Sunday, January 29, 2006

H.H.: BIA Overturned For Ignoring Evidence of Persecution (not precedential)

Filed 01/12/06, No. 04-2318
"H.H." v. Gonzales
"H.H." v. Atty Gen USA [the third circuit used the asylum-seeker's actual name]
Not Precedential

Life would be easy if you never had to read the evidentiary record. The BIA ignored testimony about persecution and ruled that the asylum-seeker failed to provide any evidence of persecution. That was a fatal error because there was an affidavit about that topic in the record. Time to overturn the decision and remand for further proceedings. Strangely, it looked like the immigration judge and the asylum-seeker's own attorney also forgot about the affidavit about persecution.

I guess the key points here are that an affidavit counts as evidence, make sure you point out what is in the evidence, and judges sometimes forget to review the entire evidentiary record. These are pretty basic points.

Caushi: IJ and BIA Ignored Testimony and Relied on Baseless Conclusions

Filed 01/23/06, No. 04-4506
Caushi v. Gonzales
Caushi v. Atty Gen USA

Yet another case where an immigration judge denied the claims of an asylum-seeker by ignoring evidence in the record. The Third Circuit overturned the IJ and BIA's ruling because they failed to address the evidence.

Here, the IJ ignored the testimony that police shot and killed the asylum-seeker's brother-in-law and claimed responsibility for the murder. The IJ, strangely, also agreed that the asylum-seeker had been beaten but ruled he was not slashed during the beating even though there were numerous scars confirmed by a doctor because a hospital report at the time did not clearly mention the cuts. The IJ also, strangely, agreed that the asylum-seeker's father was arrested for his political beliefs and the asylum-seeker himself was a member of the youth branch of the Democratic Party but somehow concluded that he did nothing that would bring himself to the attention of the authorities simply because he did not become a full-blown member of the party. This is especially strange because police killed his relative for political reasons, too.

But there were more fatal errors: the IJ without any analysis or explanation rejected his sister's testimony because it supposedly seemed like she had a selectory memory. The Third Circuit looked at the testimony and showed that the sister testified pretty clearly, when you account for the usual confusion when using an interpreter.

Finally, the Third Circuit ruled that the BIA did not make a mistake in denying the asylum-seekers recent motions to reopen his case. In the end, the Third Circuit overturned the ruling and ordered further proceedings based on the IJ and BIA's errors.

Sukwanputra: Immigration Judge Ferlise Admonished For Intemperate, Irrelevant Comments Against Asylum-Seeker

Filed 01/19/06, No. 04-3336
Sukwanputra v. Gonzales
Sukwanputra v. Atty Gen USA
USDC for the Eastern District of Pennsylvania

Sadly, the Third Circuit again had to admonish an immigration judge for not acting as a neutral, impartial arbiter and instead interjected intemperate and bias-laden remarks. That kind of conduct is seen more and more, but is always unacceptable. When the immigrant testified that she would love for her sister to come to the United States also to study and work, immigration judge Donald Vincent Ferlise actually said:
Look for a better job. Ma’am she has no right to be here. You have no right to be here. All of the applicants that are applying for asylum have no right to be here. You don’t come to the United States to look for a job! That’s not the purpose of asylum. You don’t come here to look for a job, or look for a house, or look for a better car, and than as an afterthought say, well, the only way I’m going to be able to stay here is if I can convince a Judge that I’m going to be persecuted. It’s not the way the law works. Now, if you’re telling your sister to come to the United States to pretend to be a student to have her come here, you’re guilty of visa fraud. That is a felony. You can go to jail for that! You have to understand, the whole world does not revolve around you and the other Indonesians that just want to live here because they enjoy the United States better than they enjoy living in Indonesia. It is not a world that revolvesaround you and your ethnic group.
As the Third Circuit said, "We are deeply troubled by the IJ’s remarks, none of
which had any basis in the facts introduced, or the arguments made, at the hearing." Basically, the judge went off on an angry tirade on an issue that had nothing to do with the case. This gave the strong impression of bias and the Third Circuit strongly recommended that the case be assigned to a different immigration judge. Not Judge Donald Vincent Ferlise

The Third Circuit rejected a major attack on Congress's 1996 rule that asylum claims must be filed within one year of coming to the United States.

