Third Circuit Immigration Blog

Coroleo update: overruled by Judulang v. Holder (U.S. Dec. 12, 2011)

2011-12-13T00:30:00.000-05:00

In Judulang v. Holder (U.S. Supreme Court Dec. 12, 2011), the Supreme Court seems to have overruled the Third Circuit's 2007 ruling in Coroleo.

The BIA's view on when a legal permanent resident can use section 212(c) relief while being charged with a ground of deportability is invalid. Because the BIA's rule is arbitrary and capricious, the Supreme Court struck it down. I believe this overruled how the Third Circuit accepted the BIA's view in 2007 in Coroleo.

It is arbitrary to allow some people whose crime could trigger a ground of inadmissibility to seek section 212(c) relief but not others, based on the BIA's peculiar view of whether a ground of deportability has a comparable enough ground of inadmissibility to allow section 212(c) relief.

Diop: Mandatory Detention Limited To A Reasonable Period

2011-12-07T09:00:00.000-05:00

In Diop v. ICE, the Third Circuit limited mandatory detention to a reasonable period. Sounds like a reasonable decision!

The ACLU has just come out with a practice advisory. You can find it at this link:
http://www.aclu.org/files/assets/diop_practice_advisory_pdf.pdf

Below is an explanation by the ACLU about its advisory and Diop:

Prolonged Mandatory Detention and Bond Eligibility: Diop v. ICE/Homeland Security

This advisory concerns the Third Circuit’s decision in Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011). Diop addresses whether the government may subject individuals to mandatory immigration detention for a prolonged period of time. The Court held that the Due Process Clause of the Fifth Amendment permits mandatory detention for only a “reasonable period of time,” and construed the mandatory detention statute, 8 U.S.C. § 1226(c), as authorizing mandatory detention only for a reasonable period. When detention exceeds that reasonable period, the noncitizen is entitled to an individualized hearing where the government must show that continued detention is necessary to prevent flight or danger to the community. Id. at 223.
This practice advisory discusses how certain detainees can use Diop to obtain bond hearings. Notably, although the Court held that reasonableness is a “function of the length of the detention,” id. at 232, it declined to adopt a presumptive period of time at which mandatory detention becomes unreasonably prolonged. Instead, the Court held that “[r]easonableness . . . is a fact-dependent inquiry requiring an assessment of all of the circumstances of any given case.” Id. at 234. Nonetheless, the Court recognized that reasonableness is largely a function of time, and that the more mandatory detention exceeds the periods contemplated by the Supreme Court in Demore v. Kim, 538 U.S. 510 (2003)—45 days to complete removal proceedings before the immigration judge (IJ), and five months for those who appeal their cases to the Board of Immigration Appeals (BIA)—the constitutionality of detention without a bond hearing becomes increasingly “suspect.” Id. Thus, your client’s right to a bond hearing will turn on showing that detention has become “unreasonable” in his or her case, with a significant—but not sole—factor being the length of detention.
The ACLU will be monitoring the implementation of Diop on an ongoing basis. Should you have questions or require technical assistance regarding a detention challenge under Diop, please contact Michael Tan at the ACLU Immigrants’ Rights Project, mtan@aclu.org / 212-284-7303.

Oral Argument Upcoming: Diop/Alli cases Jan. 24, 2011

2011-01-22T09:00:00.001-05:00

Two cases that have been consolidated for appeal purposes look fascinating and will be argued on Monday, January 24, 2011 in Philadelphia at 10am before Judges Fuentes, Chagares, and District Judge Pollak.

The cases are Chiekh Diop v. ICE and Homeland Security (Case No. 10-1113) and Alexander Alli v. Thomas Decker (Case No. 10-2297).

It is difficult to tell for certain, but it is likely that the cases involve the issue of how the ACLU challenges whether the government can detain people for prolonged periods of time (sometimes for many years) while they fight their immigration cases without giving them any hearing to check whether detaining them would be justified.

Even though the Supreme Court has said mandatory detention without review of some types of immigrants might be allowed for short periods, the case law is unclear about prolonged detention without any review. There are very strong arguments why it should be illegal to hold anyone based on impersonal categorizations for a prolonged period of time without offering any opportunity for an immigration judge to review whether the detention would be justified in that specific case.

The oral argument should be very interesting and I hope the ACLU can convince the Third Circuit to step in and make sure immigrants have the ability to have their detention reviewed by an immigration judge when they would be held for a prolonged period.

This is an extremely important issue and the Third Circuit has an excellent opportunity to focus on the issue. It is so important that the Third Circuit should issue a ruling even if it turns out at some point that the particular individuals involved in the cases no longer personally need a ruling. The issue will come up again in many other cases and the Third Circuit should relieve immigrants of the extreme suffering of prolonged detention if it would be illegal for the government to do it without any judicial review.

Letting it go on despite being illegal would not be a good use of the court's time or resources.

Update: the Third Circuit ruled in Diop that mandatory detention must be limited to a reasonable time period. See a different post for a practice advisory from the ACLU.

Johnson (not precedential): BIA Incorrectly Overturned IJ's Factual Findings On Standard Lower Than Clear Error

2010-11-09T09:00:00.000-05:00

Johnson v. Holder
No. 09-1949
http://www.ca3.uscourts.gov/opinarch/091949np.pdf
Not Precedential
May 20, 2010

Judges Ambro, Chagares and Aldisert. Per Curiam.

Overturning the BIA in a case originally decided by IJ Walter A. Durling.

In a claim for protection under CAT, the BIA improperly reversed the IJ's factual findings using a de novo standard of review rather than only upon finding clear error in the IJ's conclusion of what would likely happen if the United States deported him. That standard is the one to apply according to Kaplun v. Holder, 2010 WL 1409019 (3d Cir. Apr. 9, 2010).

Bobb (not precedential): Categorical Approach Required To Analyze Crimes Involving Moral Turpitude

2010-11-05T09:00:00.000-04:00

Bobb v. Holder
No. 08-2644
Not Precedential
http://www.ca3.uscourts.gov/opinarch/082644np.pdf
May 11, 2010

Judges Scirica, Chagares, and Weis. Opinion by Judge Weis.

Overturning IJ Henry Dogin and the BIA.

Use the categorical approach to analyze whether a conviction is a crime involving moral turpitude. Partyka v. Attorney Gen., 417 F.3d 408 (3d Cir. 2005); Jean-Louis v. Holder, 582 F.3d 462 (3d Cir. 2009). Official misconduct in violation of NJSA 2C:30-2 is not a crime involving moral turpitude under the categorical approach because it punishes virtually any action done without authorization by an official. That includes many actions that are not crimes involving moral turpitude.

Wright (not precedential): Modified Categorical Approach Cannot Use Accusatory Document Unless State Court Incorporated It Into Sentencing

2010-11-03T09:00:00.000-04:00

Wright v. Holder

Nos. 05-2536 and 05-3062

Not Precedential

April 16, 2010

Judges Rendell, Fisher, and Garth. Per Curiam.

The BIA incorrectly relied on an affidavit of probable cause to conclude that Mr. Wright was convicted of an aggravated felony (by being related to a controlled substance). The BIA incorrectly overturned IJ Riefkohl's conclusion that it was not an aggravated felony.

The convictions (NY Penal Law 221.40 and NY Penal Law 221.20) were not aggravated felonies. It was not a state felony including an illicit trafficking element -- nothing involved unlawful trading or dealing of a controlled substance. It was not a hypothetical federal felony -- this requires using a categorical approach rather than the circumstance-specific approach in Nijhawan because INA 101(a)(43)(B) refers to a generic crime. The BIA improperly considered the affidavit of probable cause -- even if hypothetically speaking it was the accusatory document, the BIA may not consider it where the state court never referred to it in the sentence and commitment order.

Munez-Morales (not precedential): Go Beyond Record of Conviction About Loss Amount In Money Laundering Convictions

2010-09-01T09:00:00.000-04:00

Munez-Morales v. Holder
No. 08-4114
Not Precedential
http://www.ca3.uscourts.gov/opinarch/084114np.pdf
May 11, 2010

Judges Ambro, Smith, and Chief Judge Michel. Opinion by Chief Judge Michel.

For Mr. Munez-Morales, Steven A. Morley of Morley, Surin & Griffin in Philadelphia. For the government, Lyle D. Jentzer (argued) and Paul F. Stone of the Justice Department.

Upholding the BIA for going outside the record of conviction to determine whether a money laundering conviction is one in which more than $10,000 was involved. That is the test to see whether it is an aggravated felony.

Pareja: Overturning BIA For Possibly Denying Non-LPR Cancellation Based On Number of Qualifying Relatives

2010-08-31T09:00:00.000-04:00

Pareja v. Holder
Precedential
http://www.ca3.uscourts.gov/opinarch/084598p.pdf
http://www.ca3.uscourts.gov/opinarch/084598po.pdf
July 29, 2010

Before Judges Smith, Fisher, and Greenberg. Opinion by Judge Fisher.

For Ms. Pareja, David A. Isaacson (argued) of Cyrus D. Mehta & Associates in NY, NY. For the government, Linda Y. Cheng (argued) and W. Daniel Shieh.

The Third Circuit overturned the BIA in a case originally decided by IJ Eugene Pugliese.

The Third Circuit harshly criticized OIL and the government attorneys for refusing to offer any argument or explanation about the merits of Ms. Pareja's appeal. The government focused solely on its incorrect belief that the court had no jurisdiction over the issues. The Third Circuit again emphasized the importance for the government to follow Federal Rule of Appellate Procedure 31 and offer guidance to the court -- something the government also failed to do in Leslie v. Holder, 2010 US App. LEXIS 13952 (3d Cir. July 8, 2010).

For non-LPR cancellation of removal, the Third Circuit has the power to consider whether the BIA erred in Matter of Monreal, 23 I&N Dec. 56 (BIA 2001), but the court concluded that it must defer to the reasonable interpretation offered by the BIA of the non-LPR cancellation statute.

Whether the BIA erred by putting weight on the number of qualifying relatives she had, the Third Circuit has the power to review whether the BIA made a mistake. Here, the Third Circuit ruled the BIA was unclear and it was possible that it erred by distinguishing Ms. Pareja's case solely because she had less qualifying relatives. The Third Circuit overturned the BIA and remanded for clarification.

Forteau (not precedential): Appointed Counsel Granted And BIA Must Give Chance To Participate

2010-08-30T09:00:00.000-04:00

Forteau v. Holder
June 4, 2010
Not Precedential
http://www.ca3.uscourts.gov/opinarch/093421np.pdf

Judge McKee, Rendell, and Garth. Decision by Judge Rendell.

For Mr. Forteau, Steven A. Morley (argued) of Morley, Surin & Griffin in Philadelphia. For the government, Nancy E. Friedman (argued), Richard M. Evans, Andrew J. Oliveira.

Overturning the BIA in a case initially heard by IJ Andrew R. Arthur.

In an earlier appeal, the Third Circuit remanded the case to the BIA and ordered that the BIA arrange for appointed counsel if Mr. Forteau desired one. The BIA found appointed counsel but then ignored the appointed counsel and did not give him any opportunity to comment on the case. Instead of giving an opportunity to comment, the BIA instead ruled against Mr. Forteau without ever asking for input.

The Third Circuit overturned the BIA, under the common sense rule that when it demands that the BIA arrange for appointed counsel, the point is that the appointed counsel get an opportunity to be heard, not just to be sitting on the sidelines serving no purpose.

It is great that the Third Circuit is making strides in appointing counsel for indigent immigrants and to make sure the point of appointed counsel is upheld -- appointed counsel should have a chance to participate in a case. The BIA committed a serious due process violation. (Its error seems a bit farcical to an outside observer.)

Arriza-Escobar (not precedential)

2010-08-27T09:00:00.000-04:00

Arriza-Escobar v. Holder
Not Precedential
June 1, 2010
http://www.ca3.uscourts.gov/opinarch/093193np.pdf

Judges Sloviter, Jordan, and Greenberg. Per Curiam.

Overturning the BIA and Immigration Judge Eugene Pugliese.

A man fearing the MS-13 gang sought asylum and IJ Pugliese and the BIA denied the asylum request. The Third Circuit, however, concluded that the BIA made a mistake by ruling that he did not establish a well-founded fear of future persecution. The BIA said there was no evidence that there could be future harm. Mr. Arriza-Escobar testified about the threats. By saying there was no evidence, the BIA misstated the record. The BIA also incorrectly assumed that if his brother faced no threats, that he could not possibly face threats in the future. That was an improper assumption. Even though it could be an area to explore and analyze, it is wrong to make an assumption that if someone's brother faces no threats, the person could not possibly face future threats.

Jiang (not precedential): Consider Facts As True For Asylum-Based Motions To Reopen

2010-08-26T09:00:00.000-04:00

Jiang v. Holder
No. 08-4806
Not Precedential
May 10, 2010
http://www.ca3.uscourts.gov/opinarch/084806np.pdf

Judges Ambro, Smith, and Chief Judge Michel. Opinion by Chief Judge Michel.

Overturning the BIA and IJ Eugene Pugliese.

For Ms. Jiang, Gary Yerman of NYC. For the government, John J. Inkeles (argued) and Francis W. Fraser and Timothy B. Stanton of the Justice Department.

For a motion to reopen due to changed country circumstances, you must show a realistic chance that you can establish asylum should be granted. Unless inherently unbelievable, facts presented in the motion should be accepted as true. IJ Pugliese and the BIA erred by giving little to no weight to an official letter from a village in China to Ms. Jiang. They should have accepted the alleged facts as true for the purpose of deciding the motion to reopen.

Espinosa-Cortez: BIA Required To Conclude Anti-FARC Colombian Targeted In Part For His Imputed Political Beliefs

2010-08-20T09:00:00.000-04:00

Espinosa-Cortez v. Holder
June 2, 2010
Precedential
http://www.ca3.uscourts.gov/opinarch/084170p.pdf

Judges Rendell, Ambro, and Fuentes. Opinion by Judge Fuentes.

For Mr. Espinosa-Cortez, Peter M. Rogers (argued) of Peters & Rogers, PC in Pittsburgh. For the government, Dalin R. Holyoak (argued), Kristen Giuffreda Chapman, Regina Byrd, and Francis W. Fraser.

The IJ and the BIA concluded a man from Colombia did not have a reasonable fear he would be persecuted due to his political beliefs, which a key part of his asylum claim.

The Third Circuit overturned the BIA even though it took a deferential approach. The Third Circuit concluded that the BIA's ruling was so out of line that it a reasonable adjudicator would be compelled to arrive at a contrary conclusion. The BIA was very far out of line.

Although someone who fears threats from a guerilla organization trying to recruit him does not automatically qualify for asylum, certain facts here would compel a reasonable adjudicator to conclude FARC's pursuit of Mr. Espinosa-Cortez was at least partly motivated by a political opinion it believed he held. For example, his close, direct affiliation with and support of the Colombian government and military. Although he was not directly employed by the government, he was closely affiliated with the government, provided support to it, and depended on it for his livelihood.

Two other distinctions are that he engaged in protracted resistance to FARC's resistance efforts (not merely being approached by guerrillas on a single occasion as in the case of Elias-Zacarias). Also, he made his anti-FARC views known to the persecutors when he rejected their requests.

Johnson: No Jurisdiction To Review Extreme Cruelty for VAWA Cancellation

2010-08-18T09:00:00.000-04:00

Johnson v. Holder

No. 07-2820

Precedential

April 16, 2010

For Mr. Johnson, Ransford B. McKenzie of Brooklyn, NY. For the government, John S. Hogan, Kathleen J. Kelly, and Briena L. Strippoli.

Judges Sloviter, Nygaard, and Chief Judge Restani of the US Court of International Trade. Decision by Judge Sloviter. Upholding the BIA's affirmance of IJ Mirlande Tadal's decision.

The Third Circuit held there was no jurisdiction for a circuit court to review denial of cancellation of removal under the Special Rule for Battered Spouses where it was based on failing to prove extreme hardship. The Fifth, Seventh, and Tenth Circuits have already ruled similarly because the definition of extreme hardship is not self-explanatory and the Third Circuit believes it falls within the discretion of the IJ.

Bradley: VWP Entrant Filing More Than 90 Days After Entry Cannot Block Deportation

2010-08-16T09:00:00.000-04:00

Bradley v. Holder

No. 08-4184

Precedential

April 22, 2010

Haroutyun Asatrian of Strasser Asatrian, LLC in Newark, NJ argued for Mr. Bradley. For the government, Gary J. Newkirk (argued), Stephen F. Day, and Justin R. Markel.

Judges Ambro, Smith, and Aldisert. Decision by Judge Aldisert.

Although there are several issues, one of the biggest concerns the defenses for someone facing summary deportation under the visa waiver program (where you waive the right under almost all circumstances to see an immigration judge in exchange for quick entry into the United States). The Third Circuit ruled that if someone is threatened with summary deportation under VWP, that person can challenge the imminent deportation only if he or she filed an adjustment of status application within 90 days of entering the United States.

One open issue is whether the Third Circuit would alter its rationale based on the so-called 30/60 day rule found at 9 Foreign Affairs Manual 40.63 n.4.7-1 to 4.7.4. Because Mr. Bradley did not raise the issue in his opening brief, the Third Circuit left open how it would rule in a case that raised the 30/60 day rule.

Under the Third Circuit's ruling, if someone is a VWP entrant and did not file for adjustment of status within 90 days of entering, and the government is about to deport the person, there is no way to demand that a federal court block the deportation.

Outside of court and separate from the decision, USCIS in New Jersey for some time is holding cases where a VWP entrant filed for adjustment of status more than 90 days after entering. It's not clear what they would do that -- the Third Circuit's ruling does not prevent USCIS from granting adjustment of status. All it says is that if the government is actively deporting someone before USCIS decides the request for a green card, the immigrant will not be able to get a federal court to block the deportation. We will see whether USCIS adopts a strange interpretation of the Third Circuit's decision (and if so, how soon a federal court can rule on USCIS's interpretation).

