Friday, October 05, 2007

Biskupski: IRRIRA Expansion Covers All Cases With Post-IRRIRA BIA Decisions

Biskupski v. Gonzales, No. 06-1887 (3d Cir. Sept, 25, 2007).

This case focused on whether the harsh expansion of the aggravated felony definition applies to the case. Congress wrote that the expansion would apply to "actions taken" on or after September 30, 1996. What does "actions taken" mean?

In this case, the timeline was: INS started a case by serving an Order to Show Cause, IRRIRA and Congress's amendment took effect, Mr. Biskupski applied for suspension of deportation, then the IJ and BIA denied the application. The issue is whether commencing the case before September 1996 meant the expansion does not apply to this case. The Fifth Circuit has said it should apply to a situation with these facts and the Sixth Circuit has said it should not.

The Third Circuit held that the expansion does apply to this case because "actions taken" include every action that the IJ and BIA takes leading up to a final order of deportation. Even though INS started the case pre-1996, because the IJ and BIA entered its final orders post-1996, the expansion applies in this case. The Third Circuit agreed with Garrido-Morato v. Gonzales, 485 F.3d 319 (5th Cir. 2007). It disagreed with Tran v. Gonzales, 447 F.3d 937 (6th Cir. 2006), which concluded that the "actions taken" only covered the initiation of the proceedings. Under the Sixth Circuit's approach, Mr. Biskupski's case would not have been covered by IRRIRA's 1996 expansion of the aggravated felony definition. Let's see if the Supreme Court can resolve this circuit split.

Another part of the decision discusses how the Third Circuit sees no problem with interpreting "aggravated felonies" to include convictions that were obviously not felonies at all. There is a strong argument that aggravated felonies may only include felonies, using a plain language approach that the Supreme Court has endorsed in this area. For now, the Third Circuit construes the phrase aggravated felony as a one-of-a-kind legalistic term that can take on any meaning whatsoever, even to include crimes that are clearly not felonies. It may require some time to see whether other circuit courts agree and if not, whether the Supreme Court can again resolve the need to apply plain language analysis to immigration terms.

2 Comments:

Blogger Voice of Detainees said...

