Demjanjuk v. Mukasey ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0054p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner, -
JOHN DEMJANJUK,
-
-
-
No. 07-3022
v.
,
>
MICHAEL B. MUKASEY, -
Respondent. N
On Review from the Board
of Immigration Appeals.
No. A08 237 417.
Argued: November 29, 2007
Decided and Filed: January 30, 2008
Before: ROGERS and SUTTON, Circuit Judges; BERTELSMAN, District Judge.*
_________________
COUNSEL
ARGUED: John H. Broadley, JOHN H. BROADLEY & ASSOCIATES, Washington, D.C., for
Petitioner. Robert Thomson, UNITED STATES DEPARTMENT OF JUSTICE, CRIMINAL
DIVISION, Washington, D.C., for Respondent. ON BRIEF: John H. Broadley, JOHN H.
BROADLEY & ASSOCIATES, Washington, D.C., for Petitioner. Robert Thomson, Edgar Chen,
UNITED STATES DEPARTMENT OF JUSTICE, CRIMINAL DIVISION, Washington, D.C., for
Respondent.
_________________
OPINION
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ROGERS, Circuit Judge. Petitioner John Demjanjuk seeks review of the decision of the
Board of Immigration Appeals holding that the Chief Immigration Judge was authorized to preside
over Demjanjuk’s removal proceeding. Pursuant to 8 U.S.C. § 1229a, a removal proceeding must
be conducted by an immigration judge. Demjanjuk contends that the Chief Immigration Judge
cannot be considered an immigration judge, and thus lacked authority to order Demjanjuk’s removal
from the United States. The Chief Immigration Judge, however, clearly meets the statutory
definition of “immigration judge.” Accordingly, we deny the petition for review.
*
The Honorable William O. Bertelsman, Senior District Judge for the Eastern District of Kentucky, sitting by
designation.
1
No. 07-3022 Demjanjuk v. Mukasey Page 2
Demjanjuk, a native of Ukraine, entered the United States pursuant to an immigrant visa in
1952 and became a naturalized citizen in 1958. Prior to immigrating to this country, Demjanjuk
served as an armed guard at three World War II Nazi concentration camps. Proceedings in this court
regarding his extradition to Israel, for war crimes of which he was subsequently acquitted, are not
relevant to the instant case. See Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 1993); Demjanjuk
v. Petrovsky, 776 F.2d 571 (6th Cir. 1985).
On May 19, 1999, the federal government filed a complaint in district court seeking the
revocation of Demjanjuk’s citizenship. The government asserted that Demjanjuk had been ineligible
for a visa due to his wartime service to Nazi Germany and that Demjanjuk had consequently entered
this country illegally. The district court ruled in the government’s favor, and this court affirmed.
United States v. Demjanjuk, 367 F.3d 623 (6th Cir. 2004).
On December 17, 2004, the Department of Homeland Security served Demjanjuk with a
Notice to Appear, charging that he was removable from the United States. Shortly thereafter, the
Executive Office for Immigration Review (“EOIR”) initiated a removal proceeding pursuant to
8 U.S.C. § 1229a. Then Chief Immigration Judge (“CIJ”) Michael J. Creppy assigned himself to
preside over the removal proceeding. After learning that Creppy would be conducting the
proceeding, Demjanjuk filed a motion to reassign the case to another judge, alleging, among other
things, that the CIJ was without statutory authority to conduct removal proceedings. The CIJ denied
the motion and, on December 28, 2005, ordered that Demjanjuk be removed from the United States.
Demjanjuk appealed both the denial of his motion to reassign, and the order of removal, to
the Board of Immigration Appeals (“BIA”). The BIA, however, affirmed both rulings. Demjanjuk
now seeks review of the BIA’s decision with respect to CIJ Creppy’s authority to conduct removal
proceedings.
Because CIJ Creppy was an immigration judge, as that term is statutorily defined, he was
empowered to preside over the removal proceedings brought against Demjanjuk. Accordingly, the
BIA did not err in declining to vacate the CIJ’s order of removal.
Pursuant to 8 U.S.C. § 1229a, proceedings for deciding an alien’s admissibility or
deportability must be conducted by an “immigration judge.” The term “immigration judge” is
defined in 8 U.S.C. § 1101(b)(4) to mean “an attorney whom the Attorney General appoints as an
administrative judge within the Executive Office for Immigration Review, qualified to conduct
specified classes of proceedings, including a hearing under section 1229a of this title.”
CIJ Creepy met all of the elements of this definition. First, it is uncontested that CIJ Creppy
was an attorney. Second, it is evident from Creppy’s certificate of appointment as CIJ that he was
appointed by the Attorney General to serve within the EOIR. The certificate, signed by then
Attorney General Janet Reno, provides that Creppy was to serve1as CIJ in the “Office of the Chief
Immigration Judge, Executive Office for Immigration Review.”
