Saturday, April 28, 2007

Nnadika: The Utterly Confusing REAL ID Act From Congress Costs A Man Two Years

In Nnadika v. Gonzales, No. 05-3915 (3d Cir. April 27, 2007), the Third Circuit grappled with the bewilderingly confusing REAL ID Act that Congress created and passed over many people's concerns.

In the REAL ID Act, Congress for some reason demanded that a habeas petition that challenges a final order of removal must be transferred to a circuit court and be treated as if it were a petition for review. So, Congress drew a huge distinction between a challenge to a final order of removal (must transfer to the Third Circuit) and other type of challenges (keep it with the district court). One example of the confusion is how the Third Circuit in Kumarasamy v. Gonzales, 453 F.3d 169 (3d Cir. 2006) ruled that someone challenging being deported without any order of removal can continue in district court because challenging the lack of any order of removal is not a challenge to a final order of removal. No final order existed. Sensible but the district court had gotten it wrong.

So, follow this carefully, just because a challenge to what immigration did would make it impossible to deport someone does not mean it literally challenges the removal order. If you challenge the notice of the removal hearing that led to the removal order, it is a challenge to the order and should be transferred as in Haider v. Gonzales, 438 F.3d 902 (8th Cir. 2006). If you challenge the notice of reporting to be shipped out of the US but not the underlying removal order, it should not be transferred to the circuit court. Kellici v. Gonzales, 472 F.3d 416 (6th Cir. 2006). These inane distinctions make a big difference in the lives of people challenging deportations.

Still with me? Turning to this appeal, the challenge is that USCIS should have granted a person derivative asylum status as the husband of someone who received asylum. USCIS insisted that the I-730 must be filed within two years of when she got asylum and the immigrant demanded that USCIS consider whether to allow a late application on humanitarian grounds. I guess it is obvious at this stage that the challenge was not directly to the removal order of the husband, but to how USCIS was treating an I-730 application (which would if granted block deportation). So, I hope it now seems quite obvious that the district court never should have transferred this case to the circuit court.

The Third Circuit essentially rejected the transfer and moved the case back to the district court. So, about two years of the man's life has been wasted with the incorrect transfer to the Third Circuit. He has been waiting since March 2005 in the dreary Elizabeth Detention Center in Elizabeth, NJ. Two years of dreary waiting just to get back to where he was in June 2005 -- asking the district court to make a ruling.

It's too bad Congress won't do anything like give the man a short apology for writing such a confusing and illogical law like REAL ID that led to his entire case getting sidetracked for two years. I think Congress owes him an apology.

Sunday, April 15, 2007

Chukwu: Errors In Denying Asylum Claim on Credibility And Corroboration

In Chukwu v. Gonzales, No. 05-4068 (3d Cir. April 13, 2007), the Third Circuit overturned the IJ and BIA to permit someone seeking asylum to get a fair hearing. The first hearing was improperly decided because the IJ and BIA did not take into account evidence that explained many of the discrepancies that the IJ relied on to when concluding the asylum-seeker was not credible. Also, the IJ failed to analyze whether it was reasonable to expect him to obtain corroboration of details the IJ assumed should have been corroborated.

As in all asylum applications before May 11, 2005 (pre-REAL ID), a conclusion that someone is not believable can be based on inconsistencies only if those inconsistencies relate to facts at the heart of the asylum claim, not just unimportant details. Examples of the IJ and BIA's mistakes include: saying he lived with his wife until 2001 yet his wife saying that he abandoned the family in 1999 is consistent considering the evidence that he intermittently and continuously abandoned her from 1999 to 2001 so he likely returned home intermittently from 1999-2001. The IJ and BIA concluded that there was no evidence his wife was persecuted, but the evidence included details about how his wife was detained, harassed, and intimidated for political reasons. The IJ and BIA concluded it would have been impossible for him to leave the country without being arrested if he really was being sought after but ignored his explanation that the country did not have any national database or way to check traveler's names against a list of people sought. The IJ and BIA complained that his ID card did not state his home address, but apparently ignored the evidence that the address was the political party's local headquarters. The Third Circuit believed the IJ did not hinge the entire conclusion on discrepancies in the airport interview because the Third Circuit has frequently held that airport statement inconsistencies alone are not enough to find someone not credible. (This makes sense because people coming off flights at the airport are often scared, confused, tired, and not sure what to say to questioning immigration officials.)

Regarding the lack of corroboration, an IJ must give notice of what corroboration is expected and give a chance to explain why it is impossible to obtain the expected corroborating evidence.

Thursday, April 12, 2007

Egbule (not precedential): Overturning IJ Tadal's Factual Finding

In Egbule v. Gonzales, Nos. 06-1384 & 06-1716 (3d Cir. April 12, 2007) (not precedential), the Third Circuit overturned Immigration Judge Marlande Tadal because her factual finding was not supported by the record.

In the case, someone seeking asylum had proof he was part of a political group -- he showed his membership card and a membership form. True there were some discrepancies in the membership form -- his age was slightly off, his profession was slightly off, and it listed his official status oddly, but the asylum-seeker testified that he even pointed out those small errors to the person in the group who prepared the form but they told him not to worry about those small details.

