Tuesday, June 26, 2007

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.


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