Friday, May 16, 2008

Low-activity due to health issues

Hey, due to some health issues the blog will not be updated for a while and then will be minimally updated for a short while later, too.

Focusing my energy for now on recovering. Everyone, watch your health!

Feel free to post comments to this post if you see interesting Third Circuit decisions while I'm out so others who read the blog can catch up, too...

Friday, May 02, 2008

Nijhawan: Court Can Review Non-Conviction Evidence That Is "Tethered" In Some Way In Some Cases

Nijhawan v. Mukasey, No. 06-3948, 523 F.3d 387 (3d Cir. May 2, 2008).

Judge Rendell and visiting Senior Judge of the District of NJ Joseph E. Irenas voted in the two-person majority over the dissent of Judge Stapleton.

Thomas E. Moseley fought the losing effort for Mr. Nijhawan while the government's case was argued by Jamie M. Dowd.

This 46-page opinion is going to be hard to summarize. The most important issue here was what type of evidence the government can use to prove a conviction was for a crime that is considered a fraud "in which the loss to the victims exceeded $10,000" and therefore what Congress would call an aggravated felony. (I won't get into the dire consequences of having a conviction classified as an aggravated felony, but they are pretty drastic.)

The Third Circuit previously ruled that in analyzing whether a crime is a certain type of crime so it qualifies as an aggravated felony, the court would follow the same type of analysis in Taylor v. United States and Shepard v. United States, which outline a categorical approach to analyzing how to classify crimes for sentencing purposes.

The Taylor-Shepard approach only penalizes the immigrant if either everything covered by the criminal statute fits the crime category or if the statute is divisible and elements the jury necessarily found would show the portion of the divisible statute that applied in the case would always fall within the crime category.

Mr. Nijhawan sensibly argued that the Taylor-Shepard approach should be used to see whether his crime should be a crime involving fraud with $10,000 loss to the victim. The Third Circuit, though, said it would not use the standard Taylor-Shepard approach because Congress described the category as crimes "involving" loss over $10,000 as opposed to defining the category as "$10,000 frauds." The Third Circuit says the amount of the loss is a qualifier rather than something that has to be found as an element of the crime. I am not sure how you can so easily tell which adjectives are qualifiers and which adjectives are elements. Is the test simply that the key word is "involving"? Or is it a gut feeling that the amount of injury is something that the gut suggests is not usually an element of a crime. I think the Third Circuit is going by its gut feeling, which is going to be hard to apply in a systematic way in the future.

There is a good argument that the ability to reach outside the standard evidence is impossible after the Third Circuit's decision in Alaka v. Gonzales, 456 F.3d 88 (3d Cir. 2006). In this case, the majority says that Alaka stands for the proposition that if you plead guilty to a certain small dollar amount, the government cannot prove the loss was really more. How can the Third Circuit say that, though? What if the government has overwhelming evidence the loss really was more? The Third Circuit is suggesting that it would not matter. So the Third Circuit to preserve its decision proposes perhaps a test first of whether the plea is so clear that it will refuse to look at any other evidence and only if the plea is unclear will it open the door wide to lots of other evidence.

Moving to the next crucial question of what type of evidence is allowed, the Third Circuit ducked the question. It said you need to "tether" a loss more than $10,000 to the conviction. What is tethering? The Third Circuit said it will not tell us -- that it will only tell us that whatever the definition should be, Mr. Nijhawan loses. When the accusation says more than $10,000 and the defendant stipulated for sentencing it was more than $10,000 and the judge found the loss was over $10,000, there is sufficient tethering.

Being optimistic judges, the Third Circuit imagined there are no "daunting practical difficulties," unlike the Second Circuit judges who are concerned with allowing a great deal of extra evidence. Is it possible that future cases should submit a wide variety of positive evidence and let the immigration judges struggle with the daunting practical difficulties? What would be wrong with rebutting the government's evidence by submitting witness statements and testimony from witnesses, experts, co-conspirators, police detectives, and reporters? Why not submit independent evidence to re-try the entire underlying criminal case?

