Immigration: Selected Opinions of Judge Samuel Alito
Released: 2006-01-03T00:00:00

Background

Immigration matters primarily come before federal appellate courts through petitions toreview final orders of removal by the Board of Immigration Appeals (BIA), the highestadministrative body responsible for interpreting and applying immigration laws. (2) Among other things, the BIAhears administrative appeals of rulings made by Immigration Judges (IJs) ordering aliens removedor denying applications for relief from removal. If the BIA upholds an order of removal against analien, the alien may petition the court of appeals in the appropriate federal circuit to review the BIA'sdecision, (3) though in somecases such review may be very limited in scope. (4) Pursuant to statute and court jurisprudence, judicial review of BIAdecisions is typically deferential, and the scope of such review is limited by statute to theadministrative record upon which the order is based. (5) Perhaps accordingly, a substantial majority of BIA rulings reviewedby federal appellate courts are upheld. (6)

Review of BIA Decisions

In most cases where Judge Alito has reviewed BIA decisions, those decisions have beenunanimously upheld by the court. However, when the court has split when deciding a case'soutcome, Judge Alito has typically been on the dissenting side, voting to uphold a BIA decision thatthe majority votes to overturn. (7) Typically, Judge Alito dissents in such cases because he believesthe majority has not been sufficiently deferential to the decisions of administrative authorities. Onthe other hand, Judge Alito has voted to remand some BIA decisions where potentially importantdocumentation corroborating an alien's claims has been excluded without sufficient explanation.

Review of Discretionary Judgments

Judge Alito has differed with some of his Third Circuit colleagues when evaluating certainBIA denials of discretionary relief. One such instance was Tipu v. INS, (8) a 1994 case where the BIAdenied deportation relief to an alien ordered removed because of a decade-old drug conviction. (9) In a prior decision, the BIAhad announced that in deciding whether to grant an alien relief from deportation, it would "balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf." (10) The BIA's decision to deny discretionary relief to petitioner Tipuwas evaluated by the three-judge Circuit panel under an abuse of discretion standard, meaning thatthe panel would not disturb the BIA's decision unless it was found to be "arbitrary, irrational, orcontrary to law." (11) Applying this standard, the majority vacated the BIA's decision after finding that the BIA had failedto adequately consider factors which weighed in Tipu's favor, including (1) the hardship suchdeportation would have upon Tipu's seriously ill, dependent brother and his brother's family; (2)Tipu's relatively minor role in the crime for which he had been convicted; (3) evidence that the Tipuhad been rehabilitated; and (4) evidence of Tipu's business ties to the U.S. through his ownership andoperation of a taxi cab.

In his dissent, Judge Alito criticized the majority's decision to vacate the BIA's decision,arguing that it went "well beyond the limited scope of appellate review that we are permitted toexercise in a case like this." (12) Concluding that the alien's drug conviction could be properlyconsidered by the BIA as a "serious adverse factor" against the alien's application for relief fromdeportation, (13) JudgeAlito went on to argue that:

Merely stating what the majority finds -- that the BIAput too much 'emphasis' on one factor, failed to evaluate another factor as 'outstanding' rather thanmerely 'favorable, and did not give 'proper weight' to a third factor -- seems to me to demonstrate thatthe majority, in deed if not in word, has applied the wrong standard of review ... In this governmentof separated powers, it is not for the judiciary to usurp Congress' grant of authority to the AttorneyGeneral by applying what approximates de novo appellate review. (14)

Review of Adverse Credibility Findings

The INA provides that administrative findings of fact (which may include, among otherthings, findings regarding the credibility of a witness in an immigration hearing) "are conclusiveunless any reasonable adjudicator would be compelled to conclude to the contrary." (15) While Judge Alito hasgenerally been in the majority in upholding adverse credibility findings affirmed by the BIA, in thecase of Dia v. Ashcroft , (16) Judge Alito dissented from an en banc opinion which he believedaccorded too little deference to an IJ's credibility finding.

