Thursday, September 29, 2005

Jordon: Derivative Citizenship Statute Requires Legal Separation Before Naturalization

Filed 09/26/05, No. 03-2055
Jordon v. Attorney General
Jordon v. Gonzales
September 26, 2005

The Third Circuit ruled on how to interpret one of four avenues for someone to derive United States citizenship under the law that applies to most people who turned 18 before 2001 (it's referred to as former 8 U.S.C. section 1432(a)). (A new law the Child Citizenship Act is much easier to gain citizenship under and has replaced former section 1432(a), but courts have ruled that it only applies to those who turned 18 after February 2001. So, those who turned 18 a bit before 2001 must seek derivative citizenship under former section 1432(a).)

This case focuses on how to interpret the third option in the statute:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents is deceased; or
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is under the age of eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.
The issue is how to interpret the requirement that there is the "naturalization of the parent having legal custody of the child when there has been a legal separation of the parents." In this case, the parent that had legal custody of the child naturalized several years before a the parents legally separated. Does the statute require that the legal separation happen before the naturalization or can it happen in any order? The Third Circuit explained that the issue was whether “when” should be read in its temporal sense (i.e., “after”) or whether it should be read in its conditional sense (i.e., “if”).

The Third Circuit ruled that it is a temporal sense -- that the legal separation must happen before the naturalization. They based it on a ruling in an earlier case in the Third Circuit, Bagot v. Ashcroft, 398 F.3d 252 (3d Cir. 2005). Therefore, the immigrant did not obtain derivative citizenship and cannot be released from detention.

The Third Circuit also addressed its jurisdiction under the REAL ID Act in a situation Congress did not directly address -- what happens if a habeas petition is on appeal at the time the REAL ID Act was passed? They rationalize that the Third Circuit will ignore the district court's ruling and review the legal rulings in the case from scratch. After REAL ID, this type of challenge is supposedly no longer allowed in the federal district court. (The issue of whether Congress's effort to cut off certain types of filings is Constitutional is a much larger topic than can be covered here. It also was not addressed by the Third Circuit in the case.)

Saturday, September 24, 2005

Wang: Immigration Judges Must Be Impartial

Filed 09/21/05, No. 04-2866
Wang v. Atty Gen USA
Wang v. Gonzales
precedential decision

The Third Circuit overturned the decision of an immigration judge because the judge failed to be impartial during the hearings. The Third Circuit emphasized that "We have stressed previously that as judicial officers, immigration judges have a responsibility to function as neutral and impartial arbiters and must assiduously refrain from becoming advocates for either party.” (I deleted internal quotation marks and brackets from the quote]

The decision is lengthy and includes long excerpts from the hearing transcript, so it is difficult to summarize. But two examples are that the immigration judge seemed to misunderstand how little money the immigrant had while he was in China. On the one hand, he took a $60,000 trip to be smuggled into the United States yet, strangely, he said he did not have enough money to pay off his parent's $1,500 fine. On the surface, it seems like a selfish child spending all the money on himself and not caring about his dear parents. This seemed to upset the immigration judge. However, the transcript suggests that the immigrant never had $1,500 in hand and that the only way he could take the $60,000 trip was to go heavily into debt. Smugglers are willing to lend and collect on a $60,000 debt to be smuggled, but nobody was willing to lend him $1,500 simply to pay off a fine.

Another factual issue that the immigration judge felt weighed against a discretionary grant of asylum was how it appeared the immigrant did not care about his daughter, who required special care. Read the opinion to figure out what this boils down to, but it might have been a matter of the immigrant not giving a complete story in his asylum application, which gave the impression he was concerned only about his wife and himself, with little mention of his daughter.

The Third Circuit questioned whether an immigration judge's concern about whether an asylum-seeker has sensible priorities about caring for his parents or his daughter is relevant to deciding whether the person qualifies for asylum. On the contrary:
The personal choices that an asylum applicant has made concerning marriage, children, and living arrangement should not be used to evaluate the applicant’s credibility concerning his claims of persecution, unless they reflect some inconsistency in a relevant portion of the applicant’s testimony.
The Third Circuit emphasized that the problem of impartial judges is a broad problem in the immigration court system -- it is not simply the problem of one judge. It cited other decisions it made and decisions in other parts of the country where immigration judges improperly acted in a way that suggested they were predisposed to ruling against the immigrant.

It also held that the problem of impartiality includes cases where the judge develops a bias as the proceeding is ongoing. It is not limited to situations where the bias existed before the hearing began.

