Li (not precedential): IJ's Credibility Determination Included "Troubling" Points and Apparent Predisposition

In Li v. Gonzales, No. 05-5269 (3d Cir. June 28, 2007) (not precedential), the Third Circuit overturned the decision of Immigration Judge Eugene Pugliese and the BIA in the case of someone seeking asylum from China.

The BIA said it would assume the asylum-seeker was credible. IJ Pugliese had found the asylum-seeker not credible. The Third Circuit criticized IJ Pugliese's analysis as including points that were "troubling" and an "apparent predisposition to find against" the asylum-seeker's credibility. Examples include:

• The failure to testify about being fired from a job because of practicing Falun Gong is not an inconsistency that goes to the heart of the asylum claim when there is no allegation that the government caused her to be fired. Therefore, the firing was not part of the asylum claim. Also, under Toure v. Gonzales, 443 F.3d 310, 325 (3d Cir. 2006), an IJ has a duty to develop an asylum-seeker's testimony, especially about an issue that may be dispositive.
• Corroborating letters that mention the same word "crackdown" do not support finding they are fraudulent. Perhaps they used the same translator who interpreted the original Chinese descriptions as a "crackdown."
• Complaining that corroborating letters do not say anything new is not a valid complaint -- corroboration is supposed to back up the main details, sometimes with a different view of the same event. It is improper to critique corroborating letters for offering a different view of the same main details.
• A fear of persecution can be based on hearing about security officers visiting the home. It is improper to say someone must personally see the officers visiting the home in order to have a well-founded fear. In fact, if she had been at home to see the officers visiting, she might be sitting in jail today instead of having a chance to flee and seek asylum.
• Failure to corroborate continued practice of Falun Gong in the US post-fleeing is not fatal when an asylum claim is baesd on the Chinese government's perception of someone as a Falun Gong practitioner based on what happened before fleeing.

The Third Circuit criticized the BIA's view of the evidence as "also perplexing." It is improper to criticize testimony as vague when it was not vague at all -- the testimony described what happened, fear of returning, and what might happen if she returns.

The Third Circuit had concerns about IJ Pugliese's assessment of credibility and urged the BIA to remand the case to a different IJ, as it has done in Cham and Sukwanputra.

Zheng (not precedential): Credibility Finding Cannot Rely On Flawed Reasoning/Speculation

In Zheng v. Gonzales, No. 06-2751 (3d Cir. June 25, 2007) (not precedential), the Third Circuit overturned Immigration Judge Donald V. Ferlise and the BIA for incorrectly finding an asylum-seeker to be not credible based on "supposed inconsistencies that disappear on examination, flawed reasoning, and speculation that is not based on the record."

Some examples:

• The same attorney signing his two asylum applications does not automatically mean that the attorney sat down and went over the details in the first application with him -- especially when the attorney did such a bad job as to forget to include the critical supporting statement in the first application.
  
• Not knowing many details about Christianity does not mean the person could not be a parishoner at an underground church in China -- it is possible someone attends a church that does not provide many details about Christianity because it is a poorly organized, basic, underground church. In any case, many of his answers exhibited an understanding of some Biblical teachings.
• Saying a church was raided 9/15 and then again two weeks later is consistent with saying that a church was raided twice in September. It was wrong to say it's inconsistent.
• Someone travelling from Philadelphia to New York City to attend a church once every two weeks is actually possible. It is not obviously incredible.
  

Briseno-Flores: Chaos on Accruing After Time Stopped and Disagreeing with Precedential Decisions

In Briseno-Flores v. Gonzales, No. 05-5323 (3d Cir. June 26, 2007), a three-judge panel of the Third Circuit tackled the question of whether you can accrue a period of continuous physical presence to qualify for suspension of deportation after your first period was stopped by the stop-time rule.