The Third Circuit rejected challenges that this one-year rule violates the Supremacy Clause because it conflicts with two major international agreements on asylum law (the 1951 Convention and the 1967 Protocol). The Third Circuit ruled that those provisions are not self-executing so there is nothing to be in conflict against the one-year rule and, by the way, even if it were self-executing, the "last in time" rule means the courts would obey the recently-enacted 1996 law.

The Third Circuit also rejected a due process challenge. It held that the one-year rule was a reasonable procedural requirement to allow due process. Also, refusing to allow judicial review of the immigration agency's discretion did not violate due process because deportation supposedly has never been held to be punishment so no judicial review is guaranteed by the Constitution.

The immigrant challenged whether she qualifies for an exception to the one-year filing deadline because of changed circumstances. The Third Circuit ruled, though, that the immigration laws do not allow any court to review that ruling.

Finally, the Third Circuit ruled that the immigration judge and BIA made a fatal error -- it refused to consider a document on the weak excuse that it did not meet a particular regulation on how documents can be authenticated. The Third Circuit has ruled in the past that the regulation sets out one option, not the only way, to authenticate documents. It was a fatal error to apply the option as if it were an absolute requirement.

The IJ also made fatal errors by ruling the immigrant was not credible based on speculation and conjecture. She saw some major events that took place in places that were not near each other. Based on pure speculation, the IJ felt it was incredible she could have travelled around and seen all of them.

The IJ made yet another fatal error by ignoring the immigrant's claim that there is a pattern or practice of persecution of people in her group (Chinese Christians in Indonesia). The IJ ruled she did not establish persecution without explaining why he apparently rejected the argument that there was persecution against Chinese Christians in Indonesia.

Ilchuk: Persecution If Higher Punishment For Conscientious Objectors Of A Particular Religion

Filed 01/17/06, No. 04-3094
Ilchuk v. Gonzales
Ilchuk v. Atty Gen USA

Here, the immigrant was convicted of Pennsylvania's law against the Theft of Services (stealing ambulance calls). The Third Circuit noted it is an aggravated felony if it is a theft offense and the house arrest can be considered over one year of imprisonment. Because a theft offense is "a taking of property or an exercise of control over property (anything of value) without consent," stealing ambulance calls was a theft offense. House arrest can be imprisonment because the Third Circuit believes the statute should be read broadly and covers more than simply spending time in jail. So, it was an aggravated felony and the immigrant is ineligible for asylum, though he could seek withholding of reoval or protection under the Convention Against Torture.

The BIA made fatal mistakes when deciding the claim that he would be tortured if returned. The BIA and IJ assumed that some type of alternative to military service is available to Pentecostals. The problem is that there is no proof of that in the record. The BIA also assumed that even if the immigrant would be imprisoned due to his religious objection to military service, that would not be persecution. The Third Circuit said that was a major mistake. The Third Circuit explained that the immigrant could obtain protection if he could prove that people of his religion are particularly punished for refusing to bear arms based on their religious beliefs (it is not just a blanket rule applied to all who conscientiously object).

Sunday, January 15, 2006

Kiam: Can Often Use Border Interrogation Answer In Criminal Case

United States v. Kiam,
No. 05-1384
Filed January 3, 2005
This is not a case arising from immigration court, but involves immigration issues.

Can a prosecutor use information obtained by a border inspector's questioning at an international airport (here, the Philadelphia airport)? The Third Circuit ruled that under the United States Constitution, a prosecutor can use questions by an ordinary border officer as long as the questions have a bearing on admissibility.

Let's take a moment for a side-note to clarify -- the Third Circuit looked purely at the protections in the United States Constitution in a criminal case. This raises two questions: (a) can an immigrant benefit from possibly greater protections under the state constitution (e.g. the New Jersey Constitution) or the Vienna Convention on Consular Relations and (b) can an immigrant convince a court to extend the rule allowing the suppression of evidence obtained through unlawful searches and seizures to immigration court and not just in criminal cases? On the first point, courts have not yet ruled on whether the New Jersey Constitution's analogous protection against unlawful searches affords greater rights, and Catholic Charities of the Archdiocese of Newark is arguing this issue before the Board of Immigration Appeals in a pending appeal. On the second point, the U.S. Supreme Court in 1984 ruled that here is a multi-part test for deciding whether to extend U.S. Constitutional exclusionary rules to immigration court and as of 1984 said the answer would be no in a particular case. Catholic Charities of the Archdiocese of Newark is also contesting this issue in an appeal to the BIA.

