Saturday, September 27, 2008

Shah (not precedential): Questioning Lack of Corroboration Must Use Three-Step Inquiry And Address The Evidence

Shah v. Mukasey
No. 07-3089
Not Precedential
September 19, 2008
2008 WL 4277147

Judges Sloviter, Stapleton, Cowen
Per Curiam

IJ Rosalind Malloy and the BIA erred in several ways when they concluded that an asylum-seeker not credible. The Third Circuit went over the standard of review for adverse credibility determinations: check for substantial evidence, which means the conclusion is not based on speculation or conjecture. Berishaj v. Ashcroft, 378 F.3d 314 (3d Cir. 2004); Gao v. Ashcroft, 299 F.3d 266 (3d Cir. 2002). Also, minor inconsistencies and minor admissions that reveal nothing about the asylum-seeker's fear are not adequate for finding adverse credibility. The Third Circuit will overturn the determination if any reasonable adjudicator would be compelled to disagree with the IJ and BIA's view. Gao v. Ashcroft, 299 F.3d at 272.

The Third Circuit criticized the decision by the BIA and IJ Malloy on several grounds:
  • Blaming the asylum-seeker for not providing any article he wrote about a particular organization was erroneous where the IJ did not evaluate the explanation that his documents and articles were burned in an attack.
  • Blaming the asylum-seeker for not providing any of those articles was erroneous because the IJ did not address two letters that corroborated the asylum-seeker's opposition to the particular organization.
  • The IJ put a heavy emphasis on how the testimony contradicted a particular report, but failed to adjust the analysis to recognize that the IJ concluded the particular report should not be given much weight because it was not authenticated.
  • Complaining that medical records of feeling depressed did not specifically state that the root of the anxiety was due to threats from a particular group was erroneous. The IJ should not assume that every doctor treating an asylum-seeker will explicitly link psychological effects to the specific group that made the threats, especially if the medical records are not even clear what the cause of the anxiety is.
In an intriguing footnote, the Third Circuit did not rule on the asylum-seeker's complaint that the extremely cold courtroom affected the testimony. Bring those sweaters and parkas when you come to Philadelphia Immigration Court in the winter! Add that one to the asylum manual. Brrrrr.

For the immigrant was William H. Vandenberg of Hogan & Vandenberg in Bala Cynwyd, PA.  For the government was Virginia M. Lum of OIL in the Justice Department.

Friday, September 12, 2008

Yulianti (not precedential): BIA Cannot Overturn Fact Findings With One-Member Decision

Yulianti v. Mukasey
No. 07-4807
Sept. 12, 2008
Not Precedential

Judge Sloviter, Stapleton, and Cowen

Per Curiam

If the BIA has a disagreement with how the IJ interpreted the facts, the BIA can only overturn the decision by a three-member panel. The BIA must follow its regulations on this point. If it does not (and it did not in this and some other cases), the Third Circuit will overturn the decision to force the BIA to follow its regulations.

Here, IJ Charles Honeyman granted asylum after finding that the immigrant had a well-founded fear of future persecution. The BIA at times has only a single member (not a three-member panel) issue decisions. In this case, a single member overturned the IJ -- but wait, the regulations do not allow a one-member decision to overturn an IJ by disagreeing with the IJ's assessment of country conditions or factual issues.

The BIA broke the rules by doing so in this case. The Third Circuit noted that it already addressed this type of mistake before and overturned the BIA. Good thing Congress has not gotten rid of federal court review of BIA decisions!

For the immigrant was Joseph C. Hohenstein of ORlow, Kaplan & Hohenstein in Philadelphia.  For the government was Nancy E. Friedman of OIL in the Justice Department.

Update: on November 5, 2008, the three-judge panel granted the request by each side for rehearing by the panel. In an unpublished decision on November 17, 2008, the Third Circuit denied the petition for review, noting in a footnote that the BIA actually used a three-member panel to issue its decision, not a single-member panel. The confusion was: (1) it was a three-member ruling that was simply re-issued in a one-member decision and (2) the parties litigating the case did not explain this to the Third Circuit initially.

Thursday, September 11, 2008

Lin: Can Challenge Any Issue The BIA Considered On Its Own Accord

Lin v. Mukasey
No. 06-2883
Sept. 11, 2008
Judges Fuentes, Chagares, Van Antwerpen
Decision by Judge Chagares

The Third Circuit softened the exhaustion doctrine in this case, in line with a number of other circuit courts. The exhaustion doctrine is the doctrine of requiring the exhaustion of administrative remedies. Circuit courts at times do not want to listen to the appeal of an issue where the immigrant did not raise it to the BIA because the immigrant did not take every step possible to ask the BIA to address the issue.