To Whom It May Concern.
This letter is on behalf of all the inmates at the Elizabeth Detention Center in Elizabeth, New Jersey. This "prison" or "detention center" is run by the Corrections Corporation of America (CCA). We have written this letter because of the mistreatment treatment from CCA Officers and the problems that this center has. First of all, the CCA officers here have chosen a career working with the public. They have an option to work here or not, and we are sure that there is no job requirement that states that they must treat people like animals as they do. Many of the officer are obnoxious and rude. They constantly curse at inmates and put them down. We already have very low self-esteem because of being in custody for immigration issues, why make us feel even worse? These officers are misusing their power. Since we are in custody and not working, our families are having difficulty putting money in our accounts for phone cards, writing material and most importantly snacks. The officers who are working and receiving a paycheck come to us and ask us for chocolate bars, coffee and other snacks. Some officers also bring their personal life to work and take their frustrations out on us. They constantly give us and our family who come to visit us attitudes. They sometimes abuse their power and don't allow us to practice our religion. Numerous times, inmates had to stop praying because an officer ordered them too. In the middle of the night, the officers congregate in dorms, talk loud and constantly slam doors making it very uncomfortable to sleep. They have no decency.
Another issue here is commissary. Everything is overpriced to the fullest extent. For example, a radio which costs $2-$3 costs us $26 to purchase from commissary. We are not working and our families are suffering and being torn apart because the CCA is trying to make even more money off of us! As for the snacks, most of them are expired or soon to be expired. Not only are we being charged more for items, but they are also expired items! Sixty to seventy percent of the soda, chips and other snacks are already expired before we get them. In many instances, bird droppings have been found on soup boxes and bags of chips. They ban us from having many things, even pencils. Those who are in criminal jails are allowed to have more things than us and WE are not criminals! According to ICE policy for detainees, it states that the facility is required to give us writing material at no cost. It seems that the CCA does not want to follow that rule. They charge us for pens, paper and envelopes. Pens cost $0.30 each, a stamped envelope costs $0.51 and a notepad costs $0.90. What happened to writing material at no cost?
The phones here are a serious issue too. They calls are too expensive and the lines have very poor quality. There are only 2 phones for every 44 people. A lot of us need to call lawyers to discuss our cases and we cannot do so because it is to expensive to make phone calls. Local calls are so expensive, imagine how much they are charging us for international calls! We are paying at least $20 a week just to be able to speak to our relatives or lawyers for only 10 minutes.
As for the food here, the issues vary from day to day. The food is usually overcooked. The trays that we are served in are not clean. The portions are too small. If you are still hungry, they DO NOT ALLOW you to take an extra tray. They would rather throw out all the food than allow us to have a little more to fill us up. If we are in visitation or religious services during meal time, they do not save any hot lunch for us, they just throw it out. We are lucky if we are allowed to get a cold lunch when we come back from visitation.The food has no flavor and they do not give us salt and pepper. It seems that they want us to starve.
According to immigration laws, they can hold people for 90 - 180 days, but for some reason some people have been here for years. Some people in this facility have been here over a year. This facility was not made to accommodate people for over a year. There are no exercise rooms or recreational activities administered here. An hour in a room with 3 holes in the ceiling should not count as outdoor rec. The room is dirty and dusty. Why are we not allowed to have fresh air? Why are we not allowed to see the sun? The air-conditioning system always leaks water on our beds. We have complained many times but they never do anything about it. Some dorms have mold growing which is not healthy for us to breath in. Again, complaints have been made but no one does anything about it. There have also been instances where insects were found. We are the ones who are required to clean our dorms. They make us clean the bathroom, shower area, toilets, mop and dust. Whenever inspectors, investors, or government officials come to see the facility, they make us clean more so that the rooms can be spotless. They also treat us better in front of these people. Little do they know, it is all a show so that their facility can pass inspection or so that they gain another investor! There have also been times where they have shut down water in dorms for long hours. During this time, we have no water to drink, or to wash up. Some days there is no soap for us to wash our hands or shower with. The bathroom or dorm has no ventilation. The bathroom is also open into the dorm. Imagine how the room smells when people go to the bathroom! Disgusting! We don't know how they clean our clothing either. There have been many times when they return our laundry with more stains on it, stains that weren't there when we gave them our dirty laundry. The razors that they give us seem to be old and reused. They tell us that they are new but there are times where we have found hair in them before we even use them, this is hazardous to our health. The dorms are always cold. Now that the weather is cooler, they have not turned down the AC. The officers walk around with jackets but as for us, we are not given that. We are always cold, especially at night. They do not allow us to have extra blankets to keep warm.
A major issue here is medical care. The response time is very poor. It take 4 - 5 days to be admitted for medical care. The medical facility is less than 100 feet away from the dorms, why does it take so long to get help? The nurses have attitudes and make judgments on our health without even checking us. It also seems that the nurses or medical staff are not trained. They hand out the wrong medicine. Technically this is considered malpractice which is a serious offense, but i guess that rule does not apply to us. No matter what problem you are having, they always give you aspirin. It seems that is the easiest way to get rid of us. There is also no way to get dental care here at this facility. If you have a toothache, they resort to giving us pain killers or the option of pulling out the tooth! There was a case where a woman had so much pain from a toothache that she was constantly crying out loud and requesting help. Instead of getting a dentist to help her, the CCA officers put her in the Special Housing Unit (SHU) which is supposed to be used for people with mental health problems or it is used as punishment for those with poor behavior. Was she supposed to be punished for having a toothache?
We are not criminals and we do not pose any harm to anyone. When we are taken out of the facility to go to our countrys' embassy, they handcuff our hands and feet when leaving the vehicle. This is very embarrassing for us when people look at us while we are walking from the vehicle to the building. We are escorted through airports also wearing hand and foot cuffs, portraying us as terrorists in front of people at the airport. People get scared when they see us and this also makes us psychologically weak and is very emotional for us. As for being deported, there have been times where inmates have missed their flights because of CCA officers. Detainees are kept in caged vehicles with no food or access to restrooms for 8 or 9 hours until another flight is available.
Here at the facility, there is one television per dorm which houses 44 people. We are not allowed to control the TV. The CCA officers are the only ones that can change the channel. They always keep it on spanish TV which is unfair to many of us who speak english and are not of spanish descent. They restrict us to having only 3 books or magazines. This is ridiculous. They barely give us recreational time, what do they expect us to do during count time for 30 - 45 minutes when we must stay by our beds. How many times can we possibly read the same 3 books or magazines?
Sometimes they allow us to work in the facility. They pay us $1.00 a day if we work. We can work for hours but they still only pay $1.00 a day. Are we not even allowed to get minimum wage? We can't even buy a plastic cup or a safety soon with $1.00.
What about our families who come to visit us. The visitation area only has 12 booths for the male detainees and 6 booths for female. There are 300 detainees here, many of which are male, are 12 booths enough for them for visitation? Sometimes there are so many people waiting outside on line to come to see us and they cannot because there is no room in visitation. On those days, we are not given a chance to see our loved ones. In criminal jails, they allow conjugal visits, but as for us, we pose no harm to the public, instead of granting us conjugal visits, they make us talk to our relatives through glass windows and telephones.
The biggest issue here is Immigration Customs Enforcement (ICE). People wait for months before they are told the real reasons why they are detained here. Sometimes, deportation officers don't show up for months to answer some of the detainee's questions. When we do ask questions, we are given vague answers like "YOUR CASE IS PENDING" or "BE PATIENT". ICE officers run away when we have questions pertaining to why were housed there, when or if we will be able to go home, or why we aren't being given custody reviews after our 90 day period has passed. As for information to help us, there are documents posted on walls with phone numbers and addresses to our embassies. Many of this information has not been updated, most of the address and phone numbers are incorrect, making it impossible to get in touch with our native countries embassy.
We are suffering here and no one wants to listen to us. No one wants to hear what we have to say. We cannot complain to ICE or the CCA because if we do, they treat us even worse. The United States should be ashamed at the way they are treating us humans. THANK YOU FOR READING TO WHAT WE HAVE TO SAY.

10:25 AM  
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