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

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

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

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

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

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.