Not-Precedential: Writing Bad Checks not aggravated felony; Credibility Determinations cannot rely on unrelated hearing

Mirat v. Gonzales
No. 05-2808
http://www.ca3.uscourts.gov/opinarch/052808np.pdf
June 9, 2006
Not Precedential

In this not-precedential case, the Third Circuit ruled that a conviction for writing bad checks under Pennsylvania law is not an offense involving fraud or deceit. Therefore, it cannot be an aggravated felony, which includes offenses involving fraud or deceit causing a loss of over $10,000.

Courts use the categorical approach to decide whether a crime fits a certain category for immigration purposes. They study all of the conduct covered by a particular criminal statute (but it is actually a bit more complicated than this, because the court can divide up a statute to conform to descriptions in the record of conviction).

The offense of writing bad checks requires issuing a check knowing it will not be honored. Nowhere in the definition is fraud an express element. Therefore, it cannot be considered a crime involving fraud or deceit because it is possible to be guilty and not engage in fraud or deceit.

The Third Circuit distinguished its Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004) decision, which held that committing a crime under Pennsylvania's theft by deception statute does involve fraud or deceit, even if the underlying conduct was passing bad checks. That is different because of the different wording of the two Pennsylvania criminal statutes.

The lesson is to read the criminal statutes carefully to see whether fraud or deceit is an element of the crime. And that analyzing immigration consequences of criminal convictions is very complex and difficult.

Lin v. Gonzales
No. 05-3571
June 1, 2006
Not Precedential
http://www.ca3.uscourts.gov/opinarch/053571np.pdf

The Third Circuit overturned Judge Ferlise and the BIA's negative credibility determination because it was not supported by substantial evidence. The lesson is that a negative credibility determination during testimony on one issue cannot be used to justify a negative credibility determination for testimony by the same person about completely unrelated matters.

In this case, Judge Ferlise in 2001 denied the application for adjustment of status because he did not believe the applicant was telling the truth. Later, in 2003, the applicant tried to reopen the case. The IJ may not rely on a past, utterly unrelated credibility assessment to find someone not credible in a later hearing.