Tuesday, August 15, 2006

Not Precedential: Failed Challenge To Moving NYC Guy To PA

In the not-precedential decision of Sinclair v. Gonzales, No. 05-2721 (3d Cir. Aug. 14, 2006) (http://www.ca3.uscourts.gov/opinarch/052721np.pdf), the immigrant raised a fascinating challenge to how someone who lived in NYC, was charged due to conduct in NYC, and caught in NYC had to defend himself under the law as interpreted by the court covering Pennsylvania because ICE unilaterally chose to move him from NY to PA. One grey area of the law is whether ICE is allowed to shift someone (and thereby change which court's cases are binding on the case), especially if the person would have succeeded under the law in the state where he lives.

Can ICE strategically move someone and destroy his legal claims? (Sometimes, one circuit court will approve of a theory but circuit court covering where ICE moves him will disapprove of the same theory. Welcome to the confusing and inconsistent area of immigration law.)

This issue was not directly decided by the Third Circuit in the Sinclair case. The Third Circuit ruled that if there is no difference between the laws of the two places, then there is no harm, especially because the government has personal jurisdiction over people no matter where they move them. Even to a state where the person has almost no historical contact.

The issue left unanswered is whether a due process challenge under the Fifth Amendment (and don't forget analogous provisions in state constitutions such as the NY Constitution) would succeed if we can argue the transfer was unfair because the law of the person's home state was favorable but the law of the new state is unfavorable. (By the way, the issue in this case was whether a non-citizen can claim to be a national of the US even though the person never became a sworn US citizen. The Third Circuit said both it and the Second Circuit equally say no, not possible.)


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