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"S.R." v. Gonzales, No. 05-1704 (3d Cir. Apr. 25, 2006) (not precedential): Judge Tadal reversed for misconstruing asylum claim -- professionals targeted by terrorists because they are in positions of authority and refused to use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Reid v. Gonzales, No. 05-3005 (3d Cir. Apr. 25, 2006) (not precedential): Judge Dogin reversed for refusing to allow someone whose removal proceedings began before April 1997 (the effective date of IIRIRA) to seek section 212(c)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Mehboob v. Gonzales, No. 05-1952 (3d Cir. Apr. 14, 2006) (not precedential): Judge Sease reversed for not explaining whether a crime that has no mens rea requirement can be considered a crime involving moral turpitude.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.


Post a Comment

<< Home