Monday, October 31, 2005

Judge Samuel Alito and Immigration Rulings

Newspapers suggest that Judge Samuel Alito of the Third Circuit Court of Appeals may be the next nomination for the United States Supreme Court.

A quick review notes that Judge Alito dismissed an immigrant's appeal in Chen v. Ashcroft in 2004, which held that a judge's credibility determination against the immigrant's asylum claim should be upheld.

Also, in the very recent decision of Mahmood v. Gonzales, Case No. 03-3760 (3d Cir. Oct. 27, 2005), the majority of the three-judge Third Circuit panel explained that equitable tolling should allow for an application beyond the usual 90-day deadline for a motion to reopen and distinguished an older case where the immigrant was partly at fault by not providing a new address to the attorney of record, which made it difficult to contact the immigrant about the legal proceedings. Judge Alito agreed but only insofar as saying the decision was controlled by a recent Third Circuit ruling and did not join the explanation. Perhaps this is a way of signalling that Judge Alito does not like the rationale but feels he is bound by the court's earlier decision.

In the case of Chang v. INS, 119 F.3d 1055 (3d Cir. 1997), Judge Alito wrote a dissent that suggested someone seeking a type of protection called withholding of deportation should not qualify because he felt the immigrant did not indicate a precise political opinion he held that cased the Chinese government to punish him and that his action of not reporting other Chinese delegates to the government was because he was unsure, not because he chose not to help China enforce its law against its political opponents. The majority, though, disagreed with Judge Alito and granted withholding of deportation to the immigrant because it was clear that the immigrant would be persecuted, punished, and jailed if he returned -- and that even if the immigrant did not give away any secret information, he proved that the Chinese government probably thought that he did. Judge Alito's dissent would have denied protection and forced the man to be deported back to China.

Update: Jennifer of Ludden of NPR filed an audio report about Judge Alito and his rulings in asylum cases (one type of immigration cases). She reports that many critics believe Judge Alito is heavily anti-immigrant in asylum cases and focus on Dia v. Ashcroft, No. 02-2460, (3d Cir. Dec. 22, 2003). In that case, a manfrom Guinea testified about his wife being raped and beaten in the past, how he fled into the United States, and how he would be in danger if returned to Guinea. The immigration judge ruled she was not credible, but the majority of the Third Circuit overturned the decision because the immigration judge's ruling "was based on reasoning that was at best unexplained and at worst speculative." Judge Alito, though, wrote a dissent, arguing that an immigration judge should be able to discard testimony as incredible based solely on a judge's "background knowledge," such as Judge Alito's belief that if a wife was savagely raped and the couple was in grave danger, the wife would never in a million years agree for the husband alone to flee. The majority, though, rejected Alito's suggestion and noted numerous plausible reasons such as how it might be easier for a single person to escape rather than someone carrying an injured wife and a child, or that the wife may have been too injured to travel immediately. I guess Judge Alito rolls his eyes whenever an injured person in a crisis tells a friend to leave them behind and save themselves. (Doesn't this happen all the time in Star Trek?) The majority also sharply criticized Judge Alito's attempt to replace the "substantial evidence" standard with a rule that prevented overturning an immigration judge unless "no reasonable adjudicator" would possibly agree. The majority chastised Judge Alito for suggesting something that "not only guts the statutory standard, but ignores our precedent."

Saturday, October 29, 2005

H.: Corrupt Cops Fact Of Life; Ability to Review Voluntary Departure Cases

Filed 10/27/05, No. 04-3343
H. v. Gonzales
Non-precedential (not binding authority)
Note, the true case name has the immigrant's surname, but we are referring to the immigrant by a single initial in this blog posting because of the immigrant's fear of returning to her country and that the case is non-precedential.

The Third Circuit Court of Appeals in a non-precedential decision denied the asylum seeker's request for asylum or any other type of relief and refused even to consider her request that the Third Circuit extend her time for voluntary departure while she continues to appeal the case.

Regarding asylum, the Third Circuit noted (but it's unclear to me whether it approved) the immigration judge's finding that the fact that "the police did not respond adequately or expected bribes in order to provide protection also did not establish persecution because corrupt police officers are a 'universal fact,' like criminal behavior." What a sad view of the world to say that corruption in law enforcement is a universal fact that does not constitute persecution.

