Today, almost two years after oral argument, the Sixth Circuit Court of Appeals handed down a 2-1 decision against Kurdish immigrant Ibrahim Parlak. The majority opinion, held by two Bush-appointed judges, is troubling. The dissent by Judge Boyce Martin, on the other hand, is scathing and notable for its vociferousness. It begins:
This country offers its immigrants the chance for a new beginning, but retains the right to revoke the freedom it offers should it discover a past it dislikes, no matter how remote or ancient the offenses. I have no quarrel with that: for the nation’s immigrants, past may always be prologue. I dissent, however, because this awesome power was used here to railroad a man out of our country.
Perhaps the most troubling aspect of the majority's opinion is how it backdoors the admissibility of torture-induced evidence. Follow me for some case background and an analysis of the opinion.
Background on Ibrahim Parlak's immigration saga with DHS can be found here. Central to DHS's case against him was the Immigration Judge's reliance on torture-induced evidence from the now-disbanded Turkish Security Court. How much reliance was there? As Judge Martin points out in his dissent:
[T]he immigration judge improperly relied on evidence likely induced through torture by Turkish Security Courts, and the Board and now the majority both claim the supernatural ability to block from the mind’s eye this evidence, which the IJ cited roughly eighty times.
The IJ made no determination whether the Security Court evidence resulted from torture. Her reliance on it clearly influenced her opinion on Parlak's credibility, which is perhaps the most important component in an immigration decision.
Or maybe not. As Judge Martin says:
Then again, perhaps the IJ cannot be faulted for such heavy reliance: Most of her references to the torture evidence were apparently cut-and-pasted from the government’s pre-trial briefs, so maybe she simply had not read the underlying documents....The IJ’s opinion included the same errors as the government’s briefs, and this plagiarism makes the IJ’s remark that she had presided over a "long and difficult hearing" ring hollow: what went on during the hearing was apparently of little relevance to her ultimate ruling.
At that point, the sleight of hand begins. The Board of Immigration Appeals, which reviews IJ decisions, opined that it could review the IJ's decision "without regard to the Security Court evidence." In other words, the torture-induced evidence that the IJ cited 80 times and used as the basis for her findings of fact, would be excised out of the BIA's review. Never mind that it formed the basis for the IJ's credibility finding. Never mind that it distorted the factual record--and an IJ's findings of fact are held to a much higher standard of review (clearly erroneous) that findings of law (de novo). Never mind that such evidence poisoned the well against a fair hearing.
Nope, instead of remanding the case for a clean record devoide of torture-induced evidence, the BIA excluded the Security Court evidence. And the 6th Circuit majority agreed that this was acceptable.
From our perspective, it does not seem problematic for the BIA to have considered Parlak’s appeal without the contested portions of the statements. Essentially, the BIA ruled that it would give Parlak the benefit of the best outcome he could have hoped for before the IJ with respect to admission of the statements – their exclusion.
This, of course, is like saying that a cancer that has metastisized is cured once you cut out the underlying tumor--a point Parlak's attorneys made and Judge Martin agreed with:
But the Board’s attempt to uphold the IJ’s various conclusions without regard to the tainted evidence she used to reach them cannot stand. Immigration judges are responsible for compiling the record in immigration cases, and the Board’s evidentiary reconstruction is beyond what courts can or should do. Accordingly, a remand is necessary to fix the record.
In rejecting Parlak’s contention that the record supporting his deportation is tainted, the majority demeans his supposedly "creative effort to import American criminal procedure rules prohibiting use of compelled confessions and harmless error analysis into the immigration context." The pot calls the kettle black. Though professing not to reach the question, the majority, citing no case, statute, or treaty, "creatively" muses on the theoretical significance of torture-induced evidence. One footnote asserts that if torture-induced evidence was admitted then Parlak nevertheless waived the right to exclude it, and another provides a list of guesses on the proper course of what a domestic court could do with torture evidence.
Although this Court has held that the U.N. Convention Against Torture is not self-executing... the United States is nevertheless a
signatory and the treaty states that torture induced evidence "shall not be invoked in any proceedings, except against a person accused of torture . . . Further, "[i]t is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings," and so due process and federal policy mandates that the government must shoulder the minimal burden of explaining why a court—federal, state, or immigration—ought to apply an exception to the general international rule of exclusion of torture-induced evidence. Instead, all we get is the majority’s ill-considered dictum that somehow Parlak might be violating this Court’s notion of fairness by requesting that he not be sent packing based on evidence obtained by torture.
So for now, torture-induced evidence can be used against immigrants so long as the IJ doesn't rule one way or another about its origin. The BIA can say "oh, we'll just ignore that part of the evidence" while accepting the rest of the IJ's findings, including those based on that evidence. And a federal appeals court will go along and say that's just fine.
I leave you with Judge Martin's valediction:
The majority thinks itself modest, but there is nothing modest about approving the clandestine and questionable proceedings that led here. This case should be remanded to a new immigration judge so that a proper record could be compiled and the right standards applied to the relevant issues.
I remain hopeful, nevertheless, that this case is but a sad remnant of an era of paranoid, overzealous, error-riddled, and misguided anti-terrorism and immigration enforcement now gone by the wayside. It is just a shame that, even if my hope proves true, it is too late for Ibrahim Parlak.
Free Ibrahim.