Monday, October 30, 2006

Then (not precedential): BIA Cannot Dismiss Appeal For Failing To File Brief If Reasons Clear From Notice Of Appeal

Then v. Gonzales, No. 05-4883 (3d Cir. Oct. 30, 2006) (not precedential):

When you file an appeal of an immigration judge's decision, you list for the BIA the reasons for your appeal in a box on the form. After what varies between a few months to several months, the BIA sends a letter setting a deadline for your brief, if you initially indicated you will file a brief. This case raises the issue of what happens if your notice of appeal lists your reasons for appeal but you fail to file the brief you promised you would. The BIA dismissed the appeal relying solely on how the guy did not file his promised brief. The Third Circuit ruled that was a mistake -- if the notice of appeal explains the basis for appeal, the BIA must analyze that and cannot rely only on how the guy did not file his promised brief.

So, the BIA made a mistake by summarily dismissing his BIA appeal and not explaining whether it noticed or considered the reasons he listed in his notice of appeal. The Third Circuit sent the case back to the BIA so it could examine the issues and explain its decision. Immigration Judge Annie S. Garcy was the immigration judge in the case, but the Third Circuit focused on mistakes by the BIA and did not say that Judge Garcy did anything wrong in the case.

Saturday, October 21, 2006

Commentary: A New View Of Dicta in the Third Circuit?

This commentary piece questions whether the Third Circuit has vastly altered the traditional rule of precedential decisions by how it distinguished Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003) in its decision of Auguste v. Ridge, 395 F.3d 123, 148 (3d Cir. 2005).

The issue of whether part of a Third Circuit decision is precedential or merely dicta is critical to know whether a future decision will be bound by the legal analysis in the earlier case. In Zubeda, the Third Circuit ruled that the BIA did a poor job of analyzing the legal issues and remanded the case to be decided consistent with the legal analysis in the Zubeda decision. Part of its decision was that to obtain relief under the Convention Against Torture, you do not need to prove that the people who will torture you have a specific intention to inflict suffering. Two years later, the Third Circuit ruled in Auguste that the portion of the Zubeda decision on specific intent was mere dicta so it was free to reach the opposite conclusion, that someone must prove that the people who will torture you also have a specific intention to inflict suffering.

How can the Third Circuit say the conclusion in Zubeda was mere dicta? After all, the court ordered the BIA to revisit the case consistent with its legal conclusions.

The Third Circuit struggled to find a way out, and claimed that because the court remanded the case to the BIA, it seems all other legal conclusions were mere dicta. Based on the traditional view of dicta, the court made a radical decision. This commentary asks what the new rule concerning dicta would be if the Third Circuit made a principled decision. (Put aside any cynical thoughts that the Third Circuit broke its rules to reach the decision it wanted.)

Perhaps the new rule is that when the Third Circuit remands a case for further proceedings, virtually everything in the decision is mere dicta. The only part that is controlling is the portion that literally and strictly deals with the precise issue that leads to remanding the case.

Please post your comments so we can hear your view on this extremely confusing issue. Try to set aside your cynicism that the Third Circuit cheated in Auguste and instead try to decipher what principled rule there might be.

Tuesday, October 03, 2006

Open Thread For Comments

Please hit the comment button and make a posting on this blog entry. It can be your constructive criticism (what would you like to see more of on the blog? how can it improve? what are its weak points?) or just questions you have about the Third Circuit and immigration law. Go ahead, post a comment and join the blog revolution!

Monday, October 02, 2006

Joseph: Federal Statute Not Trafficking in Firearms; Overturning Judge Garcy in an asylum case

Joseph v. Gonzales, Nos. 05-1047, 05-2889 (3d Cir. Oct. 2, 2006) (precedential). A conviction under 18 USC section 922(a)(3) is not illicit tracking in firearms, so it is not an aggravated felony. The reason is that the crime does not include a trafficking element. The opinion had interesting language about the need to exhaust administrative remedies by raising the issue to the IJ and BIA first. (So as a tip, include all your claims in your BIA appeal, rather than just your strongest few.)

The question of whether a crime involves illicit trafficking in firearms falls in the type of categories that is analyzed through the categorical approach -- look to the statutory definition of the crime, not the particular facts in the case. The Third Circuit required some type of trading and dealing in the statutory elements to be considered a trafficking type of crime. The particular statute punishes merely moving firearms from one state to another -- there is no requirement of illegal trading or dealing of the firearms. So, not a trafficking type of crime and not an aggravated felony.

In a recent not-precedential case, Zou v. Gonzales, No. 05-4314 (3d Cir. Sept. 27, 2006) (not precedential), the Third Circuit overturned the BIA and Immigration Judge Annie S. Garcy because the IJ's finding of inconsistencies and omissions were either (a) based on a misinterpretation of the record or (b) based on inconsistencies that were not central to the asylum claim. The IJ focused on a bunch of very minor inconsistencies about undisputed facts and incorrectly concluded that the testimony about reasons for returning home were different from the reasons listed in the asylum application. The IJ also relied on speculative and personal opinions not supported by the record.
Stripped of its discussion of minor inconsistencies and its speculation, the IJ’s decision offers little to support her conclusion that Zou was not credible. While she did cite Zou’s demeanor as a factor which “defeated” his credibility, she gave no specific examples to bolster this conclusion, merely describing Zou as “getting tired, nervous, [or] discouraged,” characteristics which do not inherently undermine one’s veracity.