Tuesday, July 26, 2005

EAJA Fees for overturning a BIA decision

Filed 07/25/05, No. 03-1931
Johnson v. Atty Gen USA
(Precedential, which means it can be relied on and cited in other cases)

The Equal Access to Justice Act is a law that will pay attorney's fees for someone who vindicated his or her rights in overturning an agency's action. This helps encourage people to go through the expensive task of standing up for their rights. As a safeguard, the law allows the government to avoid paying the attorney's fees if the government can show its position was substantially justified.

The Third Circuit ruled that an individual will be considered the victor (the prevailing party) anytime the Third Circuit overturns a BIA decision and remands the case for further proceedings. The individual is immediately the prevailing party, even if it's unclear whether the individual will ultimately win after many other unrelated issues are resolved on remand.

The Third Circuit also clarified what the government must show to prove its position was substantially justified.

The Supreme Court has held that, as used in the EAJA,
“substantially justified” does not mean “justified to a high
degree” but instead means “justified in substance or in the
main—that is, justified to a degree that could satisfy a
reasonable person.” Pierce v. Underwood, 487 U.S. 553, 565
(1988). Put another way, substantially justified means having a
“reasonable basis in both law and fact.” Id. (internal quotation
omitted). Thus, “[a] court must not assume that the
government’s position was not substantially justified simply
because the government lost on the merits.” Kiareldeen v.
Ashcroft, 273 F.3d 542, 554 (3d Cir. 2001).

Importantly, the Third Circuit reiterated that in immigration cases, the Government must meet the substantially justified test twice—once with regard to the underlying agency action and again with regard to its litigation position in the proceedings arising from that action.

The Third Circuit granted EAJA fees in this case because the asylum seeker in his second hearing submitted a "mixed motive" theory that the persecution he suffered was partially based on a protected ground, even though the motive may have also been mixed with other unprotected grounds. For example, that he was persecuted for his imputed political opinion (his attackers believed he held a political opinion they disliked) along with other reasons (such as personal dislike or general lawlessness).

The immigration judge and the BIA rejected his claim without addressing his viable theory that he was the victim of persecution that had a mixed motive. The Third Circuit ruled that failing to analyze his mixed motive theory was a legal error that was not substantially justified. Therefore, it awarded fees.

The lawyer spent 82 hours of work on just the asylum portion of the appeal to the Third Circuit (there were other parts to the appeal, too) and at the statutorily prescribed $125 per hour plus modest costs, the total reimbursement was $10.800.

Friday, July 22, 2005

Overturning BIA for mischaracterizing asylum claim

Filed 07/22/05, No. 03-4731
Vente v. Atty Gen USA
(Vente v. Gonzalez)

The Third Circuit overturned the BIA's denial of an asylum claim because the BIA mischaracterized the claim.

The asylum seeker received personal threats in Colombia because he was accused of being a collaborator. Strangely, the BIA focused on whether the general level of unrest could support an asylum claim and whether others in his family (who never left Colombia) felt threatened. The BIA incorrectly ruled that the lack of general unrest meant the asylum claim must fail. That mischaracterized the asylum claim -- it was based on direct threats to him individually, not the general level of unrest affecting all people.

Next, the BIA also erred by denying the asylum claim because his family did not feel threatened. That missed the point -- his claim was based on the threat to him inidividually, so it did not matter that others in his family (who were not directly threatened) did not feel very threatened.

The Third Circuit remanded the case to the BIA.
“When deficiencies in the BIA’s decision make it impossible for us to meaningfully review its decision, we must vacate that decision and remand so that the BIA can further explain its reasoning.” Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003). That is the situation in which we find ourselves here. Given that Vente’s asylum claim is based on the specific threats he received from paramilitary groups in Colombia, it is unclear why the BIA even addressed the general unrest in Colombia or whether members of Vente’s family suffered harm. We must therefore remand this case to the BIA for a fresh look at Vente’s asylum claim—one that focuses on the true underpinnings of that claim.

Wednesday, July 20, 2005

Crime of violence aggravated felony requires substantial risk of intentionally using physical force

Filed 07/12/05, No. 02-3879
Tran v. Atty Gen USA
(precedential decision)

To analyze whether a conviction is an aggravated felony, you must compare the entire range of the crime according to the relevant portion of the statute and determine whether the entire range would be encompassed in the definition of the particular aggravated felony category.

The aggravated felony of using physical force requires a state statute that includes the specific intent to use physical force, not mere recklessness. Therefore, a Pennsylvania statute that did not require an intention to use physical force could not qualify as an aggravated felony.

The statute required the intentional setting of a fire, but only a recklessness for causing harm.. The IJ ruled it was not an aggravated felony. For some reason the BIA reversed and ruled it was an aggravated felony. The Third Circuit ruled that the BIA was wrong and held it was not an aggravated felony.

