Dan Kowalski reports for LexisNexis Immigration Community—
CA6 on Abuse of Discretion, Burden of Proof, and Loss to the Victim: Al-Adily v. Garland
https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0058p-06.pdf
“Habib Al-Adily, a citizen of Iraq and a lawful permanent resident of the United States, was late in returning his rental car to Thrifty-Rent-a-Car (Thrifty). He was indicted under a Michigan statute criminalizing the willful failure to timely return rental property, an offense to which he pleaded guilty and for which he was ordered to pay over $10,000 in restitution to Thrifty. Two Immigration Judges (IJs) and the Board of Immigration Appeals (BIA) concluded that these circumstances warranted Al-Adily’s deportation for having been convicted of an aggravated felony under the Immigration and Nationality Act (INA). For the reasons set forth below, we GRANT Al-Adily’s petition for review, REVERSE the BIA’s decision, and REMAND to the BIA with instructions to terminate the removal proceedings against him. … A cursory review of Exhibit A reveals that Thrifty’s actual loss was clearly less than $10,000. And DHS certainly did not meet its burden of proving by “clear and convincing” evidence, see id. (quoting 8 U.S.C. § 1229a(c)(3)(A)), that the loss exceeded that amount. … Despite admonitions by both the BIA and the Supreme Court that restitution orders must be considered with caution, especially where the restitution amount was initially determined under a lower evidentiary standard, the IJs and the BIA deferred uncritically to the state court’s determination in conflating the restitution amount with Thrifty’s actual loss. In denying Al-Adily’s motion to reconsider notwithstanding this error, the BIA abused its discretion.”
[Hats off to Frank G. Becker!]
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Although admittedly Circuit Judge Siler agreed with the BIA, I concur with Judge Gilman that this is more sloppy work on “the basics” coming out of EOIR.
EOIR has a severe, chronic “quality control/expertise/due process” problem that got much worse during the Trump years, when far too many Immigration Judges with questionable qualifications were elevated to the bench. Garland hasn’t solved this festering problem in the more than two years he has been in office.
And, it’s highly unlikely that just adding Immigration Judges — without a huge upgrade in qualifications, training, and supervision from a revamped, truly expert BIA — is going to solve these problems.
If anything, aimlessly adding more bodies to a mal-functioning system is just going to increase the chaos and the already unacceptable level of inconsistent results in life-or-death matters.
🇺🇸 Due Process Forever!
PWS
04-04-23