06-1469-ag
Ali v. Mukasey
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 ____________________________________
6
7 August Term, 2007
8
9 (Argued: February 19, 2008 Decided: June 18, 2008)
10
11 Docket No. 06-1469-ag
12 ____________________________________
13
14 PETER CONRAD ALI,
15
16 Petitioner,
17
18 – v. –
19
20 MICHAEL B. MUKASEY,1 ATTORNEY GENERAL OF THE UNITED STATES,
21
22 Respondent.
23
24 ____________________________________
25
26 Before: KEARSE, CALABRESI, and KATZMANN, Circuit Judges.
27
28 ____________________________________
29
30 Petition for review of a decision of the Board of Immigration Appeals (“BIA”) affirming
31 a decision by Immigration Judge (“IJ”) Alan Vomacka and terminating the petitioner’s grant of
32 deferral of removal under the Convention Against Torture (“CAT”). We hold that the IJ’s
33 seeming bias against the petitioner and reliance on unfounded assumptions about homosexuals
34 deprived the petitioner of his right to a fair hearing. Accordingly, the petition for review is
35 GRANTED, the decision of the BIA is VACATED, and this case is REMANDED to the BIA for
36 further proceedings consistent with this opinion, including assignment to a different IJ.
37 _________________________
38
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B.
Mukasey has been substituted for former Attorney General Alberto R. Gonzales as a respondent
in this case.
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1 LEON FRESCO (Christopher Nugent, of counsel), Holland &
2 Knight LLP, Miami, Fla. (Olivia Cassin, The Legal Aid Society,
3 Civil Practice Area, New York, N.Y., on the brief), for Petitioner.
4
5 THOMAS H. DUPREE, U.S. Department of Justice (Peter D.
6 Keisler, David M. McConnell, Papu Sandhu, on the brief),
7 Washington, D.C., for Respondent.
8 _____________________________________
9 CALABRESI, Circuit Judge:
10 Petitioner Peter Conrad Ali, a forty-two-year old Guyanese native and citizen, petitions
11 for review of an order of the BIA affirming IJ Vomacka’s decision to terminate his grant of
12 deferral of removal under the CAT. In light of the inappropriate remarks made by IJ Vomacka –
13 which included gratuitous comments on the petitioner’s sexuality, as well as unfounded
14 speculations about homosexuals in general – we believe the appropriate course is to grant the
15 petition for review, vacate the BIA’s decision, and remand this case for a rehearing before a new
16 IJ.
17 I. BACKGROUND
18 A. The 1997 and 1999 Deportations
19 Ali came to the United States from Guyana in 1980, at age fourteen, and attained lawful
20 permanent resident status five years later. Over the course of the next ten years, he established a
21 long arrest record and was convicted of nine theft-related crimes. In 1995, he was placed in
22 removal proceedings, pursuant to 8 U.S.C. § 1251(a)(2)(A)(ii) (transferred to 8 U.S.C. §
23 1227(a)(2)(A)(ii)), for having been convicted of two crimes involving moral turpitude. And in
24 September 1997, he was deported to Guyana.
25 Sometime thereafter, immigration officials discovered that Ali had reentered the U.S. In
26 December 1998, the Immigration and Naturalization Service (“INS”) served him with a Notice of
27 Intent/Decision to Reinstate Prior Order, pursuant to 8 U.S.C. § 1231(a)(5), which restored the
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1 prior deportation order and charged Ali with illegal reentry. In accordance with that order, Ali
2 was deported for a second time in March 1999.2
3 But Ali found his way back into the U.S. And in July 2000, immigration authorities
4 placed Ali in removal proceedings once more. As before, they reinstated the August 1997
5 deportation order and charged Ali with illegal reentry. This time, however, when Ali was in INS
6 custody, he indicated that he wished to apply for relief from removal.
7 B. Ali’s Application for Relief from a Third Deportation
8 In May 2004, Ali filed for asylum, withholding of removal, and relief under the CAT,
9 claiming that he had experienced past torture and that he feared future torture by the Guyanese
10 government because of his ethnicity (he is of East Indian ancestry) and the fact that he is a
11 criminal deportee. More specifically, Ali gave the following account, which we have culled from
12 his Application for Asylum and/or Withholding of Removal and Declaration in Support of the
13 Petition for Convention Against Torture Protection.
14 Upon arrival at the airport in Guyana in August 1997, uniformed Guyanese police or
15 immigration officers arrested Ali and forced him into a dark, hot holding room. There, he was
16 interrogated about his criminal history, handcuffed, deprived of food, and detained overnight.
17 The next morning, Guyanese officials transferred him to another precinct where he was detained
18 for several days, again without food, and further interrogated about his criminal record. On the
19 first day of this detention, police officers handcuffed and beat him until he lost consciousness.
20 On the morning of the second day, two police officers entered Ali’s cell wearing masks; one
21 raped and sodomized him. The other remarked that they did not want deportees from the U.S. in
2
According to INS files, the U.S. Attorney’s office for the Eastern District of New York
declined to prosecute Ali for illegal reentry at that time.
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1 Guyana. Ali lost consciousness during the assault; he awoke to find himself chained, hanging
2 from the jail cell bars, and bleeding from his rectum.
3 A day or so after that incident, Guyanese authorities transferred Ali to another precinct,
4 and during processing, he was able to escape. He went first to Berbice, and then, via speedboat,
5 to Brazil, where he met a smuggler named Juan. With Juan’s help (and in exchange for $4,000,
6 which Ali’s mother wired to Juan from New York), Ali took a boat to Guatemala, and a bus into
7 Mexico; he crossed the U.S.-Mexico border on foot somewhere in Arizona. From there, he
8 hitchhiked his way back to his mother’s house in Queens, New York.
9 In 1999, after he was deported to Guyana for the second time, Ali was again arrested by
10 Guyanese authorities upon arrival. Believing that they would mistreat him, he fled from their
11 custody. Once again, he went to Berbice, where he located Juan. With Juan’s son’s passport, Ali
12 traveled to Jamaica. And in Jamaica, he obtained a Jamaican passport with a U.S. visa, which he
13 used to board a flight from Jamaica to John F. Kennedy airport in New York City.
