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Decision Of The Day: Rainbows And Immigration
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September 27, 2006, 01:51 AM
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There`s a fairly new blog called Decision of the Day, about interesting Appellate Court Decisions. (If you aren`t interested in Appellate Court Decisions, remember, Appellate Court Decisionsare interested in you.)

No More Rainbows In Newark Fire Houses Lomack v. Newark, 05-4126 (3rd Cir., Sept. 18, 2006) As part of an effort to improve morale, the Mayor of Newark decided to embark on an ambitious program to integrate all of the city’s fire houses. To ensure adequate diversity in each fire house, the Mayor had dozens of firefighters involuntarily transferred. He then declared that he had "created a rainbow at each fire house."

This is reminiscent of busing, and it`s apparently illegal. Firemen, (of all races, judging by the names of the plaintiffs) sued for racial discrimination. Apparently this racial assignment policy, like busing, moves everybody where they don`t want to be. "The district court rejected their claims, but the Third Circuit reverses. The Court agrees that rainbows may be nice. However, the Equal Protection Clause prohibits this kind of racial balancing."

There are a couple of immigration decisions, too.

Granados-Oseguera v. Gonzales, 03-73030 (9th Cir., Sept. 25, 2006)

Congratulations to University of Arizona law students Marybeth Canty, Laura Boyle, and Josh Chetwynd, who convinced two out of three judges on a Ninth Circuit panel to reopen their client’s immigration proceedings due to ineffective assistance of counsel. No small feat, particularly since the client did not exhaust his ineffective assistance of counsel claim before the Board of Immigration Appeals. But the majority explains that the same ineffective attorney represented the petitioner before the Immigration Judge and the BIA, so exhaustion is unnecessary under the circumstances.

As I`ve said before, law students should not be encouraged to do this; it is the opposite of pro bono publico.

Also, Gabuniya v. Attorney General, 05-3339 (3rd Cir., Sept. 19, 2006)

This is a reversal of a decision by Immigration Judge Donald Ferlise, who the Treason Lobby considers too tough on immigrants. (see The Treason Lobby’s Latest Vendetta—Not Enough Asylum Granted by Immigration Judges for more on this)

The Third Circuit wrote, according to Decision of the Day, that

"We note with concern the IJ’s dogged determination to make an adverse credibility finding by stringing together whatever insignificant inconsistencies he could unearth from the testimony and bolstering them with his own unsupported conjecture. While we appreciate the difficulty an IJ must face in vetting applications for asylum, withholding of removal, and protection under the CAT, this responsibility is not license to jump eagerly on each slip of the tongue or to demand that an applicant be infallible in order to be credible."

Could be. I haven`t read the whole decision. But there`s evidence that all the other immigration judges have an extremely low standard of credibility.