Saturday, May 26, 2007

Third Circuit Publicly Reprimands Immigration Attorney

In the case of In re Chen, No. 06-8037 (3d Cir. May 24, 2007), the Third Circuit publicly reprimanded Eleanor H. Chen, an immigration attorney in Philadelphia with ten years of experience with the Third Circuit. The Third Circuit also ordered one year of proctorship over Ms. Chen, but agreed with the recommendation not to suspend Ms. Chen from practicing before the Third Circuit.

The problem is filing inadequate legal briefs in Third Circuit appeals. From the decision, it appears that Ms. Chen represents many Chinese people from Indonesia who often are seeking asylum. Ms. Chen represents them at fairly low cost and it is difficult to follow up with all of those clients, which suggests that some of them do not even fully pay the low amounts Ms. Chen charges them. At some point, Ms. Chen became overwhelmed by the workload and wound up filing inadequate briefs with the Third Circuit. It seems that Ms. Chen filed virtually identical five-page briefs to the Third Circuit that frequently did not address the key issues in the appeals. The Third Circuit repeatedly criticized her for filing what it thought were cut and pasted briefs that do not address the legal issues and often do not meet the minimum court requirements for legal briefs -- some did not include the required statement of facts.

In one of the Third Circuit's decisions it said in a lengthy footnote that it would refer her to disciplinary authorities, considering how frequently she submitted inadequate briefs. Incredibly, during the disciplinary proceedings, Ms. Chen claimed she did not always read the entirety of the Third Circuit's decisions in the appeals she handled. I guess a big practice tip is to read the entire decisions in the cases you are handling -- not just the last sentence or bits and pieces. Or at least have a colleague or staffer read the entire decision in your cases!

Anyway, the Third Circuit did not believe her excuse, especially because she emailed about the disciplinary issue after she got the decision. What helped convince the Third Circuit not to suspend her was that: she worked for low fees for a group that desperately needs assistance, she did not intend to act in the way that overwhelmed her, she will have a proctoship for one year, and she is remorseful for what happened.

Something we all have to weigh is the difficult balancing act of the desire to help immigrants desperately in need against the ethical duty to represent the clients you accept in a professional manner. What makes it especially difficult is that in a very controversial move, courts have generally ruled that immigrants to not deserve appointed counsel -- so many immigrants are forced to go ahead with fighting deportation without a lawyer!

The case of Ms. Chen is a sad byproduct of the current climate where courts for now believe indigent immigrants can never get a court-appointed lawyer. Congress and the courts should step in and rule otherwise, either based on a new law or a revised interpretation of basic due process rights. If that happens, we will see less cases of lawyers being overwhelmed and less situations of lawyers stretching themselves to the limit (or beyond their limits) to try to provide some legal help to indigent immigrants who are struggling against the threat of deportation.

Gilkes (not precedential): Circuit Can Remand To District Court For Fact-Finding in Citizenship Claims

In Gilkes v. Gonzales, No. 03-cv-01417 (3d Cir. May 22, 2007) (not precedential), the Third Circuit grappled with the question of what to do after Congress passed the REAL ID Act with an appeal that includes unresolved factual issues.

In the REAL ID Act, Congress directed appeals of immigration cases to go directly to the circuit court, instead of by a habeas petition to the district court. That is controversial because circuit courts in the past would not resolve factual issues -- instead, appeals usually would have the facts developed by a district court before reaching the circuit court. Many scholars conclude that the United States Constitution requires the functional equivalent of what used to be the district court review or else the new system will violate the Suspension Clause of the U.S. Constitution.

It makes sense, then, that in any appeal that goes directly to the circuit court, the circuit court is now burdened with developing the factual record. How would this happen? Perhaps the circuit court will be the referee over fact disputes by holding evidentiary hearings, something it traditionally has not done in immigration appeals.

The broader question of how the Third Circuit will treat unresolved factual issues is not clear. But the Third Circuit found a way out in this particular case -- there is a statute that allows a circuit court to transfer a case with unresolved factual issues to a district court when the issue of nationality is involved. And that's what the Third Circuit did in this case -- send the case to a district court to figure out the factual issues.

It will be very interesting to see in other cases how the Third Circuit deals with new evidence and the unresolved factual issues that are entwined in new evidence. Nancy Morawitz raises these questions in her article "Back to Back to the Future? Lessons Learned from the Litigation Over the 1996 Restrictions to Judicial Review" in volume 51 (2006/2007) of the New York Law School Law Review, available online.

In a pending appeal, the Third Circuit will have to decide how to deal with fact discovery such as interrogatories and document production over a new factual issue. The immigrant is urging the court to be a referee over the factual discovery based on how Congress intends for the Third Circuit to provide what used to be available in habeas petitions. The government is arguing that the Third Circuit cannot conduct fact discovery and should just send the issue back to the BIA for further development. We'll see how the Third Circuit rules on the issue.

