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Unfortunately, in the not precedential decision of Williams v. Gonzales, No. 05-3537 (3d Cir. Mar. 14, 2007) (not precedential), the Third Circuit did not clarify the situation, simply refusing to grant a stay of removal for someone who helped with an ordinary criminal case (a drug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


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