14 C. The Merit’s Hearing before IJ Iskra
15 IJ Wayne Iskra, sitting in Arlington, Virginia, held a hearing on the merits of Ali’s case
16 on July 16, 2002. At that hearing, Ali testified about the events described in his application and
17 responded to questions. The Government called attention to Ali’s failure in 1999 to tell the INS
18 about the abuse he claimed to have experienced in 1997 and to seeming inconsistencies in Ali’s
19 account. For example, it confronted Ali with an INS document dated August 2000 that,
20 according to the Government, indicated that Ali told INS officials that he came to the U.S. in
21 January 2000, not sometime in 1999, and that he arrived by boat, not by plane, as he later
22 claimed.3 Ali denied giving the INS this information. The Government also presented Ali with
3
Because the INS did not submit this document in advance, but rather sought to have it
admitted into evidence during the hearing, IJ Iskra refused to receive it for the truth of the matter
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1 letters , purportedly written by Ali and addressed to the Guyanese Embassy in Washington, D.C.,
2 in which the author indicated that, if returned to Guyana, he would rob banks, sell crack cocaine
3 to the Guyanese people, and blow up Guyana. Ali stated that he did not write these letters.
4 D. IJ Iskra’s July 16, 2002 Decision
5 On July 16, 2002, IJ Iskra issued a ruling on Ali’s requests for relief. See In re Peter
6 Conrad Ali, No. A 30 105 177 (Immig. Ct. Arlington, Va., July 16, 2002). IJ Iskra found that Ali
7 had not met his burden of proving that he was persecuted because of his ethnicity, so he was not
8 eligible for asylum. But IJ Iskra found credible Ali’s account of the physical and sexual abuse he
9 experienced in Guyana in 1997. “[A]lthough this respondent . . . has committed many offenses
10 and has made inconsistent statements,” IJ Iskra stated, “[i]t is the opinion of the Court . . . that
11 the respondent’s testimony with respect to what happened to him when he was arrested in 1997
12 by the Guyanese authorities is credible.” IJ Iskra emphasized that Ali’s account was
13 corroborated by the background information submitted, which documented “inhumane and
14 degrading” prison conditions and recorded “numerous instances” of murder, torture, and ill
15 treatment by the Guyanese police, including instances involving “criminal suspects.”
16 On the basis of this credibility finding, IJ Iskra concluded that Ali had met his burden of
17 proving that he would be subject to torture if returned to Guyana. IJ Iskra denied Ali’s request
18 for withholding of removal under the CAT, however, because Ali’s criminal history suggested
19 that he would be a danger to the U.S. community. Instead, IJ Iskra granted Ali deferral of
20 removal and left it to “the discretion of the INS as to whether or not [Ali] shall be released from
21 custody.” Neither party appealed this decision.
22 E. The Termination of Deferral of Removal Proceedings before IJ Iskra
asserted. He admitted it solely for its impeachment value.
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1 In July 2003, the Department of Homeland Security (“DHS”)4 filed a motion to terminate
2 Ali’s deferral of removal, pursuant to 8 C.F.R. § 1208.17(d)(1).5 DHS asked the Immigration
3 Court to reinstate Ali’s case to its calendar to consider “new evidence,” evidence that would
4 show that country conditions in Guyana no longer supported Ali’s CAT claim.6
5 DHS attached to its motion its “new evidence,” which included the results of a State
6 Department inquiry, conducted at DHS’s request, “into the specific conditions for returning
7 criminal aliens.” On the basis of an exchange with the U.S. Embassy in Guyana, the State
8 Department wrote a letter to DHS indicating that it “d[id] not know of any cases of systematic
9 abuse of criminal deportees upon their return to Guyana or instances of singling out of criminal
10 deportees for abuse by police,” nor did it know “of any cases of abuse by the immigration police
11 in Guyana.” DHS also attached two letters that Ali allegedly sent to the Guyanese Embassy in
12 Washington (the same letters referenced in the July 16, 2002 hearing). These stated, in
13 substance, that Ali had no family left in Guyana and would make trouble there if the Embassy
14 gave U.S. immigration officials travel documents for him.
15 The DHS motion also argued that Ali remained “a danger to the community if released,”
16 and that “DHS will not be allowed to detain him indefinitely” because “[t]he INA contains an
17 implicit limitation” on detention. The detention period allowed is only that which “is reasonably
4
On March 1, 2003, the INS ceased to exist. Its responsibilities were divided among
three agencies formed within DHS.
5
This provision states that, at any time while deferral of removal is in effect, the INS may
file a motion with the Immigration Court having administrative control over the matter – in this
case, the Immigration Court sitting in Arlington, Virginia – to schedule a new hearing to consider
whether deferral of removal should be terminated. 8 C.F.R. § 1208.17(d)(1). If the INS has
offered relevant evidence that was not presented at the prior hearing, the Immigration Court
should grant the motion and make a de novo determination as to whether the alien will more
likely than not be tortured in the country to which removal has been deferred. Id. at (d)(3).
6
DHS’s motion to terminate may also have been motivated by a habeas petition that Ali
filed in the Eastern District of Virginia challenging his continued detention.
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1 necessary to bring about removal”; “[o]nce removal is no longer reasonably foreseeable,
2 continued detention is no longer authorized under the INA.”
3 IJ Iskra held a preliminary hearing on the motion in November 2003. He convened a
4 hearing on the merits on February 3, 2004, but then granted a continuance until March 25, 2004,
5 to allow counsel for DHS to seek State Department review of some of Ali’s submissions and to
6 arrange for State Department witnesses to testify telephonically (IJ Iskra implied that he would
7 otherwise give the State Department letter limited weight).
8 On March 5, 2004, however, the U.S. Attorney’s Office for the Eastern District of New
9 York started criminal proceedings against Ali, charging him with illegal re-entry.7 Accordingly,
10 the U.S. Marshals Service in New York took Ali into custody and IJ Iskra, upon DHS’s motion,
11 closed Ali’s proceedings “until a time when [Ali] can be returned to DHS custody.”
12 F. The Change of Venue and the 2004 Proceedings before IJ Vomacka
13 About two months later, on May 27, 2004, the District Court for the Eastern District of
14 New York held a bond hearing as to Ali. And for reasons that are not clear from the record, the
15 parties discussed releasing Ali from the Marshals’ custody and returning him to DHS custody.8
7
According to DHS, these proceedings were instituted at the request of Immigration and
Customs Enforcement (“ICE”), which is an investigative arm of the DHS.
