Quinteros v. Attorney General of the United States of America, ___ F.3d ___ (3d Cir. 2019). This was an immigration appeal. As Judge Roth summarized it in her opinion for the Third Circuit (the other panel members were Judges McKee and Ambro) today, “The Board of Immigration Appeals found that Nelson Quinteros committed an aggravated felony and failed to show entitlement to relief under the Convention Against Torture (CAT). Quinteros argues that the Board committed two errors: First, the Board erred in finding that his conviction for conspiracy to commit assault with a dangerous weapon was an aggravated felony under the Immigration and Nationality Act (INA); second, the Board erred in applying our precedent on the Convention Against Torture.”
In a lengthy opinion, Judge Roth held that the Board had erred in both respects. As to the CAT issue, the Board had erred regarding both sub-parts of the applicable test, stated in Myrie v. Attorney General, 855 F.3d 509 (3d Cir. 2017), as well. The panel reversed and remanded for further proceedings.
But Judge McKee filed a concurring opinion, in which Judges Roth and Ambro joined. It is, to say the least, not usual for a concurring opinion to be joined by all members of a panel. In his opening paragraph, Judge McKee stated that he found it “difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as the neutral and fair tribunal it is expected to be. That criticism is harsh and I do not make it lightly.”
Judge McKee first discussed the Board’s treatment of a New York Yankees tattoo that Quinteros had testified would identify him as a former gang member who would be tortured, or perhaps killed, if he were sent back to El Salvador, whence he came to the United States. Two Immigration Judges and a Board member had previously found, based on the testimony of Quinteros, an expert witness, and a study by Harvard Law School’s International Rights Clinic, that Quinteros had “shown a clear likelihood” of being tortured or killed if returned to El Salvador. Yet for reasons “that are not at all apparent,” and that the three concurring judges found “baffling and dismaying,” the Board reversed itself and found that “objective evidence” of the risk of harm was lacking.
Judge McKee stated that Quinteros’s testimony, having previously been accepted as credible, was sufficient “objective evidence” by itself. “Moreover, there was nothing offered to suggest that the expert witness or the report of the Harvard Clinic was anything less than objective. “It is impossible to discern from the record why the BIA refused to accept that external evidence. Moreover, given its apparent disregard for these three distinct, previously accepted pieces of evidence, I seriously doubt whether any evidence would have been capable of changing the agency’s analysis. Thus, it is the BIA’s own objectivity that concerns me here.”
The Board quarreled about the tattoo, asserting that Quinteros had not established what the tattoo looked like or where on his body it appeared. But Judge McKee observed that the Board conceded that the record “simply indicates that he [Quinteros] has a tattoo on his right arm.” He concluded that, “[t]herefore, not only was there never a dispute about the existence of the tattoo, there was also no dispute as to its location, and the BIA’s abortive suggestions to the contrary are simply inconsistent with a fair and neutral analysis of Quinteros’ claim.”
Finally, as to the tattoo, Judge McKee noted that “no reasonable basis for the BIA to suppose that the specific design of the tattoo or testimony about its size was even necessary. Whatever its exact appearance, it was uncontested that it was a New York Yankees tattoo.” Judge McKee said that it “pain[ed him] to conclude that the BIA simply ignored evidence in an effort to find that Quinteros’ tattoo would not place him in peril.”
But the criticism of the BIA did not stop with its mistreatment of evidence. Judge McKee cited “numerous examples of [the BIA’s] failure to apply the binding precedent of this Circuit delineating the proper procedure for evaluating CAT appeals. Indeed, that framework has been mishandled, or simply absent, from several BIA opinions in the two years since we explicitly emphasized its importance” in Myrie. Elaborating on Judge Roth’s discussion of the two Myrie sub-parts, the concurrence highlighted the BIA’s many errors, at multiple levels, in applying Myrie in this case.
The concurrence concluded by recognizing that the BIA has had an “incredible caseload foisted upon it,” and that the BIA members and Immigration Judges are “horrendously overworked.” “But administrative shortcomings can never justify denying the parties a fair and impartial hearing, or excuse allowing adjudications to devolve into a mere formality before removal.”
This was quite a spanking for the BIA. But at a time when immigrants have been demonized for political purposes, it was an important statement for the Third Circuit to make. The concurrence of all three judges added emphasis and heft, and is to be commended.