Zegrean: IJ Must Get DHS To State Immigrant Is Prima Facie Eligible For Naturalization

2010-08-04T09:00:00.000-04:00

Zegrean v. Holder

No. 08-3714
http://www.ca3.uscourts.gov/opinarch/083714p.pdf

Precedential

April 13, 2010

Judges Barry, Jordan, and Van Antwerpen. Opinion by Judge Barry.

For Mr. Zegrean, David Kaplan (argued) and James J. Orlow of Orlow, Kaplan & Hohenstein in Philadelphia, PA. For the government, Kevin J. Conway (argued) and Sharon Clay.

The USCIS arm of DHS that decides naturalization applications cannot tell an IJ that someone is prima facie eligible because it is not allowed to consider naturalization applications from anyone in removal proceedings. The Third Circuit held that it would be wrong to empower an IJ to make the determination of whether someone is prima facie eligible to naturalize.

It left open the question of who, then, would be empowered to announce that someone is prima facie eligible. It suggested that DHS or Congress should undertake clarifying the situation expeditiously.

The Third Circuit did not explain any solutions -- but maybe the solution would be for ICE counsel to undertake the task of announcing whether someone is prima facie eligible for naturalization.

Kaplun: Assessment Of What Will Happen Is A Fact That An IJ Finds

2010-08-02T09:00:00.000-04:00

Kaplun v. Holder
Precedential
http://www.ca3.uscourts.gov/opinarch/082571p.pdf
April 9, 2010
Judges Ambro, Smith, and Paul R. Michel (Chief Judge of the Federal Circuit). Opinion by Judge Ambro.

For Mr. Kaplun, Thomas E. Moseley of Newark, NJ. For the government, Manuel A. Palau (argued), Terri J. Scadron, Gregory G. Katsas, Paul F. Stone.

Overturning the BIA in a case decided by IJ Charles M. Honeyman. IJ Honeyman granted withholding of removal and protection under CAT (Convention Against Torture) but the BIA overturned it through de novo review.

The Third Circuit overturned the BIA for using the wrong standard of review when analyzing the IJ's finding about the probability Mr. Kaplun would be tortured in the future. The BIA should have reviewed the IJ's ruling de novo as opposed to the clearly erroneous standard (where the BIA will only overturn the IJ if its ruling is clearly erroneous).

The Third Circuit explained that the probability something would happen in the future can be a factual finding. For example, whether it likely will take less than 3 hours next week to drive 100 miles from one house to another. Its likelihood can be established through evidence of the distance, traffic patterns, and typical traffic conditions.

In deciding whether someone is likely to be tortured, there are two issues -- (1) what is likely to happen and (2) does what is likely to happen amount to the legal definition of torture.

This second question -- whether what likely will happen is something that amounts legally to torture -- is a legal question that the BIA must consider de novo. But the first question is a factual finding and the BIA erred in this case by conducting de novo review.

Perez Muniz (not precedential): Unobjected Adherence To Case Completion Goals Difficult To Win On Appeal

2010-06-02T09:00:00.000-04:00

Perez Muniz v. Holder
No. 08-1444
February 8, 2010
Not Precedential
http://www.ca3.uscourts.gov/opinarch/081444np.pdf

Judges Rendell, Jordan, and Senior District Judge Padova. Opinion by Judge Jordan.

Francis X. Geier (argued) with Anayancy R. Houseman of Elizabeth, NJ, for Mr. Perez Muniz. Sharon Clay (argued) with Gregory G. Katsas, Richard M. Evans, and Brooke M. Maurer of OIL, Justice Department.

Upholding the BIA and IJ Annie S. Garcy.

In May 2006, IJ Garcy allowed Mr. Perez Muniz to reinstate his asylum application but only gave two weeks until the merits hearing, noting a desire to meet case completion guidelines. The Third Circuit focused on how Mr. Perez Muniz's lawyer had no objection to the short two week time period before the merits hearing and how IJ Garcy said that her desire to provide a fair hearing was more important than her desire to aide by case completion guidelines.

One point is that you need to object to an IJ's desire to adhere to case completion goals, even if does not seem very diplomatic to do so. Another point is that you should not assume that the Third Circuit will be sensitive to the pressures when an IJ notes case completion guidelines. Instead, object and make the record clear for the Third Circuit.

Daramy (Not Precedential): BIA Improperly Invoked Law Of The Case Doctrine And Erred On The Asylum One-Year Rule

2010-06-01T09:00:00.000-04:00

Daramy v. Holder
No. 08-2537
Not Precedential
February 8, 2010
http://www.ca3.uscourts.gov/opinarch/082537np.pdf

Overturning the BIA and IJ Mirlande Tadal

Judges Scirica, Barry, and Smith. Opinion by Chief Judge Scirica.

The BIA and IJ Tadal both erroneously applied the law of the case doctrine to someone based on rulings in a different case. The law of the case doctrine only applies where it is a later stage of the same case. Here, there was a separate case, not the same case. Even though it involved the same person, it was a second, independent case. The first one started with a Notice to Appear in December 2004 and the new second case started with a Notice to Appear in July 2007.

The Third Circuit notes that res judicata, claim preclusion, and issue preclusion apply in immigration proceedings, citing Duvall v. Att'y Gen., 436 F.3d 382, 386-90 (3d Cir. 2006) and other cases. But res judicata and claim preclusion are not the same as the doctrine of law of the case.

In addition, IJ Tadal and the BIA erred about how to apply the one-year deadline for filing asylum claims. Since the IJ and BIA made their rulings, the BIA clarified the rule in In re F-P-R, 24 I&N Dec. 681 (BIA 2008) that the one year deadline for filing from the last arrival means the arrival just before the person applied, not an earlier arrival.

Judges Joseph Greenaway and Thomas Vanaskie Join The Third Circuit

2010-04-26T09:00:00.002-04:00

Welcome and congraulations to Judges Joseph Greenaway and Thomas Vanaskie for completing the confirmation process for the Third Circuit!

Judge Joseph Greenaway's confirmation is old news by now, having been confirmed 84-0 by the Senate in February 2010. Here is what we noted about Judge Greenaway last year after President Obama nominated him:
http://3dcir.blogspot.com/2009/06/obama-nominates-joseph-greenaway-jr-for.html

Judge Thomas Vanaskie's confirmation is recent. He was confirmed 77-20 by the Senate on April 21, 2010. We blogged about one not-precedential Third Circuit immigration case where he participated by designation:
http://3dcir.blogspot.com/2008/02/junaidi-not-precedential-suggestions.html

As a district court judge, Judge Vanaskie ruled in 2008 in a district court case that forced the government to honor the legal rights of an immigrant (Mr. Khouzam) who feared being tortured if he were deported. Judge Vanaskie compelled the government to comply with United States law, which included legislation that implemented a treaty the United States ratified in 1994. The government appealed Judge Vanaskie's ruling and the Third Circuit not only upheld it, the Third Circuit also described Judge Vanaskie as having written a comprehensive, thoughtful opinion. Here is a blog posting about the Third Circuit's ruling:
http://3dcir.blogspot.com/2008/12/khouzam-due-process-rights-exist-for.html

Welcome, Judges Greenaway and Vanaskie! We look forward to your rulings in Third Circuit immigration cases.

Akinola v. Weber (D.N.J.): No Mandatory Detention Allowed Where Held 17 Months During Removal Proceedings

2010-04-09T09:00:00.000-04:00

Not a Third Circuit case -- rather, a case decided by a federal district court within the Third Circuit.

Akinola v. Weber, Civil Action No. 09-3415 (WJM) (D.N.J. Jan. 26, 2010) (Judge Martini).

For Mr. Akinola: Kole Akinola appearing pro se from Essex County Jail in Newark, NJ. For the governent, Ralph J. Marra, Jr. and Allan B.K. Urgent of the US Attorneys' Office in Newark, NJ.

There are many Constitutional challenges to mandatory detention that have not yet been decided. In Akinola, one of the many unresolved Constitutional challenges was the focus. Does mandatory detention apply to someone who has been held many months while challenging his removal? This is unlike other cases such as Demore v. Kim, 538 U.S. 510 (2003) where all sides presumed that detention while challenging removal would usually be 1.5 months or in a minority of cases would take 5 months -- nothing close to the actual 17 months in this case.

Judge Martini of the District of New Jersey held that for an individual who had been in immigration detention for 17 months while challenging his removal, “the Court is not inclined to accept Respondents’ argument in favor of continued detention based solely on the mandatory language of § 1226(c), particularly where the Supreme Court in Demore did not expressly contemplate the constitutionality of such prolonged detention, and where Respondents have offered no other compelling justification or authority for such prolonged detention . . . .” Akinola v. Weber, Civil Action No. 09-3415 (WJM), slip op. at 14 (D.N.J. Jan. 26, 2010). The court planned to hold a bond hearing, in habeas, on Feb. 18, 2010.

These important Constitutional challenges are being raised throughout the United States.

Bellot-Paul (not precedential): IJs Have The Power To Exlude Late Filings

2010-04-08T09:00:00.001-04:00

Bellot-Paul v. Holder
No. 09-2809

February 1, 2010

Not Precedential
http://www.ca3.uscourts.gov/opinarch/092809np.pdf

Judges Scirica, Jordan, and Stapleton. Per Curiam decision. Upholding the BIA and Immigration Judge Irma Lopez-Defillo.

IJs have the power to exclude items if the person filing them misses a reasonable deadline. If you miss a deadline, you should see whether the IJ's interpretation of the rule or regulation was improper. If you do not raise such an argument, then you could lose.

This case is very interesting because the Third Circuit and BIA affirm a well-established power of all judges to exclude items from the record if the person submitted them later than a reasonable deadline that the judge had set. Where someone files items late with no excuse and no complaint about the rules or regulations, then an IJ can exclude the item from the record and the BIA and the Third Circuit might uphold that decision.

Let's look at some issues that are not discussed in this decision -- it would therefore be logical that if the government missed a reasonable deadline to submit documents, offered no excuse, and did not challenge any rule or regulation, an IJ would have the power to exclude that item from the record. If an IJ incorrectly believed that he or she had no power to exclude the late-filed document, it would be logical for the BIA and Third Circuit to overturn the IJ's ruling.

It would be particularly unfair if the BIA or IJ gave a free pass to the government whenever it filed documents late, but penalized asylum-seekers who filed documents late. We will wait and see whether the BIA and Third Circuit make a consistent ruling for late-filed government documents. It would be especially important to apply at least an equally harsh rule against the government because there is an additional argument that due process for asylum-seekers (who are not currently viewed as deserving appointed counsel) would require more leniency for late-filed documents by asylum-seekers. Let's see whether that type of case comes up on the Third Circuit's docket in the coming months.

Who knows, maybe EOIR will train the Immigration Judges not to accept blindly all late-filed government documents. It would be a valuable topic for EOIR trainings.

Rincon (not precedential): Asylum-Seeker's Inconsistencies Minor and BIA Must Consider Whether To Allow Asylum-Seeker's Unauthenticated Document

2010-04-07T09:00:00.000-04:00

Rincon v. Holder

No. 08-1752

January 11, 2010
Not Precedential
http://www.ca3.uscourts.gov/opinarch/081752np.pdf

Judges Rendell, Fisher, and Garth. Per Curiam opinion. Overturning the BIA and Immigration Judge Annie S. Garcy.

Two main points and a third small one:

Improper for IJ Garcy and the BIA to hold only minor inconsistencies against the asylum-seeker. The asylum-seeker offered reasonable explanations for the perceived inconsistencies.
Improper for the BIA to reject documents not authenticated without analyzing whether the totality of the circumstances still favored admitting the unauthenticated documents. Particularly where IJ Garcy agreed to admit the documents because the government had interfered with the ability to authenticate them.
Improper for the BIA to reject the claim of ineffective assistance of counsel based on the Lozada criteria without ever discussing which criterion it failed or how the overall Lozada analysis applied in this case. The asylum-seeker raised the claim to the BIA only, so this was not any error by IJ Garcy.

Bai (not precedential): BIA Must Consider Its Power To Take Administrative Notice Of New Country Conditions

2010-04-06T09:00:00.000-04:00

Bai v. Holder

No. 08-3928

Not Precedential
December 28, 2009

http://www.ca3.uscourts.gov/opinarch/083928np.pdf

Judges Ambro, Chagares, and Aldisert. Per Curiam decision. Overturning the BIA in a case that started with Immigration Judge Margaret R. Reichenberg (but not criticizing IJ Reichenberg's rulings).

The BIA erred in this asylum case by refusing even to analyze whether it should take judicial notice of a country condition report that came out while the case was being appealed. The BIA has the power of taking official or administrative notice. The BIA in this case incorrectly ignored its power to take administrative notice of facts by ruling that it may not consider evidence presented for the first time on appeal. The BIA was wrong -- the BIA has the power to take administrative notice of official documents such as the State Department's country condition reports. Sheriff v. Att'y Gen., No. 08-1645, 2009 WL 4042936, at *6 (3d Cir. Nov. 24, 2009).

Therefore, in any asylum case it makes sense to provide the latest country condition report while your appeal is pending and to ask the BIA to take administrative notice of it.

Shehaj (not precedential): Airport Interview Not Proper Basis For Adverse Credibility Determination

2010-04-05T09:00:00.000-04:00

Shehaj v. Holder
Not Precedential
No. 08-3812

http://www.ca3.uscourts.gov/opinarch/083812np.pdf
December 22, 2009

Judges Ambro, Aldisert, and Roth. Opinion by Judge Ambro. Overturning the BIA and Immigration Judge Frederic G. Leeds.

Ms. Shehaj sought asylum and when she arrived in Toronto, Canadian officials interviewed her at the airport and jotted down two pages of notes. Ms. Shahaj conceded that she had lied to the Canadian officials because people who brought her to Canada coached her to lie in order to get released by the Canadian authorities.

IJ Leeds denied the asylum application and said he was "unfortunately compelled" to find Ms. Shehaj not credible due to her lies to the Canadian officials -- even though Ms. Shahaj's story was consistent with news reports and country condition reports.

The BIA upheld IJ Leeds's credibility determination because the BIA held it was not clearly erroneous.

In October 2008, the Third Circuit granted Ms. Shehaj's motion for a stay of removal.

The BIA and IJ Leeds erred by focusing on the lies to the Canadian officials without considering whether the totality of the circumstances and all relevant factors supported finding her not credible. The BIA and IJ also did not address Ms. Shehaj's explanation for why she had lied or to analyze why that explanation would not be adequate.

The Third Circuit also noted that inconsistencies between an airport statement and an asylum-seeker's testimony is not sufficient, standing alone, to find the person not credible. Fiadjoe v. Att'y Gen., 411 F.3d 135, 159 (3d Cir. 2005). Common problems include that the person is often disoriented during the interview, the interviewers usually offer scant and incomplete notes of the interview.

Oladejo (not precedential): BIA Ignored Reasonable Explanation Why Motion To Reopen For Ineffective Assistance Was Late

2010-04-02T09:00:00.000-04:00

Oladejo v. Holder
No. 08-3043
March 19, 2010
Not Precedential
http://www.ca3.uscourts.gov/opinarch/083043np2.pdf

Judges Fuentes, Weis, and Garth. Per Curiam. Overturning the BIA. Originally before Immigration Judge Alberto J. Riefkohl, but the Third Circuit only criticized the BIA's ruling, not anything IJ Riefkohl ordered.

A man filed a motion with the BIA arguing that his original lawyer had given ineffective assistance of counsel. The BIA denied the motion by concluding that the man did not attribute the delay in filing the motion to any lawyer's ineffectiveness. However, Mr. Oladejo did argue that the reason he delayed filing his motion was because one of his former lawyer never explained to him the consequences of the BIA denying one of his earlier motions to reopen. One consequence was that his strategy of seeking legal status through adjustment of status was impossible after the BIA denied the earlier motion to reopen.

Patel: No LIFE Act Confidentiality For Work Authorization Applications

2010-04-01T09:00:00.000-04:00

Patel v. Holder
No. 09-1066
Precedential
March 30, 2010
http://www.ca3.uscourts.gov/opinarch/091066p.pdf

Judges Fuentes, Roth, and Van Antwerpen. Per Curiam.

Michael A. Younge of Anaheim Hills, CA for Ms. Patel. Regina Byrd, Ernesto H. Molina, and M. Lee Quinn for OIL of the Justice Department.

Upholding the BIA and Immigration Judge Margaret Reichenberg.

The Third Circuit held that the confidentiality provisions of the LIFE Act (the Legal Immigration Family Equity Act) under INA 245A(c)(5) cover adjustment of status applications under the LIFE Act, but not employment authorization applications.

The Third Circuit focused on how the confidentiality provision covered applications filed under INA 245A or LIFE Act section 1104(b) for adjustment of status. Using that narrow focus, the Third Circuit held that the protections did not cover other applications, such as for employment authorization under the Family Unity Provisions.

What is interesting in the immigration world is that many people view adjustment of status applications as going hand-in-hand with work authorization applications. In certain situations, lawyers even refer to them as part of the same one-step packet. Perhaps the key to the case would not be solely the literal words in the statute, but some of the legislative history to show whether Congress had in mind the entire packet (which includes work authorization applications) or just the specific, literal wording of the statute.

Yigit (not precedential): Velarde-type Motion To Reopen Must Consider Eligibility Proof Filed Any Time Before IJ's Decision

2010-03-12T09:00:00.000-05:00

Yigit v. Holder
No. 08-3625
Not Precedential
December 9, 2009
http://www.ca3.uscourts.gov/opinarch/083625np.pdf

Chief Judge Scirica, Judge Smith, and Judge Weis. Per Curiam decision. Overturning the BIA and IJ Miriam K. Mills.

The immigrant had a way to obtain LPR status through filing a motion to reopen the case within 90 days of the decision, similar to the method approved in the BIA's decision Matter of Velarde. After filing the motion on time, the immigrant filed additional evidence. The IJ was required to consider all of the evidence filed before making the decision, not limiting analysis just to the items in the original motion to reopen. No reason to ignore the evidence filed after the motion but before the IJ made her ruling.