Turning to the court's jurisdiction, the Third Circuit ruled that it could hear the appeal even though the immigrant took voluntary departure, but that it had no power to extend the voluntary departure period because the only ones who could do that were the immigration judge, the BIA, or the Attorney General's delegees such as the district director.

In Reynoso-Lopez v. Ashcroft, 369 F.3d 275 (3d Cir. 2004), the Third Circuit ruled that it could hear an appeal even after the immigrant took advantage of voluntary departure. It says that other circuit courts disagree with this view, citing:
Bocova v. Gonzales, 412 F.3d 257, 266–267 (1st Cir. 2005) (holding that it did not have jurisdiction to reinstate or fashion a new order of voluntary departure); Mullai v. Ashcroft, 285 F.3d 635, (6th Cir. 2004) (holding that it did not have power to reinstate expired order of voluntary departure); Ngarurih v. Ashcroft, 371 F.3d 182, 192–194 (4th Cir. 2004) (holding that it did not have jurisdiction to reinstate or stay an order of voluntary departure); Sviridov v. Ashcroft, 358 F.3d 722, 731 (10th Cir. 2004) (refusing to stay an expired order of voluntary departure but not explicitly ruling on the jurisdictional question).
The Third Circuit then noted its ruling that it had no power to extend a period of voluntary departure. It said other circuit courts disagree with this view, citing:
Bocova, 412 F.3d at 266–267 (holding that it had jurisdiction to stay an unexpired order of voluntary departure pending judicial review of the removal order); Macotaj v. Gonzalez, 412 F.3d 704, 706–707 (6th Cir. 2005) (holding that it has authority to stay an order of voluntary departure as ancillary to a motion to stay removal); Lopez-Chavez v. Ashcroft, 383 F.3d 650, 653–654 (7th Cir. 2004) (holding that it had authority to stay unexpired period of voluntary departure); Rife v. Ashcroft, 374 F.3d 606, 615–616 (8th Cir. 2004) (holding that court retains power to stay an order of voluntary departure); El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir. 2003) (holding that court retains equitable jurisdiction to stay an unexpired order of voluntary departure). But see Ngarurih, 371 F.3d at 192–194 (4th Cir. 2004) (holding that it did not have jurisdiction to reinstate or stay an order of voluntary departure even when motion was filed within period for departure).

Mahmood: equitable tolling when attorney does not get notice

Filed 10/27/05, No. 03-3760
Mahmood v. Atty Gen USA
Mahmood v. Gonzales
Precedential Decision

The Third Circuit Court of Appeals ruled that the deadline for filing a motion to reopen a case can be equitably tolled (extended for equitable reasons) upon showing the reason the immigrant failed to act in time was the wrongdoing of the lawyer.

This case dealt with a motion to reopen an immigration judge's decision even though the motion was filed more than 90 days after the final order in the case. Ordinarily, motions to reopen cannot be filed over 90 days after the final order. (The immigrant could not file a late appeal because the deadline for an appeal is 30 days after the final order.) (There are many exceptions and subrules in immigration law. The deadline for reopening a case where the deportation order was issued without the immigrant showing up in court is actually 180 days, not 90 days. And if you can show you never received notice of the hearing, there is no time limit because you can ask to reopen the case at any time. Immigration law is very complex...)

The Third Circuit ruled in Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005) that if the failure to file in time was due to the active fraud of the attorney, the 180-day deadline for orders when the immigrant does not show up can be extended. In this case, the Third Circuit expanded the rule in a few ways: (1) the equitable extension for the 180-day limit also can apply to the 90-day limit and (2) the immigrant can get an extension by showing the lawyer failed to perform his duty and does not need to prove outright fraud by the lawyer. One limitation, though, which ruined the appeal in this case, is that the immigrant must prove due diligence in acting promptly once he or she found out about the problem.

To get an equitable extension, it is enough to show that the immigrant never received the notice and the lawyer had the immigrant's current address. That's sufficient because regardless of whether the court forgot to mail notice to the lawyer or whether the lawyer lost or forgot to inform the immigrant at his or her current address, it was not the immigrant's fault in any way.

