Wednesday, September 19, 2007

Shardar: BIA Must Act Rationally In Deciding Whether To Reopen Asylum Case for Changed Circumstances

In Shardar v. Gonzales, No. 06-1238 (3d Cir. Sept. 19, 2007), the Third Circuit overturned the BIA for failing to acknowledge that the asylum-seeker had new evidence that could not have been produced at the first hearing and the combination of the old and new evidence made out a prima facie case for asylum -- there was a reasonable likelihood for the asylum claim to succeed.

The first question -- whether there was new evidence that could not have produced at the first hearing -- is important because unless you have new evidence based on changed circumstances, you may only file on motion to reopen within 90 days of the BIA's decision. Thanks to the new evidence, you can file a successive motion more than 90 days after the BIA's ruling. Here, the new evidence was significant -- it showed that the political party persecuting the asylum-seeker had re-emerged. The BIA made an illogical ruling that it could stray from a positive conclusion in a similar case just because the prior case was not marked as a precedential decision. The BIA also illogically ruled that a prior case was irrelevant because it dealt with reopening an abandoned asylum claim as opposed to this case's reopening of a denied asylum claim. But whether the case was abandoned or denied is irrelevant to whether there are changed circumstances.

The Third Circuit also criticized the BIA's conclusory statements that did not shed light on how it came to its conclusion to deny the motion to reopen.

Unfortunately, the BIA is frequently issuing decisions that are conclusory and offer little opportunity to understand what rationale they might have used. It is very fortunate that there is a way to appeal the BIA's rulings and that the Third Circuit is forcing the BIA to make well-reasoned, logical, and correct decisions that explain their rationale. Not such a radical demand for the Third Circuit to make!

Luciana: Asylum Not Frivolous If Fabrication Legally Irrelevant

In Luciana v. Gonzales, No. 05-3544 (3d Cir. Sept. 17, 2007), the Third Circuit made a sensible ruling that the harsh penalty for filing a frivolous asylum application should only apply if the fabricated information would have been legally relevant. It therefore overturned the incorrect rulings by the BIA and Immigration Judge Charles M. Honeyman.

Frivolous is a specific term with extremely harsh penalties, which the Third Circuit noted is almost something like a death penalty in terms of the ability to file future immigration applications. It is therefore only applies in narrow circumstances -- if the person deliberately fabricates the material elements of an asylum claim. But elements cannot be considered material if the details would not have succeeded as an asylum claim even if taken as true.

For example, in this case, the asylum claim was filed more than one year after the person entered the United States. By law, no matter what details it contained, it could not succeed. Therefore, details about what the person suffered were not material -- no matter what, the late-filed asylum claim could not succeed.

Sunday, September 09, 2007

Valdiviezo-Galdamez: Asylum Mistakes By The IJ and BIA for Man Fearing Maras Gang

In Valdiviezo-Galdamez v. Gonzales, No. 06-2080 (3d Cir. Sept. 7, 2007), the Third Circuit overturned the BIA and Judge Tadal for mistakenly rejecting soemone's gang-based asylum claim.

Here, someone in Honduras was threatened by members of the Mara Salvatrucha gang (also known as the Maras or MS-13) for refusing to join their gang. He reported one attack and robbery by the gang members to the police. He hid for three months then returned to a different part of the city but gang members spotted him and continued to threaten him. At one point, they attacked him and said it was now too late to join them and they would now kill him. He reported it to the police but nothing came of his complaint and he fled to the United States.

Asylum only protects people who were persecuted either by the government or by forces that the government is unable or unwilling to control. It should be enough, therefore, to prove that the police was unable or unwilling to control the gang members in the case. Judge Tadal and the BIA, though, made a fatal error by requiring the asylum-seeker to prove the police refused to protect him, rather than allowing him to prove the police was unable or unwilling to protect him. On top of that, the IJ and BIA also insisted that he prove the reason the police would not protect him was based on one of the grounds for persecution -- a requirement that does not have any basis in the law.

But there was more -- the IJ and BIA concluded there was no link between the gang members' threats and the man's refusal to join them. That conclusion had no basis in the evidence in the record.

Because the IJ and BIA made these fatal mistakes, they never addressed an important, controversial question -- whether young Honduran men actively refusing to join gangs that are recruiting them can qualify as a particular social group in asylum law. If so, then threats due to being a member of that group can qualify as persecution under the asylum law. The Third Circuit did not make a ruling on that issue, but hinted that there is some strong reason why it might qualify, including a decision by IJ Susan Castro in the case of D-V- (IJ Castro, Sept. 9, 2004). That's good guidance for other asylum cases.

Another principle is that if you can show that you suffered persecution in the past, then the government can defeat your claim if the government can prove that you could reasonably relocate to another part of the country where there would be no danger. The IJ and BIA mistakenly forced the asylum-seeker to prove that he could not relocate somewhere else. The rule is clear -- if you show past persecution, it is up to the government to prove that you can relocate, not your burden to prove your inability to relocate.

I'll skip over other mistakes the Third Circuit noted and how the Third Circuit questioned how well the IJ and BIA reviewed the evidence, because they did not comment or describe much of the evidence in favor of the asylum-seeker.

It is very disappointing to see some in Congress demanding less federal court review of BIA and immigration judges' decisions. This case shows how critical it is to permit federal courts to review and correct obvious mistakes by immigration courts. It probably makes better sense to expand the ability to appeal immigration court rulings rather than for Congress to try to restrict appeals and federal court review.

