7th Circuit makes edits to clarify immigration judge, not immigration board, will conduct evidentiary hearing

The 7^th Circuit Court of Appeals has denied the federal government’s petition for a rehearing of an immigration appeal but did make a handful of edits to its original opinion after the Department of Justice objected to the language.

In June, the circuit panel issued a ruling in Mathusala Menghistab v. Merrick Garland, Attorney Genearl of the United States, 21-2099, which found the Board of Immigration Appeals abused its discretion by denying Mathusala Menghistab’s motion to reopen his application for delaying his removal. The 7^th Circuit held Menghistab’s fears of torture were credible if he was forced to return to Ethiopia.

Returning to the circuit court, the government moved for a rehearing on the grounds that the language in the opinion implied the Board of Immigration Appeals itself should conduct the necessary evidentiary hearing. The government explained the board is an administrative appellate body and is not responsible for factfinding.

“We find the government’s points to be well taken, and so we amend our opinion … ,” the 7^th Circuit wrote in its Wednesday order in the case.

The appellate panel changed the wording in two sentences to clarify that the immigration judge is to conduct the new evidentiary hearing. Also, it replaced two paragraphs to underscore that the board will remand the case to the immigration judge.

In a footnote, the 7^th Circuit pointed out that Judge Michael Kanne was a member of the original panel. He died suddenly on June 16 and did not participate in the resolution of the petition for rehearing.