8
Counsel for DHS suggested that Ali wanted to be restored to DHS custody to ensure that
his habeas petition in the Eastern District of Virginia could be resolved (otherwise the District
Court might have had to grant a motion by the U.S. Attorney’s Office in Virginia to dismiss Ali’s
petition). But before us, Ali contends that had he remained in the custody of the U.S. Marshals,
his habeas petition would not have been affected because that custody flowed from his previous
detention under DHS custody; he asserts that the real reason he was released into DHS custody
was so that his CAT termination case could be completed in New York, at a detention facility
where the case would be assigned to either IJ Alan Page or IJ Vomacka. The docket report from
the Eastern District of New York suggests still another version of events: it indicates that Ali’s
counsel in his criminal case (an attorney different from the attorney representing him then, or the
one representing him now, in his immigration case) requested to have Ali released into DHS
custody in order to resolve his outstanding problem with the immigration authorities. We have no
insight into why Ali’s counsel would have submitted such a request.
In any case, on June 2, 2004, after some confusion as to where DHS intended to place
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1 That same day, DHS filed a motion in the Immigration Court in Arlington, Virginia, seeking to
2 reopen the administratively closed CAT termination hearing and change venue to the Varick
3 Street Detention Facility in New York. Meanwhile, on June 3, 2004, IJ Iskra granted DHS’s
4 request for a change of venue. And sometime later that month, the case was assigned to IJ Alan
5 Vomacka. Ali promptly filed a request for a change of venue back to Virginia, which DHS
6 opposed.9
7 At a hearing on July 22, 2004, IJ Vomacka expressed confusion about why the case was
8 before him, and disapproval of the unusual way in which the case had proceeded.10 In his view,
9 “the normal course of events” would be to return Ali to Virginia. He failed to see how a
10 prosecution for illegal reentry in New York made New York City “the logical place for his
11 removal proceeding.” IJ Vomacka also questioned whether, as a practical matter, Ali could be
12 both in DHS custody and attending ongoing criminal proceedings in the Eastern District of New
Ali, the District Court advised the parties of its intent to release Ali into DHS custody.
9
DHS complained of the “undue burden” it would incur should it have to arrange for and
transport Ali from one detention facility to another.
10
For example, IJ Vomacka asked counsel, “Well, is he still being prosecuted or not?”, to
which counsel for DHS replied, “He’s still being prosecuted to my knowledge.” “Why did they
release him into the custody of Immigration?” IJ Vomacka then inquired. “What are they going
to do with their prosecution if he’s deported out of the country?” Counsel responded that he
“wasn’t prepared to answer this question right now” and would “have to look into it.”
On the basis of these responses, IJ Vomacka stated that he “d[id]n’t see any reason the
case has to be done here [in New York].” “I don’t think it makes sense for me to sit here and
listen to tape recordings of a prior hearing, which I think I would have to do under the regulations
and then try to assess whether I can believe the respondent . . . [a]ll because the Government
doesn’t want to take him in a van down to Virginia,” IJ Vomacka remarked. “I don’t think that’s
justified.” IJ Vomacka believed it would take “hours” to review the record, and he “really
hate[d] to think about spending five or six hours reviewing everything that ha[d] happened, when
for Judge Iskra, it would probably take half an hour to remember whatever was important about
the last proceedings.”
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1 York.11 IJ Vomacka memorialized his concerns in a July 30, 2004 “Memorandum as to the
2 Status of the Removal Proceedings.”12
3 Nonetheless, on August 10, 2004, IJ Vomacka held another hearing on the matter and
4 changed his position on the appropriateness of allowing the case to proceed in New York. At
5 this point he believed, based on “representation[s]” from the Government, that DHS and the
6 District Court had reached an “agreement” by which, “whether or not I transfer venue back to the
7 Immigration Court in Arlington, Virginia, the respondent is going to stay here.” Or, as he
8 subsequently explained it, “The District Court in New York is going to want him to stay here
9 until the [criminal] case is wrapped up because who knows what delays will occur if he goes to
10 Virginia and has to come back and enter a plea or whatever may be necessary.” Plus, “if I change
11 venue to Virginia, there’s going to be a period of delay, [and] the Immigration case won’t go
12 forward.” Therefore, essentially to make use of the time Ali would have to spend in New York
13 while he entered his plea and awaited sentencing, IJ Vomacka decided to deny Ali’s request to
11
“[I]f an alien is going to be in Marshal’s custody for some criminal prosecution, I’m
usually told that there is no feasible way to transfer him over here for a hearing in the
Immigration case. So I don’t know why it’s being done differently or even if it can be done
differently in this case.”
12
In this memo, IJ Vomacka indicated that he would endeavor to complete the CAT
proceeding before the criminal prosecution, if that was, indeed, the District Court’s preference,
but that such a course “raises three points of difficulty.” First, Ali had thus far been represented
pro bono by an attorney for the Catholic Charities Immigration Services in Maryland. This
attorney was unavailable to participate in hearings in New York. Second, the proceedings before
IJ Iskra “were never transcribed because the D.H.S. did not appeal that ruling.” And “[a]lthough
the D.H.S. trial attorney has suggested that the reopened removal case is to be considered de
novo, this does not mean that the existing evidence and testimony can be ignored.” Third,
assessing Ali’s CAT claim required a determination of whether it was probable that Ali would be
tortured in Guyana. And “[i]f [Ali] receives any sentence which will require him to serve more
than a few months in jail, the degree to which torture is probable becomes more speculative.”
“The longer the sentence which may [be] imposed on [him], the greater the degree of uncertainty
which may arise,” IJ Vomacka continued, and in this case, “the potential sentencing range . . .
might vary from a minimum of time already served to a maximum of many years.”
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1 transfer the case back to Virginia and to proceed with it in New York.13 He scheduled a merits
2 hearing for October 2004.
3 On September 15, 2004, Ali submitted a motion to supplement the record with evidence
4 that he feared persecution in Guyana based on his sexual orientation (as counsel for Ali explained
5 to the court, Ali had “recently informed counsel that he is a homosexual”). IJ Vomacka
6 interpreted this motion as an “implied request for permission to amend respondent’s relief claim
7 by raising a new basis for relief” and found it unjustified.