In Dia , the Third Circuit reviewed a BIA decision upholding an IJ's denial of petitioner Dia'sasylum application. The IJ had rejected Dia's application based on an adverse credibility finding:the IJ did not find credible Dia's claim that Guinean military men destroyed his home and beat andraped his wife because of his refusal to join the military. The majority found that the IJ's adversecredibility finding was based on conclusions that were "arbitrary and conjectural in nature." (17) Among other things, themajority criticized the IJ's reliance on "background knowledge" and personal experiences to reachconclusions about Dia's credibility, finding that the inferences made by the IJ were "in someinstances non sequiturs, and in others, counterintuitive." (18) For example, the majority questioned the IJ's disbelief of Dia'sclaim that his wife had told him to flee Guinea without her after she had been beaten and raped. TheIJ concluded that it was highly unlikely that a wife would urge her husband to flee without her insuch a situation, or that a husband would willingly do so. The majority characterized this conclusionby the IJ as "lack[ing] foundation in any logical reasoning or any support in the record." (19)

In a dissent joined by two other judges, Judge Alito disputed several aspects of the majorityopinion, including its skepticism about the inferences the IJ made on the basis of personal experienceand background knowledge. Judge Alito argued that it was "entirely proper," even in light of theadmitted imperfections of such an approach, "for a fact finder to take into account 'backgroundknowledge' about human behavior in assessing the plausibility of testimony." (20) More broadly, Judge Alitoargued that the majority had misapplied the INA's "reasonable adjudicator" standard for judicialreview of administrative findings of fact. According to Judge Alito, the majority had turned thisstandard "on its head ... [by finding] that aspects of Dia's testimony should have been found to becredible because a reasonable person might have found them believable." (21) For its part, the majoritydisputed this characterization and argued that Judge Alito's reading of the "reasonable adjudicator"standard "not only guts the statutory standard, but ignores our precedent." (22) The majority alleged thatJudge Alito's dissent disregarded precedent interpreting the INA's "reasonable adjudicator" standardas requiring adverse credibility findings to be supported by "substantial evidence" in the record; arequirement that the majority argued permitted the reversal of adverse credibility findings when theyappeared to be based on speculation, conjecture, or minor inconsistencies alone. (23)

Review of Adverse Credibility Findings when Corroborating Documents Have Been Excluded from the Record

Judge Alito's jurisprudence generally shows him to be deferential to factual conclusionsreached by immigration tribunals. However, he reversed adverse credibility findings made afterdocuments potentially corroborating an alien's claims were excluded from consideration withoutsufficient explanation.

In the 2004 case of Liu v. Ashcroft , (24) a Third Circuit panel reviewed a BIA decision denying theasylum and withholding of deportation claims of a married Chinese couple who claimed persecutionby the Chinese government via coercive population control measures. In a hearing before an IJ, theLius attempted to submit documentary evidence indicating that the Chinese government forced Mrs.Liu to have two abortions. The IJ excluded these documents from consideration, however, becausethey were not authenticated by a U.S. Foreign Service Officer as was seemingly required by aparticular immigration regulation. (25) Absent consideration of these documents, the IJ denied the Lius'applications for relief from removal, finding that their testimony was not credible. The BIA affirmed the IJ's decision.

Subsequently, however, immigration authorities conceded that the authentication proceduresdescribed in the pertinent regulation were not mandatory, and that documents could be authenticatedin ways other than those described in the regulation. (26) Writing for a unanimous panel, Judge Alito stated that althoughsignificant deference is owed to factual determinations made by the IJ and upheld by the BIA,"remand is appropriate where ... we have made a legal determination (e.g., regarding admissibilityof evidence) that fundamentally upsets the balancing of facts and evidence upon which an agency'sdecision is based." (27) Because the regulation cited by the IJ did not provide an absolute rule of exclusion and was not theexclusive means of authenticating records in an immigration hearing, Judge Alito concluded that itwas legal error for the IJ to reject the abortion certificates on that ground alone. Accordingly, thecase was remanded back to the BIA for a determination of whether the documents presented by theLius were genuine and should have been admitted into evidence. (28)

In a similar case in 2005, Zhang v. Gonzales , (29) Judge Alito wrote an opinion for a unanimous Circuit panel (30) remanding an asylum casewhen it was unclear whether the IJ had excluded documents that may have supported the petitioner'sclaim that she had been forced by the Chinese government to have an abortion. The opinion claimedthat the IJ "obviously did not take the documents at face value," because if he did the documentswould "powerfully corroborate" the petitioner's claims. (31) Judge Alito's opinion also cited the Court's prior holding in Liu that corroborating documents could not be excluded solely because of failure to comply with therelevant authentication regulation. (32) Accordingly, the Circuit panel vacated the BIA's decision andremanded the case to either determine the reasons the corroborating documents were excluded bythe IJ, or if documents were admitted, to explain the finding that the petitioner's claim of persecutionnonetheless lacked credibility. (33)