Third, Creppy’s appointment as CIJ constituted an appointment as an administrative judge.
Although the Immigration and Naturalization Act does not define “administrative judge,” it is clear
1
Demjanjuk does not dispute that Creppy was appointed to serve in the EOIR, but contends that this
appointment was made by the Director of the EOIR, rather than by the Attorney General. Demjanjuk notes that at one
point in its decision, the BIA stated that the CIJ “is an attorney appointed by the Attorney General’s designee (the
Director of EOIR) as an administrative judge qualified to conduct removal proceedings.” This contention overlooks the
BIA’s clear statement in the same paragraph that the CIJ “is an attorney whom the Attorney General appointed,” and
the contention is completely contrary to the evidence. While the BIA statement to which Demjanjuk points is not
entirely clear, it appears to refer simply to the fact that a position description for Creppy, signed by the Director of the
EOIR, stated that one of Creppy’s responsibilities as CIJ was to conduct removal proceedings. The BIA took this
description as evidence that Creppy was “qualified” to or “able to” preside over removal proceedings.
No. 07-3022 Demjanjuk v. Mukasey Page 3
from the term’s ordinary meaning that it encompasses the position of CIJ. This court “read[s]
statutes and regulations with an eye to their straightforward and commonsense meanings.” Henry
Ford Health Sys. v. Shalala, 233 F.3d 907, 910 (6th Cir. 2000). In its normal use, the term
“administrative judge” is understood to refer to an Article I judge who presides over executive
agency proceedings. The CIJ is a judge, by the terms of his title, and was appointed by an executive
official, the Attorney General, to serve in an executive agency, the EOIR. Common sense thus
advises that CIJ Creppy was an administrative judge.
The designation of “Chief” before “Immigration Judge” in Creppy’s job title does not change
this understanding. Demjanjuk essentially asks this court to ignore the plain meaning of the words
“Immigration Judge” because Creppy’s title also included the word “Chief.” The latter term,
however, denotes merely that the CIJ is the head immigration judge, and, as such, may be
responsible for performing duties beyond those performed by other immigration judges. See
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 387 (2002) (defining “chief” as “accorded
highest rank”). The word “Chief” does not somehow alter the fundamental meaning of the words
“Immigration Judge” to make this position entirely managerial, as Demjanjuk claims it to be.
Fourth, and finally, CIJ Creppy was qualified to conduct immigration proceedings, including
those for removal. As noted, § 1101(b)(4) provides that an “immigration judge” should be
“qualified to conduct specified classes of proceedings, including a hearing under section 1229a.”
The parties dispute the significance of this language, in particular the meaning of the term
“qualified.” The Attorney General contends that this clause requires simply that the appointee be
“capable of” presiding over immigration hearings. Demjanjuk, on the other hand, reads this
language to require that the Attorney General have specifically “appointed” a judge to conduct
removal proceedings in order for that party to be considered “qualified.”
Because CIJ Creppy was “qualified” in both senses of the term, we need not decide which
of these interpretations is correct. If “qualified” means “capable of,” or “able to,” then there is little
doubt that Creppy was qualified to preside over removal hearings. Demjanjuk does not suggest that
Creppy was unable to conduct immigration proceedings effectively, nor does anything in the record
so suggest.
This interpretation moreover represents a reasonable reading of the statutory language. In
its normal use, the word “qualified” means “competent” or “fit,” as the Attorney General contends.
See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1858 (2002). It is also significant that
Congress chose to use the term “appoint” elsewhere in § 1101(b)(4), but not in the clause at issue.
If Congress had wanted, it could have said that an immigration judge is an attorney “whom the
Attorney General appoints as an administrative judge within the Executive Office for Immigration
Review to conduct [removal proceedings.]” Instead, Congress chose to discuss removal proceedings
in a separate clause and use the word “qualified” instead of “appoint.”
However, even assuming that the term “qualified” somehow means “appointed” or
“delegated,” as Demjanjuk suggests, the Attorney General has specifically delegated the power to
conduct removal proceedings to all immigration judges. At the time that Creppy2presided over
Demjanjuk’s removal hearing, the pertinent regulation, 8 C.F.R. § 1003.10 (2005), stated that
2
When Creppy was appointed in 1994, § 1003.10 similarly provided that
Immigration judges shall exercise the powers and duties in this chapter regarding the conduct of
exclusion and deportation hearings and such other proceedings which the Attorney General may assign
them to conduct.
No. 07-3022 Demjanjuk v. Mukasey Page 4
Immigration Judges . . . shall exercise the powers and duties in this chapter regarding
the conduct of exclusion, deportation, removal, and asylum proceedings and such
other proceedings which the Attorney General may assign them to conduct.
