Wednesday, October 29, 2008

Garcia: DHS Must Rescind LPR Status Within 5 Years For Fraud

Garcia v. Mukasey
No. 07-2164
[originally October 28, 2008 in]
Reissued on January 14, 2009 at
Judges McKee, Fuentes, and Weis
Decision by Judge Weis. Dissent by Fuentes.

If the immigration authorities know the facts that seem to demonstrate someone does not qualify for legal permanent residence status (LPR status), then the government must try to revoke LPR status within 5 years of when the person obtains LPR status. DHS is not allowed to start a removal proceeding and skip the step of bringing a timely revocation proceeding. If it's too late to bring a revocation proceeding, then DHS cannot try to deport the person based only on the facts they had known about all along.

Here, the immigration authorities knew for a long time about facts suggesting someone did not qualify for LPR status. The immigration authorities had already rejected a prior application and twice revoked initial approvals, so it was clear they already knew the facts that tended to show the person did not qualify. For some odd reason, though, they did not act within 5 years of the last approval of LPR status and tried to get the job done by starting removal proceedings and ignoring the step of a belated revocation proceeding.

The Third Circuit read the statute that imposes a statute of limitations of five years and stuck to its decision in Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996) that letting DHS ignore the five-year limit in INA 246(a) by commencing removal proceedings to achieve the same result would write out of existence any purpose of the five-year limitation.

Because DHS does not have particular expertise on interpreting a statute of limitation, the Third Circuit gives no deference to the BIA's interpretation. Even though a post-1996 change permits deportation through removal proceedings as opposed to revoking LPR status, that did not attempt to change the five-year limit so in order to respect that phrase in the law, the Third Circuit imposes the five-year limit.

The Third Circuit points out there is a circuit split because its view differs from the Fourth Circuit and Ninth Circuit in various ways. It closed by granting the petition for review and sending the case down for further proceedings. The Third Circuit concluded that the unnamed Immigration Judge and the BIA were wrong on the law.

Saturday, October 25, 2008

Marinescu (not precedential): BIA Wrongly Overturned IJ Factual Findings For No Stated Reason

Marinescu v. Mukasey
Not Precedential
No. 05-2797
June 26, 2008

For the respondent, Anthony R. Holtzman (argued) and David R. Fine of Kirkpatrick & Lockhart Preston Gates Ellis in Harrisburg, PA.  For the government, Mary C. Frye of the US Attorney in Philadelphia, PA.

Judges McKee, Stapleton, and Nygaard -- opinion by Judge Nygaard.  Dissent by Judge Stapleton.

Immigration Judge Walt Durling made numerous factual findings in favor of a Roma man who feared persecution and granted relief.  The government appealed and the BIA overturned IJ Durling's decision and in the course of its decision, it overruled IJ Durling's factual findings but the BIA offered no reason for its action.  Overturning factual findings without offering any explanation violates the law, because the BIA can only overturn factual findings if they are clearly erroneous -- and the BIA must explain how they were so clearly erroneous.

The IJ concluded that the Romanian government's efforts to protect the Roma were essentially a sham.  The BIA offered no explanation for overturning the finding and ruling the opposite -- that the Romanian government's efforts are effective.

The IJ concluded that 95% of Roma in Romania live in overt fear of violence.  The BIA essentially overturned this factual finding by analyzing what it referred to as cases of unjustified violence.

The regulations that cover the BIA prohibit the BIA from engaging in de novo review by substituting its interpretation of the facts for the IJ's interpretation.  Therefore, the Third Circuit overturned the BIA.

In a dissent, Judge Stapleton argues that the BIA's discussion about whether the Romanian government's efforts were effective were irrelevant because the BIA prefaced its commentary with the phrase "furthermore, we note."  Judge Stapleton views the BIA's conclusion that there was not a clear probability of persecution to be a legal conclusion, not a factual issue.

Purveegiin v. Chertoff (not precedential): Can't File Habeas For Improper Deportation Until In Custody

Purveegiin v. Chertoff
May 29, 2008, No. 07-2029
Not precedential

Judges Ambro, Fuentes, and Fisher in per curiam opinion.

In this case, someone filed a habeas petition while in the custody of the US immigration authorities. He asked the court for a stay of removal while the habeas case was pending. Around two months later, before the court ruled on the request, the authorities inadvertently removed him to Mongolia.

Although the court ordered the government to bring him back to the US, they have not yet done so, stuck in negotiations with the man about what will happen when he returns.

The Third Circuit ruled that because the man is not in custody right now (having been inavertently deported and not yet taken back into custody when he eventually will return), the habeas case cannot go ahead because he is no longer in custody.

Sunday, October 19, 2008

Lin (not precedential): BIA Erred By Not Addressing Issue On Frivolousness Warnings

sLin v. Mukasey (not precedential)
No. 07-2231
May 19, 2008
Scirica, Fuentes, Garth

In a per curiam opinion, the Third Circuit ruled that the BIA erred by not analyzing, ruling on, or considering an issue on appeal -- whether an asylum-seeker received warnings against filing a fake asylum claim if the warnings were written only in English and never translated nor given verbally.
On appeal to the BIA, Lin argued that the IJ erred by failing to consider that the written warnings [about a frivolous asylum application] appeared exclusively in English and were never translated. The BIA declined to address the argument, see A.R. 0004 n.3, and did not consider or adopt–either explicitly or implicitly–the IJ’s holding.
It will be interesting to see how the issue is decided.  But the Third Circuit's ruling simply points out that the BIA at times ignores the arguments raised, a basic task that courts must take care to do.  It is good to see that the Third Circuit is requiring the BIA to live up to its responsibilities -- including listening to and ruling on the issues raised in an appeal.