Sunday, April 30, 2006

Cham: Judge Ferlise Failed to Offer Even A Modicum Of Respect

Cham v. Gonzales
No. 04-4251
April 28, 2006

Very forceful decision -- the Third Circuit heavily criticizes Immigration Judge Donald Ferlise (in Pennsylvania) for failing to give a modicum of courtesy, respect, or any pretense of fairness in rejecting an asylum claim. The Third Circuit referred to Judge Ferlise's bullying nature and cited prior decisions where the Third Circuit complained about Judge Ferlise:
Sukwanputra v. Gonzales, 434 F.3d 627, 637-38 (3d Cir. 2006) (“intemperate and bias-laden remarks” interjected by the immigration judge, “none of which had any basis in the facts introduced, or the arguments made, at the hearing”); Fiadjoe v. Attorney General, 411 F.3d 135, 143, 145-46, 154-55 (3d Cir. 2005) (“bullying” and “brow beating” by the immigration judge; “continuing hostility towards the obviously distraught [petitioner] and his abusive treatment of her throughout the hearing,” reducing her “to an inability to respond”; and an oral decision, later “sanitized,” which was “crude (and cruel)).
Even more amazing, when the Third Circuit held oral argument on the case, the judges asked the government attorney to explain what procedures are followed when repeated inappropriate conduct happens. The Attorney General wrote a general letter announcing that every litigant be treated with courtesy and respect so that judge must able and professionally discharge their duties. The Third Circuit announced that:
We write because one of them, the Hon. Donald V. Ferlise, has seen fit on more than one occasion, including that now before us, not to do so.
What I find remarkable is that the judge's bullying can be seen by carefully reading the transcript and seeing how Judge Ferlise tried to twist the respondent's words into drawing out possible inconsistencies, even when it was clear some items were issues with translation. The Third Circuit judges did a great job of reading the transcript carefully to see the belittling attitude, even if the judge never cursed or said overtly hostile comments.

The Third Circuit admirably reiterated that treating litigants with courtesy and fairness is not a mere nicety, it is constitutionally required under the right to due process to a full and fair hearing on an asylum application that includes a neutral and impartial arbiter and a reasonable opportunity to present evidence. An immigration judge's constant nitpicking of irrelevant discrepancies can serve to grind down the respondent to a point that it is impossible to offer testimony and credible evidence.

Also very important is that the Third Circuit overturned the decision based on how the immigrant had no opportunity to present evidence of how his relatives won their similar asylum claims. The Third Circuit did not require proof of what that evidence would have shown -- the relevance was obvious and the asylum-seeker must be given an opportunity to present it. Also, Judge Ferlise accepted the evidence but announced he saw no relevance to it -- a judge that accepts but refuses to consider relevant evidence is the same as a judge the improperly refuses to accept that evidence.

The Third Circuit rejected the government's argument that the asylum-seeker had to show prejudice, that he would have won his case before a neutral arbiter. Failure to provide an impartial arbiter poisons the decision so completely that a new hearing must be given, without requiring any proof that a decision would have been different.

Congratulations to Joseph Hohenstein on this appeal and, actually, our sympathy for the probable frustration Joe had to deal with while having to appeal the unfair decisions by Judge Ferlise and the BIA. This case shows even more why full federal court review of immigration decisions is not just desirable, but critical.

Anyone with a pending BIA appeal or petition for review should consider filing a supplemental brief to let them know of these latest decisions.

update: in an unusual development, the Philadelphia City Council unanimously passed a resolution on May 4, 2006, calling for the removal of Judge Ferlise from the bench. This is according to a report by The Evening Bulletin.

Shah: Judge Ferlise Overturned For Assuming A Dead Man Was Alive

Shah v. Gonzales
Nos. 04-3607 and 05-1122
April 28, 2006

This is the second opinion released on the same day in which the Third Circuit overturns and criticizes Judge Donald Ferlise. In this case, a respondent seeking asylum based in large part his claim how his father was murdered. The government conceded that his dad was killed. In what the Third Circuit called "his apparent zeal to deny relief," Judge Ferlise came to the remarkable conclusion that the dead father was alive.