Friday, September 07, 2007

Kolkevich: REAL ID Had Hidden Deadline Requiring People Barred From Appealing Only 30 Days To Appeal

What happens when Congress writes a piece of law that by mistake does not say how someone with an aggravated felony can appeal his case? In Kolkevich v. Gonzales, No. 06-2624 (3d Cir. Sept. 6, 2007), the Third Circuit said the immigrant should have read Congress's mind and filed within a 30-day deadline that is counted according to rules that do not appear anywhere in the law. Confused? Read on...

Before the REAL ID Act of 2005, someone with an aggravated felony could not file a petition for review with the Third Circuit and had an unlimited amount of time to file a habeas petition, a type of legal case filed with a federal district court. In May 2005, though, the REAL ID Act confused matters by saying nobody could file a habeas petition anymore and everybody must file a petition for review within 30 days of what they're appealing from. The problem is -- what about the people who had a removal order for an aggravated felony in March 2005?

For those people, pre-May 2005 they had an unlimited time to file a habeas petition. But starting May 2005, they had to file a petition for review by April 2005 (within 30 days of the March 2005 decision). How could Congress wipe out all avenues to appeal for someone (which probably violates the Suspension Clause of the Constitution)? In this case, the immigrant filed a habeas petition in April 2006.

The Third Circuit ruled that one sensible view of the REAL ID Act is to pretend that Congress wrote that for anyone who wants to appeal an order from before May 2005, they would have 30 days from the enactment of REAL ID -- until June 2005 -- to appeal, even though that might be more than 30 days after the order being appealed.

It's one thing to announce a rule ahead of time and force people to follow it. But it's quite another for the Third Circuit to announce a rule in September 2007 and force people to have followed it in June 2005, around two years before the Third Circuit announced it. Another problem is that hiring a lawyer to file a petition for review is an expensive process. The Third Circuit is basically urging people to spend thousands of dollars to rush to file these petitions even when the law says they may not be filed, in case there is an unwritten rule authorizing it.

We'll see whether other circuits of appeal adopt a similar rule or take another approach. Other cases dealing with related issues are Williamson v. Gonzales and Ruiz-Martinez v. Gonzales in the Second Circuit and Monroy v. Gonzales in the Ninth Circuit.

In the meantime, the moral of the story might be: consider paying thousands of dollars to hire someone to file a petition for review, even if the rules say you may not. Because if it's not clear you can appeal anywhere, there might be an unwritten rule forcing you to file right now or forever lose your chance. And welcome to the crazy world of immigration law.

Actually, even though the Third Circuit says nobody in that category can file a petition for review today, does it make sense for people to rush within 30 days of today to file an unauthorized petition for review -- just in case the Third Circuit reconsiders its decision and rules that people should have filed a petition for review within 30 days of the announcement of this decision? Sure, there's no basis today for filing it -- but the lesson of the case is sometimes the Third Circuit urges people to file when there is no visible authority for appealing, just in case years later the Third Circuit announces an unwritten rule that required doing so.

The decision is on the Third Circuit's web site at

Monday, September 03, 2007

Rukiqi (not precedential): Lozada Everyone, Even Every Law Partner

In Rukiqi v. Gonzales, No. 05-3979 (3d Cir. Aug. 31, 2007) (not precedential), a divided Third Circuit panel ruled 2-1 that if you are complaining about the ineffective assistance of prior counsel, you should file bar complaints against everyone who ever worked on your case, even if some of them were law partners with others.

To try to reopen a case because your first lawyer provided ineffective assistance of counsel is to argue that you did not receive due process and never had an opportunity to be heard because the first lawyer prevented the court from hearing the details of your case. The BIA has set out three requirements in Matter of Lozada -- it requires filing a bar complaint against the lawyer or explaining why you haven't. (The Third Circuit hasn't yet tackled a bigger question of whether the requirements in Lozada should be followed today, because the BIA's roughly 20-year old decision in Lozada does not accommodate developments in the past few decades on expanded rights of people in civil proceedings.)

Assuming that you have to meet the Lozada requirements, would you have to file complaints against not only the first lawyer who failed to mail in your asylum application on time, but also his two law partners who helped you with your case afterwards? The Third Circuit says yes, you must file complaints against each of them and anyone who worked on your case but failed to complain about the first lawyer. The dissent believes the complaint against the first lawyer is sufficient to cover the mistakes by all the lawyers at that firm. (The first lawyer was Martin Vulaj and the later ones were Timothy Garille and Linda Flanagan.) By imposing a strict requirement of filing bar complaints against every lawyer who worked on the case, the Third Circuit is imposing a very harsh rule against those wronged in their immigration court cases. It seems filing bar complaints against anyone who ever touched your case might be the cautious way to approach the case -- a harsh requirement that Judge Jordan in dissent called a "Procrustean bed" far from how courts should be interpreting Lozada.

A strange side-issue in the case is that the majority refused to give any weight to how some of Linda Flanagan's letters were on letterhead indicating she was a law partner of the first lawyer. I suppose this means even when something is pretty obvious, flood the courts with affidavits that make clear what is already fairly evident from the documents themselves.

We'll see how the Third Circuit rules on the much bigger issue hiding in the background -- whether it should still be following the BIA's 20-year old decision of Matter of Lozada.