Let's get back to the Third Circuit's decision: the Third Circuit tossed out a rule that other circuits use -- that a prosecutor can use answers to routine border questions where the inspector had no suspicion of criminal activity but not any non-routine questions or questions when the inspector had suspicions of crimes. The Third Circuit disliked that rule. The prosecutor can use questions in an airport custom's interrogation if the questions still bear on an unresolved question about inadmissibility. To the Third Circuit, the interrogation was acceptable because the inspector was interrogating about ruling the immigrant inadmissible due to criminal activity and the questions were aimed to an unresolved question of whether he was admissible.

The Third Circuit added dicta, which is unnecessary analysis. It then addressed whether a second interrogation could be used if for the sake of argument a first interrogation violated Miranda. (It is purely hypothetical in this case because the Third Circuit ruled that the first interrogation was proper.) The Third Circuit interpreted Missouri v. Seibert, 542 U.S. 600 (2004) as reinforcing the test of Oregon v. Elstad, 470 U.S. 298, 314 (1985): the second interrogation must be suppressed if (a) the first interrogation included coercion, (b) the first interrogation used improper tactics, or (c) if there were not enough curative measures between the first and second interrogation such as taking a sufficient break in time or a break in circumstances or a clear, understood explanation to the immigrant that the first statement could not be used against him.

It will be extremely interesting to see immigration lawyers file motions to suppress in immigration court to challenge immigration judges' often misguided assumptions that the 1984 United States Supreme Court case (INS v. Lopez-Mendoza) absolutely prohibits applying the exclusionary rule in immigration court forever. And as immigration lawyers file motions to suppress in immigration court based on the New Jersey Constitution, other states' constitutions, or the U.S. Constitution.

Friday, January 13, 2006

H.H.: Overturning IJ Who Ignored Affidavit Evidence (non-precedential)

"HH" v. Gonzales
"HH" v. Attorney General
Jan. 12, 2006
No. 04-2318

The Third Circuit overturned a decision because the immigration judge and BIA ignored evidence in the asylum-seeker's affidavit. Where an immigration judge and the BIA says that an asylum-seeker presented no evidence on a topic, but the asylum-seeker submitted an affidavit that includes evidence on that topic, the decision must be overturned so that the immigration judge can consider the issue in light of the evidence. This rule makes sense because by saying there was no evidence, the immigration judge essentially ignored certain evidence in the case. Even if the slip-up was by mistake, it was a mistake and the asylum-seeker deserves a properly made decision.

The legal rule is that there must be substantial evidence to support an immigration judge's factual finding. The Third Circuit will treat factual findings as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). When a conclusion by the judge is wholly unsupported by the record, it must be overturned.

In this case, the Third Circuit even identified the immigration judge: Donald Vincent Ferlise.

Wednesday, January 11, 2006

Singh: "Crime of Violence" and Some Pennsylvania Statutes

Singh v. Gonzales
Filed 01/03/06, No. 04-4261
Singh v. Atty Gen USA

The Third Circuit ruled that a simple assault under Pennsylvania law is a "crime of violence" that can make someone deportable. Recklessly endangering another person under Pennsylvania cannot be a "crime of violence" so it cannot be considered an aggravated felony.

Aggravated felonies hurt an immigrant's chances to remain or to enter the US because extremely harsh rules make it nearly impossible to remain in the country, even if the immigrant has an extremely sympathetic situation or the conviction is extremely old. In this case, the crime in question is not even considered a felony by Pennsylvania. Bizarrely, the courts have ruled that even crimes that a state does not considered to be felonies can be considered aggravated felonies for immigration purposes. That is exactly what happened here with simple assault under Pennsylvania law.

The section of the Pennsylvania simple assault statute that is important in this case said: “A person is guilty of assault if he . . . attempts by physical menace to put another in fear of imminent serious bodily injury.” A crime is a crime of violence if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Here, two requirements were satisfied: (1) specific intent is required (it requires proving the person attempted to do something) and (2) there was physical force (it requires proof of menacing behavior).