The CIJ is undoubtedly an immigration judge, and thus was explicitly empowered by the Attorney
General to preside over removal hearings.
Demjanjuk argues that § 1003.10 did not grant removal authority to Creppy, since this
section does not specifically mention the position of CIJ. This argument is unpersuasive. As
discussed, the term “Chief” does not change the basic meaning of the words “Immigration Judge.”
Because any reasonable person would assume that the position of Chief Immigration Judge is a mere
subcategory of immigration judge, the absence of any mention of the CIJ in § 1003.10 is not
significant. Nor is it telling that § 1003.9, which describes the CIJ’s duties, 3did not, at the time, list
presiding over immigration hearings as one of the position’s responsibilities. Although that section
only mentioned certain supervisory functions, it made explicit that the position “[was] not limited”
to such duties.
This analysis is supported by recent amendments to § 1003.9, the language of which now
clearly states that “[t]he Chief Immigration Judge shall have the authority to . . . [a]djudicate cases
as an immigration judge.” § 1003.9(b)(5). The amended regulation then goes on to provide that
“[t]he Chief Immigration Judge shall have no authority to direct the result of an adjudication
assigned to another immigration judge.” § 1003.9(c) (emphasis added). While these amendments
do not have retroactive effect, they confirm the previously implicit understanding that the CIJ is an
immigration judge. Indeed, the comments to the current version of § 1003.9 state that the regulation
was amended in part to clear up “apparent confusion . . . among some observers regarding the role
and status of the immigration judges.” Authorities Delegated to the Director of the Executive Office
for Immigration Review, and the Chief Immigration Judge, 72 Fed. Reg. 53673, 53673 (Sept. 20,
2007).
Moreover, the case that Demjanjuk relies upon for the proposition that a delegation of
authority must always be perfectly unequivocal and unambiguous, San Pedro v. United States, 79
F.3d 1065 (11th Cir. 1996), is distinguishable. San Pedro involved a situation where the
Immigration and Naturalization Service (“INS”) initiated deportation proceedings against a party
despite a plea agreement, approved by the U.S. Attorney and several Assistant U.S. Attorneys
(“AUSAs”), which purported to shield the party from deportation. Id. at 1067. The Eleventh Circuit
held that the U.S. Attorney and AUSAs could not bind the INS, which had been delegated authority
over deportation, since the Attorney General had not also granted such power to the U.S. Attorney
by an “explicit and affirmative” delegation. Id. at 1070-71 (emphasis omitted).
The instant case differs from San Pedro in key respects. In San Pedro, the document claimed
to have given U.S. Attorneys deportation authority, the United States Attorney’s Manual, explicitly
3
In full, the regulation provided that
The Chief Immigration Judge shall be responsible for the general supervision, direction, and
scheduling of the Immigration Judges in the conduct of the various programs assigned to them. The
Chief Immigration Judge shall be assisted by Deputy Chief Immigration Judges and Assistant Chief
Immigration Judges in the performance of his or her duties. These shall include, but are not limited
to:
(a) Establishment of operational policies; and
(b) Evaluation of the performance of Immigration Courts, making appropriate reports and inspections,
and taking corrective action where indicated.
8 C.F.R. § 1003.9 (2005).
No. 07-3022 Demjanjuk v. Mukasey Page 5
limited the power of U.S. Attorneys to negotiate concerning deportation orders and stated that U.S.
Attorneys should “be cognizant of the sensitive areas where plea agreements involve . . .
deportation.” Id. at 1070 n.4. Here, the regulations describing the powers of the CIJ used broad
rather than restrictive language, stating that the CIJ’s powers “include, but are not limited to” certain
enumerated duties. 8 C.F.R. § 1003.9 (2005). Further, in San Pedro, it would have been
problematic for U.S. Attorneys to have been delegated deportation power, since that power had
already been delegated to a different government entity. Here, on the other hand, there is no risk
of opposing government entities’ holding the same power and creating conflicting pronouncements.
The CIJ and immigration judges operate within the same entity, the EOIR, and have aligned, rather
than potentially adverse, interests. Because it would not be problematic or illogical for both the CIJ
and the remaining immigration judges to conduct removal proceedings, there is not the same need
for exact precision in a delegation that existed in San Pedro.
Officials must consider a multitude of issues in delegating authority and drafting regulations.
Although they should make their best efforts to do so, they simply cannot anticipate every scenario
that may arise or challenge that will be made. It is understandable that an official might take for
granted something that is abundantly clear and that has long been understood to be the case. To hold
that a delegation will always be ineffective where it does not spell out the obvious would place too
onerous a burden on these officials and encourage parties to seek out the slightest of ambiguities in
order to evade the law.
For the foregoing reasons, we deny the petition for review.