Friday, July 18, 2008

Tekle v. Mukasey (9th Cir. - July 18, 2008)

Nice day for me today. Woke up early and went surfing. Finishing a law review article this morning and over lunchtime. Heading out to court for a hearing this afternoon. Going to eat a big steak with the wife and kids for dinner. Not a bad way to spend one's 40-something birthday. Not bad at all.

Plus, as a extra bonus, Judge Willie Fletcher let's me read this smackdown of an (unfortunately unnamed) IJ. By starting the opinion (after an introductory couple of paragraphs) with the following:

"We observe that immediately prior to Tekle’s testimony, the IJ offered the following comment for the record: 'I have one other comment, and again, I don’t care if the 9th Circuit wants to report this to my supervisor. The 9th Circuit does not comply with Supreme Court law with regard to asylum. While I am in the 9th Circuit and have to comply, I do note that they don’t really care what Immigration [J]udges do. If an Immigration [J]udge makes an adverse credibility determination, they will, in only one case out of every 250 to 300, affirm it. So I don’t play their game with regard to credibility determinations. In my view, an asylum merits hearing is analyzed on the basis of whether the claim itself is credible as opposed to testimony because that’s really the, the strength of it, because it’s very rare that an Immigration [J]udge can make and have withstand either with the Board or with the 9th Circuit, under applicable 9th Circuit case law, an adverse credibility determination.'

To clarify the record, we note that the IJ’s assertions about this court’s review of adverse credibility findings, even understood as hyperbole, are incorrect. According to statistics provided by the Ninth Circuit Staff Attorneys’ Office, in asylum cases decided between January 2005 and March 2008 the Ninth Circuit affirmed approximately 80% of all adverse credibility findings.2 Cases such as this one, in which the Ninth Circuit reverses an IJ’s adverse credibility finding, are the exception, rather than the rule."

Take that! Actual facts versus your selective perception/stereotypes! Sweet. Plus, I gotta say, I very much didn't like the IJ's attitude here. Either in the quote or as reflected by the facts in the rest of the opinion. It's one of those cases where you just get a gut sense that the IJ's completely out to scr*w the petitioner whatever the merits of her petition.

Now, mind you, if I were the IJ, I'd respond to Judge Fletcher's opinion by noting that the statistics that he's citing are from 2005-08, and hence postdate (and hence are not necessarily inconsistent with) the "1/300" statistic that the IJ threw out. But (1) even assuming a slight increase over the past three years in the rate at which the Ninth Circuit affirms adverse credibility findings -- which is possible but by no means certain -- I'm quite confident that the numbers that Judge Fletcher throws out are far closer to the truth, even back in the early 00s, than the IJ's, and (2) the IJ doesn't actually get to respond to the Ninth Circuit anyway, so this is all hypothetical.

Anyway, a great case. Thanks, Judge Fletcher. You didn't make my day, but you definitely made it a tiny bit better. I like to see this kind of stuff.