Toussaint: Criminals Not Social Group; Haiti Prison Conditions Not CAT Eligible

Toussaint v. Gonzales
No. 05-3311
Precedential
July 26, 2006
http://www.ca3.uscourts.gov/opinarch/053311p.pdf

A long-running issue with the courts is whether CAT relief is possible for people from Haiti who will be put into inhuman and deplorable conditions using an unacceptable practice of detaining deportees for an indeterminate period (unless they pay a bribe). CAT is the Convention Against Torture and it protects people who if deported would be in danger of being tortured. The problem that immigration advocates face is that courts have interpreted CAT as only protecting people where the painful and inhuman conditions are imposed with the specific intention of inflicting severe physical or mental pain or suffering. In this case, the immigration judge granted CAT relief and concluded the Haitian authorities had the specific intent of inflicting severe suffering. ICE appealed, though, and the BIA overturned that finding. The Third Circuit held that the BIA had enough reasoning listed in its decision that its hands were tied and it could not overturn the BIA's opinion.

So we have made progress enough to convince some immigration judges that the deplorable conditions in Haiti should provide CAT relief, but now we have to convince BIA judges about what really is happening in Haiti.

The Third Circuit rejected the attempt to argue that as a criminal being deported to Haiti, criminal deportees are a social group that deserves asylum protection if they can also prove a well-founded fear of persecution based on being a criminal deportee. This makes sense -- asyum law is intended to protect groups that will be persecuted. The Third Circuit, though, joined the First Circuit and the Seventh Circuit in refusing to allow any social group to be defined that includes criminals. It is unclear where the Third Circuit divines this harsh rule. After all, nobody would question that homosexuals who will be persecuted if returned deserve asylum, but technically speaking, in some states you could say that homosexuality arguably is punished as a crime. Asylum law is rooted in the international law fundamentals of not sending people to be persecuted. It is irrelevant that Congress has in other areas punished criminals. In fact, Congress's limits to asylum protection is specifically listed as extremely limited -- just particularly serious crimes. It seems illogical that the Third Circuit would impose a harsher crime-based limitation than what Congress explicitly listed in the law.

Romanishyn

http://www.ca3.uscourts.gov/opinarch/053141p.pdf
July 20, 2006
Precedential

Description to be provided soon. Third Circuit ruled that someone can be put into removal proceedings if they were granted refugee status and then obtained legal permanent residence (LPR) status afterward. Refugee status protects someone from removal proceedings. The Third Circuit drew a distinction for refugees who later obtain LPR status.

Alaka: Only Aggravated Felonies Can Be A Particularly Serious Crimes

Alaka v. Gonzales
No. 05-1632
July 18, 2006
Precedential
http://www.ca3.uscourts.gov/opinarch/051632p.pdf

Withholding of removal is a mandatory form of relief that protects someone from being persecuted if returned to his or her home country. Congress passed a law saying someone cannot receive withholding of removal if he or she committed a particularly serious crime.

First, qualifying for withholding of removal is something the Third Circuit may review because it is a mandatory form of relief, not something in AG's discretion (which cannot be reviewed). This portion went into the Jilin Pharm and Soltane decisions about how a decision that does not explicitly state is in the AG's discretion and says "shall" be forthcoming after showing certain conditions is not in the AG's discretion enough to block federal court review.

Second, for something to be a particularly serious crime, it must at the very least be an aggravated felony based on the language of the statute.

Not Precedential: Overturning BIA's Cursory Statement

In "C.R." v. Gonzales, No. 04-4762 (3d Cir. July 24, 2006) (not precedential) (http://www.ca3.uscourts.gov/opinarch/044762np.pdf), the Third Circuit overturned and remanded a case because the BIA offered no rationale for its conclusion. The BIA stated with no explanation that health care professionals are not a particular social group that may qualify for asylum protection. But because the BIA offered no explanation for how it got to that conclusion, the Third Circuit overturned and remanded the case. It was impossible for the Third Circuit to review the BIA's ruling.

