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While the Bush Administration pushed illegal immigration issues to the front of the national political debate in the last few weeks, a conservative 7th U.S. Circuit Court of Appeals panel vented its frustration at what one called “irrational” behavior by immigration officials. The judges recently blocked the deportation of a Moroccan immigrant, calling the case an example of a pattern of adjudication that “falls below minimum standards of legal justice,” in Benslimane v. Gonzales, No. 04-1339. The deportation was originally ordered earlier this year because the government lost a form and the immigration judge-pressed to speed up cases under a streamlining policy-chose not to delay the man’s case. “Does the Department of Justice have any idea what is happening to your cases in this court?” Judge Richard Posner asked of government attorney Cindy Ferrier during a testy September argument in the case. “It is a complete breakdown of this immigration adjudication process. “We are seeing a series of immigration cases in which the behavior of immigration authorities doesn’t appear to be rational. Case after case, we reverse, by all the various judges on the court,” Posner said. ‘Staggering’ reversal rate In ordering a halt to deportation, Posner reported last week that the circuit has reversed “a staggering 40 percent of the 136 petitions” it reviewed of the Board of Immigration Appeals. It began after the Moroccan, Jellal Benslimane, went to an immigration judge in February 2003 admitting he had overstayed his visitor visa but saying that he was married to an American citizen and that she had filed a Form I-130 to change his status to legal resident. But Benslimane’s Form I-485, in which he also requested a change in his immigration status, was misplaced by the government. The two forms were filed simultaneously, but it was Benslimane’s I-485 that the government lawyer did not have at the immigration hearing. “The visa petition remains unadjudicated, though there is no suggestion of foot-dragging on the part of either Benslimane or his wife,” Posner wrote. Benslimane had complied with all the immigration requirements, but the government had not acted. The immigration judge denied his request for a continuance, and that, Ferrier argued, is not reviewable by the appeals court, so long as the judge gives a reason for the denial. “The reason has to be rational, it can’t be completely weird,” Posner insisted during the September argument. “An immigration judge can’t say I don’t grant on Fridays or when there is a full moon,” he said. Ferrier insisted that there is no appellate jurisdiction as long as the immigration judge gives any reason. “How could the law be so nutty?” Posner said. When asked why the immigration judge didn’t simply continue the case and order the government to come up with the form, Ferrier said that the immigration judges were under pressure to move cases quickly, not to have a case sit on the docket. Benslimane’s visa review had the potential of taking two years. Under a streamlining campaign, the Board of Immigration Appeals approved the deportation order, leaving it to the 7th Circuit to sort out what Posner called “a tangle of absurdity.” Judge Ilana Rovner joined in expressing concern about the government’s behavior in the case. She said during the argument that the court has issued stays in the past to prevent deportations, “and the attorney general paid no attention to the fact that the U.S. Court of Appeals for the 7th Circuit said no, you can’t send them back. They knew and they sent the person back. It just happens. And we never want it to happen again,” Rovner said. Benslimane’s attorney, Godfrey Muwonge, said, “Not only has [Benslimane] gone through this Kafkaesque journey but [his marriage] has been subject to a higher standard than it should be.” Muwonge, of Milwaukee’s Muwonge Law Office, was more conciliatory than the panel. “The regulations to flesh out the law seem to go beyond the statute in places. These are not mistakes that are intentional but occur because people involved may not feel obligated to go the extra mile to review mistakes.” Benslimane’s visa request, based on his marriage to a citizen, is up for review by immigration authorities this week. The Justice Department declined to comment on the case.

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