Saturday, December 30, 2006

Park: Broad View of Counterfeiting Aggravated Felony

In Park v. Gonzales, No. 05-2054 (3d Cir. Dec. 29, 2006), the Third Circuit rounded out 2006 by ruling that Congess intended a broad definition of what counts as an aggravated felony due to being an offense related to counterfeiting. Someone was given more than one year of jail for knowingly selling clothes with fake Nike trademarks (a violation of 18 USC 2320). The issue was whether counterfeiting meant devious acts like forging government-issued money or any other type of counterfeiting such as using fake trademarks. The Third Circuit affirmed Judge Garcy's conclusion that by using the broad phrase of "relating to" counterfeiting, Congress intended a very broad definition, including crimes that merely involve using a counterfeit mark like a fake Nike trademark. So, it's an aggravated felony and the man cannot qualify for cancellation of removal even if hypothetically he has been in the US over 10 years with a US citizen wife who would suffer exceptional hardship if he were deported. Yes, an extremely harsh result. The case is at

Monday, December 25, 2006

Kent A. Jordan Confirmed December 2006

Kent A. Jordan (born in October 1957) was confirmed by the Senate to the Third Circuit on December 8, 2006 and he received his commission on December 13, 2006. President George Bush nominated him in June 2006. According to the Federal Judicial Center, Judge Jordan is a White man. Some bloggers say he was a member of the Federalist Society and somewhat conservative.

Thursday, December 21, 2006

Ehoan (not precedential): BIA Can't Summarily Affirm Novel Factual Case

In Ehoan v. Gonzales, No. 05-5091 (3d Cir. Dec. 20, 2006) (not precedential), the Third Circuit again ruled that you can challenge the BIA's internal procedures about how it decides cases. In this situation, the BIA issued what it calls a summary affirmance of the immigration judge's decision. The problem is that the BIA's regulations say that the BIA can only issue a summary affirmance if the issues in the case are squarely controlled by existing case law or if the issues are not so substantial that there should be a written opinion. In this appeal, the facts were novel and the issues were quite substantial -- whether a conviction should be considered what the law calls a "serious nonpolitical crime" that disqualifies someone from receiving asylum protection. The Third Circuit did not say what the crime was, but described it as not involving physical harm. The Supreme Court has said this area of the law is not well-developed and depends on guidance from the BIA and Attorney General because defining this area of law could have an impact on foreign relations.

In another not-precedential decision, Haynes v. Gonzales, No. 05-3244 (3d Cir. Dec. 20, 2006), the Third Circuit ruled that if you write to the BIA that you are withdrawing your appeal, and you did so knowingly, you can't change your mind later. I feel very sympathetic to the guy who did that, explaining in his motion to reopen that he wrote to withdraw the appeal when he was tired and in disagreement with his family. The Third Circuit didn't say how long he took to change his mind, but I would have hoped the BIA would have been a bit lenient to let him change his mind.

Tuesday, December 19, 2006

Third Circuit Jurists' Blogs

I hope people are enjoying the free spirit of blogging Third Circuit immigration decisions. The opinions themselves are available for free (just visit the Third Circuit web site) and I hope these quick commentaries and summaries will help people follow the Third Circuit's immigration rulings. (There's no quick link on the Third Circuit's web site for just immigration decisions.)

If you have suggestions or comments, please use the comment option on the blog to leave your input.

Speaking of blogs, H. Lee Sarokin has just started his own blog! He was a judge on the Third Circuit Court of Appeals until 1996. His blog is called X-judge and you can find it at

His first two postings are on excellent topics: the cases of Jose Padilla and Maher Arar. Those cases strengthen the argument why the exclusionary rule should be applied in immigration court. That issue is being raised in an appeal before the Third Circuit.