Thursday, September 21, 2006

Immigration Court Must Mail Notice To Listed Attorney; Withholding of Removal Legal Mistake

The not-precedential case of Perez-Alevante v. Gonzales, No. 05-4230 (3d Cir. Sept. 19, 2006) (not precedential) overturned Judge Dogin and the BIA concerning whether the court must mail a copy of the hearing date to the immigrant's attorney. The Third Circuit ruled that yes, the immigration court must send a copy to any listed attorney. Not doing so violated the immigrant's Fifth Amendment right to due process.

In the case, in December 1997 ICE informed the immigrant it would start an immigration court case against him in the future. He let the court know who his attorney was for the case. Around 6 years later, in April 2004, ICE finally filed the case with the court. The Third Circuit noted a non-immigration case Jones v. Flowers by the United States Supreme Court that complained where the government's mailing was returned as undeliverable, it must make other efforts before selling off the person's house to pay tax debts. This ruling makes sense because in most cases, the attorney will be in court and handed the notice. Extra safeguards are needed to protect the immigrant and his attorney if the only way they are being informed is by mail.

On a side-note, it is disturbing to see that ICE made the losing argument that the Third Circuit had no power to review the BIA's mistake. Under the REAL ID Act, the Third Circuit can review constitutional claims and questions of law raised by criminal immigrants. ICE tried to argue that the Third Circuit could only review "legitimate" claims, whatever that means.

In Kwee v. Gonzales, No. 05-4542 (3d Cir. Sept. 20, 2006) (not precedential), the Third Circuit overturned the BIA and Immigration Judge R.K. Malloy because they made a big mistake in deciding a request for withholding of removal. If someone shows past persecution, there is a legal presumption of future persecution that the government has the burden of disproving. This is clear from the regulation 8 CFR 208.16(b)(1)(i) & (ii). Judge Malloy and the BIA made a mistake by not recognizing the applicant's past persecution and not putting the burden on the government to disprove future persecution would be likely to happen.

Tuesday, September 19, 2006

Gabuniya: Judge Ferlise Again Overturned on Asylum Credibility

Gabuniya v. Gonzales, No. 05-3339, (3d Cir. Sept. 19, 2006) (precedential)

The Third Circuit again overturned the BIA and Judge Ferlise in an asylum case where Judge Ferlise concluded the asylum-seeker was not credible. This time, the Third Circuit wrote that "We note with concern the IJ's dogged determination to make an adverse credibility finding by stringing together whatever insignificant inconsistencies he could unearth from the testimony and bolstering them with his own unsupported conjecture." Here, irrelevant discrepancies were whether his wife died on 8/5 or died as a direct result of injuries sustained that day, misstated an arrest date but quickly corrected himself, said his arm rather than elbow was hurt in one incident, and speculated that police would hold someone for much longer than 8 hours if they tried to coerce a false confession.

On another note, if the BIA ignores its procedure and gives no reason for denying a motion to remand, that's reversible error. Kortynyuk v. Ashcroft, 396 F.3d 272, 293 (3d Cir. 2005).

Jumping Through S-Visa Hoops (Not Precedential)

Tse v. Gonzales, No. 05-2113 (3d Cir. Sept. 15, 2006), not precedential,
The S-visa is an important aid to law enforcement by granting immigration status to those who actively help with ongoing criminal investigations. Many immigration attorneys, though, complain that seeing an S-visa is as rare as spotting an endangered species. The Tse case shows that in that rare instance where ICE grants an S visa, it still takes a long time to get the required immigration relief. In the Tse case, ICE finally granted an S visa in December 2005. It took essentially until August 2006 for OIL (lawyers representing ICE on appeal) to confirm that Mr. Tse did actually get an S visa and it makes sense to remand the case. It's bad enough that calling the police for help can land someone into deportation proceedings; the least they can do is smooth the path for those rare informants that ICE give S visas.

Ugbome v. Gonzales, No. 05-3020 (3d Cir. Sept. 13, 2006) (not precedential)
The Third Circuit overturned Judge Sease, who tried to use the Real ID Act of 2005 to deny an asylum claim. The Real ID Act emphasized that judges can deny asylum claims if corroborating evidence was available but not produced. The problem with invoking that in this case, though, was Judge Sease concluded the asylum-seeker provided no corroboration, thereby ignoring two sworn affidavits. Before any judge can take an adverse conclusion for failing to provide available corroborating evidence, the judge must analyze whether the person in fact provided corroborating material. Judge Sease also failed to put the burden of proof on the government to prove that someone who suffered a well-founded fear of past persecution cannot relocate elsewhere in the country.

Tuesday, September 12, 2006

Non-precedential overturning Judge Ferlise and about the standard of review

Quick note on two non-precedential cases:
Azuakoemu v. Gonzales, No. 05-3590 (3d Cir. Sept. 12, 2006) (not precedential): The Third Circuit of course has the power and jurisdiction to review questions of law such as due process concerns, even for those who have committed certain types of criminal offenses. It is surprising the government made a futile argument suggesting otherwise in this case. On the merits, the Third Circuit gave enormous deference to the BIA, which ruled that Nigeria did not have an official policy of torturing prisoners or that prison conditions were essentially torture.

Chen v. Gonzales, No. 05-3404 (3d Cir. Sept. 9, 2006) (not precedential): The Third Circuit once again overturned both the BIA and IJ Ferlise for an improper ruling in an asylum case. Here, the rule of the case must be respected where there weren't any extraordinary circumstances. This means that the first IJ's ruling before changing venue must be followed by the new IJ. Here, the new IJ (Judge Ferlise) disregarded the first IJ's ruling that the asylum claim was made within one year of arriving in the US. Judge Ferlise also denied the asylum claim based on specific inconsistencies. But the Third Circuit overturned the BIA and Judge Ferlise, concluding that in some instances, the supposed inconsistencies were not inconsistencies at all and in other instances, the inconsistencies were irrelevant to the merits of the asylum claim.

Tuesday, September 05, 2006

Garcia: Trafficking Pa. Drug Crime Is Aggravated Felony For Trafficking

Garcia v. Gonzales, No. 05-2786, precedential:
September 5, 2006

Violating 35 Pa. Stat. Ann. section 780-113(a)(30) (section 13(a)(30) of the Controlled Substance, Drug, Device, and Cosmetic Act) is an aggravated felony where the complaint indicates it involved trafficking.

In analyzing whether a crime is an aggravated felony, courts will focus on the state statute involved, the federal description of what's an aggravated felony and if it is unclear, the conviction of record including for Pa. the complaint approved by the prosecutor. Here, the complaint stated it was for a Pa. felony involving trafficking activities so it is an aggravated felony because is a state felony that involved "illicit trafficking." (Therefore, the Third Circuit did not have to grapple with whether the crime could also be an aggravated felony as a "hypothetical federal felony" -- a crime that would be a felony if charged under federal laws.) To involve trafficking, there must be trading or dealing with drugs. Here, the complaint involved distribution, solicitation, and possession with intent to distribute drugs -- that was enough to be trafficking.

Because of the way the statute was written and the complaint in the case, the result was different than under similar statutes in Delaware and New Jersey. See Gerbier v. Holmes, 230 F.3d 297 (3d Cir. 2002); Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003).

Needless to say, if you are convicted of a drug crime or charged with committing an aggravated felony, it may be wise to get expert analysis of the confusing immigration laws.