We thus conclude, following Parson and Leocal, that a
crime of violence under § 16(b) must involve a substantial risk that
the actor will intentionally use physical force in committing his

Habeas appeals under REAL ID; must argue due process problems to BIA

Filed 07/15/05, No. 04-2037
Bonhometre v. Atty Gen USA
USDC for the Eastern District of Pennsylvania

The REAL ID Act attempts to get rid of district court review of virtually all orders of removal (but it has not gotten rid of habeas to challenge the legality of detention). What happens, then, if the district court issued an order a few years ago that is now being appealed to the Third Circuit? In theory, if the case started today, it would go directly to the Third Circuit and never be heard by the district court. The Third Circuit said that in such a situation, it would review the issue from scratch (de novo), which would have been the standard anyway if it had been reviewing an appeal.

It also said that, strangely enough, the petition for review should go to the circuit where the IJ ruled, not the circuit where the detainee is now held. Even stranger, the Third Circuit said that even though the IJ's ruling was elsewhere, it would nevertheless hang onto the case because that rule was discretionary, not jurisdictional.

As far as the accuration of a procedural due process error, the Third Circuit ruled that the issue must be raised to the BIA and it was no excuse that it would be obvious that the BIA would have ruled against such an appeal. So, the lesson is to raise every argument to the BIA, even if you know the BIA will reject them. (Is the BIA ready for extremely lengthy appeals?)

Turning to the merits, the Third Circuit stated that in its view, a procedural due process challenge must show substantial prejudice -- that the error affected the result.

Monday, July 11, 2005

Transfer of District Court case under REAL ID Act

Papageorgiou v. Atty Gen USA Filed 06/24/05, No. 04-3135: in this precedential decision, the Third Circuit ruled that the Real ID Act's provisions to take cases away from district courts applies retroactively to force those cases to be moved to the Third Circuit.

This case involved a drug trafficking conviction (cocaine). Before the Real ID Act, cases involving deportation based on drug trafficking crimes had to go to the district court, not directly to the Third Circuit. The Real ID Act changed this (which often hurts immigrants because now an extremely strict 30-day deadline is imposed on requests for the Third Circuit to review a decision).

The Ninth Circuit has also ruled that the Real ID Act applies retroactively to pending cases.

Use of hearsay; attacking consular reports

Sugianto v. Atty Gen USA Filed 07/07/05, No. 04-3154 (not precedential): Indonesian persecuted for his ethnicity and religion was denied for not proving past persecution or a well-founded fear of future persecution. Because the applicant was never physically injured or detained for any period of time, it was hard to prove persecution occurred. Verbal harassment, fights with classmates, extortion, vandalism, and assaults from demonstrators were considered by the IJ to be mere common childhood behavior, extortion by criminals, or widespread demonstrations. The Third Circuit lacked jurisdiction to review the refusal to grant voluntary departure (on the ground that being a bigamist meant the immigrant lacked good moral character).

Tjen v. Atty Gen USA Filed 07/07/05, No. 04-2621 (not precedential): Failure to file an asylum claim within one year is not reviewable. There was no compelling evidence that the denial of withholding of removal was unreasonable. The Third Circuit cited Abdulrahman v. Ashcroft for how Due Process requirements apply in immigration proceedings, but denied the claim of an unqualified interpreter because there was not enough evidence on this point.

Cahyadi v. Atty Gen USA Filed 06/30/05, No. 04-3206 (not precedential): If you make a motion to reopen a BIA decision, that does not extend the 30-day deadline to file a petition for review. If you failed to file a petition for review for the main decision and only file a petition for review once the motion to reopen is eventually denied, you run the risk of being limited in your petition for review to the issues in the motion to reopen, not the underlying main decision. This harsh rule exists only because that is what Congess has dictated in the immigration laws.

Jamal v. Atty Gen USA Filed 06/28/05, No. 04-2721 (not precedential): A motion to reopen to the BIA in order to file for certain relief must be accompanied with a copy of the entire application and all supporting evidence that you intend to file if it is reopened. Failure to do that can be a reason to deny the motion to reopen. If you will argue that the death of the applicant's brother qualifies as changed circumstances, you need to tie the brother's death to the applicant's actual situation today or if he returned to his home country. Also, it's good to explain the circumstances of the brother's death in detail. Finally, it's a good idea not to rely on receiving a continuance (an extension) of your voluntary departure period from the IJ. If you assume you're going to get it and concede deportability, it'll be too late to file an asylum claim when you finally find out at the end of the case whether you will receive the requested extension.

Bong v. Atty Gen USA Filed 06/27/05, No. 04-2067 (not precedential): Indonesian asylum claim for anti-Chinese hatred was denied by the IJ because of the applicant's refusal to preserve corroborating evidence along with doubts about whether the country has changed since widespread 1998 anti-Chinese riots such that Chinese today can safely return to Indonesia.

Toro-Toro v. Atty Gen USA Filed 06/27/05, No. 03-4647 (not precedential): The Third Circuit upheld the BIA and IJ's ruling that if you make a mistake by one day about when your hearing date is, you can be ruled deportable and you cannot reopen your case because no exceptional circumstances exist. This is a very harsh rule if, as in this case, an immigrant misses the hearing date by one day (he came one day late). It's true that the government mailed a hearing notice (to go along with the in-court explanation), but keep in mind that the mailing is in English and the immigrant in this case needed a Spanish interpreter. There is lots of legalese on the mailing so it's easy to imagine that the immigrant could not figure it out. The Third Circuit even cited a case saying being late by 45 minutes to your deportation hearing is not a good enough excuse (although I'm not sure this would be true for offices where the long lines to enter the building are unpredictable, unavoidable, and not warned about on the court's web site).

