Tuesday, March 27, 2007

Slightly Fewer Immigration Appeals Countrywide

The Administrative Office of the U.S. Courts recently informed Congress that the number of appeals it is receiving was slightly less last year from the year before, reflecting a slight decrease in immigration appeals (along with a decrease in appeals in criminal cases). That information is based on nationwide figures, and does not necessarily reflect the situation with the Third Circuit. For example, the National Law Journal quoted a Ninth Circuit judge as saying any slowdown countrywide is not true for the Ninth Circuit, which has an increase in immigration appeals. So it looks like the existence of this blog is safe for now, with a continuing flow of immigration appeals being filed with the Third Circuit. In fact, the judiciary will ask Congress for 67 new judgeships to handle the large number of cases.

Saturday, March 24, 2007

Third Circuit Slow To Recognize The State-Created Danger Doctrine

The Third Circuit is still very slow to recognize the state-created danger doctrine in immigration cases. The state-created danger doctrine is well-established in the Third Circuit to provide relief where the government affirmatively places someone in a position of danger that he or she would not otherwise have faced, even if that danger is from a third-party.

In Kamara v. Gonzales, the Third Circuit in 2005 suggested that the form of relief would not ordinarily include a stay of removal for someone who helped with an ordinary criminal prosecution. A careful reading of that decision leaves unclear to what extent the broad wording is its holding as opposed to vague dicta.

Unfortunately, in the not precedential decision of Williams v. Gonzales, No. 05-3537 (3d Cir. Mar. 14, 2007) (not precedential), the Third Circuit did not clarify the situation, simply refusing to grant a stay of removal for someone who helped with an ordinary criminal case (a drug trafficking prosecution).

There are at least two appeals pending with the Third Circuit as of March 2007 that challenge whether the state-created danger doctrine should be applied in some immigration court cases, especially where someone provided information about alien smuggling. The protocols to the recently ratified United Nations Convention on Transnational Organized Crime suggest that the government must provide protection to those who provide information against alien smuggling. In fact, President Bush and the Senate in recently ratifying the TOC Convention strongly suggested that something similar to the state-created danger doctrine must be available in those types of immigration cases. They said all of the contemplated protections (including, by definition, protecting those who provide information to police on alien smuggling) are already provided for under the existing laws.

Even if the President and Senate had not made it clear, the Third Circuit has the duty to uphold the United States Constitution. An obsolete view of international law used to suggest that courts have no role in defending Constitutional rights where an area of law might be seen as under the plenary power of another branch of the government. The modern view of the plenary power doctrine and developments in international law, however, make clear that the Third Circuit and all of the courts (including immigration court and the BIA) have a duty to defend immigrants' rights, even in the area of immigration cases.

The saga continues, and the Third Circuit will soon have at least two opportunities to address to what extent the state-created danger doctrine can be used to protect immigrants from deportations that violate their Constitutional rights and the rights that Congress affords them under international conventions. It is a very exciting area of law, where Meetali Jain, a scholar at Seton Hall Law School, is doing extensive research and analysis. Ms. Jain is now a Practitioner in Residence at the American University Washington School of Law (she was formerly at Seton Hall Law School's Center for Social Justice). While at Seton Hall, she helped with filing an amicus brief on this issue in a pending Third Circuit appeal. Contact us if you are litigating a similar case or to collaborate on bringing additional state-created danger doctrine requests in immigration cases.

Thursday, March 08, 2007

Atkinson: 212(c) Possible Even If Convicted At Trial Pre-1996

In Atkinson v. Gonzales, No. 05-1099 (3d Cir. Mar. 8, 2007), the Third Circuit agreed with Steven Morely that section 212(c) relief for legal permanent residents should be possible if the conviction happened before April 24, 1996, regardless of whether the person was convicted after a trial or pled guilty! The BIA and IJ Lawrence F. Stengel erred by refusing to let him seek 212(c) relief.