Tinizaray-Narvaez (not precedential): Erroneous Denial of Continuance Where Expert's Busy Schedule Caused Delay

2010-03-11T09:00:00.000-05:00

Tinizaray-Narvaez v. Holder
No. 08-3333
November 24, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/083333np.pdf

Judges McKee, Nygaard, and Roth. Per Curiam decision. Overturning the BIA and IJ Annie S. Garcy.

IJ Garcy denied a continuance to allow someone seeking cancellation of removal for non-LPRs a chance to make an expert witness available for cross-examination because the expert was not available on the scheduled merits hearing date. An IJ's decision to deny a continuance is reviewed for abuse of discretion. The IJ acted in an arbitrary manner by faulting the immigrant for submitting the expert report just one week before the hearing, missing the court-ordered deadline. It was arbitrary because the IJ blamed the immigrant for unreasonably delaying the effort to get the expert report on time. However, four or five months of the wait to get the report was purely due to the expert's busy schedule and being unable to conduct the evaluation.

A delay of several months due to a specialist's busy schedule is no one's fault. As far as not being available on the hearing date, it was due to the expert's long-scheduled conflicting appointment to attend a conference. The IJ commented that there was no reason to think the immigrant would make good use of a continuance, but there was no basis in the facts of the case for the IJ's comment.

Tang (not precedential): Overturning Adverse Credibility Determination Where Photo Did Not Show Entire Room

2010-03-10T09:00:00.000-05:00

Tang v. Holder
No. 08-2586
November 20, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/082586np.pdf

Judges McKee, Nygaard, Roth. Per Curiam decision. Overturning the BIA and IJ Miriam K. Mills.

The IJ's adverse credibility determination was not supported by adequate evidence. For example, Mr. Tang claimed that a photo of a clandestine church was taken at the location of the church, which was in a single family residence. The IJ concluded it was not in any single family residence and instead seemed to show an auditorium-sized facility. However, the photo did not show the whole room so it was improper to assume the part outside the shot was auditorium-sized. Also, Mr. Tang testified about how houses in his hometown were large.

Chen (not precedential): No Violation For Government's Expert Not To Produce Data Where Still Possible To Cross-Examine Methods

2010-03-09T09:00:00.000-05:00

Chen v. Holder
November 10, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/081614np.pdf

For Mr. Chen, Marco Pignone, III of Getson & Schatz in Philadelphia argued the case. For the government, Paul Fiorini argued the case and also on the case was Richard M. Evans of OIL.

Judges Rendell, Ambro, and District Court Judge Terrence F. McVerry. Judge Rendell issued the decision. Upheld the BIA and IJ Rosalind K. Malloy.

It did not violate due process for the government's expert not to reveal her notes or to refer to documents that Mr. Chen wished to challenge. This is because Mr. Chen was nevertheless able to cross-examine the expert about her methodology and findings.

Addo (not precedential): Federal Escape Felony Not A Crime of Violence

2010-03-08T09:00:00.000-05:00

Addo v. Holder
No. 05-4076
Not Precedential
December 14, 2009
http://www.ca3.uscourts.gov/opinarch/054076npa.pdf

Judge Sloviter, McKee, and Ambro. Per Curiam on remand from the Supreme Court.

A conviction for escape under 18 USC 751(a) is not a crime of violence. Under the Supreme Court's decision in Chambers, failing to report to a penal institution was not a violent felony. Here, this particular person's conviction for escape was essentially a failure to report by not reporting to a community treatment center. Similar treatment seems proper for finding the failure to report not to qualify as a violent crime in Chambers as saying in this case that a failure to report is not a cirme of violence. Therefore, it is not an aggravated felony.

Torres (not precedential): Equitable Tolling For Motion To Reopen Based On Marriage To Citizen

2010-03-05T09:00:00.000-05:00

Torres v. Holder, No. 08-3554 (3d Cir. Oct. 16, 2009) (not precedential)
http://www.ca3.uscourts.gov/opinarch/083554np.pdf

Judges Fuentes, Weis, and Garth. Per Curiam decision. The Third Circuit held that the BIA erred by refusing to allow someone to reopen a case beyond the usual 90-day limit when there was proof that she made diligent efforts to pursue adjustment of status and had not received notice that the BIA had denied her appeal. Therefore, the BIA should have used equitable tolling to extend the period for filing a motion to reopen.

Although IJ Eugene Pugliese had originally ruled in the case, the entire issue on appeal was focused only on the BIA's ruling, not anything the IJ had decided.

Serna-Garcia (not precedential): Social Group Analysis Must Focus On Proposed Group, Not Just Whether Wealth Alone Suffices

2010-03-04T09:00:00.000-05:00

Serna-Garcia v. Holder
September 24, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/042254np.pdf

Judges Scirica, Chagares, and Aldisert. Per Curiam.

Overturning the BIA and Immigration Judge Henry S. Dogin.

The Third Circuit concluded that the IJ and BIA used the wrong legal standard for CAT claims -- CAT is possible if the government of the home country consents or acquiesces to the torture that is likely to be inflicted, even if the government is not actually doing the torturing.

Also, the IJ and BIA never ruled on the argument that a social group for asylum purposes can be composed of young, single women with financial means who are vulnerable to kidnapping and have been threatened by FARC. The IJ's comment suggesting wealth alone would not be enough to qualify as a social group did not address the proposed social group, which involves more than simply wealth.

Purveegiin (not precedential): Government Deported Immigrant Without Alerting Third Circuit Considering A Stay Request

2010-03-03T09:00:00.001-05:00

Purveegiin v. Holder, No. 07-1227 (3d Cir. Aug. 25, 2009) (not precedential)
http://www.ca3.uscourts.gov/opinarch/071227np.pdf

Fascinating -- Mr. Purveegiin asked the Third Circuit for a stay of removal. While the motion was pending and without notifying the court in advance (as is the government's usual practice), the government removed Mr. Purveegiin from the United States. It is disappointing to see that the government sometimes removes people even while their request for a stay of removal is pending and does not inform the Third Circuit about it. The Third Circuit appointed counsel for Mr. Puveegiin, who remained in Mongolia because he and the government were at an impasse about the terms and conditions for him to return to the United States.

Bile (not precedential): 2-1 Majority Says No Jurisdiction Over Issue Where Not Appealed To BIA

2010-03-02T09:00:00.000-05:00

Bile v. Holder
No. 08-3792
Not Precedential
August 12, 2009
http://www.ca3.uscourts.gov/opinarch/083792np.pdf
2-1 decision.

Judges Sloviter, Ambro, and Greenberg. Per Curiam decision. It had been before IJ Walter A. Durling.

In the majority per curiam decision, Judges Sloviter and Greenberg held that the issue exhaustion doctrine prevents someone from raising any issue they did not raise to the BIA in any manner, not even mentioning in some way in their notice of appeal to the BIA.

Judge Ambro dissented because the BIA did consider the issue of its own accord by noting that it viewed Mr. Bile as previously being advised of the right to appeal and clearly electing not to appeal. The BIA therefore considered the validity of the waiver of the right to appeal.

One key tip is to it might be too late to bring someone new to work on the Third Circuit appeal. If the person who worked on the BIA appeal did not raise some issues, it might stop them from being raised to the Third Circuit, no matter how good the lawyer at that point is.

Piao (not precedential): BIA May Reject Late Notice of Appeal -- Third Circuit Can Order Transcript of IJ Decision

2010-01-04T09:00:00.000-05:00

Piao v. Holder
December 22, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/092372np.pdf

Judges Smith, Fisher, and Garth. Per Curiam opinion. Affirming the BIA and IJ Henry S. Dogin's rulings against the asylum-seeker.

Briefly, one of the points is that the BIA has the power to reject a motion to accept a late-appeal of an IJ's decision if it is based on the deficient performance of the lawyer he hired to start the BIA appeal and the person did not comply with the requirements in Matter of Lozada. Although strict compliance with the Lozada requirements is not necessary where their purpose is fully served by other means (such as in Lu v. Ashcroft, 259 F.3d 127 (3d Cir. 2001)), the asylum-seeker in this case did not fit that exception.

Here, the hired lawyer filed the notice of appeal two days late, having obtained a postal money order just one day before the due date. But there was no explanation of what exactly the lawyer had done or promised to do and why it arrived two days late.

On an interesting side-note, the Third Circuit invoked Federal Rule of Appellate Procedure 16(b), which empowers a court to direct a supplemental record to be prepared and filed if there are omissions. The BIA made a mistake in preparing the record by never transcribing the IJ's oral decision. This is a small but useful example of when a circuit court can accept additional material into the record outside of what the BIA prepared.

Sheriff: BIA Utterly Failed To Consider Atrocities In Liberia In Humanitarian Asylum Case

2009-11-26T11:30:00.001-05:00

Sheriff v. Holder
No. 08-1645
Precedential
http://www.ca3.uscourts.gov/opinarch/081645p.pdf
November 24, 2009

Judges Barry, Fisher, and Jordan. Opinion by Judge Barry. Overturning the BIA and vindicating the original decision by Immigration Judge Alberto J. Riefkohl. The BIA overturned IJ Riefkohl in a decision where one member dissented without an opinion.

Dennis Mulligan of the Nationalities Service Center (Philadelphia, PA) argued the case for Ms. Sheriff. Susan B. Green argued the case and worked with Lindsay B. Glauner and Angela N. Liang of the Justice Department's Office of Immigration Litigation for the government.

The Third Circuit criticized the BIA for utterly failing to consider or analyze atrocities and almost unimaginable horrors that a woman from Liberia experienced. The BIA was required to consider and analyze that evidence when deciding her request for asylum, including humanitarian asylum.

There is no question that the woman suffered past persecution due to incidents that rose to the level of persecution, was on account of one of the protected grounds, and was committed either by the government or forces the government was unable or unwilling to control. People who suffered past persecution are presumed to have a well-founded fear of persecution. The government can rebut that presumption by showing a fundamental change in circumstances in the home country that takes away the well-founded fear. If the government does not rebut the presumption, the court should grant asylum in its discretion. If the government does rebut the presumption, the asylum-seeker has two additional avenues to succeed -- showing compelling reasons for being unwilling or unable to return to the home country due to the severity of the past persecution or showing a reasonable possibility he or she may suffer other serious harm upon returning to the home country.

First, the Third Circuit discussed the BIA's errors about whether the government rebutted the presumption. The BIA cannot rely solely on the State Department's Country Reports because general evidence of improved country conditions is insufficient to rebut credible testimony and other evidence unless the Country Report addresses the specific basis for the fear of persecution.

Another mistake was that the BIA did not mention much of the asylum-seeker's evidence. Because the Country Reports do not appear to be enough to support rebutting the presumption and the BIA did not give any indication it considered and addressed the asylum-seeker's evidence, the Third Circuit overturned the BIA and sent the case back to the BIA for further proceedings.

It is useful that the Third Circuit endorses how the BIA will accept Country Reports that come out while a case is on appeal to the BIA. Another clarification is that in BIA appeals on or after September 25, 2002, the BIA cannot overturn an IJ's fact-finding unless it is clearly erroneous but the BIA has de novo review over whether the facts legally rebutted the presumption.

Second, the Third Circuit addressed the BIA's errors regarding humanitarian asylum. The avenue based on the severity of past persecution is also known as Matter of Chen asylum based on Matter of Chen, 20 I&N Dec. 16 (BIA 1989). It is available when the past persecution was an atrocious form of persecution. The Third Circuit emphasized that the atrociousness is not narrowly limited to victims of such horrors as the Holocaust, the Chinese Cultural Revolution, or Cambodian genocide. Other victims can also succeed. Because the BIA did not show that it considered the terrible incidents that Ms. Sheriff endured, the Third Circuit remanded the case.

Also, on remand the BIA can for the first time offer some explanation and analysis of what type of serious harm there is a reasonable possibility the asylum-seeker might suffer upon returning to the home country.

Congratulations to Dennis Mulligan for the comprehensive victory! It is disappointing that the government tried to minimize the BIA's failure to consider the horrors the asylum-seeker suffered by arguing that the BIA was not required to mention every "detail," as the government cavalierly described them. It is unfortunate that the asylum-seeker's battle is taking even more time due to the extra litigation. IJ Riefkohl granted asylum in April 2006 and the Third Circuit in essence has commended IJ Riefkohl for his analysis and decision-making. The BIA overturned the IJ in February 2008. Now, 3.5 years after the IJ granted asylum, the case is returning back to the BIA for the BIA to conduct the analysis it was required to do the first time around.

Rodrigues (not precedential): BIA Erred In Ruling Notice Of Appeal Was Untimely

2009-11-21T09:00:00.000-05:00

Rodrigues v. Holder
No. 09-4077
November 13, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/094077np.pdf

Judges Sloviter, Fuentes, and Nygaard. Per Curiam. Overturning the BIA in a case originally heard by IJ Walter Durling.

The BIA erred by ruling that a notice of appeal to the BIA was untimely filed. The BIA ignored how the date stamp on the notice of appeal indicates that ICE counsel received it two days before the deadline. The decision does not explain much more of what happened, but the Third Circuit concluded that the notice of appeal should be treated as timely filed.

The Third Circuit made clear that it has jurisdiction to rule on whether a notice of appeal was timely filed, even if the immigrant raising the issue was found removable for an aggravated felony conviction or a controlled substance violation.

Sharif (Not Precedential): BIA Cannot Deny Motion To Reconsider In Incomprehensible Decision Where BIA Erred By Ignoring Key Evidence

2009-11-20T09:00:00.000-05:00

Sharif v. Holder
No. 08-4432
November 13, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/084432np.pdf

Judges Barry, Stapleton, and Nygaard. Per Curiam. Overturning the BIA in a case originally heard by IJ Daniel A. Meisner.

The Third Circuit held that the BIA erred in denying a motion to reopen without providing any coherent explanation for its decision. After losing a case with IJ Meisner and the BIA, Mr. Sharif filed a motion to reopen with the BIA arguing that conditions in his country had changed that supported an asylum claim. The BIA denied the motion to reopen and Mr. Sharif filed a motion to reconsider. The BIA denied the motion to reconsider but did not offer coherent analysis. The BIA's failure to offer coherent analysis happens so often that the Third Circuit has a rule on it -- when the deficiencies in the BIA's decision make it impossible to review the decision meaningfully, the Third Circuit will vacate the decision and remand the case. Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003).

Here, the BIA incomprehensibly admitted that it failed to recognize some of the evidence that formed the reason why Mr. Sharif sought to reopen his case, but then in a summary manner said it made no error. It is hard to comprehend how the BIA could admit it overlooked key evidence and then skip to a conclusion that it made no errors.

Tejwani (not precedential): NY Money Laundering That Includes Concealing Source of Funds Not A Crime Involving Moral Turpitude

2009-10-23T08:00:00.000-04:00

Tejwani v. Holder
Not Precedential
http://www.ca3.uscourts.gov/opinarch/071828np.pdf
October 22, 2009

Judges Fuentes and Fisher with District Judge Padova. Opinion by Judge Fuentes.

For Mr. Tejwani, Thomas E. Moseley (argued) of Newark, NJ. For the government, Timothy B. Stanton (argued), Leah V. Durant, Susan K. Houser, and Jeffrey L. Menkin of OIL of the Justice Department.

Overturning the BIA's precedential decision.

The Third Circuit overturned the BIA's precedential decision about crimes involving moral turpitude (CIMT or CMT). The case was In re Tejwani or Matter of Tejwani, 24 I&N Dec. 97 (BIA 2007).

A conviction is not a CIMT where the minimum conduct required to be convicted under the criminal statute would not involve intentional or reckless conduct to impede a governmental investigation because there is inadequate intent to find a CIMT (no evil intent and not a combination of depraved negligent conduct that causes bodily injury). The Third Circuit ruled that the BIA made a mistake in its analysis by believing that the minimum conduct would always involve intentionally impeding an investigation.

A conviction is not a CIMT just because the minimum conduct involves knowingly depositing the proceeds of a non-CIMT crime in a way that would disguise the source of the funds. Disguising the source of funds does not necessarily mean you are creating the appearance of legitimate wealth. The Supreme Court pointed this out in 2008 in Regalado Cuellar v. US, 128 S. Ct. 1994 (2008) (upholding a conviction because revealing the source of funds does not always reveal that the funds were obtained illegally). For example, the Third Circuit explained that someone would knowingly deposit the proceeds of non-CIMT actions into a bank account in exchange for a cashier's check to avoid being mugged -- which would not have any intention or effect of hindering a governmental investigation.

The NY statute covered conduct such as exchanging over $10,000 worth of what the person knows is the proceeds of non-CIMT conduct (such as criminal mischief or contempt) and intentionally conceals either the location, source, ownership, or control of the proceeds.

The Third Circuit simply adhered to its approach to analyzing whether a conviction is a CIMT, by focusing on minimal conduct under the statute in question. It followed its recent decision of Jean-Louis v. Holder, 2009 WL 3172753 (3d Cir. Oct. 6, 2009) (rejecting Matter of Silva-Trevino).

This case suggests that the BIA might not be analyzing CIMT issues in a manner the Third Circuit approves of. Perhaps there is a large group of BIA decisions where an appeal to the Third Circuit would succeed, if only the immigrants were given the resources to challenge the BIA's analysis.

Great work by Tom Moseley!

Jean-Louis: Crimes Involving Moral Turpitude Require Categorical Approach, Not The Novel Structure In Matter of Silva-Trevino

2009-10-06T23:30:00.003-04:00

Jean-Louis v. Holder
Precedential
http://www.ca3.uscourts.gov/opinarch/073311p.pdf
2009 WL 3172753
October 6, 2009

Judges Rendell and Roth with Judge Hayden sitting by designation. Opinion by Judge Rendell.

Craig R. Shagin of The Shagin Law Group of Harrisburg, PA for Mr. Jean-Louis. Kevin J. Conway (argued), Richard M. Evans, and Brooke M. Maurer of OIL for the government.