Interestingly, the IJ and BIA said there was no way the guy was really part of that group. But the asylum-seeker's lawyers, the government's lawyers before the Third Circuit, and the Third Circuit unanimously agreed the guy definitely was part of that group. Strange that the BIA and IJ Tadal were completely wrong. The Third Circuit thanked R. Nicholas Gimbel (of McCarter & English in Philadelphia) and Darcelle Gleason (of McCarter & English in Newark) for their pro bono advocacy on the case. They also thanked them and government counsel which included Richard M. Bernstein (of the US Attorney's office in Philadelphia) for their professionalism. What a different appointed counsel means in an immigration case -- why don't immigrants get appointed counsel in immigration cases?

It is just too bad the asylum-seeker had to suffer through wrong decisions by the BIA and Judge Tadal before getting everything corrected by the Third Circuit. It also makes you wonder what ICE counsel who litigated the case in front of IJ Tadal and the BIA was thinking...

Jarbough: Can't Review Even Post-REAL ID Pure Fact Determinations

In Jarbough v. Gonzales, No. 06-1081 (3d Cir. April 11, 2007), the Third Circuit held that it had no power or jurisdiction to review any decision by the BIA that is a factual determination or an exercise of its discretion. Before REAL ID, Congress stripped jurisdiction over those types of BIA rulings. In REAL ID, Congress allowed circuit courts to review constitutional claims and questions of law. But the Third Circuit clarified that the expansion did not change how circuit courts cannot review factual determinations or exercises of the BIA's discretion.

The big issue is whether an issue is a question of law or a factual issue. Someone seeking review will frame it as a legal issue and the government will complain it is a factual issue. How is the Third Circuit going to figure out which one it really is? The answer -- well, it is not very clear from the decision in Jarbough. Here's what we do know -- the Third Circuit will review it carefully and make its own decision, not just blindly follow what the person seeking review suggests it is.

Why is it unclear? Because the description of the facts in the case are not very detailed, so we can't deduce how the Third Circuit goes about its analysis. The facts described are that someone argued that an initial lawyer telling him that he had no asylum claim and not mentioning the one-year deadline to file asylum claims was an extraordinary circumstance excusing how he did not file his asylum claim within one year of coming to the US. The BIA said no. The immigrant argued that decision violated due process. The Third Circuit did not really describe how he portrayed it as a due process violation, but explained they disagreed because it was simply a factual challenge clothed in the garb of a due process argument.

Seems like the Third Circuit is not nearly as illuminating as they hope to be. It's very hard to figure out their logic on this topic. Let's hope future rulings provide a bit more guidance. Unless, of course, the Third Circuit ends up merely saying that it knows it when it sees it...

Monday, April 09, 2007

Shehu: Asylum-Only Denials Are Appealable To Third Circuit

In Shehu v. Gonzales, No. 05-5072, (3d Cir. April 9, 2007), the Third Circuit ruled in a precedential case that someone who loses an asylum-only case can appeal it to the Third Circuit. This is consistent with how the Second Circuit and Eleventh Circuit have ruled.

The only concern is that Congress said final orders of removal can be appealed, but did not specifically address when someone who entered on the visa waiver program seeks asylum. Those people who entered on that program can only seek asylum but not otherwise challenge removal. So they are given asylum-only proceedings. The Third Circuit ruled that asylum-only proceedings are similar enough to removal cases that the decisions can be appealed to the Third Circuit. (Too bad the merits of the case were not good enough for the person in this appeal to succeed.)

Friday, April 06, 2007

Romero-Feyeros (not precedential): New Meaning To "Rob Me Blind"

In Romero-Fereyros v. Gonzales, No. 05-3925 (3d Cir. April 5, 2007) (not precedential), the Third Circuit gave new meaning to the phrase "rob me blind." What happens if immigration folks at ICE take away someone's eyeglasses, handcuff a guy, take him away from his lawyer, and get him to check off a box that waives his right to contest deportation charges? The answer -- the Third Circuit will do nothing even if all of that is proven, unless you can somehow prove that if the guy had his eyeglasses, the result would have been different.

Why? Because the Third Circuit believes that even if there are clear violations of substantive due process, it will not do anything unless you can show substantial prejudice. It is not clear why the Third Circuit did not view an unfair waiver of the right to contest charges as substantial prejudice.

The burden of proof for allegations is initially on the government. Robbing someone of the ability to force the government to prove its case should be seen as substantial prejudice. The Third Circuit said but anyway, the guy admits on appeal that he was convicted of aggravated felonies. But the government had the burden to prove that at the beginning -- well before we reached the appeal phase. What about the possibility ICE counsel may have bungled the case, not meet its burden of proof, and the case would be dismissed with prejudice?

The appeal sheds light on the ugly practices alleged -- USCIS forcing someone to start an interview without his lawyer present, ICE taking away a guy's eyeglasses, ICE pressuring someone without his glasses to check off long, complex paragraphs on forms. As the Third Circuit said, "These allegations are serious."

Perhaps what immigration lawyers need to do is rehearse the following with clients before a USCIS adjustment interview:
  • Do not enter the waiting area without your lawyer.
  • Refuse to start the interview without your lawyer even if they say you will lose your time.
  • Practice looking at long forms in English without your eyeglasses.
  • Practice reading over long forms that waive your rights so you will know what to do if confronted with them.
  • Practice exercising your good judgement even if you are handcuffed, kept alone with several ICE officers, and deprived of your eyeglasses.
Has the practice of immigration law really come down to this?