Santana Gonzalez: Weak Presumption For Court's Regular Mail For Motions To Reopen

In Santana Gonzales v. Keisler (3d Cir. Oct. 22, 2007), the Third Circuit joined a large number of circuit courts in ruling that the government does not deserve a strong presumption that an item it mailed by regular mail actually reached the immigrant.

This issue comes up frequently where the government starts a court case against an immigrant, the court mails it by regular mail, and the immigrant argues that he never received it. If the immigrant never received the notice, then the immigrant should be able to reopen the case. In the old days, the court would mail the initial notice by certified mail and it was clear that a mailings by certified mail deserve a strong presumption of actual receipt.

But in 1997, the court (with Congress's approval) changed to sending the initial notice by regular first-class mail. The Third Circuit agrees with the Second Circuit, Fourth Circuit, Fifth Circuit, Seventh Circuit, Eighth Circuit, and Ninth Circuit that sending something by regular mail does not deserve the same strong presumption of receipt as when you mail something by certified mail.

Therefore, if there is an affidavit that the person never received the item mailed despite arrangements to receive incoming mail and there are circumstantial details suggesting the person had no reason to avoid a known court date, the immigration judge must at the very least hold an evidentiary hearing on the issue of whether he got the notice.

In this case, a Cuban woman moved away from her uncle but arranged for the uncle to keep forwarding her mail.

The Third Circuit noted many helpful details that suggested she never received the initial mailing: she made arrangements to have mail forwarded but never got the notice, as a Cuban she would be eligible for a green card after one year and therefore had no motive to avoid appearing in court, she actually contacted a Catholic Charities in Florida to try to let the government know of her changed address, and she hired a lawyer some time later to try to figure out what was happening with her immigration status.

Immigration Judge Daniel Meisner and the BIA erred by ruling that those details were overcome by a strong presumption of receipt of the item sent by regular mail. Instead, the immigration judge must hold an evidentiary hearing to dig deeper into the issue.

Grewal (not precedential): If Departed While Motion To Reopen Pending, Argue A Regulation Is Illegal

In Grewal v. Keisler, No. 05-3152 (3d Cir. Oct. 18, 2007), the Third Circuit applied a very harsh regulation against someone who was wrongly ordered deported, filed a motion to reopen, and then left the country before the BIA officially granted the motion to reopen.

There is a regulation at 8 CFR 1003.2(d) that says if someone leaves while there is a motion to reopen pending, the motion must automatically be viewed as withdrawn. Just because a regulation says that, though, does not mean that the regulation is a valid one. It is possible to argue that the regulations is invalid because it has no basis in the laws that Congress passed. The Fourth Circuit held that this regulation is invalid in William v. Gonzales, No. 06-1284 (4th Cir. Sept. 6, 2007). The Third Circuit in this case did not address that issue, though, on the view that nobody explicitly raised that question with it.

So we have a strange situation where the Third Circuit will apply a regulation without studying whether that regulation is valid, all because nobody has raised that issue to them or the court below. This almost feels like when someone plays a bogus word in Scrabble and hopes that the opponent will not challenge it, thereby taking advantage of the situation and scoring points for something that was invalid. It may seem a bit unfair for the government to take advantage of immigrants (who are not given the right to appointed counsel!) in this way.

The fair solution would be for the government to say that it would be unseemly to take advantage of immigrants by invoking a questionable regulation and agree to raise the issue with the BIA so this can be fairly resolved. Here's guessing, though, that the immigration authorities will chalk this one up as a victory and refuse to allow the issue to be fairly resolved.

Debeato: Appeals of Reinstated Orders Possible; Collateral Attack Very Difficult Though

In Debeato v. Attorney General, No. 05-3235 (3d Cir. Oct. 9, 2007), the Third Circuit tackled two issues: can people appeal a reinstated removal order and can someone attack the reinstatement of a removal order by pointing out that the immigration judge made a clear error of law in deciding to order the person deported.

First, yes, people can appeal a reinstated removal order. In this case, ICE sought to reinstate a removal order because the person was deported as ordered by an immigration judge but re-entered without permission and ICE caught her in the United States. With the controversial REAL ID Act, Congress seemed to allow all deportation cases to be appealed if there were Constitutional issues and legal issues involved. That's what the Third Circuit already noted in Papageorgiou v. Gonzales, 413 F.3d 356 (3d Cir. 2005). This case simply gave the Third Circuit to say the same thing in a reinstatement case -- the Third Circuit saw no reason to change the rule just because it is a reinstatement case. It agreed with the Fifth Circuit in Ramirez-Molina v. Ziglar, 436 F.3d 508 (5th Cir. 2006). It did not follow the Sixth Circuit but pointed out the Sixth Circuit's decision did not seem to address the big changes in the REAL ID Act. Tilley v. Chertoff, 144 F. App'x 536 (6th Cir. 2005).

Second, no -- a collateral attack on a deportation order cannot succeed merely by showing that the immigration judge's legal analysis in the original case was based on errors in the legal analysis. The Third Circuit held that there must be a "gross miscarriage of justice" and entering an order that had major flaws in its legal reasoning is not a gross miscarriage of justice(!) The Third Circuit instead imposed a very difficult standard to meet -- you must prove not only that the original judge's reasoning was flawed but that at the time it was made, it was clear that it was flawed. This means that if the immigration judge used reasoning that you believed was wrong, but the law was not yet clear, you cannot raise a collateral attack if after more litigation it becomes obvious that the immigration judge should have thrown out the deportation case rather than order you deported.

Moving away from the pure legal issues in the case -- as a practical matter, is it really fair to require every immigrant to pursue appeals all the way to the bitter end rather than pack up his bags with the hope that if courts unanimously condemn the immigration judge's reasoning in other cases, be able to attack the flawed decision later? The costs of appealing an immigration judge's order can be daunting -- appeal first to the BIA (which is part of the Justice Department), then to a circuit court, then upwards to the United States Supreme Court.

It would make sense for the Third Circuit to open up a streamlined appeal method -- for those who are raising issues similar to a pending appeal and just want to ride the coattails of that case's legal arguments. This way, people who are now forced to keep litigating a case can find a streamlined way to preserve their appeals and the Third Circuit also can save time in deciding the appeals by knowing they will reach the same decision as in the lead case. Combining the high standard for collateral attack with the high costs of pursuing appeals suggests a flaw in the Third Circuit's approach to what constitutes a gross miscarriage of justice, at least for those who are not millionaires.

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.