8 On October 19, 2004, IJ Vomacka conducted a hearing on the merits of DHS’s motion to
9 terminate Ali’s deferral of removal. He heard testimony from expert witnesses, including DHS
10 officers who had interviewed Ali in 1998 and 2000, respectively, and a human rights lawyer with
11 Amnesty International. He also heard testimony from Ali, who described again the 1997 rape
12 and his 1997 and 1999 escapes from the Guyanese authorities. Ali also explained why, in 2000,
13 he did not tell U.S. immigration officials about the rape (“I was . . . too embarrassed to tell
14 anyone that. . . . [I]t’s not something that you would tell anyone”), and he admitted writing
15 “some threatening letters to the Guyanese Embassy” out of fear that he would be deported,
16 tortured, and killed. Counsel for DHS then cross-examined Ali about the details of his account
17 and confronted him with reports from Interpol, which stated that Interpol had no record of Ali’s
18 arrest in Guyana. IJ Vomacka did not review the proceedings before IJ Iskra because he found it
19 difficult to hear the tape recordings and because, owing to the lack of an appeal from the earlier
20 decision, the hearing had not been transcribed.
13
The record on appeal does not evidence how Ali’s criminal case did, in fact, proceed.
But a docket report from the Eastern District of New York shows that in June and July of 2004,
the Government was working on filing a response to Ali’s pre-trial motions. Ali entered a guilty
plea on October 5, 2004. And on January 7, 2005, he was sentenced to two months’
imprisonment and three years’ supervised release.
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1 On November 10, 2004, IJ Vomacka issued his oral decision. See In re Peter Conrad
2 Ali, No. A 39 105 177 (Immig. Ct. N.Y. City, Nov. 10, 2004). He determined that Ali was no
3 longer entitled to deferral of removal because he failed to present enough credible evidence that
4 he would more likely than not be tortured in Guyana. The decision emphasized four factors.
5 First, the record included “reasonably reliable evidence that when [Ali] was questioned in May of
6 2000, he told [an] Immigration officer that he had no fear of persecution if returned to Guyana.”
7 Second, a report submitted by DHS indicated that Interpol had no arrest warrants or other records
8 concerning Ali, even though Ali claimed that he twice escaped from Guyanese authorities.
9 Third, Ali’s account of his return to the U.S. following his second deportation was “very close to
10 being ‘inherently implausible’” because it involved “[too] many lucky breaks and coincidences.”
11 Fourth, a psychological evaluation by the Division of Immigration Health Services indicated that
12 Ali possessed “traits of paranoid, avoidant, dependent and obsessive compulsive personality
13 disorder.” This report, combined with the threatening letters Ali sent to the Guyanese Embassy,
14 suggested to IJ Vomacka that Ali was “capable of imaging [sic] or exaggerating harm” and that
15 he might “invent[] problems . . . to avoid being sent back to Guyana.”
16 As for Ali’s sexual orientation, IJ Vomacka reiterated his belief that this information
17 could have been raised and fully explored during the earlier hearings. He noted that “[i]t [wa]s
18 not easy for the Court to understand why a respondent would be willing to disclose forcible rape
19 by jail guards, but not willing to discuss his own sexual orientations [sic] as a homosexual.” But
20 in any event, IJ Vomacka explained, other evidence in the record (e.g., the letters to the Guyanese
21 Embassy) suggested that Ali’s announcement of his homosexuality may have been just another
22 attempt to delay the proceedings (“[T]he raising of a new issue, practically on the brink of what
23 should be his final hearing, tends to look as though it may be another attempt at obstruction . . .
24 .”).
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1 G. The First Appeal to the BIA
2 On December 10, 2004, Ali filed a timely appeal to the BIA, arguing (1) that IJ Vomacka
3 should have considered the previous proceedings before IJ Iskra, (2) that, given IJ Iskra’s prior
4 decision, IJ Vomacka was collaterally estopped from making an adverse credibility
5 determination, and (3) that IJ Vomacka’s adverse credibility determination was clearly erroneous.
6 In an April 12, 2005 decision by board member Juan Osuna, the BIA found that collateral
7 estoppel did not apply, but nonetheless remanded the case because IJ Vomacka failed to consider
8 an “integral component” of the record: IJ Iskra’s decision. See In re Peter Conrad Ali, No. A 39
9 105 177 (B.I.A. Apr. 12, 2005).14 The BIA deemed this failure particularly significant “given
10 [the] apparently favorable credibility finding in [the] prior decision – unappealed by DHS –
11 which by logic should be afforded substantial deference if it is based upon a reasoned analysis of
12 the evidence then of record and is not contradicted by newly presented evidence.” In its order
13 remanding the case, the BIA also discouraged IJ Vomacka from drawing inferences from
14 Interpol’s lack of records regarding Ali.15
15 H. The 2005 Proceedings before IJ Vomacka
16 At a hearing in June 2005, IJ Vomacka took yet another tack. He first expressed
17 disappointment with Ali for raising on appeal his failure to consider the proceeding before IJ
18 Iskra (“I thought that it was made clear to the parties that I was not going to pay any attention to
19 the prior tapes. And so I’m not . . . particularly happy to know that on appeal the issue was raised
14
8 C.F.R. 1208.17(d)(3) requires the Immigration Court to base its determination of the
petitioner’s eligibility for CAT relief “on the record of proceeding and initial application in
addition to any new evidence submitted by the Service or the alien” (emphasis added).
15
The Board was disinclined to consider “the failure of Guyanese officials to create
Interpol records for [Ali]” as a “‘valid ground’ on which to base an adverse credibility finding,
especially as viewed through the lens of the Immigration Judge’s speculation as to police
procedure at airports.” (internal citation omitted).
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1 that I should have relied on those tapes.”)16 Nonetheless, IJ Vomacka complied with the order
2 and reviewed the record of the prior proceedings. Now that the case was on remand, he also
3 allowed Ali to pursue his claim that he would be tortured in Guyana on the basis of his sexual
4 orientation, and he accepted additional evidence.
5 At hearings in August and September 2005, IJ Vomacka heard testimony from Ali’s
6 mother, who stated that he returned from Guyana in 1997 wearing dirty, blood-stained clothes,
7 from a psychologist, who described Ali’s mental health problems (post traumatic stress disorder
8 and severe depression), and from Ali, who explained why he believed he would be tortured
9 because of his homosexuality. Ali stated that before he was raped, the police officers “curse[d]
10 [him] and called [him] anti-man, [which] means faggot.” He further testified that the punishment
11 in Guyana for sodomy is life in prison, and that he would be tortured if imprisoned for that crime.