Substantive Grounds for Asylum

A significant portion of immigration cases dealt with by Judge Alito have involved denialsof applications for asylum. Asylum is a discretionary form of relief from removal available to aneligible alien who is unwilling to return to his or her native country because of a well-founded fearof persecution on account of one of five characteristics: (1) race, (2) religion, (3) nationality, (4)membership in a particular social group, or (5) political opinion. (34) The INA specifies thatforced abortion or sterilization pursuant to a coercive population control program or resistance toundergoing such forced procedures constitutes persecution on account of political opinion. (35)

Although a few Third Circuit opinions involving asylum claims have been discussed in othersections of this report, this section discusses some notable opinions by Judge Alito that have focusedprimarily on issues relating to the substantive grounds for asylum eligibility. At least two of thecases discussed below concern the BIA's interpretation of the INA's asylum eligibility provisions.In cases where congressional intent is unclear or ambiguous, federal courts give significant deferenceto the BIA's interpretation of the immigration laws it administers, so long as such interpretations are"based on a permissible construction of the [INA]." (36) This standard is commonly referred to as " Chevron deference"in reference to the Supreme Court case where the standard was formulated. (37)

Gender-Based Persecution

One of Judge Alito's most publicized asylum opinions was in the 1993 case of Fatin v.INS , (38) where aunanimous Third Circuit panel upheld a BIA decision to deny asylum and other forms of relief fromdeportation to an Iranian woman who claimed a well-founded fear of persecution if she returned toIran on account of her Westernized views on the rights of women.

The Circuit panel considered Fatin's argument that her status as a Westernized, Iranianwoman opposed to her country's treatment of women constituted membership in a "particular socialgroup" for asylum purposes. In addressing this argument, Judge Alito examined the legislativehistory behind the INA's use of the term "particular social group," the term's derivation from the1967 United Nations Protocol Relating to the Status of Refugees (a treaty to which the U.S. is aparty), and a prior BIA ruling defining "particular social group" to include persons who share acommon, immutable characteristic such as sex. (39) Ultimately, Judge Alito concluded that the asylum eligibilitycategory for members of a "particular social group" was broad enough to include women who wereprofoundly opposed to their country's gender-specific restrictions upon them. (40) Despite finding that Fatincould qualify as a member of a "particular social group," the Circuit panel nevertheless upheld theBIA's conclusion that Fatin had not presented sufficient evidence demonstrating that she had awell-founded fear of ill treatment rising to the level of "persecution." (41) Judge Alito's opinion hasbeen cited in numerous asylum claims involving persecution on account of gender, (42) and his interpretation of"particular social group" has been considered expansive by some commentators.

Distinction Between Asylum Claims Made By Married and Unmarried Partners

A number of Judge Alito's opinions have involved the review of asylum claims related tocoercive population control practices employed by the Chinese government. One such opinion wasin the case of Chen v. Ashcroft, (43) concerning a Chinese national's claim for asylum on account ofhis fiancee's forced abortion. In an earlier opinion, the BIA had held that the spouse of a personsubjected to forced sterilization or abortion could be eligible for asylum on account of pastpersecution. (44) However, the BIA declined to extend the rule of asylum eligibility to unmarried partners in thepresent case. In a unanimous opinion written by Judge Alito, a three-judge panel upheld the BIA'sdecision under the Chevron standard of deference, finding that it was reasonable for the BIA to limit asylum eligibility to spouses, as it "contributes to efficient administration and avoids difficult andproblematic factual inquiries" (45) concerning the nature of the relationship between the partners. While noting that the "use of marital status as a proxy is undoubtedly both over- and under-inclusiveto some extent," (46) Judge Alito concluded that this over- and under-inclusiveness was not so great as to render the proxyirrational, noting additionally that marital status was a criterion for benefit eligibility in numerousfields of law including immigration, tax, welfare benefits, and property. (47)

Persecution on the Basis of Political Opinion

As previously mentioned, one of the grounds for asylum is a well-founded fear of persecutionon account of political opinion. In the 1997 case of Chang v. INS , (48) a three-judge Circuit panelreviewed the BIA's denial of the asylum claim of an alien who had led a Chinese technicaldelegation to the U.S. and claimed he would be prosecuted for violating China's security laws byremaining in the U.S. for an unauthorized period of time and failing to report suspicions that otherdelegates would not return to China. The IJ denied Chang's application for asylum and the BIAaffirmed, reasoning that because China's security laws were laws of general applicability, Chang'sprosecution under such laws would not be persecution based on his political opinion. The panelmajority overturned the BIA's ruling, finding that the Chinese security laws were aimed at preventingpolitical dissent, and that China's prosecution of Chang would be on account of his political opinion.