Section 212(c) relief is extremely complicated but the extreme basics are it provides an opportunity to get a waiver for a conviction that happened before April 24, 1996 for someone who is a legal permanent resident. (There are other requirements, but to keep this short I will not go into them, but research more if you want to pursue it.)

In 1996, Congress in a very unfortunate and controversial move tried to get rid of section 212(c) relief retroactively and prospectively. Thanks to the Supreme Court ruling in 2001 in INS v. St. Cry, it was clear that people who pled guilty before April 24, 1996 could still seek section 212(c) relief. With this decision, the Third Circuit ruled that even if you were convicted at a trial, you can still seek section 212(c) relief. This is an expansion on Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004), because you do not need to show that you were offered a plea bargain that you ultimately rejected.

This makes sense because Congress may not make retroactive changes to the law that impose new consequences to completed events. Whether someone pled guilty or had a jury trial does not tip the balance where Congress so blatantly tried to change the immigration rules after conviction.

Just a warning, although the Third Circuit's ruling makes perfect sense, it remains to be seen whether other courts will agree with the well-founded reasoning, so it is dangerous to rely on this case outside the Third Circuit.

Friday, March 02, 2007

Komarovas (not precedential): BIA May Not Rely On Decisions That Lack Explanation

In Komarovas v. Gonzales, No. 05-5384 (3d Cir. Mar. 2, 2007) (not precedential), the Third Circuit ruled that the BIA and IJ Charles M. Honeyman erred by concluding without explanation that the asylum-seeker did not suffer persecution through a series of attacks, including a knife attack. The IJ (and BIA) noted that a series of small attacks can when taken together be persecution but did not explain why he did not find the series of attacks in this case to be persecution. The IJ (and BIA) also seemed strangely to focus on how a knife attack might not have been premeditated (even though it would also raise enormous fear for the victim) and that the knife attack did not include an actual stabbing (but only because police happened to come by and stop the attack at the last second). Essentially, if the IJ issues a decision that you just can't figure out, it may be a good basis to appeal the case -- the BIA can't rely on a decision that just plain does not explain itself.

Burke (not precedential): Cursory State Created Danger Analysis and CAT Definition Repeated

In Burke v. Gonzales, No. 05-3726 (3d Cir. Mar. 2, 2007) (not precedential), the Third Circuit overturned IJ Walt A. Durling and the BIA for applying the wrong standard for CAT relief under the Convention Against Torture as set forth in Silva-Rengifo v. Gonzales, 473 F.3d 58, 70 (3d Cir. 2007) (acquiescence under CAT includes a government's willful blindness to torturous conduct and a breach of their legal responsibility to prevent it).

Interesting is that the Third Circuit with only cursory analysis denied relief under the state created danger doctrine for someone who was an informant about Jamaican murderers and drug smugglers. The Third Circuit relied on Kamara without any analysis of how the statement about the state created danger doctrine in that case is arguably dicta for a variety of reasons -- the strange Third Circuit view of dicta under the Haitian CAT cases suggests all commentary about the state created danger doctrine in Kamara was merely dicta. Also, a big area unresolved is whether the intervening ratification of the UN Convention against Transnational Organized Crime alters the analysis of whether the state created danger doctrine applies. The Third Circuit noted it might consider deviating from Kamara if there were intervening authority. That's exactly what should be litigated and is actually being raised in a pending Third Circuit appeal (briefed, but not yet argued).

Jiang (not precedential): BIA Must Consider Reports On China Sterilization Policy

In Jiang v. Gonzales, No. 04-2000 (3d Cir. Mar. 2, 2007) (not precedential), the Third Circuit ruled that IJ William Van Wyke and the BIA erred by failing to consider more recent State Department reports on the penalties that China imposes as part of its coercive population control policies (policies involving fines, forced abortions, and sterilizations). There were reports discussing the heavy penalties imposed in Fujian province but somehow the BIA failed to consider them even though they were submitted in evidence. Disregarding 2000 and 2001 State Department reports, the BIA and IJ Van Wyke for some reason solely considered a Profile written in 1998. Strange, really.