12 Ali explained that he did not raise his sexual orientation earlier in the proceedings because he did
13 not consider himself gay at that time. IJ Vomacka also accepted affidavits from two
14 representatives of the Guyana Human Rights Association, which described the violence and
15 hostility directed towards homosexuals and criminal deportees in Guyana.17
16
IJ Vomacka reiterated these views in the order that he ultimately issued on remand. In
that order, he devoted multiple pages to explaining why he had not reviewed the hearings before
IJ Iskra when the case first came before him. He also indicated that he believed that his
qualifications as an IJ, and impliedly his judgment, surpassed IJ Iskra’s.
17
The affidavit of Michael McCormack stated that “Guyana is a place where gay people
cannot live freely and safely given the significant hostility [that] society and government show
them,” and that “[i]f someone is openly gay in Guyana, they obviously may be subjected to
severe violence by the police”; “[f]or example, a group of gay prostitutes was put into police
custody 5 years ago and they were brutalized and raped by the police.” The McCormack
affidavit also indicated that criminal deportees are severely stigmatized in Guyana, that local
newspapers post their pictures, and that five Guyanese criminal deportees had been murdered in
recent months, perhaps the result of a “death squad,” perceived to have ties to the Guyanese
government, that was formed in retaliation for the high rate of crime in Guyana.
The affidavit of Linda Peake described Guyana as “a virulently homophobic country”
where “[v]iolent gay bashings are known to occur,” where Ali “would very probably be subjected
to violent assaults,” and where “the police would not afford him any real protection.” The Peake
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1 In the end, IJ Vomacka reaffirmed his prior decision. See In re Peter Conrad Ali, No. A
2 30 105 177 (Immig. Ct. N.Y. City, Oct. 17, 2005). He did so on the basis of several “findings.”
3 First, he found that Ali’s claims – that he would more likely than not be tortured because of
4 criminal deportee status and because of his sexual orientation – were incompatible. He opined
5 that “violent dangerous criminals and feminine contemptible homosexuals are not usually
6 considered to be the same people,” and therefore Ali was less likely to be viewed in Guyana as a
7 member of either disfavored group.
8 Second, he concluded that the evidence supported neither of Ali’s claims. With respect to
9 the likelihood of torture as a criminal deportee, the IJ found a “lack of specific objective
10 evidence” that such conduct occurred. As to the likelihood of torture as a homosexual, IJ
11 Vomacka wondered how anyone in Guyana would even know that Ali was a homosexual. Ali
12 would “need a partner or cooperating person” in order to be recognized as a homosexual, IJ
13 Vomacka theorized, but “there’s reason to be concerned about whether [Ali] is likely to form
14 such a close relationship within a foreseeable period of time.” IJ Vomacka noted that Ali is a
15 convicted criminal with “professed mental problems” and “some problems with his personality”;
16 “[f]urthermore, . . . [he] is not particularly communicative or articulate. He’s not particularly
17 skilled and mature in the way he expresses himself, shows his feelings, etc.” Therefore, “the
18 picture of [Ali ]as a proud, professed homosexual in Guyana seems to be more an expression of
19 wishful thinking than something that’s particularly likely to come true.” In any case, IJ Vomacka
20 continued, the evidence failed to establish that homosexuals in Guyana are persecuted, much less
21 tortured.
affidavit also corroborated Ali’s statement that in Guyana, “buggery” (homosexual sodomy) may
result in a sentence of life imprisonment.
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1 Third, IJ Vomacka found that Ali was not credible. IJ Vomacka noted “material and
2 substantial inconsistencies in the way [Ali] has described the series of events in 1997 since he
3 was placed in these proceedings.” For example, Ali gave varying accounts of the length of his
4 detention and the time of day of the rape. Meanwhile, his account of a prison altercation in 2004,
5 purportedly prompted by comments about Ali’s homosexuality, did not correspond with jail
6 reports. IJ Vomacka also took issue with Ali’s accounts of his two trips back to the U.S.18
7 Finally, IJ Vomacka pointed out that in 2002, Ali denied writing letters to the Guyanese embassy,
8 but in 2004 he admitted writing those same letters. IJ Vomacka concluded that Ali was “fluent in
9 the language of lying” and not “a credible person in general,” that he had no “particular interest
10 or devotion to telling the truth while he’s under oath,” and that he was “entirely capable of
11 having invented the entire story.”
12 I. The Second Appeal to the BIA
13 Ali filed a timely appeal with the BIA. He contended that IJ Vomacka had again failed to
14 give sufficient deference to the proceedings before IJ Iskra, thereby violating the law of the case
15 doctrine and his right to due process. Ali also argued that IJ Vomacka failed to develop an
16 adequate record as to country conditions in Guyana, that he applied the wrong standard of law,
17 that he failed to consider all the record evidence, that he displayed bias during the proceedings,
18 and that he made a clearly erroneous credibility finding.
18
Regarding Ali’s 1997 trip, IJ Vomacka noted a number of discrepancies between Ali’s
testimony and his previous statements (e.g., the type of vehicles on which he traveled, the time
spent on each), as well as certain details that seemed implausible (e.g., taking just a day and a
night to drive from Arizona to New York, walking through fields in northern Mexico during the
hottest season of the year, traveling all the way to New York without washing or changing his
supposedly blood-soaked clothes). As to Ali’s second trip from Guyana to the U.S., IJ Vomacka
cited a previous signed statement indicating that Ali arrived by boat from Canada in 2000, which,
in his view, contradicted Ali’s testimony that he flew into New York from Jamaica in 1999.
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1 The BIA disagreed. In a March 27, 2006 decision – which like the 2005 decision was a
2 single board member decision (this one written by board member Lauri S. Filppu) – the BIA
3 concluded that all of Ali’s claims were meritless. See In re Peter Conrad Ali, No. A 39 105 177
4 (B.I.A. Mar. 27, 2006). The BIA held that the law of the case argument failed because the
5 regulations required IJ Vomacka to conduct a new hearing and make a de novo determination.