Judge Alito disagreed, stating that while the case facts "arouse[d] considerable sympathy,"Chang had failed to demonstrate that his prosecution for violating the Chinese security law wouldbe politically motivated, as he had "never specified any political opinion that he holds ... that is atodds with the Chinese government." (49) The majority, in contrast, argued that evidence in theadministrative record made it "reasonable to conclude that Chang was defying the orders of theChinese government because he disagreed with the government policy behind them," and that suchdefiance constituted political opinion. (50)

Interpretation of Immigration Statutes and Regulations

Occasionally when reviewing an immigration claim, a federal court will have to examine themeaning of an immigration statute or regulation, rather than simply reviewing their application toa particular set of facts. Judge Alito has generally read immigration statutes broadly, and in a fewcases, his statutory readings have been broader than those of some of his Third Circuit colleagues. On one occasion, a position he took regarding the scope of an INA provision limiting federal judicialreview was subsequently rejected by the Supreme Court in deciding a case from another Circuit. While Judge Alito has generally upheld immigration authorities' interpretation of applicableregulations, in limited cases he has found these interpretations impermissible.

Tax Offenses as Aggravated Felonies

In the 2004 case of Lee v. Ashcroft , (51) a Third Circuit panel that included Judge Alito reviewed thedeportation orders of a married couple convicted of filing a false tax return which caused a taxdeficiency of over $50,000. The BIA found that the aliens' convictions fell under the INA'sdefinition of an "aggravated felony," and therefore constituted deportable offenses. Although theINA lists several crimes as aggravated felonies for deportation purposes, including an offense that"involves fraud or deceit in which the loss to the victim or victims exceeds $ 10,000," the only taxoffense specifically listed as an aggravated felony is the separate crime of tax evasion. (52)

The majority overturned the BIA's orders of removal, finding that when Congress specifiedtax evasion as an aggravated felony, it clearly and unambiguously intended to designate it "as theonly tax crime that is a removable offense." (53) Accordingly, the aliens' convictions for a tax crime other thantax evasion did not make them deportable. Judge Alito dissented, arguing that the aliens' taxoffenses plainly constituted offenses involving fraud or deceit, and were therefore "aggravatedfelonies" making the aliens deportable. Judge Alito continued that Congress's decision to specifytax evasion as an aggravated felony "may have been ... simply to make certain - even at the risk ofredundancy - that tax evasion qualifies as an aggravated felony. While good statutory draftsmanshipseeks to avoid surplusage, other goals, such as certainty and the avoidance of litigation, aresometimes more important." (54) Responding to Judge Alito's dissent, the majority suggested thatwhile Congress may indeed have wished for all tax offenses to potentially be considered aggravatedfelonies, "we must interpret what it has written by well-recognized rules of statutoryconstruction," (55) including maintaining the "longstanding principle of construing any lingering ambiguities indeportation statutes in favor of the alien." (56)

Habeas Review of Removal Decisions

In 1996, Congress made substantial modifications to the INA via the enactment of theAntiterrorism and Effective Death Penalty Act (AEDPA) (57) and the Illegal Immigrant Reform and Immigrant ResponsibilityAct (IIRIRA), (58) including by restricting the availability of judicial review of removal orders. Among other things,former INA Â§ 106(a)(g), which stated that "any alien held in custody pursuant to an order ofdeportation ... may obtain judicial review thereof by habeas corpus proceedings," (59) was eliminated, and a newprovision was added stating that final orders of deportation against certain categories of aliens would"not be subject to review by any court." (60)

