumov's head with a gun and ripped the pajama top off his pregnant wife to fondle her breasts. The men said Naumov and Stanojkova were "betrayers of Macedonia" because Naumov "did not participate in the war" suppressing Albanian insurgents.
Naumov and Stanojkova fled to the United States without a visa and petitioned for asylum under the Convention Against Torture. Their petition reached the 7th Circuit after being denied by an immigration judge and Board of Immigration of Appeals.
Judge Richard Posner authored the court's original opinion, released on July 14, which included fiery criticism of the proceedings. Posner explained that Stanojkova's administrative appeal had been reviewed by a single member of the Board of Immigration Appeals. Normally three members sit on such panels.
"The couple asked for asylum and other relief, but the immigration judge denied all relief and ordered them removed to Macedonia," Posner wrote at the time. "The Board of Immigration Appeals affirmed in a perfunctory opinion by a 'panel' consisting of one member of the board."
But new revisions to this decision, filed Wednesday, eliminate all references to a single-member board. It would appear that the 7th Circuit panel misunderstood the proceedings. All mentions of the single board member were replaced with references to the "board" as a whole.
A Justice Department spokeswoman told Courthouse News Service after the release of the original decision that a three-member panel issued the Board of Immigration Appeals decision, but she would not explain the court's discrepancy.
In the original opinion, Posner had also criticized the lack of standards for evaluating persecution in asylum cases.
"The result, well-illustrated by the administrative opinions in this case, is capricious adjudication at both the administrative and judicial level, generating extraordinary variance both in grants of asylum in similar cases at the administrative level and in reversals by courts of appeals of denials," Posner wrote.
"Responsibility has by default devolved on the courts ... yet only provisionally - only until the board assumes the responsibility - to try to create some minimum coherence in the adjudication of claims of persecution, as we have tried to do in this opinion," he added.
The 7th Circuit declined to comment on the amended opinion, issued on behalf of Judges Ilana Rovner, Diane Wood and Richard Posner.
A call for comment to the Executive Office for Immigration Review was not immediately returned.
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