Opinion
No. 21-1336
01-11-2023
Ritch Cardy DORCE, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
Jennifer Klein, Committee for Public Counsel Services, Malden, MA, Kristin Macleod-Ball, Trina A. Realmuto, National Immigration Litigation Alliance, Brookline, MA, for Petitioner. Aric Allan Anderson, US Dept. of Justice, Office of Immigration Litigation, Washington, DC, for Respondent. Chantae B. Brown, Morgan Lewis & Bockius LLP, New York, NY, Jason D. Frank, Morgan Lewis & Bockius LLP, Boston, MA, for Amici Curiae American Civil Liberties Union of Massachusetts, American Civil Liberties Union of New Hampshire, Boston College Law School Immigration Clinic, Harvard Immigration and Refugee Clinical Program, Massachusetts Association of Criminal Defense Lawyers, Political Asylum/immigration Representation Project.
Jennifer Klein, Committee for Public Counsel Services, Malden, MA, Kristin Macleod-Ball, Trina A. Realmuto, National Immigration Litigation Alliance, Brookline, MA, for Petitioner.
Aric Allan Anderson, US Dept. of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Chantae B. Brown, Morgan Lewis & Bockius LLP, New York, NY, Jason D. Frank, Morgan Lewis & Bockius LLP, Boston, MA, for Amici Curiae American Civil Liberties Union of Massachusetts, American Civil Liberties Union of New Hampshire, Boston College Law School Immigration Clinic, Harvard Immigration and Refugee Clinical Program, Massachusetts Association of Criminal Defense Lawyers, Political Asylum/immigration Representation Project.
Before Barron, Chief Judge, Lynch, Lipez, Kayatta, Gelpí, and Montecalvo, Circuit Judges.
ORDER OF COURT
The petition for rehearing having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and the petition for rehearing en banc be denied.
LIPEZ, Circuit Judge, dissenting from the denial of rehearing and objecting to the denial of en banc review.
My colleagues assume that petitioner Dorce was denied proper notice of his hearing. Yet, they condone the BIA's silence on the most significant harm from that denial: Dorce's inability to present in-person testimony from his supporting witnesses.
In its decision, the BIA discussed only the declarations submitted by Dorce's potential witnesses in concluding that the denial of notice caused no prejudice. These declarations merely identify the topics his witnesses would have addressed. In the circumstances of this case, without some explanation by the BIA, the declarations cannot be deemed a fair proxy for the live testimony that Dorce would have provided if he had been afforded proper notice of his merits hearing.
Dorce's ability to obtain immigration relief turned on the IJ's balancing of the positive and negative factors in his case. Because he was unrepresented at the hearing, Dorce was entirely dependent on the IJ's questioning to present his argument that the positive factors in his case outweighed the negative. The IJ had advised Dorce to bring witnesses "who can talk about positive things you've done." If his witnesses had been present, the IJ could have extracted details from them about the incident that triggered his immigration proceedings, his substantial efforts at rehabilitation, and his importance to his children. The witnesses' appearance in person would have allowed the IJ to probe their favorable appraisals of Dorce and assess the credibility of their responses. Importantly, these more fully stated accounts are not mere possibilities. The IJ has an obligation "to fully develop the record," Mekhoukh v. Ashcroft, 358 F.3d 118, 129 n.14 (1st Cir. 2004), and that is particularly true when a petitioner is unrepresented.
There is no basis for reading into the BIA's decision any consideration of the impact of in-person testimony. Indeed, having found no notice error, the BIA did not have to address prejudice at all. Hence, contrary to the indulgent assumption of the majority, we have no reason to assume from its cursory treatment of prejudice and its silence on the critical loss of in-person testimony that the BIA did a full prejudice assessment. To the contrary, it is much more likely that the BIA's evaluation of prejudice was as superficial as its decision indicates and consisted entirely of its review of the declarations.
Moreover, given the IJ's emphasis on the importance of live testimony to Dorce's case, we should not condone the BIA's failure to explicitly engage with that issue. Without some indication that the BIA considered the impact on Dorce from the loss of in-person testimony -- but found it inadequate to demonstrate a likelihood of a different result on his application for relief -- we cannot determine if the BIA properly analyzed prejudice. Indeed, it is inconceivable that the BIA would have considered the impact from Dorce's lost opportunity to present in-person testimony but would then comment only on the substance of the declarations.
In defending the BIA's rejection of Dorce's prejudice claim, the majority, too, focuses on the contents of the declarations, asserting that "[t]he record supports the BIA's conclusion that the declarations failed to ‘offer any additional or meaningful information’ that could suggest Dorce's negative factors -- including his very serious firearms conviction -- were not as concerning as they appeared to be." Dorce v. Garland, 50 F.4th 207, 213 (1st Cir. 2022). But the question is not what the declarations offer. The question the BIA needed to answer, but did not, is whether in-person testimony by his witnesses on the topics identified in the declarations would have been likely to change the outcome of the balancing of positive and negative factors in his case. The silence on that question is a serious gap in the BIA's decision. We should be remanding to the BIA to ensure that it has not ignored the most consequential loss suffered by Dorce from the denial of proper notice. See Dor v. Garland, 46 F.4th 38, 44 (1st Cir. 2022) (quoting Berhe v. Gonzales, 464 F.3d 74, 87 (1st Cir. 2006), for the proposition that "the adequacy of the Board's reasoning is a legal question that we may review"); Rodríguez-Villar v. Barr, 930 F.3d 24, 28 (1st Cir. 2019) ("Although the agency is not required to discuss every piece of evidence, it must, at a minimum, ‘fairly appraise the record’ and ‘cannot turn a blind eye to salient facts.’ ") (quoting Sihotang v. Sessions, 900 F.3d 46, 51 (1st Cir. 2018) ).
The majority's treatment of the BIA's failure to address Dorce's loss of live testimony is deeply problematic beyond the specifics of this case. Here, we have a detained, pro se petitioner denied the very opportunity -- the presentation of supporting witness testimony -- that the IJ highlighted as important for his success. Endorsing the BIA's failure to address that lost opportunity in these extreme circumstances results in a devaluation of live testimony with much broader application. The immigration system is stressed, and the temptation to short-cut proceedings is undoubtedly tempting. There is no question that it is quicker and easier to deny relief based on written declarations than to hear testimony. But it is not our job to abet quick, easier resolution of immigration proceedings at the cost of fairness to petitioners and compliance with other legal requirements when the stakes in relief are so high, as in this case and many like it.
In combination with the injustice imposed by the government on Dorce -- the failure to give him the notice that would have allowed him to make the best case for remaining in this country with his family (he had been here for sixteen years) -- these larger implications make this case appropriate for en banc review. I regret that my colleagues have deemed that injustice and those implications unworthy of further consideration.