The Third Circuit severely criticized the decision in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), in which then-Attorney General Mukasey made a controversial decision that proposed changing the system that existed for decades about how to analyze whether a crime is classified as a crime involving moral turpitude (often abbreviated as CIMT or CMT).

The Third Circuit insisted on sticking to the well-established approach of its modified categorical approach. Start with the least culpable conduct under the statute and see whether that conduct would qualify as a CIMT. The focus is on the least culpable conduct, not conduct that has what the AG would consider a realistic probability of being prosecuted. Courts can look beyond the least culpable conduct only if the statute has disjunctive variations that will look only to the record of conviction to determine which variation was involved. The Third Circuit rejected the AG's novel approach to go well beyond the record of conviction to an individualized inquiry into the facts of the conviction.

The Third Circuit criticized many parts of the AG's decision. The AG's view is based on an impermissible reading of the statute that Congress passed. The AG tried to argue that there is some vagueness between the words "convicted" and "committed." It would be an understatement to say that the AG's view has been rejected. It has been repeatedly rejected by the BIA, prior attorneys general, and numerous courts of appeals. This is buttressed by recent decisions in Gersenshteyn v. DOJ, 544 F.3d 137 (2d Cir. 2008) and Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004).

The AG was also wrong for believing CIMTs invite inquiry into the specific behavior that led to the conviction. CIMT is a well-defined term of art, not a vague description to narrow the entire universe of convictions. The Third Circuit rejected the Seventh Circuit's rationale in Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008).

Regardless of whatever deference might be appropriate under Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005) or Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), the AG's rationale is so flawed that the Third Circuit refuses to adopt it no matter what deference is appropriate. Under any level of deference, the Third Circuit is never allowed to accept a decision that violates what Congress has clearly said or that reflects an impermissible construction of a statute.

The Third Circuit also took time in footnote 11 to criticize AG Mukasey severely for the extremely secretive and unfair manner in which he issued his decision in Matter of Silva-Trevino -- he certified the case to himself, he refused to let the parties know what issue he was considering, he refused to define the scope of his review, and he refused to provide an opportunity for the parties to submit written arguments. He also refused to make the IJ's decision or his certification order publicly available, denying stakeholders the change to share their views. This is described in an brief by amici curiae filed after Matter of Silva-Trevino, available at http://www.immigrantdefenseproject.org/docs/08_SilvaTrevinoAmicusBrief.pdf

Congratulations to Craig Shagin!

Semenov (not precedential): Indiscernable Parts of Transcript Undermine BIA's Overturning IJ's Decision

2009-09-29T09:00:00.000-04:00

Semenov v. Holder
http://www.ca3.uscourts.gov/opinarch/073178np.pdf
Not Precedential
September 28, 2009

Judges Barry, Fisher, and Jordan. Opinion by Judge Fisher.

Overturning the BIA and questioning how the BIA reversed the decision by IJ Walter A. Durling.

IJ Durling noted the expert's testimony in granting withholding of removal under CAT. The transcript is full of indiscernible portions. Amazingly, though, the BIA felt it had enough of a grasp of the transcript despite over 100 notations of indiscernible moments, to overturn IJ Durling's decision. It might have violated the requirement to give a complete transcript of the proceedings under 8 CFR 1240.9.

The Third Circuit lists a large number of cases where there have been problems with indiscernible portions of the transcript. The Third Circuit calls this case yet another occasion of the government breaching its duty to provide a complete and accurate transcript. In this case, there were more than 130 indiscernible notations. Even the parts the Third Circuit could decipher suggest the BIA made a mistake -- it seems like the expert did have the necessary knowledge about how criminal deportees were being treated by the country in question.

There are so many cases about bad transcripts, it raises questions about whether the government is treating individuals in immigration court fairly.

Yan (not precedential): BIA Erred By Not Considering Asylum Evidence Of Political Activites In The US

2009-09-28T09:00:00.000-04:00

Yan v. Holder
September 25, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/082536np.pdf

Judges Sloviter, Stapleton, and Cowen. Per Curiam.

Overturning BIA and IJ Eugene Pugliese.

Someone can seek asylum based on political activities in the United States. For example, the home country's government may be aware of the person's activities and seek to persecute them on account of their political opinion, even though the person mainly expressed those opinions while in the United States. In this case, IJ Pugliese and the BIA did not seem to consider the danger the man might face in China due to their persecution of people with political opinions similar to what he expressed while he was in the United States and which he can try to prove the Chinese government is aware of.

Xie (not precedential): BIA Used Wrong Standard To Overturn IJ's Factual Findings That Favored The Asylum-Seeker

2009-09-10T09:00:00.001-04:00

Xie v. Holder
August 24, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/072774np.pdf

Judges Chagares and Hardiman with District Judge Garbis. Opinion by Judge Chagares.

Alan M. Strauss of the law office of Stanley H. Wallenstein in New York, NY for Ms. Xie. James A. Hunolt, Sada Manickam, and David Schor (argued) of the Justice Department's OIL for the government.

Where an IJ makes a finding, the BIA should review those factual determinations under the clearly erroneous standard. 8 CFR 1003.1(d)(3). The BIA overturned some of the IJ's factual findings through an improper de novo review rather than under the proper standard. Same with overturning the IJ's factual finding that Ms. Xie was credible.

US v. Saint-Preux (not precedential): Upholding Sentence of Immigration Lawyer Who Committed Immigration Fraud

2009-09-09T10:00:00.001-04:00

United States v. Jonathan Saint Preux
August 24, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/074501np.pdf

A criminal law case that touches on an immigration lawyer in New Jersey. Jonathan Saint Preux pled guilty and was sentenced to 57 months of imprisonment for submitting false information documents in violation of 18 USC 1546(a). At one point, Mr. Saint Preux claimed that a co-defendant had forged his signature on over 400 applications, suggesting he did not sign those fraudulent applications.

The case deals with Mr. Saint Preux's failed argument that he deserved a three level reduction for acceptance of responsibility.

Iriani (not precedential): IJ Must Address The Issue Of Past Persecution And BIA Cannot Refer To Non-Existing Ruling

2009-09-08T10:00:00.000-04:00

Iriani v. Holder
August 25, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/083235np.pdf

Judges Barry, Smith, Hardiman. Per Curiam decision. Overturning BIA and IJ Rosalind K. Malloy.

IJ Malloy mistakenly failed to rule on whether the asylum-seeker has a fear of future persecution (regardless of whether the person had a fear of past persecution). IJ Malloy did rule that there was no past persecution, but the issue of future persecution is a separate question. The BIA incorrectly ruled that IJ Malloy had addressed the issue of future persecution and the BIA said it agreed with what it imagined IJ Malloy had said without the BIA itself providing any reasoning about future persecution.

The Third Circuit overturned the BIA because IJ Malloy had not ruled on future persecution so the BIA acted improperly by affirming something that IJ Malloy had not ruled on. The Third Circuit noted that it might be possible to prove future persecution based on how the asylum-seeker had received death threats from Muslims in Indonesia and the police were not willing to help them. There is also supporting evidence in an International Religious Freedom Report.

Excellent victory even if the Third Circuit in footnote called the asylum-seeker's brief disorganized and far from a model of clarity.

Ghaziaskar (not precedential): IJ and BIA Erred By Ignoring Country Conditions in Iran for CAT Relief

2009-09-07T10:00:00.000-04:00

Ghaziaskar v. Holder
September 3, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/054060np.pdf

Judges McKee, Smith, Van Antwerpen. Opinion by Judge McKee. Overturning the BIA's denial of deferral of removal under CAT, the Convention Against Torture. Doesn't list which IJ made the initial decision.

CAT prohibits removal if it is more likely than not someone will be tortured by or at the instigation of the government of the home country. The IJ concluded there were enormous gaps by the man who discussed how he feared torture in Iran due to participating in a political radio program or due to his religion.

The IJ and BIA erred by not adequately considering the conditions in Iran. The Third Circuit felt it appropriate to take judicial notice of the fact that current tensions in Iran would exacerbate the record about Iran's human rights. Also, the discrepancies the IJ and BIA focused on improperly ignored the seriousness of his claim. The IJ did not believe the explanation of why the man had two passports, but the Third Circuit concluded that had little to do with the harm he might face if he returns. The IJ and BIA also improperly assumed that every Catholic church in Iran would have the same policy about not offering communion to newcomers who had not yet become a church member that the IJ often sees in Catholic churches in the United States. Also, even if it were against the rules to give communion to a non-Catholic in Catholic Church, it is possible the priest did not realize the newcomer was not Catholic.

Santhalingam (not precedential): Motion To Reopen For Country Conditions Only Needs Showing "Reasonable Likelihood" Of Success; BIA Ignored Evidence

2009-09-06T10:00:00.000-04:00

Santhalingam v. Holder
Not Precedential
September 3, 2009
http://www.ca3.uscourts.gov/opinarch/082309np.pdf

Judges Ambro, Fisher, and Jordan. Per Curiam. Overturning the BIA in a case initially decided by IJ Annie S. Garcy.

A woman from Sri Lanka applied for asylum and IJ Garcy denied it. The BIA also denied it and the Third Circuit affirmed the denial in 2003.

In 2007, she filed a motion to reopen with the BIA based on changed country conditions, which also requires showing prima facie eligibility for or entitlement to relief. That standard requires showing simply a "reasonable likelihood" of prevailing. The BIA erred by applying a higher standard than appropriate to the motion to reopen or by not adequately considering the evidence.

Briefly, the BIA apparently ignored articles about a surge of persecution from late 2006 onward in Sri Lanka. Even though some level of problems existed before 2006, the BIA ignored evidence that it became much worse after 2006. As far as protection under CAT, the Convention Against Torture, although she ultimately must prove it is more likely than not she would be tortured, to obtain reopening she only needs to show a reasonable likelihood that she will be able to make that proof. The BIA incorrectly required her to show it is more likely than not she will be tortured, rather than that there is a reasonable likelihood she can make that showing.

Camara: BIA Erred Again -- Threats With Abducting A Family Member Proves Past Persecution

2009-09-05T10:00:00.000-04:00

Camara v. Holder
September 4, 2009
Precedential
http://www.ca3.uscourts.gov/opinarch/073892p.pdf
Judges Sloviter and Hardiman with District Court Judge Pollak. Opinion by Judge Pollak.

For Ms. Camara, Camille J. Mackler of the Law Office of Theresa Napolitano in New York, NY. For the government, Jeffrey S. Buckholtz, Emily Anne Radford, Patrick J. Glen, and Craig Alan Newell, Jr. (argued).

The BIA erred by ruling that Ms. Camara did not suffer past persecution in a way that was not supported by substantial evidence. The case involves someone who had a family member that was part of the Rally of the Republicans party (the RDR) in the Ivory Coast. Stopped at JFK Airport, Ms. Camara was given a court date in the Elizabeth, New Jersey detention center. The IJ denied her asylum request. The BIA agreed with the IJ and denied asylum.

The focus for obtaining asylum is a well-founded fear of future persecution. Although not the focus, showing past persecution raises a presumption that you have a well-founded fear of future persecution, so it is an important issue to prove.

The BIA erred by ruling that Ms. Camara did not experience past persecution in the Ivory Coast. The BIA wrongly stated that if government officials came to her family's home once, falsely arrested her father, and threatened her family, that mistreatment did not amount to past persecution. Those threats were worse than the mere harassment in Matter of A-E-M, 21 I&N Dec. 1157 (BIA 1998) (phrase that man would be "the next one" where no proof which group painted it was not persecution); Li v. Att'y Gen., 400 F.3d 157 (3d Cir. 2005) (threats without any imprisonment, beating, sterilization, or physical harm might not be past persecution). In contrast, here Ms. Camara's father was abducted and she personally saw it happen.

The Third Circuit said the BIA's mistake is similar to the facts of Konan v. Att'y Gen., 432 F.3d 497 (3d Cir. 2005), a case where the BIA made a different type of mistake. In Konan, the asylum-seeker saw rebels shoot his house and cause a fire in his house, killing his brother and father. Although not the focus of that case, the Third Circuit noted that the attack on the house, killing two relatives, compels a conclusion of past persecution. The government in the Camara appeal made an irrelevant argument -- noting the REAL ID Act changed the wording of the proof needed about the motive of the attacker. In footnote 13, the Third Circuit points out the government's argument is irrelevant -- the point is whether the threats were past persecution, not about the motive of the attackers.

Mino-Saldana (not precedential): IJ Must Grant A Short Continuance To Resolve Substantial Issues About Adjustment of Status

2009-08-25T09:00:00.000-04:00

Mino-Saldana v. Holder
Not Precedential
http://www.ca3.uscourts.gov/opinarch/081431np.pdf
July 31, 2009

Judges Fuentes, Weis, and Garth. Per Curiam. The attorneys for Ms. Mino-Saldana before IJ Garcy were Marcia S. Kasdan and Renta A. Pilny (who are from the same office).

The Third Circuit overturned the BIA and IJ Annie S. Garcy for not granting a short continuance to resolve whether the immigrant could avoid deportation by obtaining legal permanent residence status through the adjustment of status process.

IJ Garcy refused to grant a short continuance to resolve the issue of completing all the paperwork to show that Ms. Mino-Saldana was section 245(i) eligible and could obtain LPR status through an I-140 petition her husband's employer supported for her husband and herself. The case could have been resolved on the merits within a matter of days with no detriment to the government. IJ Garcy's refusal to grant a short continuance was a misuse of discretion.

The Third Circuit also agreed to accept new evidence into the record on appeal -- Ms. Mino-Saldana's husband had an I-140 filed, it was approved, and he is in line to obtain LPR status. Rather than exclude the new evidence, deny the appeal, and have Ms. Mino-Saldana try to reopen the case by filing a motion to reopen with the BIA due to newly available evidence, the Third Circuit used its power to accept new evidence into the record and cite that in overturning the BIA and IJ Garcy.

Bamaba (not precedential): BIA Cannot Deny CAT Claim Without Analyzing Supporting Evidence

2009-08-24T09:00:00.001-04:00

Bamaba v. Holder
July 28, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/081949np.pdf

Judges Fisher, Chagares, and Cowen. Opinion by Judge Chagares. For Mr. Bamaba, Steven J. Kolleeny (argued), Boris Bershteyn, and Daniel M. Gonen of Skadden, Arps, Slate, Meagher & Flom LLP in New York, NY. For the government, Jeffrey L. Menkin (argued), Paul F. Stone of OIL.

An IJ denied an asylum and CAT applications by finding Mr. Bamaba not credible, reason for persecution was not political opinion, and there was no objective evidence of torture. The BIA affirmed the IJ and relied on the adverse credibility determination.

The Third Circuit ruled for Mr. Bamaba on one issue and remanded the case for that reason -- the BIA failed to analyzed relief under CAT (the Convention Against Torture) in a way that examined the evidence supporting CAT. The BIA improperly referred solely to an adverse credibility determination about evidence supporting asylum without addressing separate evidence focused on CAT relief. In this case, Mr. Bamaba presented a CAT claim separate from the basis for seeking asylum -- he argued that he faced torture from attacks against members of families who were part of an opposition party. That claim was not the same as his argument that he faced persecution based on political opinion.

The Third Circuit ruled for the BIA on certain issues. The BIA is allowed to make a credibility determination based on the facts that the IJ found on the record. Also, the BIA was allowed to avoid analyzing problems with the admissibility of the government's evidence based on how Mr. Bamaba did not object during the hearing before the IJ. Also, in a case held after the REAL ID Act became the law, the court will affirm adverse credibility determinations if the evidence is not so compelling that no reasonable factfinder would rule otherwise, even if the BIA's errors raise some questions.

Zheng (Not Precedential): BIA Must Give Decisions That Can Be Comprehended

2009-08-21T09:00:00.000-04:00

Zheng v. Holder
No. 07-3557
July 7, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/073557np.pdf

Judges Scirica, Chagares, and Aldisert. Per Curiam. Overturning the BIA in a case first decided by IJ Henry S. Dogin

The IJ denied asylum for a reason that the BIA did not address -- IJ Dogin found the asylum-seeker not credible. The BIA denied asylum for a different reason, stating that the claim if taken as true would not establish a well-founded fear of future persecution. The BIA gave no reasoning. Although the BIA is not required to write an exegesis, it must offer some basis for its decision in order to present something for the Third Circuit to review in a meaningful way.

The BIA must offer a decision that can be comprehended, not a cursory denial with no analysis.

Li (not precedential): BIA Must Analyze Motion To Reopen For Changed Country Conditions

2009-08-19T09:00:00.000-04:00

Li v. Holder
July 6, 2009
No. 07-4037
Not Precedential
http://www.ca3.uscourts.gov/opinarch/074037np.pdf

Judges Rendell, Greenberg, and Van Antwerpen. Per Curiam. Overturning the BIA in a case that was first heard by Immigration Judge Donald V. Ferlise.

After losing with IJ Ferlise and the BIA, the asylum-seeker filed a motion to reopen based on changed country conditions. The BIA erred by characterizing the motion as relying solely on changed personal (not country) conditions. The BIA's conduct was similar to the mistakes it made in Zheng v. Att'y Gen., 549 F.3d 260 (3d Cir. 2008) -- the BIA had a conclusory statement that looked at Matter of J-W-S but did not mention or analyze the asylum-seeker's affidavit or the affidavit of her mother. Once again, the BIA just cited another case that dealt with a different grouping of evidence than what was in the case that the BIA was supposed to rule on. The Third Circuit overturned the BIA and sent the case back to the BIA for proper analysis.

In a side-note, the Third Circuit noted that IJ Ferlise exhibited hostility and impatience during the hearing.