In fact, if an immigration judge asks the immigrant to submit all evidence before making a ruling on whether a crime involved more than $10,000 in loss, the immigrant will not know at what point the proof is sufficient. A diligent immigrant would not only point out the record of conviction, accusing document, guilty plea, and sentencing record but would go further and introduce extensive testimony and evidence about the underlying crime, just in case the judge starts digging more. The practical difficulties could grow exponentially and perhaps this is what the Third Circuit is inviting and burdening the immigration courts with. If the Third Circuit does not yet see the daunting practical difficulties, it may have to be faced with them to realize the consequences of the rule they are vaguely sketching out.

In dissent, Judge Stapleton argued for the Taylor-Shepard approach, warning that expanding it beyond the record of conviction opens the door to all evidence and going over the entire underlying conviction a second time. Judge Stapleton also reasonably criticizes the majority for requiring the loss to be "tethered" to the conviction but not offering guidance on what is considered to be tethered.

A close correlation to this decision is that immigration courts should use their powers to give full discovery to immigrants about underlying criminal convictions and force the government to produce voluminous paperwork about prior convictions. Anything less would deprive the immigrant a fair opportunity to be heard about the wide world of evidence about a loss tethered to a conviction.

Judge Stapleton warns that the majority may be authorizing an immigration court to base its finding on details that were not charged, proven, or admitted, which makes it impossible for an immigrant to make a knowing decision whether to plead guilty because at the time of entering the guilty plea, the immigrant does not know what the sentencing judge will insert into the sentencing record.

Judge Stapleton warns that the Third Circuit has never before allowed the government to deport someone for conduct that he was never convicted of and never pled guilty to.

An interesting future case will be someone who pleads guilty but in fact was innocent and seeks to insert additional evidence about the loss amount by proving that the victim lost $0 from the fraud because the immigrant actually did not commit the crime. Immigrants should be allowed to address this -- not in the context of challenging his guilt (because that is not allowed), but in the context of reducing the loss amount all the way down to $0. Get ready for some extremely long immigration court hearings. And I mean loooooooong.

Please post your comments here to this extremely rough, initial analysis.

For Nijhawan, Thomas E. Moseley of Newark, NJ, who argued the case. For the government, Jamie M. Dowd argued the case and worked with Michelle G. Latour and Lyle D. Jentzer of OIL.

Update: The Third Circuit denied en banc rehearing on July 17, 2008. The Supreme Court granted cert on January 16, 2009. Hope the Third Circuit gets overturned!

The government's opposition to Supreme Court review is on the web at:

Thursday, May 01, 2008

Atia (not precedential): No Right To Continuance Where Labor Certification Pending, But Commentary On Unconscionable Delays

Atia v. Mukasey, No. 07-2282 (3d Cir. Apr. 30, 2008) (not precedential)
276 Fed. Appx. 226, 2008 WL 1891479

Judges Scirica, Fuentes, and Garth in a per curiam opinion.

The Third Circuit approved of IJ Daniel Meisner's decision not to grant a continuance in the case to wait for a labor certification application to be approved (which could lead to giving legal status under the immigration laws). It seems that an IJ has discretion either to grant a continuance or not to and either way, the Third Circuit would permit it under this type of circumstance.

The Third Circuit, though, did comment that it seems unconscionable for an application to be pending for around 8 years with no decision and stayed the mandate on the case by 90 days to let the Labor Department act on the certification application. Sounds like the Third Circuit is losing its patience with the unconscionably slow immigration agency's process.
we are troubled by
Atia’s allegations that his labor certification application has been pending with the Department of Labor since 2001. If his application has been pending that long, we believe such delay to be unconscionable. Accordingly, we will stay issuance of our mandate for ninety days to allow the Department of Labor to act on Atia’s labor certification application should a petition be pending before it. We expect such a decision to be forthcoming.
Good to see the Third Circuit judges are seeing what it is like to be a frustrated immigrant trying hard to obtain legal status as permitted under the laws, but facing administrative government delays.

For Atia was Raymond P. D'Uva of Newark, NJ.  For the government, John D. Williams of OIL.