The Third Circuit noted that it has no power to order that the new hearing be given to a different judge, but urged that it be reassigned in what seems to be strongly persuasive language:
While we recognize that assignment of an IJ is within the province of the Attorney General, if on remand an IJ’s services are needed, we believe the parties would be far better served by the assignment [of] [these] proceedings [to] a different IJ.
Update: On December 26, 2005, the New York Times printed an article titled "Courts Criticize Judges' Handling of Asylum Cases" and extensively quoted from the Third Circuit's Wang decision and named Judge Annie S. Garcy as the one involved in the Wang case. As mentioned here, the New York Times pointed out the criticism involves immigration judges throughout the United States, not just one particular judge here or there. According to the New York Times article, Judge Garcy declined comment through a spokesperson.

Tuesday, September 20, 2005

Joseph: fact-finding for derivative citizenship claims done by district courts

Filed 08/29/05, No. 04-2885 [note: amended 09/20/05 to direct the fact-finding hearing to be held in the district court in the District of New Jersey.]
Joseph v. Atty Gen USA
Joseph v. Gonzales

After the passage of the Real ID Act, what is the process for reviewing a factually viable claim that someone derived U.S. citizenship? First, the immigration judge rules on the claim. Next, you need to appeal to the BIA (Board of Immigration Appeals) within 30 days. Finally, within 30 days of the BIA decision, you need to file a petition for review with the circuit court.

But, circuit courts usually do not gather the facts and develop the record. So, under the Real ID Act, if there is a colorable claim (not just any implausible assertion), the circuit court needs to tell the BIA to send the case temporarily to a district court to develop the facts and ship the case back to the circuit court. [Note, the Third Circuit amended its decision to send the fact-finding to a court in the District of New Jersey.]

Here, the dispute was whether someone was the child of a woman who naturalized (giving him a claim of derivative citizenship) or whether he was merely the sister of that woman (ruining his factual claim of derivative citizenship). The government argued that the immigrant's claim was implausible and did not deserve a factual hearing, but the Third Circuit disagreed and set it down for a factual hearing at a location near the immigrant's residence to be determined by the BIA.

An interesting sidelight is:
[P]ro bono counsel filed a petition for review on Joseph’s behalf. The petition alleged that the Civil Code of Haiti only legitimized children born out of wedlock who had been acknowledged by their natural father. Since Joseph’s mother had been raped and his natural father was unknown, Joseph contended that he was never acknowledged by his natural father and could therefore not be considered legitimatedunder Haitian law. The government agreed.
This is interesting -- the government appropriately agreed that being born out of wedlock does not mean your father automatically established paternity by legitimation, even if the laws of the country make no distinction between those born in wedlock and out of wedlock. This is a developing theory that a number of courts have adopted. It's great to see that the government agreed with the theory in a prior appeal in this case. Sadly, the government might dispute this issue in a future appeal. Let's hope that they similarly change their view and agree that a father needs to establish paternity by legitimation to destroy a derivative citizenship claim under the particular wording of the derivative citizenship statute for those born between the 1950s and 1983. (The statute was reworded in 2001, but the government argues that the new statute is only available to those who were under 18 in 2001).

Friday, September 16, 2005

Other Resources for circuit decisions

There is a very interesting blog that covers appellate decisions, including decisions from circuit courts on immigration issues. It is at:

To read the Third Circuit's recent decisions, visit the Third Circuit web site and click on Recent Precedential Opinions or Recent Not Precedential Opinions.

AILA, the American Immigration Lawyers Association, also digests circuit court decisions periodically. Check the AILA web site for information. While you're there, click on the Advocacy tab and tell Congress to correct the immigration laws and show a little compassion in the deportation rules.

If you know of other good sources, or web sites devoted the circuit court immigration decisions, let us know!

Saturday, September 10, 2005

Kanivets: time for voluntary departure is tolled while a motion is pending

Filed 09/07/05, No. 03-3569
Kanivets v. Atty Gen USA
Kanivets v. Gonzales

The Third Circuit ruled that the time allotted for voluntary departure is tolled pending a ruling on a motion for rehearing. This is significant because if the time is not tolled, the time expires and certain penalties go into effect that can defeat the motion that is still pending.

Voluntary departure is an agreement to allow someone to leave the United States without receiving a deportation order, but there are severe penalties if the person does not leave before the agreed date. (For this reason, someone who is ordered deported but refuses to leave is in a better position than someone who agrees to voluntary departure and refuses to leave.)

The issue here arises because courts understandably cannot issue decisions to motions right away. Sometimes, it takes weeks or months and in this case, it took eight months. The immigrant received a deadline for voluntary departure. If he failed to leave by the deadline, he is blocked from getting green card status even if he were otherwise eligible. If he left under the terms of the voluntary departure order, he would lose his ability to reopen the case.