Lin (not precedential): IJ Mills Makes Several Mistakes In Denying Asylum-Seeker

2009-08-18T09:00:00.001-04:00

Lin v. Holder
No. 08-2532
Not Precedential
August 14, 2009
http://www.ca3.uscourts.gov/opinarch/082532np.pdf

Judges Rendell, Greenberg, and Van Antwerpen. Per Curiam decision. Overturning the BIA and IJ Miriam K. Mills

IJ Mills and the BIA held that the asylum-seeker was not believable for any of six grounds (three about credibility and three about corroboration). The Third Circuit held that IJ Mills's reliance on each of the six grounds lacked support or had major problems.

Examples of IJ Mills's mistakes include: mistaking the asylum-seeker's testimony that she usually handed out flyers on Tuesdays as meaning that she never handed out flyers on any other day; faulting the asylum-seeker for not having a Chinese calendar on-hand to respond to the IJ's unexpected question about days of the week and the Chinese calendar; mistakenly relying on statements in an airport interview for which there was no evidence other than a government's lawyer commentary on what happened at the interview; faulting the asylum-seeker for not having a letter from her aunt despite an explanation that the aunt suffered a stroke and could not speak or write. There were more mistakes that I'm not trying to summarize here. So little time, so many errors...

The Third Circuit also noted that where an IJ takes over direct examination and examines aggressively, it sometimes could require overturning the IJ's ruling, but that IJ Mills's conduct in this case did not show enough intemperance or partiality to require overturning the IJ here.

Garder (not precedential): IJ Wrongly Mischaracterized Two Important Asylum Issues

2009-08-14T09:00:00.001-04:00

Garder v. Holder
Not Precedential
August 13, 2009
No. 08-2972
http://www.ca3.uscourts.gov/opinarch/082972np.pdf

Judges Scirica, Chagares, and Aldisert. Per Curiam Decision. Overturning the BIA and Immigration Judge David W. Crosland.

IJ Crosland made two major errors and the Third Circuit noted a third error, too. A man sought asylum and explained that he feared two groups that behave like the police and guard order in that country. They also are considered close allies to the government, in some parts they conduct armed patrols to maintain order. IJ Crosland made a major error by saying that there was no testimony that the government was unable or unwilling to control the groups. The IJ said no testimony existed, but there was testimony about how the groups were allies with the government and behaved like the police without government opposition.

There were two parts to the IJ's second major error. First, the man never said his family continued to be persecuted yet the IJ faulted him for not giving evidence about one of the points he supposedly had made. Second, his family did provide a statement that mentioned suffering from one of the groups since the man had left. The IJ fauled the man for not offering evidence even though he had given that evidence.

A minor error that the Third Circuit pointed out is that the BIA has a policy that the issue of credibility must be considered separately from the issue of whether someone provided corroboration. Chukwu v. Mukasey, 484 F.3d 185, 191 (3d Cir. 2007). IJ Crosland might have violated that rule and the BIA may have erred in adopting the IJ's analysis.

We hope that several months from now, the man will get a full hearing and be right back where he was in October 2006 when the IJ made his initial decision. It will probably be three years of difficult struggle to overturn the IJ's decision before he returns to immigration court. It is very fortunate that Congress has allowed some judicial review of BIA and IJ decisions to save people like the man in this case from mistakes. Congress should consider increasing judicial review!

Makanast (Not Precedential): BIA Given Leeway To Conclude Lawyer's Mailing Did Not Include Motion For This Case

2009-07-25T09:00:00.000-04:00

Makanast v. Holder
Not Precedential
http://www.ca3.uscourts.gov/opinarch/083031np.pdf
May 29, 2009
Judges Barry, Smith, and Hardiman. Per Curiam.

Hard to understand what is going on with this case, but the BIA is free to conclude that a mailing did not include the motion that Parsekian & Solomon filed for someone. The short description does not really explain what is happening. Maybe that law firm filed a motion in a case for a different client and it suggests they never filed a motion for this case?

Perhaps the best practice would be to make a note of the receipt number for your mailing in some part of the filing, such as in a cover letter or scribbled on the cover sheet of the filing. Too little information to figure out what the significance of this case is.

Barrie (not precedential): Over Dissent, Upholding Asylum Denial

2009-07-24T09:00:00.001-04:00

Barrie v. Holder
No. 08-2988
July 23, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/082988np.pdf

Judges Sloviter, Ambro, and Stapleton. 2-1 decision. Majority opinion per curiam. Dissent by Judge Ambro.

The 2-1 majority upheld the BIA and Immigration Judge Mirlande Tadal for denying an asylum-seeker, finding the person not credible, and not considering an affidavit by the person's spouse.

Basis for adverse credibility included testifying member of an organization but written application only said a supporter of that organization and in an interview said was a supporter.

Basis for finding no past persecution -- although testified about being interrogated about politics while arrested, the written application only said questioned about identity of strike leaders. Also, IJ Tadal concluded taken into custody due to civil unrest rather than politics.

In dissent, Judge Ambro would have overturned the adverse credibility finding because many members of political parties are also supporters, so it is not a contradiction to switch between those descriptions. Also, the man had no legal representation in court and no formal education, which suggests word play could have been unfairly misleading. Judge Ambro also would have overturned the BIA for not considering his wife's affidavit.

Seems very tenuous for the majority to uphold the adverse credibility determination and very troubling problems when courts do not recognize any right to appointed counsel for the indigent in immigration court.

Millien: IJ Asylum Credibility Finding Overturned -- No Credibility Problem Where In-Court Testimony Weakens Claim

2009-07-23T09:00:00.000-04:00

Millien v. Holder
June 4, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/081042np.pdf
Judges McKee, Hardiman, and Roth. Per Curiam decision.

The BIA and IJ Frederic Leeds relied on an adverse credibility determination to deny a man seeking asylum. The Third Circuit concluded that the adverse credibility finding was not supported by substantial evidence. The Third Circuit was particularly concerned that IJ Leeds did not try to reconcile the finding with the documentary evidence. Some examples include how the asylum-seeker testified he was a party leader but wrote on one application he was a party member. The Third Circuit pointed out it was consistent, not contradictory and that asylum-seekers should not be harshly punished for not having asylum applications as detailed as desirable if they can back up the additional details with evidence.

The Third Circuit held that discrepancies cannot bear on credibility where the in-person testimony weakens the claim of persecution. In that instance, the in-person testimony is not any attempt to enhance the claim of persecution. For example, testifying he was hit in the head in a non-serious way rather than beaten. Or testifying he got 6 threatening phone calls rather than the 50 written in the application (which he said was probably due to a translation mistake).

Zhang (not precedential): BIA Must Review All Materials For Motion To Reopen

2009-07-22T09:00:00.001-04:00

Zhang v. Holder
Not Precedential
July 20, 2009
http://www.ca3.uscourts.gov/opinarch/082659np.pdf
Judge Ambro, Fisher, Jordan. Per Curiam decision.

Another case where the Third Circuit overturned the BIA for denying a motion to reopen a case based on changed country circumstances that affect someone's ability to seek asylum. As in other cases, the BIA failed to address all of the evidence supporting the claim.

Ignoring relevant evidence is improper in a BIA decision. The BIA improperly ignored relevant evidence in a number of motions to reopen dealing with changed country conditions in China. The BIA cannot say that some (but not all) of the documents were dealt with in other decisions. That leaves unaddressed all of the new evidence that were not covered in old decisions.

Liu (not precedential): BIA Must Consider Evidence in Motion To Reopen

2009-07-21T09:00:00.000-04:00

Liu v. Holder
Not Precedential
http://www.ca3.uscourts.gov/opinarch/073159np.pdf
April 23, 2009

Judges Rendell, Greenberg, and Van Antwerpen. Per Curiam decision.

Theodore N. Cox of New York, NY for Ms. Liu. Drew C. Brinkman for OIL and the government.

As with Zheng v. Mukasey, 549 F.3d 260, 264-65 (3d Cir. 2008), the BIA may not deny a motion to reopen without mentioning key evidence supporting the argument to reopen a case because of changed country circumstances.

There is no question that the BIA ignored 6 pieces of evidence supporting the motion to reopen and only addressed 3 other pieces of evidence by tersely referring to a previous BIA decision. It is disappointing that the BIA broke the rules by not considering the evidence in the motion to reopen. The BIA should make its decisions based on the evidence in the case, not in a way that is unrelated to what the parties have submitted.

IJ Henry S. Dogin made the ruling in immigration court on the case, but the Third Circuit solely criticized the BIA's analysis of the motion to reopen and did not criticize in any way IJ Dogin.

Figeroa-Matos (not precedential): BIA May Not Ignore Key Evidence In The Record

2009-07-20T09:00:00.002-04:00

Figueroa-Matos v. Holder
http://www.ca3.uscourts.gov/opinarch/074007np.pdf
February 23, 2009
Not Precedential
Judges Scirica, Ambro, Smith. Decision by Chief Judge Scirica.

Argued by Matthew D. Baxter of Genevieve Gross & Associates, PC in Huntingdon Valley, PA for Mr. Figueroa-Matos and Nancy E. Friedman (argued) and Sharon M. Clay for OIL and the government.

The Third Circuit overturned a case decided by the BIA and IJ Roxanne C. Hladylowycz.

Under section 212(c) relief (which Congress prospectively deleted in 1996), an IJ has the power to save a legal permanent resident from deportation based on a variety of factors, including rehabilitation from a criminal conviction. In this case, the IJ concluded that Mr. Figueroa-Matos deserved section 212(c) relief and was "genuinely rehabilitated." ICE appealed and in a divided opinion, the BIA overturned the IJ and denied relief. The BIA erred by trying to make independent findings of fact that contradicted the IJ's findings. The BIA simply refused to acknowledge the IJ's factual finding that the man was genuinely rehabilitated.

Even if for the sake of argument, the BIA could acknowledge rehabilitation yet try to give it little weight, that is not what the BIA did here -- the BIA just ignored one of the IJ's key factual findings. The BIA may not ignore the evidence in the record.

Here, the BIA improperly broke the law by ignoring the key evidence in the record and the Third Circuit overturned the BIA. It is disappointing that the BIA broke the rules by ignoring the evidence. The BIA is supposed to decide appeals based on the record, not to issue rulings that have no relation to what happened in the particular case.

Obama Nominates Joseph A. Greenaway, Jr. For The Third Circuit

2009-06-23T09:00:00.000-04:00

On June 19, 2009, President Obama nominated Joseph A. Greenaway, Jr., a federal district court judge in Newark, NJ for a seat on the Third Circuit Court of Appeals.

How about a cursory, incomplete, rough scan over some immigration-related cases he decided or was involved in?

Abdelfattah v. US DHS, 488 F.3d 178 (3d Cir. 2007), in part overturning Judge Greenaway's district court ruling: FOIA litigation where ICE, FBI, and other agencies claimed an exemption because records were compiled for law enforcement purposes. Third Circuit partly upheld Judge Greenaway but partly overturned him because there was insufficient evidence to conclude that the FBI conducted a proper search for documents. In fact, the FBI never submitted any affidavit to describe its search.
Sasonov v. US, 575 F. Supp. 2d 626 (D.N.J. 2008): overturned a conviction because defense counsel in criminal court gave incorrect advice about the immigration consequences of a guilty plea.
Kestelboym v. Chertoff, 538 F. Supp. 2d 813 (D.N.J. 2008): district court has subject matter jurisdiction to review a naturalization application even if DHS files an NTA after the case began in district court.
Naul v. Gonzales (D.N.J. 2007): rejecting international law as supposedly having "no bearing on this case" even though asylum-seeker might arguably have protections under international law.
Pisciotta v. Ashcroft, 311 F. Supp. 2d 445 (D.N.J. 2004): allowing ongoing detention under the government's stay of an IJ's ruling. Relied on regulations that dictate that the BIA resolve custody appeals "as soon as practicable." Would be interesting to see whether Judge Greenaway's confidence in the BIA's compliance with its rules and regulations will be shaken if he reviews immigration appeals at the Third Circuit.

Irorere (not precedential): IJ Cannot Interrupt Immigrants And Stop Them From Presenting Evidence

2009-06-22T09:00:00.001-04:00

Irorere v. Holder
Not Precedential
May 1, 2009
http://www.ca3.uscourts.gov/opinarch/071288np.pdf
Judges Scirica, Chagares, and Weis. Per Curiam decision.

The Third Circuit overturned BIA and IJ Walter Durling for IJ Durling's mid-sentence interruption of the respondent after only a few words and not allowing him to present any further evidence. Particularly when the man had substantial evidence that he then tried to include in his appeal to the BIA.

IJ Durling explained to the man that he had already reached his decision in the case. Nevertheless, even if IJ Durling reached his decision without seeing the evidence the man was ready to offer, the IJ should have at least allowed the man to submit his evidence.

The Third Circuit's decision makes good sense -- just because an IJ is not going to rule in your favor does not mean you should stop submitting evidence to support your argument. It would be improper for an IJ to stop you from submitting evidence. If an IJ makes such an improper ruling, though, you should comply with the IJ's order and lodge a timely appeal.

It would be an improvement if EOIR could train the immigration judges to allow litigants to submit evidence that supports their claims. It would also be helpful if the BIA would step in to fix these problems, rather than upholding the decisions and leaving it up to the individuals to spend the time and money of filing an appeal with a circuit court.

Patil (Not Precedential): BIA Must Consider Evidence When Ruling On Motion To Reopen In Absentia Order

2009-06-15T12:05:00.001-04:00

Patil v. Holder
Not Precedential
No. 08-2845
June 10, 2009
http://www.ca3.uscourts.gov/opinarch/082845np.pdf

Judges Ambro, Fisher, and Jordan. Per Curiam decision.

The Third Circuit overturned the BIA in a case where IJ Henry S. Dogin had denied a motion to reopen. If the court mails notice of a court date by ordinary mail, there is a presumption of receipt that an individual can rebut by producing contrary evidence, such as a sworn affidavit along with circumstantial evidence corroborating the claim of non-receipt. Santana-Gonzalez v. Mukasey, 506 F.3d 274 (3d Cir. 2007).

Here, the BIA made a fatal mistake by not considering all of the evidence that Mr. Patil offered. The BIA is required to consider all relevant evidence. Matter of M-R-A-, 24 I&N Dec. 665, 674 (BIA 2008).

Novas (not precedential): Due Process Problems With Visa Waiver Pilot Program Removal Go Directly To Circuit Courts

2009-06-15T09:00:00.000-04:00

Novas v. ICE
No. 07-2218
Not Precedential
December 18, 2008
http://www.ca3.uscourts.gov/opinarch/072218np.pdf

Judges Fuents, Hardiman, and Garth. Opinion by Judge Fuentes.

Under the Visa Waiver Pilot Program (VWPP), someone who agrees to enter under the program can be deported after overstaying the permitted 90-day visit without any right to contest the deportation other than by applying for asylum.

It gets complicated if the person overstaying marries a US citizen, which means there is a direct opportunity to obtain LPR status. But what happens if ICE tries to deport the person under the VWPP provisions before USCIS can grant LPR status?

The Third Circuit ruled that the proper avenue to address problems with removal would be a Constitutional challenge in a petition for review that you would file directly with the circuit court, not by filing a habeas action in district court. So, the Third Circuit has opened up petitions for review for direct challenges to removal orders under the VWPP program -- orders that do not come from an immigration judge because most VWPP individuals never get to see an IJ.

In this case, the Third Circuit also noted in dicta that it saw no due process violation of applying the VWPP restrictions to someone who signed the VWPP waiver when he was a minor.

If ICE enters a removal order under the Visa Waiver Pilot Program without offering a day in immigration court, file an immediate petition for review to the Third Circuit.

For Mr. Novas, Ysabel Williams of Mount Pocono, PA. For the government, Daryl F. Bloom of the US Attorney's Office in Harrisburg, PA.

Lin (not precedential): Remand Where BIA Unclear About Basis For Its Decision

2009-06-13T20:30:00.000-04:00

Lin v. Holder
No. 08-1596
Not Precedential
June 11, 2009
http://www.ca3.uscourts.gov/opinarch/081596np.pdf

Judges Barry, Smith, and Hardiman. Per Curiam.

When deficiencies in the BIA's decision make it impossible to review meaningfully, the Third Circuit will vacate the decision and remand the case so that the BIA can further explain its meaning. Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003).

Here, the BIA did not offer a coherent rationale for affirming IJ Frederic Leeds's denial of an asylum-seeker's applications.

On the one hand, the BIA said the IJ's findings were not erroneous, which suggests it affirmed the IJ's credibility determination. On the other hand, the BIA said it believed one of the asylum-seeker's factual assertions, which suggests it did not completely find the asylum-seeker not credible. In addition, the BIA included analysis that would only matter if the BIA found the asylum seeker credible. The vagueness of the BIA's analysis is not resolved by the parties, because they also disagree about what the BIA meant.

The Third Circuit overturned the BIA and remanded for further proceedings. Let's hope the long delay for this to get resolved turns out well.

Issiaka: Asylum-Seeker Testimony Sufficient, Translation Problems, and Criticism of IJ Miriam Mills

2009-06-13T19:00:00.000-04:00

Issiaka v. Holder
No. 07-2691
June 11, 2009
Precedential
http://www.ca3.uscourts.gov/opinarch/072691p.pdf

Judges McKee and Nygaard with Judge Paul R. Michel from the Federal Circuit.
Opinion by Judge McKee.

The Third Circuit overturned the BIA and IJ Miriam Mills for their improper conclusion that the person seeking asylum was not credible (an adverse credibility determination). That determination was the only ground for denying the request for withholding of removal. The Third Circuit concluded, however, that the reason for finding the asylum-seeker not credible were not supported by substantial evidence.

The BIA and IJ Mills faulted the asylum-seeker for not answering questions about his head wounds that the Third Circuit noted it had difficulty understanding. Although IJ Mills wanted more detail, it was not very clear what kind of detail was desired about the number of founds, that they were deep, and that they were serious. The Third Circuit criticized how the BIA complained about not receiving enough details about the injury when the injured person explained he had bleeding head wounds that were bleeding, were on his head, and happened after others hit him in the head with sticks.