According to the Third Circuit, Judge Ferlise's conclusion that the dad was alive contradicted the undisputed evidence of the dad's death along with corroborating evidence that Judge Ferlise excluded from the record. Even if an immigration judge's findings of fact are given deference, they will be overturned if they are not supported by evidence that a reasonable mind would find adequate. It cannot be upheld if it is not based on a specific, cogent reason. The Third Circuit systematically goes through all the evidence proving the father's death and criticizing how Judge Ferlise latched onto an innocent misstatement and blew it up into a purported inconsistency that suggested the dead man was alive.

Wednesday, April 26, 2006

Not-Precedential on 212(c) and asylum

Two recent not-precedential decisions are:

"S.R." v. Gonzales, No. 05-1704 (3d Cir. Apr. 25, 2006) (not precedential): Judge Tadal reversed for misconstruing asylum claim -- professionals targeted by terrorists because they are in positions of authority and refused to use their positions to perpetrate a terrorist attack are a particular social group. Judge Tadal misconstrued the claim as trying to define all pharmacists as a protected social group.

Reid v. Gonzales, No. 05-3005 (3d Cir. Apr. 25, 2006) (not precedential): Judge Dogin reversed for refusing to allow someone whose removal proceedings began before April 1997 (the effective date of IIRIRA) to seek section 212(c) relief for a pre-1997 conviction. Even if someone has a post-1997 conviction, that does not rule out the possibility to get a waiver for the pre-1997 conviction using 212(c) relief. This case's facts will not arise too often, because it requires that the removal proceeding began before 1997. In this case, the government started a deportation case in December 1995 then administratively closed it for a few years because the respondent was jailed for a 2000 conviction.

Mehboob v. Gonzales, No. 05-1952 (3d Cir. Apr. 14, 2006) (not precedential): Judge Sease reversed for not explaining whether a crime that has no mens rea requirement can be considered a crime involving moral turpitude. Pennsylvania indecent assault under 18 Pa. Cons. Stat. section 3126(a) could either be for having indecent contact without the victim's consent or whenever the victim is under 16 years old and the accused is more than four years older than the victim. This second portion (victim less than 16 years old) is a strict liability crime for the triggering circumstance (victim under 16 years old, etc.). Generally, strict liability crimes are not usually considered crimes of moral turpitude. Because Judge Sease and the BIA did not address this question, though, the Third Circuit overturned the decision and remanded it for analysis on whether such a strict liability crime is a crime of moral turpitude.

Friday, April 14, 2006

McAllister: Engaging in Terrorist Activities Ridiculously Broad Definition

McAllister v. Gonzales
April 10, 2006
Filed 04/10/06, No. 03-4513
McAllister v. Atty Gen USA

The Third Circuit ruled that the broad definition in the INA of "terrorist activity" should be interpreted extremely broadly, as Congress intended, even though a concurring judge criticized the law as unduly harsh.

Terrorist activity includes unlawful actions involving a weapon other than merely for personal monetary gain with the intent to endanger someone's safety (directly or indirectly) or to cause substantial property damage. This is an amazingly broad definition. The Third Circuit, strangely, reasoned that an eight-year old using a bat to defend himself escapes the broad definition because the actions are not "unlawful." But what the Third Circuit did not analyze is how it probably would include an eight-year old who brings a bat in the mistaken belief that he needs to defend himself, so that his mistake means his action is unlawful.

It does not matter that there is no evidence of the person being part of any terrorist organization. The person can simply be acting in an individual capacity or as the member of any organization (even an organization that is not a terrorist organization).

The Third Circuit ruled that being engaged in terrorist activity disqualifies people from obtaining asylum and withholding of removal.

Judge Maryanne Trump Barry, concurring, criticized the needlessly broad definitions, hoping that the phrase to give me your tired, your poor was not just an empty entreaty. "But if it is, shame on us."