In the 1999 case of Sandoval v. Reno , (61) a three-judge Third Circuit panel was required to determinewhether AEDPA and IIRIRA had eliminated court review of immigration decisions via habeasproceedings under 28 U.S.C. Â§ 2241. The majority held that habeas review could not be strippedfrom federal courts absent the clear intent of Congress, and that AEDPA and IIRIRA did not expressa sufficiently clear intent to strip the courts of habeas jurisdiction over immigration matters. Inreaching this decision, the majority noted that the Supreme Court had "historically drawn a sharpdistinction between 'judicial review' ... and the courts' power to entertain petitions for writs of habeascorpus." (62) Themajority also noted that several Circuit Courts had previously reached the same conclusion that the1996 amendments to the INA did not eliminate federal habeas review of immigration decisions. (63)

Dissenting from the majority's conclusion that habeas jurisdiction remained over immigrationclaims, Judge Alito argued that congressional intent to eliminate federal habeas review was clear;noting, for example, that a pertinent section of AEDPA was entitled "Elimination of Custody Reviewby Habeas Corpus." (64) He further cited to a Seventh Circuit opinion which had reached the same conclusion regarding theelimination of habeas review. (65) Despite arguing that the 1996 amendments to the INA limited review under the federal habeas statute, Judge Alito nevertheless believed that "any judicial reviewto which [an alien] is constitutionally entitled can and should be provided by means of a petition forreview filed in [the appropriate federal appellate] court." (66) He further suggested that a prior Third Circuit opinion mightneed to be overruled so that the court could review certain non-constitutional legal claims raised byan alien even if review was eliminated under the federal habeas statute. (67)

In the 2001 opinion of INS v. St. Cyr , (68) the Supreme Court in a 5-4 opinion resolved the Circuit splitconcerning the continued availability of habeas review in immigration proceedings, adopting theposition and reasoning of the majority in Sandoval rather than that of Judge Alito. Justice O'Connorwas one of the dissenters in St. Cyr , and shared Judge Alito's view that the 1996 amendments to theINA eliminated habeas review of immigration claims made by certain aliens. In apparent responseto the Court's ruling in St. Cyr , Congress amended the INA once again in 2005 to expressly eliminatehabeas review via the adoption of the REAL ID Act. (69) In doing so, however, it specified that no Act provision limitingjudicial or habeas review was to be "construed as precluding review of constitutional claims orquestions of law raised upon a petition for review filed with an appropriate court of appeals inaccordance with [applicable INA provisions]." (70)

Review of Agency interpretation of its Regulations

Under Supreme Court jurisprudence, federal courts must defer to formal and informal agencyinterpretations of an ambiguous regulation, unless such interpretations are "plainly erroneous orinconsistent with the regulation." (71) No such deference is warranted when the intent of a regulationis clear. (72) AlthoughJudge Alito has typically upheld immigration authorities' interpretation and application ofimmigration regulations, an exception to this practice occurred in the 2004 case of Soltane v. U.S.Dept. of Justice . (73)

In Soltane , a nonprofit religious organization that provided services to mentally disabledyoung adults sought review of the denial of its visa petition on behalf of an alien employee. The INAprovides that aliens who qualify as "special immigrants," including those engaged in a "religiousoccupation or vocation" on behalf of a religious organization, be granted preference visas. (74) Immigration authoritieshad denied the organization's visa petition in part because the sponsored alien's proposed positionas a houseparent was deemed not to be a "religious occupation or vocation," as that term was definedunder regulation. (75) Among other things, immigration authorities characterized the proposed position's houseparentduties as having "a wholly secular function, even if the facility is operated by a charitableorganization founded on religious principles." (76)

In a unanimous panel opinion written by Judge Alito, the court held that the denial of the visapetition was not supported by the record, because this denial was based on (1) an impermissiblereading of the pertinent regulation defining "religious occupation" as excluding religious occupationswith a secular component; and/or (2) a factual determination of the secular nature of the houseparentposition which was not supported by substantial evidence in the record. The Circuit panel held thata job could qualify as a "religious occupation" under the regulatory definition of that term so longas it had "some religious significance," and noted that the pertinent regulation listed a number ofoccupations with secular components, such as "religious translator" and "religious counselor," asexamples of jobs falling under the definition of "religious occupation." (77) The panel also chargedthese immigration authorities with describing the alien's job duties in a manner that "excluded anymention of the religious component of her duties" found in the administrative record, including herresponsibilities to teach and lecture mentally disabled young adults on religious values. (78) Accordingly, the Circuitpanel vacated and remanded the lower court's decision upholding immigration authorities' denial ofthe visa petition.