Congress prohibits circuit courts from reviewing removal orders unless the immigrant has exhausted all administrative remedies that were available as of right. The Third Circuit does not apply this rule in a draconian way. If the issue is straightforward, a mere mention in the Notice of Appeal is enough. For example, questioning the IJ's credibility determination is enough to inform the BIA of mistakes hovering around the IJ's findings, such as the reliance on a statement at an airport interview. Also, claiming ineffective assistance of counsel is enough even if you did not specifically claim there was prejudice. See Yan Lan Wu v. Ashcroft, 393 F.3d 418 (3d Cir. 2005); Bhiski v. Ashcroft, 373 F.3d 363 (3d Cir. 2004).

If the BIA addresses an issue, you can appeal it to the Third Circuit (even if you did not raise it to the BIA). There is a circuit split but the vast majority agree you can appeal it if the BIA considered the issue. Agreeing includes the 1st, 2d, 6th, 7th, 8th, 9th, and 10th Circuits (and in a way the D.C. Circuit also). Only the 11th Circuit seems to hold otherwise.

In a way, this is deference to the BIA -- if the BIA somehow discerned that a particular issue needed analysis, then the circuit court should also agree that the issue was fairly presented to the BIA for analysis and therefore the administrative remedy was adequately exhausted. This also meets the policy behind the exhaustion doctrine -- the BIA was given a chance to address the issue because the BIA in fact did address it.

Ok, that was the fascinating part of the case -- whether the circuit court had jurisdiction over the issue the BIA addressed on its own accord. The rest of the decision, quickly denying the immigrant's appeal on the issue the BIA addressed, is not that noteworthy. The Third Circuit upheld the Third Circuit and IJ Mirlande Tadal on finding the immigrant to be not credible.

Thomas V. Massucci of New York, NY represented the immigrant.
Edward J. Duffy conducted oral argument and worked with Alison M. Igoe and Peter D. Keisler for OIL of the Justice Department.

Rranci: Lozada Possible Without Bar Complaint and Protection For Immigrant Informants

Rranci v. Mukasey
No. 06-3327
August 22, 2008
540 F.3d 165
Judges Sloviter and Ambro with Chief Judge of the US Court of International Trade Restani
Opinion by Judge Ambro

Can a case be reopened for the ineffective assistance of counsel by the first attorney even though you did not file a complaint with the disciplinary authorities? The Third Circuit ruled that it is possible, even if you neither filed the bar complaint nor had a decent explanation for not filing it. You can prove that the policies behind generally requiring a bar complaint are satisfied. Those policies include:
  1. Identifying, policing, and correcting immigration lawyer misconduct,
  2. Deterring meritless accusations
  3. Highlighting the expected standards for immigration lawyers
  4. Reducing the need for an evidentiary hearing
  5. Avoiding collusion between the first lawyer and the immigrant
In this case, those policies were satisfied. The accusation was that the first attorney did not raise protections for informants and improperly threatened the immigrant to make him agree to voluntary departure. The policies were satisfied in this case -- the new attorney identified how the first attorney did not raise the state-created danger doctrine or other ideas for protecting informants, the accusations were not meritless, this case highlights the need for immigration lawyers to keep up in new developments such as international law treaties, the new attorney called the first attorney and developed the factual record, and there was no collusion in the claim.

The Third Circuit also reached a groundbreaking and innovative argument -- whether United States law protects immigrants who are informants against international criminal organizations. The Third Circuit concluded that those protections exist, just as President Bush and the Senate promised when the United States ratified the United Nations Convention Against Transnational Organized Crime. When they ratified the convention, they said there did not need to be implementing legislation because the protections already existed. The Third Circuit remanded the case for the BIA to determine how US law provides the protections. This seems to be the first case where any court has addressed this argument and most immigration attorneys have not been aware of the Convention.

The Third Circuit's decision breaks new ground by emphasizing the need for immigration lawyer to follow developments in international law. In this case, the legal protections do not derive from the international treaty -- instead, the United States has emphasized that the protections already exist in US law. Therefore, the treaty obligations already come from US law and the courts must allow immigrants to seek all of the protections that exist in US law. There are developments among immigration lawyers to research international law issues and use them in immigration court, such as a working group that presented the issue at the National Migration Conference in the summer of 2008.

It is disappointing that the Third Circuit has stuck to its position (which the Ninth Circuit diverges from) that the state-created danger doctrine does not operate to stop a deportation even if the United States government acts in such a shocking manner that it violates an immigrant's due process rights.

From a public policy standpoint, it does not make sense that ICE and the Justice Department is fighting so hard to deport people who help make America safer by risking their lives and helping the police fight organized crime.

Rex Chen at Catholic Charities of the Archdiocese of Newark represented Mr. Rranci.

Meetali Jain and Maura Caroselli did extensive research and writing of the amicus brief, Baher Azmy conducted oral argument, and Bassina Farbenblum and Lori Nessel at Seton Hall Law School's Center for Social Justice represented amici.

Andrew MacLachlan conducted oral argument and worked with Richard M. Evans and Susan K. Houser (with Gregory G. Katsas and David V. Bernal) for OIL in the Justice Department.