6 Further, IJ Vomacka allowed Ali to make an entirely new claim – fear of torture because of
7 sexual orientation – so IJ Iskra’s factual findings could not have controlled. The BIA also found
8 that Ali’s challenge to IJ Vomacka’s adverse credibility determination failed because that
9 determination was supported by material inconsistencies between Ali’s testimony and his written
10 statements, as well as implausible details in his story. As for Ali’s charge of bias, the BIA was
11 “troubled by several of [IJ Vomacka’s] gratuitous remarks” and speculations – namely, his
12 lengthy speculation “about the respondent’s lack of social skills and the fact that it would be
13 unlikely that he would be able to establish an open homosexual relationship in Guyana” – but it
14 did not find that any of IJ Vomacka’s comments rendered the hearing unfair.
15 The BIA also made its own assessment of the merits of Ali’s claim and concluded that he
16 had failed to carry his burden. “Nothing in the record indicates that criminal deportees have been
17 harmed or tortured by Guyanese authorities,” and Ali failed to show that violence towards
18 homosexuals in Guyana (of which there was evidence) would rise to the level of torture or would
19 occur “by or with the consent or acquiescence of public officials.”
20 J. The Appeal to Our Court
21 Ali filed a timely petition for review with this Court, in which he argues (1) that IJ
22 Vomacka’s adverse credibility determination violated the BIA’s previous remand order because
23 the documents and evidence upon which IJ Vomacka relied were part of the record before IJ
24 Iskra, and IJ Vomacka never determined that IJ Iskra’s credibility determination was
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1 unreasonable; (2) that IJ Vomacka’s adverse credibility determination violates the principle of
2 collateral estoppel, the law of the case doctrine, and the Due Process Clause and is not supported
3 by substantial evidence; and (3) that IJ Vomacka violated Ali’s due process rights by conducting
4 an unfair hearing and by failing to consider all the evidence in support of his sexual orientation-
5 based claim. For the reasons set forth below, we reject Ali’s law of the case and estoppel
6 arguments. We consider in depth only the most fundamental of his other claims – that he did not
7 have a fair and full opportunity to have his case considered – and we vacate and remand the
8 BIA’s decision.
9 II. JURISDICTION
10 The Government contends that this petition is subject to the jurisdictional bar in 8 U.S.C.
11 § 1252(a)(2)(C) (precluding us from reviewing any final order of removal against an alien who is
12 removable by reason of having committed a criminal offense covered, inter alia, in 8 U.S.C. §
13 1182(a)(2)). The deferral of removal proceedings all stem from Ali’s 1995 deportation order,
14 which was based on Ali’s two convictions of crimes involving moral turpitude. Ali disagrees,
15 arguing, inter alia, that he is now removable by reason of illegal reentry, so the jurisdiction-
16 stripping provision does not apply. We need not decide this question because, irrespective of the
17 reason for removability, we retain jurisdiction to consider “constitutional claims” and “questions
18 of law,” 8 U.S.C. § 1252(a)(2)(D), including Ali’s collateral estoppel, law of the case, and
19 procedural fairness arguments.
20 III. COLLATERAL ESTOPPEL AND LAW OF THE CASE
21 A. Collateral Estoppel
22 The “fundamental notion” of the doctrine of collateral estoppel, or issue preclusion, “is
23 that an issue of law or fact actually litigated and decided by a court of competent jurisdiction in a
24 prior action may not be relitigated in a subsequent suit between the same parties or their privies.”
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1 United States v. Alcan Aluminum Corp., 990 F.2d 711, 718-19 (2d Cir. 1993). Accordingly,
2 collateral estoppel applies when: (1) the issues in both proceedings are identical, (2) the issue in
3 the prior proceeding was “actually litigated and actually decided,” (3) there was “a full and fair
4 opportunity for litigation in the prior proceeding,” and (4) the issues previously litigated were
5 “necessary to support a valid and final judgment on the merits.” Gelb v. Royal Globe Ins. Co.,
6 798 F.2d 38, 44 (2d Cir. 1986). This doctrine has long been recognized to apply in immigration
7 proceedings. See Matter of Fedorenko, 19 I. & N. Dec. 57, 61-62 (B.I.A. 1984).
8 Nonetheless, it does not require a remand in this case. We reach this conclusion not
9 because, as the Government argues, a grant of deferral of removal is a temporary form of relief
10 and therefore can never be a “final judgment on the merits.” A decision awarding a temporary
11 form of relief can constitute such a judgment. See Lummus Co. v. Commonwealth Oil Refining
12 Co., 297 F.2d 80, 89 (2d Cir. 1961) (“Whether a judgment, not ‘final’ in the sense of 28 U.S.C. §
13 1291, ought nevertheless be considered ‘final’ in the sense of precluding further litigation of the
14 same issue, turns upon such factors as the nature of the decision . . . , the adequacy of the hearing,
15 and the opportunity for review.”). Rather, we base our conclusion on our conviction that
16 “[c]ollateral estoppel in the administrative context must be informed by considerations of agency
17 structure and legislative policy.” Duvall v. Attorney Gen., 436 F.3d 382, 391 (3d Cir. 2006). In
18 cases dealing with deferral of removal under the CAT, the existing regulations – promulgated by
19 the Justice Department to implement the nation’s obligations under the CAT – make clear that
20 the doctrine of collateral estoppel has limited application. First, the regulations state that after an
21 alien is granted deferral of removal, the IJ shall inform her that deferral of removal “[i]s effective
22 only until terminated” and “[i]s subject to review and termination if the immigration judge
23 determines that it is not likely that the alien would be tortured in the country to which removal
24 has been deferred.” 8 C.F.R. § 1208.17(b)(1)(iii), (iv). In other words, it is clear that the merits
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1 of the alien’s CAT claim may be revisited. In addition, the regulations direct the immigration
2 judge, when considering whether to terminate deferral of removal, to “conduct a hearing and
3 make a de novo determination.” Id. § 1208.17(d)(3). Under the circumstances, Ali’s attempt to
4 invoke collateral estoppel mechanically fails.19
5 B. Law of the Case
6 The law of the case doctrine, while not binding, counsels a court against revisiting its
7 prior rulings in subsequent stages of the same case absent “cogent” and “compelling” reasons
8 such as “an intervening change of controlling law, the availability of new evidence, or the need to
9 correct a clear error or prevent manifest injustice.” United States v. Tenzer, 213 F.3d 34, 39 (2d
10 Cir. 2000) (citations and internal quotation marks omitted). Under this doctrine “courts are
11 understandably reluctant to reopen a ruling once made, especially when one judge or court is
12 asked to consider the ruling of a different judge or court.” Lillbask ex rel. Mauclaire v. Conn.