It is admirable that OIL counsel even conceded to the Third Circuit that this ground for disbelieving the testimony was troubling. Other issues the Third Circuit touched on were how the IJ should not have criticized the asylum-seeker for not explaining that he got stitches when it is not clear he ever got stitches. Also, IJ Mills should not have found the asylum-seeker not credible for not mentioning in his asylum petition that he received some medical treatment briefly.

The Third Circuit also reached a legal conclusion that garbled translations and a poor transcript can undermine the evidence on which the IJ or BIA reaches its conclusion to such a degree that the court must overturn the BIA's holding. The problems with the translations can be so harmful that it does not matter whether the asylum-seeker has raised a due process violation. Here, the interpreter spoke a different dialect and a different accent of the French language and the Third Circuit strongly encouraged that EOIR provide a better interpreter.

In another strong criticism of IJ Mills, the Third Circuit strongly encouraged the BIA to remand the case to a different IJ if a remand to an IJ is necessary due to what the Third Circuit viewed as the prosecutorial manner of IJ Mills during the hearing.

Congratulations to Laetitia B. Creech of Philadelphia, PA, who represented Mr. Issiaka and conducted oral argument. For the government were Nancy E. Friedman (argued) and Joan E. Smiley of OIL, the Office of Immigration Litigation in the Justice Department.

Jiang (not precedential): BIA May Not Ignore New Evidence By Incorrectly Calling It Old

2009-06-01T09:00:00.001-04:00

Jiang v. Holder
No. 08-3392
May 28, 2009
Not Precedential
Judges Sloviter, Stapleton, and Cowen. Per Curiam.
http://www.ca3.uscourts.gov/opinarch/083392np.pdf

The BIA erred in a case that was originally heard by IJ Esmeralda Cabrera (but IJ Cabrera did not make the mistakes that the Third Circuit focused on). After losing in immigration court and in a BIA appeal, Mr. Jiang filed a motion to reopen with the BIA. The BIA did not consider the evidence that was included with the motion to reopen. It was a motion to seek asylum based on changed country circumstances, so there was no time limit or numerical limit to the motion.

The BIA seemed to ignore the evidence because it referred to the evidence as material that all could have been submitted in 2002. However, most of the evidence was dated 2005-2007. Given that mistake, the Third Circuit did not have confidence that the BIA appropriately analyzed the evidence in concluding that there was no evidence to support that he would suffer a forced vasectomy in China if he returned.

Butt (Not Precedential): BIA Cannot Deny Motion To Reopen For Lack Of Approved Labor Certification By Ignoring Approved Labor Certification

2009-05-18T09:00:00.000-04:00

Butt v. Holder
Not Precedential
http://www.ca3.uscourts.gov/opinarch/082680np.pdf
May 15, 2009

Judges Fisher, Jordan, and Van Antwerpen
Per Curiam

In this case, two people wanted an IJ to hold off on a case and later wanted the BIA to remand the case back to the IJ based on the potential for obtaining legal permanent residence through an employment-based application. There are generally three steps: the worker files a labor certification application with the Department of Labor, when that's approved the worker files the approved certification with an I-140 petition, and when a visa is ready for the I-140 petition the worker files an I-485 application for LPR status.

At the time the case was with IJ Frederic Leeds, there was no approved labor certification so it was acceptable for the IJ at some point to decide not to delay the case.

The mistake took place with the BIA, not IJ Leeds. In front of the BIA, one of the two immigrants asked for the case to be sent back down to the IJ because by that time, one person had all three elements -- an approved labor certification, a filed I-140 petition, and a filed I-485 application.

Bizarrely and improperly, the BIA ruled that the man who provided proof of an approved labor certification had not provided any evidence that he had an approved labor certification. It seems like a clear mistake for the BIA to conclude that the man did not provide proof of an item that the man actually provided in his submissions. Based on this clear mistake, the Third Circuit overturned the BIA and sent the case back to the BIA to complete its analysis.

As for the other immigrant, that other person had no proof of an approved labor certification, so it was acceptable for the BIA to decide not to send the case back down to the IJ.

Struggling After Losing At The Third Circuit

2009-05-04T09:00:00.000-04:00

Various news articles are now covering the struggles of an immigrant who recent lost his Third Circuit appeal in an asylum case. Maria Sacchetti of the Boston Globe covered "Harvard Peers Press To Stall A Deportation" on April 30, 2009, discussing how Nur Munir was a master's student in Harvard Divinity School, lost his Third Circuit appeal in March 2009, reported to ICE and ICE took him in to detention and put him in the York, Pennsylvania county facility. Harvard students are writing letters to support the request by his lawyer Dennis Mulligan, executive director of the Nationalities Service Center in Philadelphia, for deferred action, which would at least give Mr. Munir a chance to finish his studies before being deported.

The Third Circuit's not-precedential decision is written as a straightforward denial of an asylum appeal. The opinion is at http://www.ca3.uscourts.gov/opinarch/074174np.pdf and was by Judges Barry, Smith, and Hardiman in a per curiam opinion, on appeal from IJ Donald Vincent Ferlise and the BIA.

Typical options after losing a circuit court appeal include making a motion to reopen with the BIA, asking for panel rehearing, asking for en banc rehearing, seeking review at the United States Supreme Court, filing a petition with the Inter-American Commission on Human Rights, seeking a private bill, and asking for deferred action. Each option is very difficult to win, though.

Nijhawan Supreme Court oral argument thoughts

2009-05-03T09:00:00.002-04:00

In Nijhawan v. Holder, No. 08-495, the Supreme Court held oral argument on Monday, April 27, 2009. The transcript is available at
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-495.pdf

This case involves an appeal from the Third Circuit's decision in the case, which is reported at Nijhawan v. Mukasey, 523 F.3d 387 (3d Cir. 2008).

Thomas E. Moseley of Newark, NJ argued for Mr. Nijhawan and Curtis E. Gannon argued for the government. On the brief for Mr. Nijhawan were Thomas E. Moseley of Newark, NJ and Peter C. Salerno of New York, NY. On the brief for the government were Curtis E. Gannon, Donald E. Keener, Jennifer J. Keeney, W. Manning Evans, Holly M. Smith, Andrew C. MacLachlan, Saul Greenstein, and Erica B. Miles. Also for the government were Elena Kagan, Michael F. Hertz, and Edwin S. Kneedler.

The Third Circuit ruled in a 2-1 decision that the amount that a victim lost as part of a fraud conviction can be based on details outside of the actual statute the conviction was based on in order to argue that the conviction is an aggravated felony for immigration purposes. In Nijhawan, the facts were not just outside the statute but also outside of what the jury found. An interesting twist is that Mr. Nijhawan asked the judge at the criminal trial to order the jury to determine how much of the money that he (as opposed to others in the conspiracy) was responsible for, but the judge refused to ask the jury to make that finding.

The INA defines one type of aggravated felony under 8 USC 1101(a)(43)(U) as "an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000."

Mr. Nijhawan's lawyer began by pointing out that the traditional, time-honored approach is a categorical approach that examines whether the statute defining the offense included a requirement that the criminal caused a loss exceeding $10,000.

Justice Kennedy then expanded the approach by offering that it can be an aggravated felony either if the loss finding is required by the criminal statute or if the jury actually makes a factual finding of a loss more than $10,000. Justice Alito then expanded it to if the defendant admits the loss amount during the guilty plea colloquy. However, Mr. Nijhawan's lawyer would not agree to expand it to include when a defendant agrees on the loss amount during post-verdict sentencing because the government only needs to prove post-verdict details by a preponderance of the evidence, not beyond a reasonable doubt.

Justice Souter and Justice Ginsburg then raised a question that seems out of place for those who are familiar with the widely-accepted absurdities of immigration law -- there may be an apparent inequality if in some cases the result turns on how the state defined its criminal statutes and whether the state statute includes a loss requirement. It might seem unequal for Congress to rest its classification of immigrants' convictions on how a particular state defined its criminal statute. If two neighboring state legislatures defined their statutes differently, someone stealing in State A could be booted out of the country but someone who steals across the state line in State B might not be deportable. As Mr. Nijhawan's lawyer explained, though, that is exactly what Congress intended, even though it may initially seem like unequal results could happen. Taking a step back, Justice Souter and Justice Ginsburg have a sincere, honest concern with the unequal results -- we see this concern among many people who are just beginning in immigration law. Over time, however, we see many unjust, absurd classifications in immigration law. Apparently unequal results exist frequently in immigration law and judges approve the absurd results because that is what Congress intended.

It would be strange if the Supreme Court rules that Congress could not have possibly intended for unequal results based on how different state legislatures define their crimes differently. If the Supreme Court rules that way, would this open the door to challenging all of the other illogical classifications that Congress has enacted and that the courts consistently apply? One rule of thumb is that perhaps Congress did accept these unequal types of results because Congress wanted to limit the scope of immigration court hearings by using the short-cut of relying on unequal state statutes to save a great deal of time in immigration court. That would be an acceptable trade-off to unequal results based on different state statutes.

If time is no obstacle, then Congress could approve full-blown trials in immigration court that could easily extend for weeks and make certain cases twenty times longer than they currently are. Two ways that Congress could build full-blown trials are (a) to throw out all state statutes and have full-blown trials to find out what really happened, what all the witnesses say the loss was, and make a finding of the actual loss or (b) to throw out all state statutes and before the hearing, create model criminal statutes and force every crime to fit into the mold of one of the model criminal statutes. In this scenario, you would have full-blown trials to argue which model statute the crime should be considered as falling under. One pitfall with either of these scenarios is that it makes no sense to throw out all the state statutes that were the basis for the conviction because Congress defined aggravated felonies in terms of the immigrant's conviction, not the conduct that the immigrant committed. There are good reasons why Congress might have focused on convictions, not the conduct of what the people committed -- we presume people to be innocent until proven guilty and convicted. It makes sense that Congress would focus on what people were convicted of, because we no longer need to presume that they were innocent of what they were convicted of. But people are still presumed innocent of actions for which they were not convicted (not just what they were acquitted of, but conduct that nobody accused them of committing). Later in the oral argument, Chief Justice Roberts and Justice Stevens pointed out that Congress focused on being convicted of the offense, while Justice Scalia countered that he believes it is better to interpret Congress as requiring conviction of a fraud offense but not necessarily any conviction of a crime causing a loss of more than $10,000.

It would also make sense to appoint counsel for the indigent and those who are detained for these new full-blown trials on the loss amount. With the heavy factual requirements and weeks of testimony, an indigent person whose liberty hangs in the balance deserves appointed counsel (which courts have not yet recognized for immigration court). Likewise, those who are detained should be given appointed counsel. How else would a detainee do the legwork of gathering factual witnesses, investigating the crime scene, conducting forensics or other examinations, preparing witnesses, and bringing them to the hearing?

Another point about the oral argument is that several justices seem to think that Congress must have intended for the aggravated felony category to include many people, so if there were only a few crimes in state laws that required over $10,000 in loss at the time Congress passed it, Congress never could have meant that. The government's brief suggests that if at the time Congress made the change few existing statutes would qualify, that would effectively mean "that Congress had used an elephant-sized hole to house a mouse." There are several flaws with this approach, however. First, Congress may have been outlining a blueprint to pave the way for more aggravated felonies but not necessarily pointing to the existing statutes as aggravated felonies. For example, if Congress passes a tax credit for all skyscrapers that have 100% fluorescent lights, it is possible that no skyscrapers qualify at the time Congress passes the tax credit, but that Congress is setting out a blueprint to create an incentive for new skyscrapers to have 100% fluorescent lights. Far from using an elephant-sized hole to house no mice, Congress would be making an elephant-sized hole and waiting to see how many people building or re-fitting skyscrapers would try to meet the tax credit Congress created. In the same way, Congress might have been setting out a blueprint for aggravated felonies and waiting to see how many states build or re-word criminal statutes to meet the aggravated felony definition. The lack of statutes existing at the time Congress passed the law does not mean that Congress could not have meant what they wrote (just as the lack of 100% fluorescent skyscrapers at the time Congress makes a tax credit does not mean Congress intended something other than what it wrote). Imagine if Congress passed a tax credit for skyscrapers with 100% fluorescent lighting and Donald Trump demanded the tax credit for a skyscraper with 30% fluorescent lighting by arguing that Congress would not have used an elephant-sized hole to house a mouse.

A separate criticism of the government's argument is that Congress is full of politicians, not just people diligently writing statutes. Politicians often take grandstanding positions that they are passing laws to help the needy, feed the hungry, cut everyone's taxes, defeat all terrorists, and reduce the deficit. On closer inspection, though, it is often not clear how much the actual wording of the laws really meet the campaign promises. When Congress passed the change in the law, politicians were making rhetorical claims of being harder on immigrants. Isn't it possible that politicians were proclaiming that they were making all sorts of grand changes, but that the real wording of the statutes doesn't live up to the hype and should be interpreted as they were actually written, not according to the campaign speeches that politicians were making beforehand?

Nijhawan-inspired hypotheticals

2009-04-30T15:00:00.000-04:00

Before looking at some of the ideas from the Nijhawan oral argument, let's look at some hypotheticals.

First, does it seem unjust and contrary to what Congress must have been thinking to punish two people differently because the states where they committed their crimes define the criminal statutes differently? Let's say someone in State A commits a fraud that causes $15,000 of harm and is punished for committing what State A defines as "theft causing more than $11,000 in damage." That'd be an aggravated felony as a conviction for a crime causing more than $10,000 in loss. Someone in State B, however, commits a similar fraud but State B defines its crime as "theft causing more than $10 in damage" so in some situations, that is not an aggravated felony because the conviction is not for a crime causing more than $10,000 in loss -- it's defined as a fraud causing more than $10 in damage. Is this unjust to such a degree that Congress could not have meant it?

Second, would it seem equally unjust and contrary to what Congress must have intended to punish two people differently because the states where they committed their crimes impose sentences differently? Imagine that State A sentences a certain violent crime with 13 months in jail but State B sentences the same violent crime with 11 months in jail? It's possible that the person sentenced to 13 months in jail has an aggravated felony but the person sentenced to 11 months in jail does not have an aggravated felony. Does this seem so unjust that it must be contrary to what Congress intended?

Third, would it seem unjust and contrary to what Congress must have intended to punish two people differently because the crimes are punished differently due to circumstances that are not part of the criminal statute, not part of the conviction, and were out of the criminal's control? Let's say someone in State A, someone in State B, and someone in State C each obtain by fraud a $1 lottery ticket whose drawing will be done 7 weeks later. In each state, they are convicted of fraud whereby they stole a $1 ticket and deprived the owner of the value of that ticket. After the convictions are final in each state, the ticket in State A turns out to be worth $0 (it doesn't win), the ticket in State B turns out to be worth $9,500 (it wins a minor prize), and the ticket in State C turns out to be worth $20,000 (it wins one of the major prizes). Would you say that Congress absolutely must have intended to punish the three thieves differently based on the result of the lottery drawing that did not take place until 7 weeks after the fraud and a few weeks after the convictions? Would you say that Congress must have intended for the fraudster in States A and B not to have aggravated felonies but the fraudster in State C must be treated as committing an aggravated felony?

Tahiraj-Dauti Panel Rehearing Ordered Involving Forced Drugging And Motions To Reopen After Departing

2009-04-30T09:00:00.000-04:00

Tahiraj-Dauti v. Holder
April 29, 2009 -- granting panel rehearing
No. 07-1925
http://www.ca3.uscourts.gov/opinarch/071925npo.pdf

In a decision dated January 30, 2009, the panel of Judges Chagares, Hardiman and visiting Senior District Judge Thomas Selby Ellis III from the Eastern District of Virginia denied the appeal of someone who was suffered forced drugging while being deported.

The petitioners asked for panel rehearing and so did amici curiae of the ACLU, the ACLU of NJ, and the ACLU of Southern California. On April 29, 2009, the Third Circuit panel granted panel rehearing based on the reasons raised by the amici, which probably focused on the forced drugging during deportation.

Next, the Third Circuit panel reissued a decision at http://www.ca3.uscourts.gov/opinarch/071925np.pdf which focused on the peculiar and controversial departure bar that appears in a regulation, but arguably not grounded in the INA and perhaps violates the statute and therefore is invalid.

It's not clear now whether the panel rehearing will focus just on the forced drugging issue or whether it will tackle the controversial regulation that purports to bar motions to reopen after someone leaves the country, even if the person only left because he was forcibly deported by ICE.

Nijhawan argued at the Supreme Court April 27, 2009

2009-04-29T09:00:00.000-04:00

Nijhawan v. Holder, which the Third Circuit decided, was argued on appeal before the Supreme Court on April 27, 2009. For Mr. Nijhawan was Tom Moseley of Newark, NJ.

I will try to offer some thoughts on portions of the oral argument soon. For now, you can find a link to the transcript and one observer's views on the oral argument at the SCOTUS Blog:
http://www.scotusblog.com/wp/

Third Circuit Decision Will Be Argued April 27, 2009 at the Supreme Court (Nijhawan)

2009-04-23T09:00:00.001-04:00

Just a few days until the US Supreme Court holds oral argument on Monday, April 27, 2009 in Nijhawan v. Holder. It's Supreme Court case 08-495. The Third Circuit's decision is at 523 F.3d 387 and was titled Nijhawan v. Mukasey. The Supreme Court granted certiorari on January 16, 2009.

The Supreme Court is addressing the question of whether conspiracy to commit bank fraud, mail fraud, and wire fraud is a conviction for conspiracy of an offense involving fraud or deceit in which the loss to the victim exceeds $10,000 where the criminal statute does not include any requirement that the loss exceed $10,000 but the sentencing stipulations note that the victim's loss was much more than $10,000 (it seems like it was on the order of over $100 million).

It's listed as the first of two cases slated for Monday, April 27. Stay tuned. It could be an excellent opportunity for the Supreme Court to get back to basics and impose some long-needed sense to the categorical approach to analyzing the immigration consequences of criminal convictions. The immigrant in the case has a strong argument that it is not an aggravated felony.

See
http://supremecourtus.gov/qp/08-00495qp.pdf
for the listing of the case on the Supreme Court web site.