Wait, you might ask, wasn't this important question already decided by a three-judge panel of the Third Circuit in Okeke v. Gonzales, 407 F.3d 585 (3d Cir. 2005)? And isn't a three-judge panel supposedly required to follow a precedential decision by a previous three-judge panel of the Third Circuit?

Well, maybe not. The Third Circuit raises all sorts of confusion into how it makes its decision by diverging with its rationale in Okeke. In this case, the Third Circuit three-judge panel ruled that it would follow the BIA's view that once your first period of continuous presence is stopped (for example by committing a petty theft crime), it is impossible to accrue a second period of continuous presence to satisfy one of the requirements for suspension of removal. In the Okeke case, the Third Circuit said that if someone had a lawful reentry, he could accrue a second period of continuous presence even though his first one was stopped by the stop-time rule for the purpose of cancellation of removal (today's version of suspension of deportation).

What's the distinction? Is it that re-entry is a big deal that allows a second period to accrue? Is it that cancellation is different from suspension (even though one is just the new name for the other with slight variations)? Is it that the Third Circuit is acting mysteriously?

I'll vote for the Third Circuit is acting mysteriously and perhaps injecting some chaos into which of its precedential rulings really need to be followed and which ones are not truly precedential and can be overturned at any moment. This is the same type of confusion the Third Circuit injected when in Auguste v. Ridge, 395 F.3d 123, 148 (3d Cir. 2005), it broke precedent with its view on the Convention Against Torture that it had set out in the precedential decision of Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003). It may start to be open season on precedential decisions soon.

Zheng (not precedential): Asylum-seekers do not have to be experts

In Zheng v. Gonzales, No. 06-2751 (3d Cir. June 25, 2007) (not precedential), the Third Circuit overturned Immigration Judge Donald V. Ferlise and the BIA for erroneously denying asylum for someone who did not have a deep understanding of Christianity.

If someone seeking asylum admits that the underground church he attended did not have an extensive depth in its teaching, then it is improper to find him not believable just because he does not have a deep understanding of his religion. As long as the depth of his understanding is consistent with his story, it is improper to conclude his limited knowledge means he is lying about his religious belief. Other supposed inconsistencies disappear on examination. IJ Ferlise and the BIA also relied on flawed reasoning and speculation, such as their speculative belief nobody would travel from Philadelphia to New York City to attend their favorite church.

After around 2 years of time consumed in appealing the case, the Third Circuit remanded the case for in-depth proceedings in a fair hearing on whether he deserves asylum.

Chen: Husband of Wife Fearing China One-Child Policy Can Get Asylum

In Chen v. Gonzales, No. 05-4011 (3d Cir. June 20, 2007), the Third Circuit ruled on an issue that is frequently litigated -- whether a man can seek asylum based on how his wife fears persecution if she returns to China due to China's one-child policy. The BIA in Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997) concluded that a man can seek asylum based on the forced sterlization of his wife. In this appeal, the Third Circuit concluded it was acceptable for the BIA to reach that conclusion. (If the BIA makes a ruling that contradicts Congress's intent or is not a reasonable interpretation of the statute, then the Third Circuit must overturn the BIA's conclusions, even though the BIA is given a great deal of deference in this area.)

There are two interesting points: Judge McKee wrote a lengthy dissent in which he disputed whether the BIA's conclusion was legitimate. The government on appeal was not even questioning this point, but the Third Circuit analyzed this because that was part of its responsibility to decide the case.

The final ruling in the case was that if someone seeks asylum, he only needs to show a fear of persecution if he returns to China. The BIA must analyze facts to decide whether he has a fear. The BIA cannot merely point to facts that indicate it is not 100% certain whether he would be persecuted to conclude he does not have a reasonable fear. After all, a one in ten chance of persecution can justify a well-founded fear.

Therefore, the Third Circuit overturned the BIA's decision and remanded the case for the BIA to conduct the proper analysis. Immigration Judge Henry Dogin had granted asylum and the government is questioning that decision in its appeal.