Judge Barry criticizes how Congress's rule has no relation to any common-sense understanding of what "terrorist activity" really is or should be. Instead, they defined it much too broadly. Judge Barry sees it as a knee-jerk reaction to the tragic events of September 2001 that allows the government to remove decent men and women from the US just for one error in their lives.

It took the Third Circuit a full 9 months to decide the case (argued June 2005 and decided April 2006).

Maryclaire Dale of the Associated Press wrote an article titled "Judge Decries Rigid U.S. Immigration Laws" on April 13th about Judge Barry's critique.

Update: on April 17, 2009, the Associate Press reported that DHS is postponing deportation until at least March 2010 while it reviews the case. Senator Menendez introduced a bill in 2008 seeking permanent residency for McAllister.

Sunday, April 09, 2006

Toure: IJ Erred In All Six Speculative Reasons To Deny Asylum (and violated his duty to develop the record)

Toure v. Gonzales
April 5, 2006
Third Circuit

This is another case where the Third Circuit overturned the BIA and immigration judge's asylum decision because their findings were based on inferences and presumptions that are not reasonably grounded in the record. The IJ made six findings and the Third Circuit soundly rejected all six because some were "simply speculative or insufficiently developed; others defy the canons of logic."

Focusing on when the man's house was invaded and his wife was abducted by people supporting the Ivory Coast government. That was the third major attack on him -- he was detained for 15 days in February 1998 (but not beaten or otherwise mistreated) and he was detained for two days and severely beaten in January 2001. Even if the IJ held those first two attacks were not severe enough to be persecution, they set a backdrop for the danger he felt after the third attack.

If true, the three attacks definitely constitute persecution and the Third Circuit cited other cases involving multiple beatings that caused injury. It was not just isolated mistreatement that caused no severe injuries.

The Third Circuit also ruled that the immigrant made a case that he was attacked for his political opinion. The IJ should not have required him to be a card-carrying member of his political group. Also, the IJ incorrectly ruled that the internal conflict in the Ivory Coast is not regional or ethnic, but every official report of the civil war says otherwise! A third error of the IJ and BIA was ruling that there was not enough proof that the home invasion was something other than a common burglary. The IJ and BIA took the isolated comment that some common burglaries are done by men in uniform to extrapolate falsely that the invasion by uniformed people was likely a common burglary.

The Third Circuit also addressed other errors: he can't be penalized for breaking a law that he had to in order to escape the persecution, the BIA and IJ can't penalize him for not having corroborating evidence unless they engage in the required three-step analysis, the IJ's unclear credibility finding would have been unfounded because it falsely assumed the Ivory Coast is run top-down.

The Third Circuit reiterated that even after REAL ID, the IJ still has a duty to develop an applicant's testimony, especially regarding an issue that the judge may find dispositive. The Third Circuit cited In re S-M-J-, 21 I. & N. Dec. at 723-726 (“Although the burden of proof in establishing a claim is on the applicant, the Service and the Immigration Judge have a role in introducing evidence into the record.”).

Tuesday, April 04, 2006

Third Circuit Averages 12 Months To Complete An Appeal

Basic statistics about the Third Circuit -- these statistics seem to be for all cases, not purely immigration appeals: 3,599 appeals pending in December 2005 (this ranks 6th out of 11 circuits).

Time to render decisions in Third Circuit cases: around 12 months for calendar year 2005 (this ranks as the 7th longest out of 11 circuits) from when the litigant files a notice of appeal until the court issues its decision. The average times are 5.5 months from filing the notice of appeal to filing the last brief, 3.9 months from then until the hearing or submission of the case, when there is a hearing it averages 3 months for a decision and when the case is merely submitted it averages 2.1 months for a decision. The total average time is 12 months.

Odds that the Third Circuit will have oral argument on a case rather than take it on submission: in calendar year 2005, the Third Circuit rendered a decision in 524 cases where it held a hearing and in 1,843 cases where it took the case on submission.

Update on Threat To Third Circuit Jurisdiction

Senator Specter's proposal to take away future immigration cases from the Third Circuit (and consolidate them in the Federal Circuit along with enacting a new barrier of a one-judge decision on reviewability) is included in section 701 onwards (also known as Title VII) of what is called the Chairman's Mark.