The immigrant pointed out cases of simple assault that were pretty innocuous, to show that the statute can convict people who do not commit crimes of violence. But the Third Circuit felt the counter-examples were also crimes of violence, such a woman who ordered police to leave her home and stood within 3-6 feet while cradling a shotgun or a person who brandished and touched a victim with a sword.

In contrast, recklessly endangering someone cannot be a crime of violence because specific intent is not required -- you can be guilty for mere recklessness where you had no intention to put someone in danger. Being reckless means you don't realize the risk you are creating to someone else.

Monday, January 02, 2006

Not-precedential Revival of Asylum-seeker's Claim and Criticizing IJ's Baseless Speculation

A.J. v. Gonzales
No. 04-2920
Not Precedential
December 27, 2005

(The asylum-seeker's surname is printed in the case opinion.)

In this not-precedential opinion, the Third Circuit overturned the BIA's denial of an asylum claim.

The Third Circuit based its decision on several mistakes that the IJ and BIA made. First, they wrongly thought that failing to authenticate documents according to a stringent guidelines would automatically render them inadmissible. The Third Circuit has ruled that nothing should be automatically rejected because the guidelines are just a factor to consider, not an absolute rule.

Also, the IJ and BIA ruled that the passage of ten years in China without further punishment for violating the one-child rule meant that the country conditions had changed so he had nothing to fear from returning to China. The Third Circuit overturned this holding because of the clear language in the BIA's decision In re Y-T-L, 23 I. & N. Dec. 601 (BIA 2003).

The Third Circuit also criticized the IJ's baseless speculation that the wife's forced sterilization might have simply been a voluntary sterilization by a woman who felt she had enough kids. As worded by the Third Circuit, the IJ's decision was completely without any justification and is simply bizarre in a manner to rule against an immigrant seeking asylum.

Konan: Overturning BIA For Failing To Explain Asylum Decision

Konan v. Gonzales
No. 04-3467
December 30, 2005

The Third Circuit will overturn and remand cases if the BIA does not explain its decision. Here, the BIA did not explain why it rejected an asylum-seeker's claim that being the son of a military police officer is a particular social group for asylum law purposes.

Basic agency principles would require that the BIA explain its decision, but apparently in this case it did not do its job and did not explain why it was rejecting the claim.

The Third Circuit therefore had to overturn the decision and urge the BIA to make a ruling that includes the reasons for its conclusion.

This mistake by the BIA is not the first time in an asylum case. In Vente v. Gonzales, the BIA "missed the mark" by dismissing an asylum-seeker's argument that was based on his family's personal experience by referring to general conditions that the public faced.

On another point, the Third Circuit overturned the IJ and BIA's ruling that the asylum-seeker had not suffered from persecution on account of imputed political opinion in the past. The undisputed evidence was that in the midst of unrest in the Ivory Coast, rebels attacked government supporters and loyalists during attacks in September 2002. Although it is difficult to discern the motives of attackers during a civil war, in this case the evidence showed the attacks were based on imputed political opinion.

Chen: Failure To Provide Corroborating Evidence Can Doom An Asylum Claim

Chen v. Gonzales
No. 03-4887
Dec. 29, 2005

The Third Circuit applied the rule on when an immigration judge can require corroborating evidence in an asylum case. The BIA’s rule on corroboration in In re S-M-J- involves a three step analysis: (1) an identification of facts for which it is reasonable to expect corroboration; (2) the presence or absence of such corroboration in the record; and (3) the adequacy of applicant’s explanation for its absence. In this case, the asylum-seeker failed to provide either corroborating evidence or an explanation why there was none available regarding an abortion in China, residing with her aunt, an absence from work, and the person who impregnated her.

The Third Circuit rejected the IJ's ruling that a witness was not credible because she lacked corroborating evidence because the BIA's rule is that a lack of credibility cannot be based on the failure to have corroborating evidence. It instead is based on contradictions, incredible details, and inconsistent testimony. But because there was a lack of corroborating evidence, this error did not affect the result and the Third Circuit upheld the decision to deny asylum.