Cao-Liu (not precedential): Wrong To Penalize Failing To Get Testimony From Someone Who Saw Nothing

Cao-Liu v. Mukasey, No. 07-1658 (3d Cir. Apr. 24, 2008) (not precedential)
275 Fed. Appx. 176, 2008 WL 1823338

Judges Fuentes, Weis, and Garth in a per curiam opinion

IJ Alberto J. Riefkohl and the BIA erred by faulting the asylum-seeker for not having his brother testify to corroborate what he experienced. The Third Circuit concluded, though, that the brother's testimony was not necessary because the brother did not know anything about the events that prove the asylum-seeker suffered persecution.
Cao testified that when he was arrested in 2004, he was not at home but at a friend’s house, and nothing else in the record suggests that Cao’s brother had any knowledge of the circumstances surrounding Cao’s arrest. Furthermore, when Cao was asked why his brother did not attend, Cao explained that he rarely sees his brother, and that his brother had to work on the day of the hearing. Given this evidence, it was not reasonable for the IJ and the BIA to require the brother’s testimony.
The Third Circuit approved asylum for the asylum-seeker by remanding the case and telling the BIA to remand the case to the IJ to grant the asylum petition.

For Cao-Liu was Henry Zhang of Zhang & Associates in NYC.  For the government, Susan J. Houser and Brooke M. Maurer of OIL.

Camara (not precedential): Cannot Fault Someone Who Cannot Understand English For Not Catching Error In English-Language Application

Camara v. Mukasey, No. 06-4000 (3d Cir. Apr. 24, 2008) (not precedential)
276 Fed. Appx. 178, 2008 WL 1823342
Judges Scirica, Chagares, and Aldisert in a per curiam opinion

IJ Annie S. Garcy and the BIA erred by faulting an asylum-seeker for not fixing a mistake on his application due to language difficulties despite having a great deal of time to review the English-language application with his lawyer. In this case, IJ Garcy and the BIA held that the asylum-seeker's explanation that an error was due to his inability to understand the English-language writing was not convincing because the asylum-seeker was in the United States quite some time before it was written and had a chance to read it over with his lawyer. The Third Circuit held that the reasoning was a mistake:
Because Camara testified that “I don’t understand English in order to be able to read again my application and make any correction,” the length of time he had to prepare and review his application becomes less relevant. Cf. Gui Cun Liu v. Ashcroft, 372 F.3d 529, 534 (3d Cir. 2004) (noting presumption that applicant was aware of signed application’s contents can be rebutted).
Both IJ Garcy and the BIA also faulted the asylum-seeker for having a letter that said he was an official of a political party on the same day he said he joined the party. The asylum-seeker explained that he was active with the party for some time before he was finally officially recognized as a member and given an official position at the same time. The Third Circuit found this a plausable explanation, where it seemed to be pure speculation that this type of situation could not happen:
This conclusion amounts to impermissible speculation, as nothing in the record indicates that Camara could not have become a General Secretary on the day he joined the RPG or that an RPG attestation letter is valid only if signed by a party official. See Jishiashvili v. Attorney General, 402 F.3d 386, 393 (3d Cir. 2005).
For Camara, Carl A. Solano of Schnader Harrison Segal & Lewis of Philadelphia.  For the government, Joan E. Smiley and Andrew Oliveira of OIL.

Wei (not precedential): BIA Error By Not Addressing Well-Founded Fear

Wei v. Mukasey, No. 07-1563 (3d Cir. Apr. 23, 2008) (not precedential)
275 Fed. Appx. 130, 2008 WL 1813151
Judges Smith, Hardiman, and Roth

The BIA and Immigration Judge Donald Vincent Ferlise made a fundamental error in an asylum case -- they did not make a ruling on one of two arguments that the asylum-seeker made. Someone seeking asylum must show a well-founded fear of persecution. Without getting in to a long, detailed explanation of all the legal theories, one approach is to show past persecution, which leads to an inference of future persecution. The asylum-seeker tried that and IJ Ferlise and the BIA analyzed the argument, as they were required to. They concluded there was no past persecution.

One of many other strategies is to try to prove future persecution (even if it seems the person was not persecuted in the past).
Inexplicably, both the IJ and the BIA failed to address Wei’s claim of a well-founded fear of future persecution. Consequently, we must remand the case so this claim can be addressed by the agency in the first instance.
Inexplicably, IJ Ferlise and the BIA failed to analyze everything they were required to and it took an appeal to a circuit court to point out the error. More proof of the need to expand federal court review of immigration court decisions, not to restrict it. If immigration judges and the BIA are making basic errors and not fixing them, maybe the system needs to be fixed. Let's just say this case was not exactly the immigration court system's proudest moment.

For Wei, Lorance Lockhert of NYC.  For the government, William C. Peachey, Ada E. Bosque, and Kathleen J. Kelly of OIL.