During judiciary committee discussions, there was some opposition so Senator Specter held back the proposal but held hearings April 3, 2006 on the proposal. So there is a danger that the proposal could be made either in the future or as an amendment to any pending bill.

Numerous judges spoke out as individuals against the proposal. Here is a brief summary of the pros and cons. The critics raise substantial issues with the proposal:

On uniformity: a reason to consolidate cases into one court is that it would increase uniformity because on some issues today the various circuit courts take different approaches to the certain issues. It would also help the DOJ maintain a consistent litigating position on substantial issues. However, critics point out that the danger of forum-shopping is very limited in immigration cases because unlike patent cases that can be filed by litigants virtually anywhere, existing rules generally require a litigant to file a case where the person entered or where the person resides. The rampant forum-shopping that prompted consolidating patent cases does not exist in immigration law. Critics also point out that splits among the circuits are very limited although they do exist. Also, a large number of apparent conflicts are irreconcilable because they depend on the facts, such as how believable a particular witness was in an asylum claim. Fact-specific decisions cannot be made uniformly even if consolidated into one circuit.

On case volume: a reason to consolidate cases is that circuit courts will be relieved of the volume of cases that they will no longer be allowed to hear. Critics, though, point out that overburdened circuit courts have already been implementing new procedures to cut back on their backlog. Other critics suggest the proper method to reduce the backlog is to improve the quality and satisfaction level of BIA and immigration judges' decisions so that less appeals will be made (the appeal rate of BIA decisions recently rose from 6% in 2001 to 29% in 2005 and the number of appeals increased 603% from 2001 to 2005). Some wonder whether the Federal Circuit could cope with a sudden ten-fold increase in appeals (while only proposing to increase the number of judges from 12 to 15!). The Federal Circuit's computer system would not be able to cope with the large influx, so a long, expensive transition period to prepare the technology would be needed.

Critics point out the way to tackle the backlog of cases is to have more immigration judges and BIA judges so that they can make quality rulings that are less-often appealed. The 215 immigration judges are required to decide filings of over 300,000 cases per year (averaging 1,400 per year or 27 per week). The 11 BIA judges face 43,000 filings per year (using the conservative assumption that no cases are ever heard by more than one judge, each judge has nearly 4,000 cases per year or around 80 per week). Some critics think the proposal to increase BIA judges from 12 to 15 is too limited and there should be at least 30 BIA judges. The number of immigration judges should be at least doubled.

Whether the Federal Circuit is the right forum: supporters argue that the Federal Circuit could hire staff and new judges who can learn the complex area of immigration law. Critics point out that the current Federal Circuit has no experience with immigration law. Also, judges hearing patent cases rarely review credibility issues in deciding patent disputes, but immigration appeals frequently require credibility determinations that every other circuit court reviews in similar areas of the law. A better alternative for a place to consolidate cases is something similar to the FISAcourt or the TECA court, to appoint judges who already have experience in that area of law.

On the certificate of reviewability requirement: The DOJ favors this requirement and points to the success in filtering out frivolous habeas appeals after those cases required a similar certificate. Critics question the propriety of a one-judge barrier to immigration appeals. Although this exists in habeas cases, immigration cases are not well-suited to this one-judge barrier. Pre-motion habeas cases have already been fully litigated in state courts in front of independent state court judges. Pre-appeal immigration cases, however, have never been reviewed by any independent judges -- only by employees of the Department of Justice agency (immigration judges and the BIA). The idea also violates the tradition of requiring three-judge certificates for circuit courts.

Difficulty on litigants: consolidating all appeals into one court in DC makes it extremely hard for meritorious cases to be appealed. In an area where most litigants are unable to find an attorney and struggle on their own with litigating the case, it would be troubling to make it even harder to appeal a BIA decision. Supporters note that in theory, the Federal Circuit may sit in multiple cities across the country (but I have never heard of a plan to open dozens of offices and case-deciding tours to help litigants access the Federal Circuit).