13 Dept. of Educ., 397 F.3d 77, 94 (2d Cir. 2005) (citation and internal quotation marks omitted).
14 Assuming, arguendo, that the doctrine applies to termination hearings under the CAT (we
15 have some doubts, given that the regulations governing such proceedings require de novo review
16 of an alien’s CAT claim, see 8 C.F.R. § 208.17(d)(3)), this case presented a “cogent” and
17 “compelling” reason to revisit the prior findings. Specifically, both the Government and Ali
18 offered evidence that was not before IJ Iskra, evidence that went directly to the issue of whether
19 Ali was likely to be tortured in Guyana.
19
Our interpretation of how the doctrine of collateral estoppel applies to this context is
informed by and limited to the facts at hand. Thus, we do not exclude the possibility that we
might view Ali’s argument differently had the Government repeatedly sought to terminate
deferral of removal, revisiting the exact same body of evidence until it convinced an Immigration
Court to alter its estimation of Ali’s CAT claim.
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1 IV. FAIRNESS OF THE PROCEEDINGS
2 Having rejected Ali’s first two legal claims, we now address his third: that the
3 proceedings below were fundamentally unfair, resulting in a decision that cannot be reviewed in
4 any meaningful way.
5 All aliens within the United States, “whether their presence here is lawful, unlawful,
6 temporary, or permanent,” are entitled to procedural fairness. Zadvydas v. Davis, 533 U.S. 678,
7 693 (2001); see also Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (“Aliens, of course,
8 are entitled to due process.”). In the removal context, that means that an alien who has “passed
9 through our gates, even illegally, may be expelled only after proceedings conforming to
10 traditional standards of fairness.” Shaugnessy v. United States ex rel. Mezei, 345 U.S. 206, 212
11 (1953). At a minimum, she “must be afforded the opportunity to be heard at a meaningful time
12 and in a meaningful manner,” Burger, 498 F.3d at 134 (internal quotation marks omitted), by “an
13 impartial and disinterested tribunal,” Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980), and in
14 a proceeding that is adequate to allow judicial review, United States v. Mendoza-Lopez, 481 U.S.
15 828, 839 n.17 (1987). Thus, “when an IJ’s conduct results in the appearance of bias or hostility
16 such that we cannot conduct a meaningful review of the decision below, we remand.” Islam v.
17 Gonzales, 469 F.3d 53, 55 (2d Cir. 2006); see also Guo-Le Huang v. Gonzales, 453 F.3d 142,
18 148 (2d Cir. 2006) (ordering remand “because of the IJ’s apparent bias and hostility toward” the
19 petitioner).
20 Ali’s fairness argument is multi-faceted. He has alleged that the agency failed to give
21 meaningful consideration to his evidence. He has further alleged that IJ Vomacka engaged in
22 impermissible prejudgment, personal speculation, bias, and conjecture. And he has suggested
23 that the entire proceeding – from the timing of the Government’s motion to reconsider his grant
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1 of deferral of removal, to the unusual change of venue, to IJ Vomacka’s continued refusal to
2 defer to IJ Iskra’s credibility finding – amounted to a violation of due process. We confine our
3 discussion to IJ Vomacka’s inappropriate comments, as these alone are enough to require a
4 remand and review by a new IJ.20
5 We begin with the displeasure IJ Vomacka expressed at being told that he was to
6 reconsider the case, taking into account the record of proceedings in Virginia. At a preliminary
7 hearing on June 9, 2005, IJ Vomacka stated that he was “not . . . particularly happy to know that
8 on appeal the issue was raised that I should have relied on those tapes” because he “thought that
9 it was made clear to the parties that [he] was not going to pay any attention to the prior tapes.” [A
10 433] He also said that “[he] honestly d[id] not understand the idea that as a Judge, [he] should
11 base [his] decision on a prior decision by another Judge.” And when he issued a decision on
12 Ali’s case on October 15, 2005, IJ Vomacka devoted multiple pages to explaining his
13 disagreement with the remand, including a paragraph in which he compared himself favorably to
14 IJ Iskra. These comments, in and of themselves, do not exhibit the level of bias that we have said
15 deprives a petitioner of a fair hearing, but in combination with what followed, they are more than
16 merely troubling.
17 We believe IJ Vomacka clearly abrogated his “responsibility to function as a neutral,
18 impartial arbiter,” Islam, 469 F.3d at 55, when, without reference to any support in the record, he
19 voiced stereotypes about homosexual orientation and the way in which homosexuals are
20 perceived, both in the United States and Guyana. First, when discussing Ali’s claims for relief,
21 which were based on two different aspects of his identity, IJ Vomacka relied on what he called
20
Because we have every reason to believe that review by a new IJ will grant the
petitioner all the process that is due, we need not and hence do not take any position on the
petitioner’s argument that the process that was given, taken as a whole, violated the Constitution.
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1 “the common understanding” of criminals and homosexuals: “It seems to the Court that the
2 common understanding, which I believe would apply from the U.S. to Guyana, would suggest
3 that violent dangerous criminals and feminine contemptible homosexuals are not usually
4 considered to be the same people . . . .” Therefore, he concluded, Ali was less likely to be
5 viewed in Guyana as a member of either disfavored group and less likely to be tortured. IJ
6 Vomacka cited no evidence in the record to support this conclusion, and from our reading of the
7 record, there was none. Further, these comments demonstrated a fundamental misunderstanding
8 of the basis for Ali’s CAT claim. Ali claimed that he would likely be tortured in Guyana (a)
9 because he is a homosexual, and (b) because he is a criminal deportee, but also (c) because he is
10 a homosexual criminal deportee. In other words, he is a homosexual who, because of his
11 criminal deportee status, almost certainly would be detained by government authorities upon
12 arrival. By treating aspects of Ali’s identity as incompatible, IJ Vomacka essentially dismissed,
13 without consideration, a crucial component of Ali’s application for relief.
14 IJ Vomacka made a second improper remark about homosexuals when he suggested that
15 no one would perceive Ali as a homosexual unless he had “a partner or cooperating person.”