And if the BIA does not say a word about an issue, the Third Circuit will remand those cases too. In "Z.K." v. Gonzales, No. 05-3188 (3d Cir. July 13, 2006) (not precedential), the asylum-seeker submitted a great deal of new evidence as part of her BIA appeal. The BIA's ruling did not say whether or not it considered the new evidence, so the Third Circuit remanded for the BIA to state what it thought of the new evidence.

"G.P." v. Gonzales, No. 05-2228 (3d Cir. July 19, 2006) (not precedential) (http://www.ca3.uscourts.gov/opinarch/052228np.pdf): overturning asylum decision because IJ was impatient, abrupt, and belligerant during the hearing, constantly berating and interrupting the asylum-seeker when questioning him. The Third Circuit did not name the immigration judge in the case.

"J.M." v. Gonzales, No. 05-4449 (3d Cir. July 14, 2006) (not precedential) (http://www.ca3.uscourts.gov/opinarch/054449np.pdf): overturned Judge Garcy because claim that someone was persecuted because he is homosexual cannot be cast aside by portraying persecution as based on personal choice to visit discos which ultimately result in being attacked by bigots. The Third Circuit ruled that being homosexual is the crux of the claim, not any distinction that he was engaging in certain acts (visiting a disco) that is somehow distinct from homosexual status.

Two Not-Precedential Decisions On Asylum

"FV" v. Gonzales, No. 05-2640, not precedential, July 11, 2006: IJ and BIA must rule on asylum-seeker's claim that status as wealthy Colombian is a particular social group that qualifies for asylum. It was improper to deny the asylum claim while ignoring the argument that being a wealthy Colombian is a particular social group. Silence by the IJ and BIA on that theory requires remanding to allow them to rule on the issue first.

"NE" v. Gonzales, No 05-3063, not precedential, July 13, 2006: IJ's denial of asylum overturned because it was not supported by substantial evidence where IJ failed to discuss death threat against the asylum-seeker except in a vague reference to it as a letter the asylum-seeker received. Although an IJ conceivably could discredit what on its face seems to be a major death threat, the IJ must set forth reasons for doing so, not merely to dismiss the claim without evaluating or discussing what seems to be a very important piece of evidence.

Stubbs: NJ Endangering Children's Welfare Not Aggravated Felony

Stubbs v. Gonzales
Filed 06/29/06, No. 04-4316
http://www.ca3.uscourts.gov/opinarch/044316p.pdf
Precedential

Congratulations to Tom Moseley for his victory in convincing the Third Circuit that a conviction for endangering welfare of children under NJSA 2C:24-4(a) is not sexual abuse of a minor where there is no indication in the record of conviction of sexual abuse.

A conviction under NJ 2C:24-4(a) could be for one several types of conduct -- therefore, the BIA properly considered the document listing the charges against Stubbs in his criminal case. But that document did not clarify whether Stubbs was convicted for sexual abuse of a minor or for merely impairing a minor's morals. The NJ criminal statute (and the accusing document) charged Stubbs with sexual conduct which would impair or debauch the morals of a child -- which does not necessarily mean that Stubbs engaged in the sexual conduct with that child.

The key difference is that NJ punishes a broad range of conduct, including conduct that would coerce or entice a child. To be an aggravated felony for sexual abuse of a minor, immigration law requires a conviction where by definition sexual conduct must have taken place (not merely would coerce or would entice the child).

The point here is that the NJ Legislature decided to define a crime broadly to punish those who would coerce or entice a child to debauch his or her morals. An unintended consequences of defining that crime broadly is that a conviction that does not specify whether sexual conduct actually took place cannot be used to trigger the aggravated felony penalties in immigration law. But that is probably a minor consequences considering the NJ Legislature's intention to impose criminal penalties on conduct it finds punishable.