Listed for the petitioner is Thomas E. Moseley of Newark, NJ. Listed for the government is Curtis E. Gannon, Assistant to the Solicitor General, Justice Department, Washington DC.

Croitoru (not precedential): The Ultimate Expression Of Frustration With USCIS Refusal To Provide Information

2009-04-22T09:00:00.000-04:00

In re Gheorghe Croitoru
No. 09-1675
Not Precedential
http://www.ca3.uscourts.gov/opinarch/091675np.pdf
April 20, 2009

Judges Barry, Ambro, and Smith. Per Curiam decision.

I admire the enthusiasm of Mr. Croitoru, who it seems is so frustrated that it is difficult to obtain a copy of his entire immigration file (also referred to as his A-file or alien file) along with the file of his parents, that he went off and filed a writ of mandamus in the Third Circuit against USCIS! Love the enthusiasm.

Unfortunately, the Third Circuit pointed out you need to file the writ of mandamus in the district court first, not directly in the Third Circuit. And also, you would need to show that no alternative remedy is available. The Third Circuit referred to FOIA, perhaps not knowing that FOIA takes an extremely long time for USCIS to respond to (and many people say the quality and quantity of their responses are quite disappointing).

Nevertheless, the debate about whether a FOIA would effectively be futile must be heard first in the district court, not the Third Circuit. So this case is truly fascinating for the depths of frustration USCIS causes someone who earnestly seeks a copy of his own file (and that of his parents). Good luck, Mr. Croitoru!

Sixth Circuit Criticizes a Not-Precedential Third Circuit Decision About Crime Involving Moral Turpitude

2009-04-20T09:00:00.000-04:00

A posting about a decision from another circuit court -- the Sixth Circuit. In Singh v. Holder, Nos. 07-3353, 07-4468 (6th Cir. Apr. 16, 2009), the Sixth Circuit diverged from a not-precedential Third Circuit case. The issue in question is whether intentionally placing someone in fear of physical injury should be considered morally turpitudinous. If the answer is yes, then a conviction for that crime would be a crime involving moral turpitude, which would have negative consequences such as authorizing deportation of someone who had legal permanent residence status effective since 1990, owned a liquor store, owned a BP gas station, has a wife in the US, has two teenage children in the US due to a conviction involving punching an acquaintance after a night of drinking (for which he did not get any jail time, five years of probation, and paid $6000 in restitution, fines, and costs).

In a not precedential decision, the Third Circuit held that offenses that involve placing an individual in fear of physical injury are morally turpitudinous. Campbell v. Mukasey, 174 Fed. App'x 89 (3d Cir. 2006). The Sixth Circuit heavily criticized that decision, noting that none of the three cases that the Third Circuit cited provide strong support for that proposition because they involve different types of crimes. Apprehension of assault requires no intention to harm the other person physically. Not trying to harm the other person is less inherently base, vile, or depraved than trying to hurt someone, so it is less likely to be a CIMT. The Sixth Circuit therefore remanded the case for the BIA to address the issue.

Oei (not precedential): BIA Improperly Overturned IJ's Factual Findings Without Stating It Was Clearly Erroneous

2009-04-07T09:00:00.001-04:00

Oei v. Mukasey
No. 07-4561
Not Precedential
http://www.ca3.uscourts.gov/opinarch/074561np.pdf
December 1, 2008

For Ms. Oei, James M. Tyler of Schubert, Bellwoar, Cahill & Quinn in Philadelphia. For the government, Virginia M. Lum and Brooke M. Maurer of OIL.

Per curiam decision before Judge McKee, Nygaard, and Roth.

IJ William Van Wyke denied Ms. Oei's asylum claim and held that Ms. Oei filed the application in an untimely manner due to the one-year rule that normally requires asylum applications to be filed within one year of the most recent arrival to the United States.

Before 2002, the BIA could engage in independent fact-finding. But for appeals filed after September 25, 2002, the BIA must defer to the IJ's factual findings unless they are clearly erroneous. The BIA may not engage in its own independent factfinding. Filja v. Gonzales, 447 F.3d 241, 253 (3d Cir. 2006). The BIA ignored the rules and simply replaced the IJ's factual findings with its own without any analysis of whether the IJ's findings were clearly erroneous.

The BIA did not use the correct legal rule in its analysis.

Sandie: Corroboration Properly Required In This Particular Case; Stay of Removal Does Not Stay Voluntary Departure Unless Requested

2009-04-05T14:30:00.001-04:00

Sandie v. Holder
Precedential
No. 07-1865
April 3, 2009
http://www.ca3.uscourts.gov/opinarch/071865p.pdf

Judges Smith, Cowen, and district court judge Anne B. Thompson. Decision by Judge Smith.

For Mr. Sandie, Alexander Maltas of Lathan & Watkins in DC and Michele R. Pistone of Villanova Law School's Clinic for Asylum Refugee & Emigrant Services in Villanova, PA. For the government, Lindsay B. Glaunder, Theodore C. Hirt, Michael P. Lindemann, and John D. Williams of various parts of OIL.

IJ Miriam Mills denied the asylum request in March 2006 of a man from Sierra Leone who feared a secret group called the Wonde & Poro Society. IJ Mills focused on how Mr. Sandie did not corroborate his story. The BIA affirmed in February 2007. The Third Circuit concluded that the BIA did not make any error and denied the appeal by Mr. Sandie.

One issue was whether the BIA was required to address how the IJ believed the asylum-seeker's testimony was not credible before analyzing how much corroboration would be needed. Under Miah v. Ashcroft, 346 F.3d 434 (3d Cir. 2003), the BIA must do a new analysis of how much corroboration is needed if the BIA throws out an IJ's conclusion that testimony is not credible. Without much explanation, the Third Circuit held that in this particular case, the BIA was not required to do new analysis of how much corroboration is needed because even if the IJ's conclusion about the credibility was thrown out, the IJ's corroboration analysis did not depend on the credibility determination.

On the issue of corroboration, an IJ is the first to decide whether corroboration for testimony central to a claim should be required. In making that decision, an IJ must identify the testimony to be corroborated, examine whether there is corroboration, and analyze whether the asylum-seeker has adequately explained any lack of corroborating evidence after giving the person a chance to explain. The Third Circuit concluded that the IJ gave notice to the asylum-seeker of the need to provide corroboration. It did not go into details, so it's tough to know what the record on appeal said on this topic. The Third Circuit also inferred that because the asylum-seeker submitted a report that addressed a scar, it is clear that the IJ had warned about the need to corroborate the scar -- this seems to be a stretch as written by the Third Circuit, because sometimes asylum-seekers submit reports about a wide range of topics even though the IJ has not asked for corroboration on those topics. This is typical of expansive, comprehensive litigation styles, not a narrow response to the IJ's explicit requests. For those of us who read the opinion but have no chance to review the record on appeal, it's hard to tell how well-supported the Third Circuit's analysis is.

On another note, the Third Circuit held that if there is a period of voluntary departure, the person appealing needs to make a motion to stay the voluntary departure period (usually alongside a motion for a stay of removal). Unlike in the Sixth, Eighth, and Ninth Circuits, the Third Circuit joins the First, Second, and Seventh Circuits in refusing to extend the voluntary departure period when asked for a stay of removal unless there is another motion alongside it to request that. This is a classic circuit split that might have to be resolved in the Supreme Court.

Liu (not precedential): BIA Ignored Evidence Supporting Asylum Claim From China

2009-04-05T09:05:00.000-04:00

Liu v. Mukasey
November 25, 2008
2008 WL 4989132
Not Precedential
http://www.ca3.uscourts.gov/opinarch/071303np.pdf

Judges Scirica, Chagares, and Aldisert
Per Curiam decision

For Ms. Liu, David J. Rodkin of New York, NY. For the government, Ari Nazarov and Paul F. Stone of OIL.

IJ Annie S. Garcy granted asylum. On appeal, the BIA reversed IJ Garcy and ordered removal because the BIA believed Ms. Liu's fear of forced sterilization was too speculative. The BIA relied on one item -- the 2002 State Department Report released in 2003, which notes that China sometimes required families with more than one child to pay a fee.

The BIA, though, did not mention Ms. Liu's specific testimony about China's true policies against families with more than one child and what her relatives actually experienced. The BIA also did not discuss the IJ's findings that supported Ms. Liu's fear.

The BIA cannot ignore evidence supporting asylum-seekers. The Third Circuit explained that agency determination must be supported by substantial evidence. Dia v. Ashcroft, 353 F.3d 228, 248 (3d Cir. 2003). The BIA erred by stating that Ms. Liu failed to offer specific evidence of her fear -- inf act, she did provide specific evidence so the BIA's analysis is not supported by substantial evidence.

The Third Circuit overturned the BIA's ruling and remanded the case for the BIA to render a decision that actually addresses the evidence that the asylum-seeker submitted.

Carrera-Garrido (not precedential): IJ Must Apply Legal Rule That Only Required Reasonable Possibility Of Future Persecution

2009-04-01T09:00:00.000-04:00

Carrera-Garrido v. Holder
http://www.ca3.uscourts.gov/opinarch/072321np.pdf
Not precedential
2/26/2009

Judges Ambro, Weis, and Van Antwerpen. Decision by Judge Ambro.

The IJ was Daniel Meisner.

To show objective reasonableness of fear of returning to one's country, you must show there is a reasonable possibility of suffering the feared persecution. IJ Meisner, however, never said that the standard was proof of a reasonable possibility. Instead, IJ Meisner said there was no nexus established and he did not establish that he would be killed. The IJ never appeared to apply the correct standard, apparently applying the wrong standard by requiring a nexus, not just a reasonable possibility. The Third Circuit overturned the BIA and IJ Meisner for further proceedings.

Ndayshimiye: Mixed Motive Can Be Valid Even If Subordinate To Other Motives

2009-03-31T13:30:00.002-04:00

Ndayshimiye v. Holder
February 24, 2009
No. 07-3201
http://www.ca3.uscourts.gov/opinarch/073201p.pdf
Precedential

Judges Scirica, Fuentes, and Hardiman. Decision by Judge Fuentes.

IJ Mirlande Tadal. For Mr. Ndayshimiye, Kelly A. Carrero (argued), Matthew V. Barter, and William J. Hine of Jones Day (NY, NY). For amicus curiae, Richard D. Steel and Deborah E. Anker of the Harvard Immigration and Refugee Clinical Program (Cambridge, MA). For the government, Julie M. Iversen (argued), Allen W. Hausman, Margaret J. Perry, and Jeffrey S. Bucholt of OIL.

The BIA issued a precedential decision about analyzing mixed motives for persecution that qualifies for asylum protection. The Third Circuit held that the BIA made a legal mistake but that Mr. Ndayshimiye nevertheless loses.

The issue was whether he and his family were afraid of persecution that was motivated by their imputed nationality or social group. Under the REAL ID Act, there is a mixed-motives standard in INA 208(b)(1)(B)(i) that requires showing that the protected ground was or will be at least one central reason for persecution. The IJ denied asylum and the BIA affirmed that in Matter of J-B-N-, 24 I&N Dec. 208 (BIA 2007). The BIA reasoned that requiring one central reason to be the protected ground does not need to be the single dominant reason. Strangely, though, the BIA held that to be one central reason, it had to be more than incidental, tangential, superficial, or subordinate to another motive.

The Third Circuit concluded that the requirement that the motive be "subordinate" to other motives was not a valid construction of the statute. Unfortunately, the Third Circuit then held that the rest of the requirements were rational. It is possible, though, that lawyers should still challenge the BIA's controversial interpretation of the statute.

Ultimately, the Third Circuit held that the BIA surely used the wrong standard but then held that they would have lost anyone under the appropriate standard and therefore they should be deported.

Moran-Hernandez (Not Precedential): Cancellation of Removal Must Consider Unusual Tropical Storm Damage

2009-03-31T08:45:00.001-04:00

Moran-Hernandez v. Mukasey

Nos. 07-2323 & 07-3560

Not Precedential

October 1, 2008

http://www.ca3.uscourts.gov/opinarch/072323np.pdf

Judges Barry, Smith, and Hardiman. Per Curiam decision.

IJ Annie S. Garcy granted cancellation of removal for someone who had two children and lived with the father of the two children in New Jersey. Public education in Guatemala would be very difficult, especially in rural areas for children above sixth grade. The woman assumed the operation of a landscaping business after the government deported the two children's father.

Although the IJ granted cancellation of removal, ICE appealed and the BIA overturned IJ Garcy's grant. However, the BIA failed to review the entire record before deciding to overturn IJ Garcy's decision. It also did not consider all of the factor set forth in Matter of Recinas. The BIA failed to take account of how Guatemala was devastated by Tropical Storm Stan in 2005 so there would be no way to house or feed the two children there. The BIA also erred by ignoring how a severely lower standard of living caused by an extremely unusual event could affect the children.

The Third Circuit overturned the BIA's decision and reinstated IJ Garcy's grant of cancellation of removal. IJ Garcy was right all along, but the BIA erred in its decision.

For Ms. Moran-Hernandez was Maria I. Thomas of Thomas & Thomas in Princeton, NJ. For the government were Francis W. Fraser, Nancy E. Friedman, and Justin R. Markel of OIL in the Justice Department.

Ponta-Garcia

2009-03-09T13:00:00.000-04:00

Ponta-Garcia
http://www.ca3.uscourts.gov/opinarch/072551p.pdf
Precedential
February 20, 2009

Judge Sloviter, Barry, and visiting Sixth Circuit Judge Siler, Jr. Decision by Judge Barry. For Mr. Ponta-Garcia, Michael P. DiRaimondo of DiRaimondo & Masi of Melville, NY. For the government, Andrew Oliveira of OIL.

Mr. Ponta-Garcia came to the United States as an LPR in 1978. In 1983, he came to the US as a visitor and then overstayed his visa. In 1987, an IJ entered a removal order. It is unclear whether that removal order was invalidated.

In 1995, the immigration authorities issued a warrant to arrest Mr. Ponta-Garcia for the stated purpose of starting new removal proceedings.

In April 2007, ICE informed Mr. Ponta-Garcia that it changed its mind and intended to reinstate the removal order from 1987. Under the IRRIRA law in 1996, the goverment can reinstate a removal order against anyone who reenters the U.S. illegally after being removed or after departing voluntarily under a removal order. In reinstatement, you are not entitled to see an immigration judge. The Third Circuit first ruled that the regulation for reinstating a removal order was valid.

But ICE made a different mistake -- it did not recognize that anyone facing reinstatement of removal has the right to prove that the original removal order was invalidated and the right to prove his most recent entry was with permission (not an illegal entry).

Because ICE did not develop the facts about whether the original removal order was invalidated and whether the most recent entry was with permission, the Third Circuit vacated ICE's order of reinstatement and remanded the case to ICE for further proceedings. The Third Circuit noted that there was some evidence that the original order had been invalidated and that the most recent entry was with permission.

Robinson: rehearing en banc denied

2009-03-09T09:00:00.000-04:00

Robinson v. Napolitano is the Third Circuit case in which the court ruled that the surviving spouse of a United States citizen is no longer an immediate relative once the citizen-spouse dies (and therefore can only obtain legal permanent residence by meeting specific requirements for widows and widowers of United States citizens, which Ms. Robinson did not).

According to Surviving Spouses Against Deportation, which has information at www.ssad.org, on March 3, 2009, the Third Circuit denied Ms. Robinson's request for en banc review. The Third Circuit explained that none of the three judges who decided the case through a three-judge panel voted for en banc review. In addition, there was not a majority of judges of the overall Third Circuit who wanted en banc review.

The Surviving Spouses Against Deportation web site announces that they will file a petition for certiorari with the United States Supreme Court within the next 90 days. They say the odds that the Supreme Court will hear the case is 4% -- it doesn't exactly work like that, where someone can figure out the odds right at the start.

But let's just say that the vast majority of cases that seek Supreme Court review are denied. Because some other circuits have a different view, the odds of review might be higher in this case rather than the usual case seeking review, but the odds unfortunately might still be slim.

Hoxha: BIA Must Address All Issues In The Notice Of Appeal

2009-03-02T22:14:00.004-05:00

Hoxha v. Holder
No. 07-2940
http://www.ca3.uscourts.gov/opinarch/072940p.pdf
March 2, 2009
Precedential

Judges Scirica, McKee, and Smith. Opinion by Judge Smith. Douglas A. Grannan of the Law Office of Greg Prosmushkin of Philadelphia for the Hoxhas. Monica G. Antoun and Paul F. Stone of OIL for the government.

The BIA is required to address all issues adequately mentioned in the Notice of Appeal to the BIA, even if the person filing the appeal does not provide additional explanation for those points in the full BIA appeal brief. The Third Circuit views the appeal brief as an optional filing. Bhiski v. Ashcroft, 373 F.3d 363 (3d Cir. 2004). The regulation that demands a notice of appeal is 8 CFR 1003.3. Its wording sets forth a demand for a detailed notice of appeal and tends to indicate the full appeal brief is optional rather than mandatory. The EOIR-26 form suggests failing to file a brief does not trigger automatic forfeiture of the appeal, either.

Therefore, the BIA must analyze all issues fairly raised in the Notice of Appeal and in any full BIA appeal brief, even if an issue might appear in only one of those filings and not the other. This is a circuit split with the Sixth Circuit in Hassan v. Gonzales, 402 F.3d 429, 433 n.5 (6th Cir. 2005) and the Ninth Circuit in Abebe v. Mukasey, 2009 WL 50120 at *3 (9th Cir. 2009) (en banc).

The Third Circuit has the better argument because it focuses on the specific language in the unusual world of immigration administrative appeals. In this case, the BIA ignored an issue raised in the Notice of Appeal so the Third Circuit overturned the BIA and remanded for further proceedings on the issue the BIA failed to address the first time around.