Warning: see Lin-Zheng v. Holder (3d Cir. Feb. 19, 2009)

Fadiga: Only Need To Show Reasonable Probability that Ineffective Assistance of Counsel Hurt Case

In Fadiga v. Gonzales, No. 05-4910 (3d Cir. June 15, 2007), the Third Circuit made an important ruling to make it easier for immigrants who suffered from ineffective assistance of their prior counsel to reopen their cases and get a fair hearing.

If someone in an immigration court case does not get competent representation from the lawyer he hired, it may violate the guarantee of due process in the Constitution's Fifth Amendment if the incompetence made the proceedings fundamentally unfair.

The first important ruling by the Third Circuit was rejecting the BIA's strict, formulaic insistence on three requirements it set forth in Matter of Lozada. The third requirement is that the immigrant must either file a disciplinary complaint against the former lawyer or explain why he did not file it. The Third Circuit rejected the BIA's formulaic insistence on that requirement [Correction: the BIA did not perform its usual formulaic insistence on that requirement, see below] -- in this case, the former lawyer admitted under oath that he did a terrible job. The purpose of requiring a disciplinary complaint is almost completely satisfied when the former lawyer admits he did a bad job.

The second important ruling by the Third Circuit was rejecting the BIA's harsh requirement that to reopen a case, the immigrant must show that he would prevail in a new hearing. It is extremely difficult to prove you have more than a 50% chance of prevailing when a competent lawyer would be helping you to develop the record and elaborate on the evidence. Far from being required to show it was more likely than not to succeed, all that is required is to show that there is a reasonable likelihood that the result would have been different. This is the same standard that the Second Circuit has adopted.

The BIA made a fatal error by requiring Mr. Fadiga to prove he likely would have won his case if he only had competent counsel. All he needs to show is a reasonable likelihood that the result would have been different.

The Third Circuit then further criticized the BIA by noting that the Ninth Circuit addressed the same type of error by the BIA in 2004. This suggests that the BIA makes repeated mistakes on this issue and has not been learning from its errors. It is unfortunate that at the same time the Third Circuit is pointing out the BIA's repeated errors, some in Congress are suggesting there should be less judicial review of the BIA's decisions. Perhaps showing a lack of confidence in the BIA, the Third Circuit said it was clear that Mr. Fadiga's case should be reopened because there was at least a reasonable likelihood the errors ruined his case. The errors were how a law student prepared the written asylum claim and the lawyer did not review the written claim with Mr. Fadiga, so it contained numerous factual errors that made Mr. Fadiga seem not credible to the immigration judge. It's always important to prepare your written documents carefully and then to review them again with your client.

[Correction: thank you to someone who posted a comment -- as noted, the original post had a mistake by stating that the Third Circuit rejected the BIA's supposed formulaic requirement of filing a bar complaint. Actually, the Third Circuit noted that the BIA said due to supposedly not demonstrating prejudice, the BIA did not care whether the immigrant satisfied the formulaic requirements. In oral argument, the government lawyer pushed for the formulaic requirements, but it was the government lawyer on appeal not the BIA. Sorry for the mistake and thanks for the correction! Surprising that the BIA did not make its classic formulaic error in this particular case.]

Joseph (not precedential): Reiterating Cancellation of Removal for LPRs

In Joseph v. Gonzales, No. 06-1496 (3d Cir. June 13, 2007) (not precedential), the Third Circuit went through the clear requirements for cancellation of removal for LPRs (legal permanent residents). It is strange the Third Circuit had to do this because the requirements are pretty well-established at this point. It turns out the IJ and BIA made a mistake, but the result comes out the same because the immigrant had a problem with a different requirement.

Cancellation of removal for LPRs is a way for an extremely limited number of people who properly obtained legal status in the US as green card holders to avoid deportation. It is extremely controversial that Congress does not even allow an IJ to consider how wonderful someone is in most situations as a way to avoid deportation. For those who have green cards but now face potential deportation (for example for some types of crimes), Congress decided to prevent an IJ from considering how great the person is except if (1) the person was lawfully admitted for permanent residence for at least five years, (2) the person continuously resided in the US in any status for seven years, and (3) the person did not commit an aggravated felony.