16 This comment appears to derive from stereotypes about homosexuality and how it is made
17 identifiable to others. It is certainly not grounded in the record, which, as IJ Vomacka noted in
18 another part of the decision, suggests that “an unmarried adult man with no children would be
19 suspected of being a contemptible homosexual in Guyana.”
20 IJ Vomacka’s improper comments were not limited to those just mentioned. When
21 discussing whether Ali would be able to “demonstrate that he was actually a homosexual” by
22 walking down the street with a boyfriend, IJ Vomacka stated that “given [Ali’s] criminal record,
23 his professed mental problems, the length of time he’s been detained in prison and other factors
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1 about [Ali] and his background, it’s not clear that [he] will, in fact, be likely to form a strong or
2 close homosexual relationship whether in Guyana or the United States.” IJ Vomacka then went
3 on to note “problems with [Ali’s] personality.” For example, he described Ali as “not
4 particularly communicative or articulate” and “not particularly skilled and mature in the way he
5 expresses himself, shows his feelings, etc.” Later in the proceeding, IJ Vomacka indicated
6 (continuing to operate from the unfounded assumption that Ali would not be perceived as a gay
7 man unless he consciously did something explicitly “homosexual”) that he doubted Ali would
8 “make his homosexuality obvious in public or draw the attention of the authorities or the police”
9 because he is “a person who mostly tries to avoid conflict, slide away from problems, etc., as
10 opposed to a person who deals directly with his difficulties.”
These comments reflect an impermissible reliance on preconceived assumptions about
homosexuality and homosexuals, as well as a disrespect for the petitioner. And taken together,
they amount to the type of conduct that we have said “results in the appearance of bias or
hostility such that we cannot conduct a meaningful review of the decision below” and we must
remand.21 Islam, 469 F.3d at 55; see also Guo-Le Huang, 453 F.3d at 150 (remanding “because
of the IJ’s apparent bias and hostility toward [the petitioner]”); Floroiu v. Gonazles, 481 F.3d
970, 974 (7th Cir. 2007) (remanding because the IJ’s use of language of religious intolerance
“taints the proceedings, erodes the appearance of fairness and creates substantial uncertainty as to
whether the record below was fairly and reliably developed”); Lopez-Umanzor v. Gonzales, 405
21
We note that this is not the first time that we have remanded a decision by IJ Vomacka
based, at least in part, on improper suppositions and musings. See, e.g., Singh v. Mukasey, No.
07-1797, 2008 WL 833099, at *2 (2d Cir. Mar. 26, 2008); Xianghao Lian v. Gonzales, 240 Fed.
App’x 914, 915-16 (2d Cir. 2007); Mei Zhen Huang v. Mukasey, 256 Fed. App’x 406, 408 (2d
Cir. 2007); Rui Zhong Lu v. U.S. Dep’t of Justice, 217 Fed. App’x 44, 46-47 (2d Cir. 2007); Gui
Lin v. BIA, 200 Fed. App’x 49, 52 (2d Cir. 2006); Zhen Tong Weng v. Gonzales, 193 Fed. App’x
15, 16 (2d Cir. 2006).
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F.3d 1049, 1059 (9th Cir. 2005) (remanding “[b]ecause the IJ’s disbelief of Petitioner rested on
personal speculation, bias, conjecture, and prejudgment” about domestic violence “and because
he refused to hear testimony that would have challenged those assumptions”). To the extent that
the BIA found otherwise, we disagree. Floroiu, 481 F.3d at 974 (“The BIA’s conclusion that the
IJ did not violate due process is a conclusion of law which we review de novo.”).
We also note that the BIA’s review of this case in no way cured the defects of the
proceeding below. While the BIA decision affirming IJ Vomacka’s ruling expressly disavowed
some of IJ Vomacka’s inappropriate comments, it did not mention some of IJ Vomacka’s most
egregious statements and inferences. And some of those statements and inferences seem likely to
have infected the BIA’s consideration of the merits of this case. Notably, the BIA did not
mention how the intersection of criminal deportee status and homosexuality would affect Ali’s
likelihood of torture in Guyana. In this respect, it may well have followed IJ Vomacka in treating
those traits as incompatible. Other aspects of the BIA’s decision, meanwhile, cast doubt upon
whether the BIA reviewed the record with care. For example, at one point the BIA stated that
“[n]othing in the record indicates that criminal deportees have been harmed or tortured by
Guyanese authorities,” when, in fact, the record shows that the Guyana Police Force, which has
been “pressured to monitor the whereabouts and activities of [criminal] deportees on a regular
basis,” has initiated a policy of intercepting deportees at the airport, resulting in interceptions that
“include intensive interrogations involving severe physical abuse, arbitrary detentions and extra-
judicial killings.” The record also includes evidence that the police and police-connected
vigilantes have taken violent action against supposed criminals, including criminal deportees. In
sum, it is impossible to be confident that Ali has had “a fair and full opportunity to have his case
considered,” Islam, 469 F.3d at 55.
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V. CONCLUSION
We do not lightly reach our decision today. We recognize that Ali has now received three
hearings on the merits of his CAT claim, that his case has twice been before the BIA, and that,
given inconsistencies in the record that both IJs have noted, the agency may well reach the same
decision on remand. In other words, Ali has, in one sense, received ample “process,” and more
process may lead to the same result. But “[n]o matter how complete the panoply of procedural
devices which protect a particular liberty or property interest,” fairness also requires “that those
procedures be neutrally applied.” Ciechon v. City of Chicago, 686 F.2d 511, 517 (7th Cir. 1982)
(footnote omitted). Ali is entitled to a hearing that is conducted “in an unbiased way,” and that
allows the BIA and our Court to “conduct a meaningful review of the [IJ’s decision].” Islam,
469 F.3d 55. This case will continue until Ali receives that hearing.
Accordingly, we VACATE the decision of the BIA and REMAND this case for further
proceedings consistent with this opinion. In addition, while we recognize IJ Vomacka’s
extensive consideration of this matter, we instruct the BIA to assign this case to a different IJ on
remand. See Guo-Le Huang, 453 F.3d at 151 (recognizing our “power to require reassignment
when necessary to avoid repetition of a biased discharge of [the IJ’s adjudicative] functions or
even to avoid the appearance of substantial injustice”).
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Ali v. Mukasey
Court: Court of Appeals for the Second Circuit
Date filed: 2008-06-19
Citations: 529 F.3d 478
Copy Citations