Lin-Zheng: Stopping Presumed Persecution For Spouse or Partner of Coercive Family Planning Policies

2009-03-02T22:01:00.003-05:00

Lin-Zheng v. Holder
Precedential
No. 07-2135
http://www.ca3.uscourts.gov/opinarch/072135p.pdf
En Banc
February 19, 2009

Judges Scirica, Sloviter, McKee, Rendell, Barry, Ambro, Fuentes, Smith Fisher, Chagares, Jordan, Hardiman, Weis, and Garth. Opinion by Judge McKee. David X. Feng of Feng & Associates of New York, NY for Mr. Lin-Zheng. Thomas H. Dupree, Jr. (DOJ), Paul Fiorino, Sada Manickam, and Song E. Park (OIL) for the government. Nancy Winkelman of Schnader Harrison Segal & Lewis of Philadelphia for amicus curiae.

The Third Circuit had held that the BIA's view in Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997) (en banc) was appropriate that a husband may qualify for asylum based on his wife's well-founded fear of persecution under a coercive population control policy. Here, the Third Circuit changes its mind and agrees with the Second Circuit's decision in Lin v. DOJ, 494 F.3d 296 (2d Cir. 2007) that there should not be automatic refugee status to spouses or unmarried partners of people forcibly subjected to coercive family planning measures.

The Third Circuit focused on the common meaning given to the word "person" when it is used in section 601(a) of IRRIRA. The BIA held that the failure to mention spouses did not preclude extending protection to spouses. The Third Circuit disagrees, believing that including spouses would violate the clear meaning of IRRIRA. The Third Circuit did not discuss international law principles regarding refugee status, which was likely the purpose of IRRIRA's definition of refugee protections. We'll have to see whether the Third Circuit revisits this to consider international law definitions and principles.

In the meantime, someone can still succeed through derivative asylum or by showing actual persecution for resisting a coercive family planning policy or a well-founded fear of future persection for doing so. So it is still possible to succeed with a few additional steps.

Liu: Late Motion To Reopen Allowed Only For Changed Country Conditions, Not Personal Circumstances

2009-03-02T21:44:00.003-05:00

Liu v. Holder
Precedential
http://www.ca3.uscourts.gov/opinarch/073346p.pdf
February 4, 2009

Judges Slovier, Greenberg, and District Judge Irenas. Opinion by Judge Greenberg. Gary Yerman of Yerman & Associates in New York, NY repesented Ms. Liu. Jeffrey S. Bucholtz (DOJ Civil Division), Alison Marie Igoe, Edward J. Duffy, and Paul F. Stone (OIL) represented the government.

Ms. Liu lost her asylum claim before IJ Alberto J. Riefkohl. She also lost her BIA appeal. She then filed a motion to reopen that the BIA and the Third Circuit viewed as being based on changed personal circumstances because she focused on how she just had two children.

The Third Circuit noted that the statute that allows an additional asylum application does not make clear whether the changed circumstances can include changed personal circumstances. However, the Third Circuit's view is that it would be harmonious to other statutes to allow a motion to reopen more than 90 days after the original decision based only on changed country conditions. The Third Circuit therefore stands with the Second Circuit's decision in Jin v. Mukasey, 538 F.3d 143 (2d Cir. 2008) on this controversial issue.

Although the Third Circuit explains the desire to prohibit gaming of the system and deference to the BIA's construction of the immigration statutes, the Third Circuit did not discuss international law bases for the United States asylum law. We'll have to see how this controversial issue develops in other circuits.

Liu (Not Precedential): No Time Limit To Reopen Asylum Claim Due To Changed Country Conditions

2009-02-28T23:30:00.000-05:00

Liu v. Mukasey

No. 07-4798

http://www.ca3.uscourts.gov/opinarch/074798np.pdf

Not Precedential

2008 WL 4531956
October 10, 2008

Judges Rendell, Jordan, and Van Antwerpen. Per curiam decision. Pro se appellant.

The BIA erred because a motion to reopen to seek asylum that is based on changed country circumstances can be made at any time. This is clear in the law, including the regulation at 8 CFR 1003.2(c)(3)(ii), which says just that. The Third Circuit granted the appeal in part. IJ Charles M. Honeyman issued the original decision, but the Third Circuit criticized only the BIA for a ruling that the IJ had not dealt with.

Diaby (not precedential): Reopening For Changed Country Circumstances Does Not Require Extensive Details

2009-02-28T23:20:00.000-05:00

Diaby v. Mukasey
July 8, 2008
http://www.ca3.uscourts.gov/opinarch/073086np.pdf
2008 WL 2656260
Not Precedential

Judges Scirica, Charagares, and Aldisert. Per Curiam decision. For Mr. Diaby, Lawrence Spivak of New York City. For the government, Nancy E. Friedman and Andrew Oliveira of OIL. The case was first heard by IJ Riefkohl but the Third Circuit criticized only the BIA, not anything the IJ had ruled on.

When an asylum-seeker makes a motion to reopen a case to seek asylum based on changed country conditions, the asylum-seeker only needs to make a prima facie case for reopening. That means he or she must show a reasonable likelihood or a realistic chance of winning asylum. In reviewing a prima facie case, the BIA must accept factual allegations unless they are inherently unbelievable. It was wrong for the BIA to ignore the factual allegations by merely pointing out that it wished to see additional detail about them.

Hussain (not precedential): General Reference To BIA Enough To Preserve Issues

2009-02-28T23:15:00.000-05:00

Hussain v. Mukasey
No. 06-2576
2008 WL 83847
January 9, 2008
Not Precedential

Judges Fisher, Hardiman, and Aldisert. Decision by Judge Fisher. John J. Hykel of Philadelphia for Mr. Hussain. For the government, Mary R. Pelletier of the Tax Division and Nancy E. Friedman of OIL.

The Third Circuit held that the BIA erred by concluding that Mr. Hussain did not raise a particular in his appeal of the denial by IJ Miriam K. Mills. In his brief to the BIA, he explained past events and that a well-founded fear of persecution can be based on past persecution. The BIA erred by concluding that Mr. Hussain did not raise the issue of past persecution.

The Third Circuit overturned the BIA and remanded the case for further proceedings.

Patel (Not Precedential): Motion To Reopen Asylum Claim Requires Merely "Reasonable Likelihood" That Relocation Unreasonable

2009-02-28T23:05:00.001-05:00

Patel v. Mukasey, No. 06-2884
December 20, 2007
Not Precedential
2007 WL 4526023

Judges Rendell, Greenberg, and Van Antwerpen. Decision by Judge Rendell. For Mr. Patel, Michael G. Radigan of Matawan, NJ. For the government, David E. Dauenheimer and Virginia M. Lum of OIL.

The Third Circuit overturned the BIA in this case. IJ Riefkohl originally heard the case, but the Third Circuit criticized only the BIA's decision on a motion to reopen, not anything that the IJ had ruled on.

The Third Circuit overruled the BIA by stressing that a motion to reopen for someone who seeks asylum is to show a reasonable likelihood that it would be unreasonable for an asylum-seeker to relocate elsewhere in the country. The BIA inappropriately required Mr. Patel to prove that relocation would be impossible or unreasonable. The Third Circuit stressed that to reopen a case, proof of a reasonable likelihood that relocation would be unreasonable is enough for the topic of relocation. Same rationale for a motion to reopen to seek relief under CAT.

Perez-Mirachal (not precedential): IJ Has Discretion To Grant Or Deny Continuance For Post-Conviction Motion Not Yet Filed

2009-02-28T22:40:00.000-05:00

Perez-Mirachal v. Muksaey
April 23, 2008
Not Precedential
No. 07-1806
http://www.ca3.uscourts.gov/opinarch/071806np.pdf
275 Fed. Appx. 141

Judges Sloviter and Jordan with Judge Alarcon from the Ninth Circuit. Opinion by Judge Alarcon. John J. Garzon of Sunnyside, NY for Mr. Perez-Mirachal. Paul Fiorino and Andrew Oliveira of OIL for the government.

The Third Circuit held that an IJ has the discretion to grant or deny a continuance request if the basis is to file a post-conviction motion to attack an underlying criminal conviction if the respondent has not yet filed that post-conviction motion in criminal court.

It is hard to discern any bright-line rules from this case, though, because the Third Circuit emphasized it is a case-by-case analysis.

Costa (not precedential): Prompt Withdrawal Of False Testimony After Asylum Interview Avoids Bar To Good Moral Character

2009-02-28T22:35:00.000-05:00

Costa v. Mukasey, 2007 WL 4296754 (3d Cir. Dec. 10, 2007) (not precedential).

Judges Barry, Fuentes, and Garth. Decision by Judge Garth. For Mr. Costa, Thomas E. Moseley, Newark, NJ. For the government, Douglas E. Ginsburg and John D. Williams of OIL.

The Third Circuit held that the BIA and Judge Dogin erred by holding that Mr. Costa lacked good moral character due to giving false testimony even though he later voluntarily withdrew them. That was a mistake because the statutory bar to good moral character for false testimony does not apply if the person voluntarily and before any exposure of the attempted fraud corrects the testimony. See Matter of M, 9 I&N Dec. 118 (BIA 1960). It was a valid withdrawal even though it did not take place until after the asylum hearing, because it was done before the merits hearing in the immigration court case.

The Third Circuit remanded for more findings on good moral character.

Nyakatura (not precedential): Receiving A Bribe For Influence Or Reward An Aggravated Felony Either Way

2009-02-28T22:30:00.001-05:00

Nyakatura v. Mukasey, 2007 WL 4287592, No. 06-3204 (3d Cir. Dec. 6, 2007) (not precedential).

Catching up on some intriguing cases from a while back.

Judges Scirica, Ambro, and Jordan. Decision by Judge Jordan. For Mr. Nyakatura, Daniel M. Pell (argued the case) of York, PA. For the government, Annette M. Wietecha (argued the case), Mary Jane Candaux, Susan K. Houser of OIL.

The Third Circuit concluded that a conviction for 18 USC 666(a)(1)(B) is an aggravated felony because it relates to commercial bribery. Although the statute discusses penalizing someone who accepts anything of value intending to be either influenced or rewarded, either option is related to commercial bribery so it is not disjunctive in any significant way.

Robinson: 2-1 Ruling That Widows Are Not Immediate Relatives If Married Less Than Two Years

2009-02-03T07:19:00.002-05:00

Robinson v. Napolitano
http://www.ca3.uscourts.gov/opinarch/072977p.pdf
No. 07-2977
February 2, 2009
Precedential

[A full blog posting to come later]

Judges Sloviter and Fuentes voted against Ms. Robinson while Judge Nygaard dissented and voted for Ms. Robinson. The Third Circuit overturned district judge Stanley R. Chesler.

In a case followed by widows and widowers around the country, along with receiving coverage in the New York Times on the day of the decision, the Third Circuit ruled in a 2-1 split decision to overturn the district court judge's conclusion that widows and widowers whose United States citizen spouses died less than two years after they married cannot continue to be considered immediate relatives, even though there was a pending application for legal permanent residence.

According to news reports and press releases, the lawyer for Ms. Robinson, Jeffrey A. Feinbloom, plans to file a motion for the case to be reheard en banc, which means a rehearing with all 21 judges of the Third Circuit.

In other out-of-court developments, the new DHS Secretary issued a directive that placed a priority on examining ways that the current immigrant laws penalize widows and widowers of United States citizen, a sign that provides hope that DHS might try to find a way to provide protection for widows and widowers.

The dispute turns on whether the immigration statute blocks the way for widows and widowers who were married less than two years. The majority focused on language that suggests widows and widowers may only continue if they were married at least two years. Ms. Robinson's lawyer, however, argues that the only mention of the two-year requirement is limited to people who had not yet filed the application for legal permanent residence before the spouse died.

More analysis of this later -- I'll update this blog posting.

New York Times coverage:
http://www.nytimes.com/2009/02/03/nyregion/03immig.html

Pro-immigrant descriptions from Surviving Spouses Against Deportation:
http://ssad.org/litigation/robinsonlitigation.html

Liu (not precedential): Numerous IJ Errors In Chinese Asylum Case

2009-01-31T18:28:00.003-05:00

Liu v. Filip
http://www.ca3.uscourts.gov/opinarch/073294np.pdf
No. 07-3294
Not Precedential
January 30, 2009

Judge Sloviter and Barry with Judge Eugene E. Siler, Jr. (from the Sixth Circuit). Per curiam decision.

Overturning the BIA and IJ Charles Honeyman for improper reasoning in denying the asylum claim of someone from China.

Briefly, numerous errors by the BIA and IJ in denying the asylum claim: one minor inconsistentcy of a date in a cousin's letter was too minor to justify finding the witness not credible; testimony was he escaped by the back door, not the front door; escape not inherently improbable where church members outnumbered police and interfered with their chase and he knew the area so possible he could outrun the police; odd circumstance of getting a notarized birth certificate in hiding does raise questions but does not go to the heart of the claim.

IJ improperly called the wife a star witness whose absence from testifying was suspicious -- actually, she did not there when the police tried to capture her husband.

Chen (not precedential): New Evidence Includes Evidence After The Merits Hearing Even If The Final Decision Was Months Later

2009-01-31T18:00:00.004-05:00

Chen v. Filip
Not Precedential
http://www.ca3.uscourts.gov/opinarch/073705np.pdf
January 22, 2009
Judge Barry, Smith, and Hardiman. Per Curiam opinion.

Overturning the BIA. The case was originally heard by IJ Rosaline K. Malloy, but the error was made by the BIA, not IJ Malloy.

Asylum-seekers can file a motion to reopen a case by focusing on new evidence that was not previously available. The BIA must look at all the new evidence. Evidence is new if, among other things, it was not available at the time of the merits hearing conducted in immigration court.

Evidence is new if it was not available at the time of the merits hearing, regardless of how much time passed before the IJ issued a decision in the case. After all, the asylum-seeker submits evidence at the merits hearing. So unless the IJ rules otherwise, the record is closed at the merits hearing and anything that arises afterwards could not have been presented in the case.

Because certain evidence was new, the BIA erred by refusing to explicitly consider the new evidence of changed circumstances under the test in Zheng v. Mukasey, 2008 WL 5006072 (3d Cir. Nov. 26, 2008).

Doe (not precedential): Evidently Strategic Waiver Overcomes Phone Obstacles To Finding A Lawyer

2009-01-31T17:45:00.001-05:00

Doe v. Filip
Nos. 06-4953 & 07-1701
http://www.ca3.uscourts.gov/opinarch/064953np.pdf
Not Precedential
January 22, 2009

Judges Scirica, Fuentes, and Hardiman. Opinion by Judge Fuentes

Pro bono counsel for Mr. Doe were Laura E. Neish (argued) and Charles E. Stewart of Zuckerman Spaeder of NY, NY. For the government, Kevin J. Conway (argued) and Richard M. Evans of OIL.

The Third Circuit affirmed the BIA and IJ Annie S. Garcy in ordering removal of a Haitian asylum-seeker.

Mr. Doe appeared in immigration court and did not have a lawyer. The court did not appoint a lawyer for him. He said he would waive his right to fight his case and waive his right to appeal. Two weeks later, he filed a motion in which he said he wished to fight his case and seek asylum. The Third Circuit concluded that even if Mr. Doe experienced problems trying to find an attorney due to restrictive phone rules where he was detained, that was nothing that would allow him to take back his initial decision not to fight the case. The Third Circuit quickly noted that its current view is that immigrants have no Sixth Amendment right to counsel and turned to the test for due process -- to show the obstacles to obtaining a lawyer violated due process, you must show you were prevented from reasonably presenting your case and substantial prejudice resulted.

In looking at whether the restrictive phone rules prevented Mr. Doe from reasonably presenting his case, the Third Circuit did not focus on what obstacles it posed or how it might have prevented him from a reasonable presentation. Instead, the Third Circuit focused on how evidently Mr. Doe had a motivation for giving up his case -- to try to get out of detention sooner by being deported quicker. It is not clear, though, how the Third Circuit's focus on alternative motivation is relevant to the issue of whether the telephone rules prevented him from reasonably presented his case. It seems like the alternative motivation merely suggests that if Mr. Doe had affirmatively insisted that the detention staff block his phone access as part of a grand strategy to seek deportation sooner, that would have been a knowing waiver as part of an intelligent strategy. Here, though, Mr. Doe did not ask for his phone access to be blocked. It's not clear how the Third Circuit's analysis matches the legal rule it stated.

The Third Circuit did note that if the telephone rules had interfered with his ability to find a lawyer and the immigration judge ignored repeated requests for time and a list to try to find a lawyer, that might have been a violation.

On another topic, the Third Circuit upheld the BIA's interpretation of the facts regarding legal proceedings one of his relatives more recently started against the people Mr. Doe believes will persecute him. The BIA concluded that the evidence did not prove how the adversaries might connect Mr. Doe to the legal proceedings his relatives started.

Sulistiowati (not precedential): IJ Must Analyze Pattern Or Practice Of Anti-Chinese Persecution In Indonesia

2009-01-31T10:58:00.003-05:00

Sulistiowati v. Filip
http://www.ca3.uscourts.gov/opinarch/081148np.pdf
Not Precedential
No. 08-1148
January 21, 2009

Judges McKee, Nygaard, and Roth. Per Curiam decision. Judge Roth voted to deny the petition for review so it was a 2-1 decision.

The case in immigration court was heard by IJ Rosalind K. Malloy

The BIA and IJ Malloy erred by not analyzing whether there is a pattern or practice of persecution in Indonesia against ethnic Chinese.

A basic legal rule is that someone can seek asylum by proving a subject fear of persecution along with objective proof that a reasonable person in the circumstances would fear persecution. One way to show objective fear of persecution is to show a pattern or practice of persecution against a group of similar people. This is in the law at 8 CFR 208.13(b)(2)(iii)(A).

IJ Malloy did not address whether there was a pattern or practice of persecution in Indonesia of ethnic Chinese people. IJ Malloy did comment that the asylum-seeker did not fully articulate her exact fear, but did not address the issue of a pattern or practice of persecution. The BIA and IJ Malloy erred by not addressing that issue and the Third Circuit overturned the decision, remanding for further hearings.