Congress also created a harsh rule that the continuous residence requirement (the second requirement) faces the stop-time rule -- once a certain event happens, the person cannot continue to accrue time even if he is continuously residing in the US for many years afterwards. One event that stops the clock is committing a drug offense (as in this case).

The IJ and BIA mistakenly thought they could invoke the stop-time rule for requirement #1 (amount of time since lawful admission). The law is clear, though, that the stop-time rule does not apply for requirement #1. This rule is so clear that the government before the Third Circuit even conceded that the IJ and BIA messed it up.

The Third Circuit affirmed the ruling that the immigrant could not seek cancellation of removal (regardless of how many great qualities he might have) because he did not satisfy the second requirement, which is impacted by the stop-time rule. He only had around 5 years of continuous residence when he committed the drug crime, so he did not have at least 7 years. He is not allowed to use the additional 9 years he has continued to reside in the US after he committed the drug-related crime.

What is especially harsh is this rule means wide categories of immigrants do not even have a chance to show what great people they are. So even if the person was an amazing guy who rescued dozens of people's lives and invented all sorts of life-saving devices, the immigration judge has no power under any circumstances to consider that to let him avoid deportation. Sometimes the most inflexible rules result in the worst situations.

Singh (not precedential): IJ Imroperly Speculated About How India Operates

In Singh v. Gonzales, No. 06-3268 (3d Cir. June 6, 2007) (not precedential), the Third Circuit overturned Immigration Judge Mirlande Tadal and the BIA for improperly making assumptions about how India operates when they denied an asylum-seeker's claim.

IJ Tadal in Elizabeth, New Jersey made mistakes when trying to figure out whether the person seeking asylum was believable. It makes sense that a judge must consider all the evidence (pro and con) when deciding whether someone really was attacked in 2000 and 2001. In this case, the person seeking asylum submitted various documents to prove he was attacked twice. On the other hand, when he asked India for a passport to leave, he wrote down that he supposedly was not in India in the months he was attacked. The Third Circuit ruled that Judge Tadal and the BIA made fatal mistakes by not at least considering all of the evidence.

Next, Judge Tadal and the BIA also ignored (without explanation) the person's plausible explanation that he lied when he applied for a passport because others said saying he had left before would speed up his passport application in India. The Third Circuit ruled that was another fatal mistake.

Third, Judge Tadal and the BIA also made a fatal mistake by guessing that someone with an arrest warrant in India would not file for a replacement passport because perhaps India has a well-coordinate database to compare warrants with passport applications. The Third Circuit ruled, however, that the IJ and BIA's guess was "sheer speculation." Who knows how well-coordinated India is!

Finally, IJ Tadal and the BIA made an error that the Third Circuit was pointed out in several decisions over the past few years. I wonder if they are getting tired of seeing the same mistake repeated -- before complaining that someone did not provide corroborating evidence, an IJ must identify the facts, decide whether there is adequate corroboration, and analyze whether there is an adequate explanation why there isn't more corroboration. Here, the IJ and BIA complained that the person fleeing India did not provide a copy of his arrest warrant -- even though that warrant "presumably is in the possession of his persecutors" (citing the important In re S-M-J- case by the BIA in 1997).

The end result of the appeal is that the asylum-seeker (who litigated it on his own without legal representation) wins his appeal and will sometime in the near future have a chance to continue with his asylum claim -- having only lost two years of his life litigating the appeal to the BIA then the Third Circuit.

It is tragic that while the federal courts continue to point out fatal errors being made by immigration courts, some in Congress are trying to restrict federal court review of immigration cases. If anything, Congress should consider expanding federal court review.

if someone has a bunch of documents suggesting he was attacked in 2000 and 2001, but
incorrectly found the asylum-seeker to be not believable