So, if courts could issue rulings the same day they receive the motions, the answer would be simple -- file the motion to reopen before the voluntary departure deadline and get the result right away. But, what if the immigrant files the motion but the voluntary departure deadline expires in the months it takes for the court to rule on the motion? Should the court say the motion loses because green card status in not available after the voluntary departure deadline passed?

The Third Circuit said no, the deadline for voluntary departure automatically extends to allow the court to rule on the motion to reopen (which means the option of getting green card status is still possible).

This avoids the unfair result of losing your way of avoiding deportation just because the court takes months to rule on your motion. Hard to believe, but immigration courts had regularly imposed just such an unfair result in the hotly-disputed decision of Matter of Schaar. This case is part of a series of decisions in which circuit courts are trying to avoid the unfair results of the BIA's ruling in the Schaar case. Let's hope the trend continues and that one day the BIA changes its position.

Update: The Ninth Circuit agrees and ruled that the extension of the deadline is automatic, even without filing a request for a stay. See Barroso v. Gonzales, No. 03-72552 (9th Cir. Nov. 18, 2005)

Dinnall: voluntary departure still possible for pre-1997 deportation orders being reinstated

Filed 09/01/05, No. 04-2415
Dinnall v. Atty Gen USA
Dinnall v. Gonzales
Precedential decision

Here, an immigrant did not get the letter for his 1987 court date, so he did not show up and the judge ordered him deported in his absence. In 1988, before he was told about the deportation order, he left the country, which means he self-deported. By rule, he is not allowed to return for five years after self-deporting. But he returned two days later and was not found until 1994, when the government charged him with illegally re-entering. Here's an interesting twist -- he married a U.S. citizen in 1998, which if he could get rid of the deportation order. But he couldn't.

The government sought to reinstate the 1987 deportation order, which would block his ability to get a green card based on his marriage. Reinstatement of a deportation order in this case depends on the expanded power to reinstate a deportation order that did not exist in 1987. Congress expanded the reinstatement power in 1996 laws (effective April 1997). Can the 1996 change be applied retroactively against someone who got a deportation order in 1987?

[FYI: the ways in which the power of reinstatement expanded were that (1) all removal orders could be reinstated, not just ones based on criminal convictions, (2) you can't reopen a prior removal order anymore, and (3) you can't apply for relief to avoid reinstating the deportation order.]

Reinstatement is harsh because you might be deported without having a chance to present the issue to an immigration judge and without the right to bring your own attorney to help argue your case.

The immigrant argued that the expanded version of the reinstatement power cannot be applied against someone who received a deportation order before 1997 (when the power was much weaker).

The Third Circuit ruled that it is unclear whether Congress intended the new powers to apply retroactively or not. So, it focused on whether retroactive application would have an impermissible effect. One example is in the case of St. Cyr (U.S. 2001), where eliminating section 212(c) relief for people who entered guilty pleas with the expectation they could try to avoid deportation under 212(c) relief would be impermissible because it would take away their expectations when they entered the guilty plea.

The Third Circuit agreed with the immigrant that under the old rule, he could have applid for voluntary departure, which is an agreement to leave so that no deportation order will be entered. Under the new rule, it would be impossible to seek voluntary departure. Therefore, the prohibition on seeking voluntary departure is a "new disability" that obstructed a reasonable expectation he had under the old rule.

As a result, the rule cannot be applied retroactively. The Third Circuit then addressed whether the immigrant must show that he personally relied on the old rule. Following its decision in Ponnapula, you do not need to show the particular person actually relied on the old rule (so-called actual reliance). You only need to show that the class of people in that category in general relied on that rule.

Thursday, September 08, 2005

Zheng: arriving aliens can adjust status despite AG's improper regulation

Filed 09/08/05, No. 03-3634
Zheng v. Atty Gen USA
Zheng v. Gonzales

Great news -- from reading an excerpt, it seems that the Third Circuit agrees with the First Circuit court in Boston that an arriving alien can adjust status such as get a green card if there is a valid petition ongoing.

The reason this is in question is that the Attorney General issued a regulation that arriving aliens (people who are caught upon returning to the US and put into deportation proceedings before they enter) are prohibited from adjusting their status.

Attorneys and non-profit organizations like AILF (the American Immigration Lawyers Foundation) have argued that the AG's regulation is illegal because there is no legal basis for prohibiting arriving aliens to get green card status if they are qualified for it.

The Third Circuit agreed and gave the case back to the BIA to review the request to terminate the case because there are two green card petitions pending for the immigrant.

The First Circuit case that started this trend is Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005).