Monday, July 11, 2005

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Sugianto v. Atty Gen USA Filed 07/07/05, No. 04-3154 (not precedential): Indonesian persecuted for his ethnicity and religion was denied for not proving past persecution or a well-founded fear of future persecution.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Tjen v. Atty Gen USA Filed 07/07/05, No. 04-2621 (not precedential): Failure to file an asylum claim within one year is not reviewable.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Cahyadi v. Atty Gen USA Filed 06/30/05, No. 04-3206 (not precedential): If you make a motion to reopen a BIA decision, that does not extend the 30-day deadline to file a petition for review.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Jamal v. Atty Gen USA Filed 06/28/05, No. 04-2721 (not precedential): A motion to reopen to the BIA in order to file for certain relief must be accompanied with a copy of the entire application and all supporting evidence that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.


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