The Gilkes case, by the way, also reiterated that the rule about which circuit court hears a petition for review generally is where the IJ issued his decision. But that is not a hard rule, it is like any venue rule just a suggestion, not a requirement. So the Third Circuit heard the appeal even though the IJ who issued the decision sat within the Second Circuit, because the Third Circuit had already dealt extensively with the case -- it already went to the Third Circuit at least two times in the past several years.

Saturday, May 19, 2007

Johnson (not precedential): ICE Cannot Reopen A Case Unless Evidence Is Material

In Johnson v. Gonzales, Nos. 04-1575, 05-3579, 05-4569 (3d Cir. May 17, 2007) (not precedential), the Third Circuit ruled that essentially useless evidence from ICE cannot be considered new evidence that requires reopening a case. This is quite a sensible ruling.

This case involves confused identities, which made it impossible for ICE to prove that the man in the courtroom was not a United States citizen. The gentleman says his name is Troy and has no idea of his citizenship or where he was born. He was raised by his brother, Robert, who took care of him until Robert was killed. The police gave Troy a birth certificate they found in Robert's home and that birth certificate was for a person named David who is a Jamaican citizen. But what if the police was wrong and the gentleman really was Troy, not the David whose birth certificate they found lying around?

Well, then any attempt to deport "David" is going to fail if the immigration judge does not believe the guy in the courtroom really is David. Especially if the birth certificate does not list the same mother as the man's brother and does not have the same last name as the man's brother. There are lots of reasons why you might think the birth certificate is not the man in the courtroom.

ICE provided great proof that the David in the birth certificate was not a US citizen, but the IJ and BIA concluded it did not prove by clear and convincing evidence that the guy in the courtroom was David. Case over... for now. The guy next applies for a social security number but the social security office insists that he must write down information that matches the I-94 identity information that ICE had given him when the first case ended based on their belief the guy was "David." Reluctantly, he jotted down those details. ICE tried to reopen the case because of those applications. The IJ and BIA agreed to reopen the case. The key question -- was the new evidence material to the case?

The Third Circuit concluded the IJ and BIA erred by reopening the case. The decision was arbitrary, irrational, or contrary to law. ICE was relying on evidence directly tied to the same mistaken impression that the IJ and BIA found completely inadequate in the first case. It actually is pretty funny to see how ICE was asking the Third Circuit to make it really easy for them to reopen this case when they usually oppose other people's requests to reopen a case by complaining that it should be very hard to reopen a case.

In the end, the gentleman is left as not deportable (the government cannot clearly prove he is deportable) yet for now, not a citizen (he hasn't yet been able to prove he is a US citizen). But it seems that even though he is for now in limbo, his attorney has a strategy to get him some kind of status (but the court's decision does not explain what that might be).

Congratulations to Joseph Hohenstein for his victory, over David V. Bernal and Ernesto H. Molina, Jr. of OIL (the office of immigration litigation)!

Thursday, May 17, 2007

Li (not precedential): New Evidence Must Be Considered "New"

In Li v. Gonzales, No. 05-5541 (3d Cir. May 16, 2007) (not precedential), the Third Circuit took only five days after it accepted the papers as fully submitted to conclude that the BIA made a mistake by refusing to consider evidence about a brand new development to be new evidence.

Congress set up a system where if someone is denied asylum in losing a BIA appeal but there are new developments, the asylum-seeker has an opportunity to raise the new evidence to the BIA. You can't just bring up old evidence that existed when you first started the case. You have to submit new evidence and on top of that, the new evidence must rise to a certain level of importance and significance. (You can't get a new review of a case for raising insignificant developments.)

You be the judge -- if someone claims that he is the victim of family planning persecution in China and the BIA denies the appeal, would it be new evidence to show a brand new policy of how the Chinese government initiated a family-planning campaign in the area they are from? The answer, the Third Circuit said, is definitely yes. Evidence of a new policy that did not happen until after the BIA ruled on the appeal is new evidence.

Incredibly, the BIA ruled it was not new evidence. At best, the BIA made a fatal slip of the tongue and had other reasons why although the evidence obviously is new, it was not so significant to need to reopen the appeal. At worst, the BIA made a completely illogical and indefensible mistake and felt that evidence of brand new events should never be considered new if they relate to the same theme that the asylum-seeker raised before.

The Third Circuit needed only 5 days after closing the papers in the appeal to issue its decision -- evidence about events that took place after the appeal ended must be considered "new." Let's see, the Third Circuit will force the BIA to take back its mistaken December 2005 ruling. So, this means the poor asylum-seeker has lost around 1.5 years waiting for someone to correct the BIA's obvious mistake. Is anyone going to help improve the quality of the BIA and the immigration court system?