Forteau (not precedential): BIA Cannot Engage In Independent Fact-Finding

In Forteau v. Gonzales, No. 07-2326 (3d Cir. July 20, 2007) (not precedential), the Third Circuit by summary action overturned the BIA for making a critical mistake -- it ignored the factual findings of the immigration judge and substituted its own fact-finding conclusions.

The big problem with the BIA doing this is that the BIA's regulations for appeals after September 2002 clearly say that the BIA cannot ignore the immigration judge's factual conclusions unless it first reviews the IJ's findings and concludes they were clearly erroneous. The only exception may be for taking notice of commonly known facts, such as current events or what are in official documents.

In this case, the IJ carefully reviewed what level of improper sexual contact happened and came to a conclusion. The BIA incorrectly ignored the IJ's findings and just made its own factual conclusions of how severe the conduct was. The Third Circuit took little time to rule that the BIA made a fatal error.

Bush Nominates Shalom Stone For the Third Circuit

President Bush nominated Shalom Stone from Walder Hayden & Brogan in Roseland, NJ for the Third Circuit. Several newspapers printed articles, though, about complaints from New Jersey Senators Frank Lautenberg and Robert Menendez that the White House did not consult with them, as is traditionally done, before making the nomination. For the seat vacated by Samuel Alito, Bush originally nominated Noel Hillman but withdrew it earlier this year.

Singh (not precedential): BIA Likely Would Remand If Employment-Based I-485 Pending

When you appeal the decision of an immigration judge, you file the appeal with the BIA (the Board of Immigration Appeals). If you can obtain legal permanent residence through a valid application, you may ask the BIA to remand the case back to the immigration judge to give you a chance to get legal permanent residence instead of pursuing the appeal.

In Singh v. Gonzales, No. 06-2558 (3d Cir. July 18, 2007) (not precedential), the Third Circuit explained that there is a good chance that the BIA would reopen and remand a case if there is an employment-based application pending for legal permanent residence pending, even if the waiting time for a visa to be available has not yet finished. Taking a step back, if you have a visa petition pending based on employment, you can file for a green card but USCIS will not actually grant it to you until a certain waiting time is finished, because Congress made only a small number of slots available compared to all the people who want them.

For family-based requests for green cards, the BIA has said it will not reopen a case for a pending green card application if the waiting time has not yet finished. By mistake, the BIA in this case applied the same rule for Mr. Singh's employment-based application. For some reason, the BIA had regularly applied a different rule -- if there is a waiting employment-based request for a green card, the BIA regularly reopened cases even though the waiting time for the green card had not yet run. The Third Circuit required the BIA to follow that rule in this case, too, and to reopen the case because if Mr. Singh had competent counsel in 2003, he could have had his case remanded. The key case for employment-based adjustments is Matter of Garcia, 16 I&N Dec. 653 (BIA 1978).

Third Circuit Admonishes OIL (Department of Justice) Attorneys for Typos and Referring to the Wrong Appeal

The Third Circuit included a long footnote at the end of a not-precedential decision that pointed out there were a myriad of typographical errors by the OIL (Office of Immigration Litigation in the Department of Justice) lawyers. For example, calling the man's oldest son his "oldest song." Or instead of saying he submitted something, saying he "submittede" something. Misspelling that as "thagt" (I guess they don't even use spellcheck.)

But the Third Circuit particularly expressed concern about how the government lawyers incorrectly referred to the person filing the appeal by the wrong name (Chung instead of Rahman). Are they cutting and pasting language from another brief and not reviewing and editing their work before filing it? The Third Circuit probably hates when lawyers do that.

In any case, the Third Circuit closed with a comment that "We trust that in the future this admonition will be heeded." The case, by the way, is Rahman v. Gonzales, No. 05-3487 (3d Cir. July 16, 2007) (not precedential) (affirming the decisions by the BIA and IJ Annie S. Garcy).

Henry: NY Gun Possession With Intent To Use Again Another Is A Crime of Violence

In Henry v. Gonzales, No. 05-3064 (3d Cir. July 11, 2007), the Third Circuit grappled with whether a particular New York crime should be considered a crime of violence. The immigration judge said no, but the BIA on appeal said yes. The Third Circuit agreed with the BIA, which doomed Mr. Henry's attempt to avoid deportation.

The term "crime of violence" is critical in this case because the bloated category of what is today considered an aggravated felony includes any crime of violence where the sentence includes a year or more of imprisonment. What, the case asked, is a crime of violence?

Under section 16(b), a crime of violence requires more than just accidental or negligent conduct against someone else. In 2004, the US Supreme Court emphasized it can't be merely a reckless state of mind, either. There must be a substantial risk that the person will intentionally use force during the crime.

Looking at the entire category of crimes covered by the New York criminal statute, the Third Circuit concluded that possessing a loaded firearm with intent to use it unlawfully against someone else does involve a substantial risk of intentionally using physical force during a crime -- therefore, it is a crime of violence. The Third Circuit concluded that intent to use a dangerous weapon means there is a substantial risk of using physical force during the crime.

The Third Circuit said the intent to use the firearm meant the risk existed even though the following crime had not yet started to happen. This is like how in burglary, a classic crime of violence, unlawfully being in a place with intent to commit a crime means there is a substantial risk the burglar will use force if confronted. It doesn't matter whether the burglar actually is ultimately confronted. So this is different from a crime defined merely as just possessing a pipe bomb because there is no risk in merely possessing a pipe bomb. United States v. Hull, 456 F.3d 133 (3d Cir. 2006). The key difference is that the NY criminal statute (NYPL 265.03) requires proof the person had the intention to use the firearm against someone else.