The Third Circuit adopted a harsh interpretation of what constitutes due diligence. It blames the immigrant for not following up with the Third Circuit in the 18 months that he waited to hear of any ruling in his case. Also, during another part of the procedural history, it took him a year to file a motion to reopen an appeal, but gave no indication that he was trying to find new counsel or otherwise trying to pursue his case. The Third Circuit noted that a foreigner has more than the average difficulty in negotiating the shoals of American law, yet nevertheless harshly ruled the immigrant failed to act fast enough.

Tuesday, October 25, 2005

No precedential immigration decisions in a while

The Third Circuit issues two types of decisions: precedential decisions and non-precedential. Precedential decisions are binding on the lower courts and on immigration courts that are located within the Third Circuit.

It's been almost a month since the Third Circuit last issued a precedential immigration decision. What's going on? A sudden shift toward non-precedential decisions? A lull in the action perhaps?

In any case, we are still monitoring the Third Circuit for new precedential decisions. It's just that their immigration decisions lately have all been non-precedential...

Saturday, October 15, 2005

Pursuing CAT Claim Despite Drug Conviction

Filed 10/13/05, No. 04-3652
Ford v. BICE
Ford v. Bureau of Immigration and Customs Enforcement (ICE)
non-precedential (which usually means that you might cite the case as persuasive authority, but it is not binding on future decisions)

The Convention Against Torture (known as CAT) prohibits the United States from deporting someone to a country where he is probably going to be tortured. However, the federal government does not allow anyone who is guilty of a "particularly serious crime" to apply for CAT protection.

What would happen if the Attorney General refused to examine a particular person's situation and applied a categorical rule that all drug trafficking convictions are automatically considered "particularly serious crimes"? In a 2001 decision titled Chong v. Dist. Dir., INS, 264 F.3d 378 (3d Cir. 2001), the Third Circuit said that would violate Due Process, because people have a right to have an individual determination of whether they are eligible for CAT relief.

In 2002 in the case of In re Y-L, A-G, R-S-R, 23 I. & N. Dec. 270 (A.G. 2002), the Attorney General adopted a rule that some immigration advocates believe violates Due Process by virtually guaranteeing that any drug conviction is considered a particularly serious crime. Some drug trafficking convictions arguably are not particularly serious. The AG, however, said that all drug trafficking convictions are per se particularly serious crimes but that he would only leave a sliver of an exception open for "the very rare case" where an immigrant can show "extraordinary and compelling circumstances."

In this case, the immigrant challenged the Y-L ruling as unconstitutional. How did the Third Circuit rule on this important question? Well, it avoided ruling on the issue. It said that it was not going to decide whether the Y-L ruling was constitutional or unconstitutional because it felt that the individual in this case did receive enough of an individualized determination that even if the Y-L rule was illegal, it would not matter.

This leaves immigrants exposed to the risk that the government is using an unconstitutional rule in immigration cases. But what the Third Circuit is requiring is that immigrants facing this issue must litigate it to the maximum and then yet again raise it to the Third Circuit, an expensive and time-consuming task.

Although a cynical view would assume that immigration lawyers would be grateful for the extra work opportunity, it is actually the contrary -- it is much better to clarify the law and address the possibility that this and many more immigrants will be punished by a rule that might ultimately be ruled unconstitutional.

Wednesday, October 05, 2005

Kiareldeen (D.N.J. 1999): Excluding Hearsay Evidence From Immigration Court

Looking through recent cases, the decision in October 1999 by the federal district court of the District of New Jersey in Kiareldeen v. Reno, 71 F. Supp. 2d 402, Civ. No. 99-3925 (D.N.J. 1999) emphasizes the Constitutional right of an immigrant to confront his accusers in immigration court.

The context in the case was a bond hearing in immigration court where the immigrant was not given a right to see, examine, or conduct cross-examination on secret evidence.

Even though the Federal Rules of Evidence do not apply in immigration court, immigrants can argue that the proceedings violate their due process rights under the Constitution because it frustrates the right to confront one's accusers. Reviewing circuit court cases, the district court concluded that for due process purposes, hearsay evidence can be used if it is probative, fundamentally fair, and the government has made a reasonable effort to bring the witnesses it is relying on to court for cross-examination.

