Saturday, May 26, 2007

Gilkes (not precedential): Circuit Can Remand To District Court For Fact-Finding in Citizenship Claims

In Gilkes v. Gonzales, No. 03-cv-01417 (3d Cir. May 22, 2007) (not precedential), the Third Circuit grappled with the question of what to do after Congress passed the REAL ID Act with an appeal that includes unresolved factual issues.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


Post a Comment

<< Home