In the case of Mekhael v. Mukasey, the Seventh Circuit Court of Appeals delivered a stinging rebuke to the immigration courts and Board of Immigration Appeals (BIA) when it ordered the review of a case of a Lebanese asylum seeker and called for the Department of Justice to allocate more resources to ensure that immigrants receive fair review of their cases.
Hanna Youssef Mekhael, a Lebanese citizen, is seeking asylum in the United States because he fears he will be persecuted if forced to return to his home country. He is Christian and a former member of the Southern Lebanese Army, a group trained and supported by Israel to fight Hezbollah.
Mr. Mekhael's case was first denied in immigration court in 2005. After fighting broke out in Lebanon between Israel and Hezbollah-blocked insurgents in 2006, he attempted to reopen the case based on changed country conditions. The Board of Immigration Appeals (BIA) denied Mr. Mekhael's motion to reopen, declining to give due weight to the changed circumstances.
In the Seventh Circuit decision, Judge Posner wrote: "The Board's reasoning was remarkable, since the petitioner's evidence concerned dramatic, portentous events that had occurred after the administrative record was closed, and so could not have been discovered before the July 2005 hearing."
The BIA has faced substantial criticism since a 2003 reorganization by then-Attorney General John Ashcroft. In 2007 alone, the Seventh Circuit Court of Appeals has overturned two other BIA decisions on the grounds that the board failed to give reasoned consideration to post-hearing evidence (see Geebreyesus v. Gonzales and Kebe v. Gonzales).
In this case, Judge Posner wrote, "We understand the Board's staggering workload. But the Department of Justice cannot be permitted to defeat judicial review by refusing to staff the Immigration Court and the Board of Immigration Appeals with enough judicial officers to provide reasoned decisions."