Courts have often approved of proceedings that relied on hearsay evidence when the government proved that it made repeated and diligent attempts to bring the witness to court, even if those attempts proved unsuccessful. Dallo v. INS, 765 F.2d 581 (6th Cir. 1985) (approving BIA reliance on affidavit of immigrant's ex-wife where INS subpoenaed affiant three times and sent investigator to affiant's parents' home, and where immigration judge personally telephoned affiant's home).

Courts have overturned rulings in proceedings that used hearsay evidence when the government does not demonstrate any effort to bring the witness to court or reveals that its efforts were half-hearted. liza, 709 F.2d at 1234 (finding "troubling" due process violation when government made no effort to locate witness before deportation hearing, despite government's submission of unsigned note by investigator stating that he could not locate affiant at her last known address); Hernandez-Garza v. INS, 882 F.2d 945 (5th Cir. 1989) (prohibiting reliance on affidavit of Spanish speaker that was taken in English by INS agents, where immigration judge prohibited cross-examination of agents regarding their fluency in Spanish); Saidane, 129 F.3d at 1065-66 (barring use of hearsay affidavit when the INS improperly attempted to shift the burden to produce witness onto alien, and where INS attorney told immigration judge that "I have not seen fit to use [affiant] as a witness because I don't think it is material to the issues now raised in this case.")

A court determining the reliability of hearsay evidence must consider whether the hearsay allegations have been corroborated by other government evidence, and whether the immigrant has produced evidence that rebuts the government's allegations. See, e.g., Felzcerek, 75 F.3d at 117; Matter of Devera, 16 I&N Dec. 266, 270 (BIA 1977) (affirming reliance on affidavit where the allegations were corroborated by the testimony of other government witnesses, and the affidavit appeared to fit within exception to hearsay rule; but expressly reserving judgment as to whether "a finding based primarily upon judicially inadmissible evidence would comport with the requirements of fundamental fairness.")

Ultimately, hearsay evidence offered by the government in immigration proceedings must be tested for reliability and trustworthiness. Felzcerek, 75 F.3d at 114.

In the case, the district court overturned the immigration court's ruling in the bond hearing because it relied on secret evidence and on hearsay evidence where they did not attempt to bring the witness to court to allow her to be cross-examined.

Although the case dealt with secret evidence, it seems that its principles should apply equally to any immigration court case.

Sunday, October 02, 2005

BIA Rarely Holding Oral Argument

The Third Circuit is one of around a dozen circuit courts in the United States. Circuit courts are the second of three major levels of federal courts: the top level is the U.S. Supreme Court, the middle level are over a dozen circuit courts, and the lowest main level are federal district courts. (There are other courts that I'm not covering in this overview, including magistrate courts and bankruptcy courts.)

Congress created a structure where over 200 immigration judges (who work in the Department of Justice) make the first ruling in a deportation case and the appeal goes to the Board of Immigration Appeals (known as the BIA), which is also part of the Department of Justice and is located in Virginia.

Congress also requires that an appeal from the BIA go to the circuit court that covers the place where the immigration judge's decision was issued. The Third Circuit covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands.

Then-Attorney General John Ashcroft announced changes to the BIA in February 2002 that were extremely controversial. As part of the changes, he got rid of a number of BIA judges and created a method for the BIA to deny appeals without having to list any reasoning other than that they agree with whatever reasoning the immigration judge stated.

Can the public watch the BIA in operation? In theory, yes, because the BIA has the option of holding oral argument where lawyers can discuss their appeal briefly to the judges, who can explore and develop the issues by asking questions to the lawyers.

But how often does the BIA hold oral argument? You won't find a list of upcoming oral arguments on the BIA web site (unlike circuit courts, who hold oral argument almost every day and post the schedule prominently on their web sites). If you call the BIA, there's no recorded list of upcoming oral arguments. In fact, as of October 2005, there are zero scheduled oral arguments and the staff does not know when the BIA might hold an oral argument again.

Lawyers have frequently challenged the method by which the BIA issues an opinion that says they adopt what the immigration judge said as unconstitutional. However, circuit courts have ruled that the controversial procedure does not violate people's Constitutional rights to a fair hearing and an opportunity to be heard.

The solution will either be to convince the federal courts of what's truly happening or lobbying Congress to force the Department of Justice to review appeals in immigration cases much more stringently.