Cruz v. Atty Gen USA Filed 06/21/05, No. 04-2936 (not precedential): This case raised the intriguing issue of whether an IJ can rely on hearsay testimony. In ruling that a marriage was based on fraud, the IJ relied heavily on an immigration official's hearsay testimony about what happened at a Stokes interview that checked on the immigrant's marriage. The usual rules of evidence do not apply in immigration proceedings, so immigration judges can ignore the basic rules of evidence that govern federal hearings. The bare minimum protection offered is that evidence cannot be admitted if it is not probative or if its use is so fundamentally unfair that its use would deny the immigrant due process of law. The Third Circuit has ruled that hearsay is generally not trustworthy so it's worth studying whether its use would render the proceedings fundamentally unfair. The Third Circuit seems to have adopted a rule that if the witness in question appears before the IJ, then it cannot be fundamentally unfair to use prior hearsay because the judge can ask the witness at the hearing for more information. If the court has adopted this type of rule, all sorts of hearsay might be admissible without any hope of excluding such unreliable evidence.

Oroh v. Atty Gen USA Filed 06/20/05, No. 04-2919 (not precedential): a claim that one's lawyer provided ineffective assistance will be rejected if the immigrant fails to explain that a competent lawyer would have made a difference -- that some type of relief would have been available. This means that even if it's clear the immigrant failed to receive a minimal amount of legal assistance, the Third Circuit will still refuse to give a new hearing unless the new lawyer also researches all the possibilities of what could have happened at the hearing to discover a way a new hearing might offer relief.

Oroh v. Atty Gen USA Filed 06/20/05, No. 04-2918 (not precedential): Strangely, the Third Circuit said that an ethnic slur used during an assault does not prove that the assault was based on ethnic hatred. This is a very difficult standard to meet, it seems. Another harsh standard is that an attempted rape was sloughed off as a one-time event. Finally, if the applicant was assault by unknown assailants, it might be tough to convince judges that it was something that the government cannot or will not control. This involved ethnic Chinese people who lived in Indonesia.

Rosal-Olavarrieta v. Atty Gen USA Filed 06/20/05, No. 04-2408 (not precedential): rejected a claim of ineffective assistance of counsel by a homosexual man from Venezuela.

Ly v. Atty Gen USA Filed 06/20/05, No. 04-2107 (not precedential): Affirmed the denial of asylum for a man from Guinea. Pointers: ask your client whether documents are originals or reproductions. Failure to say something is a reproduction will hurt your case if the US consulate investigates and finds out it is not an authentic original. Consular reports can be deemed inadmissible such as a case where a consular report contained multiple layers of hearsay, never provided direct information from someone with direct knowledge, and was only given to the immigrant a few days before the hearing. If you receive a questionable consular report, you must start to gather rebuttal evidence right away and if you need more time, you must ask for a continuance (a delay).

Hasko v. Atty Gen USA Filed 06/17/05, No. 03-4205 (not precedential): An Albanian woman was raped but the Third Circuit set a standard that makes it extremely difficult to prove that a rape was committed due to a woman's involvement in controversial political issues. Telephoned threats were not good enough in this case to prove the motive for the attacks.

Overturning denial of asylum claim for childhood rapes

The Third Circuit overturned the BIA and the immigration judge in Fiadjoe v. Atty Gen USA
Filed 06/17/05, No. 03-2917. The immigrant claimed asylum based on her experiences in Ghana, which included being a child rape victim. The immigrant had a tortured childhood experience of rape and incest from her father when she was 7 years old, her escape from those conditions, and the tragic resumption of the abuse 11 years later.

The IJ, however, "appeared unable to comprehend this sequence of events" such as interrupting the immigrant who was explaining she was raped at the age of seven with "Ma'am, you, you can cry, that's fine, but you're not making any sense, and the tears do not do away with the fact that your not making any sense to me. Now, rather than crying, just answer the question."

The Third Circuit also chided the IJ for questioning the immigrant in an extremely insensitive manner about topics such as the man she wanted to marry. The Third Circuit described the concluding part of the hearing as further demonstrating the IJ's continuing hostility toward the obviously distraught immigrant and "his abusive treament" of her.

The Third Circuit noted that the abusive tone adopted by the IJ could readily cause a rape victim to black out regarding details, to experience dissociation, and to break down. The repeated tone and improper questioning by the IJ was enough to justify setting aside the IJ's negative credibility determination.

The Third Circuit reiterated that inconsistencies between an airport statement and an asylum seeker's statement standing alone cannot support a BIA's finding that an asylum seeker is not credible. Airport interviews are hurried, language difficulties arise, the results may be inaccurately recorded, and the interviewed immigrant might not be completely forthcoming about past experiences. Here, the interview took place 19 days after arrival in a detention center. The Third Circuit ruled that the same dangers applied in the interview as apply at airport interviews.

The Third Circuit remanded and asked that it be given a different IJ.