Sunday, December 21, 2008

Evanson: Aggravated Felonies Require The Modified Categorical Approach, Not The BIA's Expansive Approach

Evanson v. Mukasey
No. 07-2509
December 19, 2008

Judges Sloviter, Fuentes, and Aldisert. Opinion by Judge Fuentes.

For Mr. Evanson, Martin A. Kascavage (Schoener & Kascavage, Philadelphia). For the government, Michelle G. Latour, Virginia M. Lum, and Kohsei Ugumori (OIL).

It is a simple principle that when analyzing whether a conviction is a drug trafficking aggravated felony, the courts must follow the modified categorical approach and cannot immediately jump to items outside the record of conviction. The Third Circuit has made this clear for several years in Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004). The categorical approach is explained in Taylor v. United States, 495 U.S. 575 (1990) and extended it to convictions by guilty pleas in Shepard v. United States, 544 U.S. 13, 19-20 (2005).

It seems strange, then, that the BIA and the government made a futile attempt to ask the Third Circuit to ignore the well-settled approach to analyzing aggravated felonies by using the modified categorical approach. The Third Circuit's opinion makes it seem the BIA and OIL took indefensible positions.

One way a conviction can be a drug trafficking aggravated felony is the Hypothetical Federal Felony route -- would it have been a felony under the federal Controlled Substances Act? The modified categorical approach does not allow looking beyond the record of conviction to decide whether it would have been a felony under the CSA. OIL seemed to concede this in the appeal and instead tried a hopeless other argument -- that information in dismissed charges and factual comments in the judgment of sentence can be considered. (OIL did not even try to argue that testimony before the IJ could ever be used.) The Third Circuit held to its well-established case law -- information in a charging document about a criminal charge that did not lead to a conviction cannot be considered in the modified categorical approach. Also, factual assertions in the judgment of sentence cannot be considered because those facts are not necessarily admitted by the defendant.

Under the hypothetical federal felony approach, a conviction that could punish distributing a small amount of marijuana for no remuneration punishes conduct that is not a federal felony. Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001). (Note that the BIA in Matter of Aruna, 24 I&N Dec. 452, 458 n.4 (BIA 2008) acknowledged this approach for cases in the Third Circuit and did not wish to extend this analysis outside of the Third Circuit.) Because this case did not state in the record of conviction how much marijuana was involved or whether there was any remuneration, it cannot be categorized as a hypothetical federal felony.

A second way that a crime can be a drug trafficking aggravated felony is the Illicit Trafficking Element Test -- if the state felony contains a trafficking element. The Third Circuit applies the same limitations on the record of conviction for this test as it did for the hypothetical federal felony approach.

The unnamed IJ had made the correct ruling -- ICE did not prove that it was an aggravated felony so Mr. Evanson could seek cancellation of removal to try to avoid deportation. Good thing federal courts have a chance to review the BIA's decisions -- it rescued the chance to return to the decision two years ago granting relief to Mr. Evanson. It is disturbing that some members of Congress have been trying to end federal court review of BIA decisions.

Saturday, December 13, 2008

Electronic Filing Required Starting December 15, 2008

The Third Circuit requires electronic filing of documents beginning December 15, 2008 for all attorneys.

The Third Circuit calls their computer system for this the Case Management And Electronic Case Files system and they use the abbreviation CM/ECF.

Check the manual and policies very closely -- it is possible that for attorneys filing petitions for review, it is the type of document that commences an action that is appearing for the first time in the federal court system and that you can file the initial document on paper without plugging it into the CM/ECF system (which might not recognize it until you file the petition for review). Check with the manual and policies to see whether this is correct -- and post a comment with your own view of whether that sounds right. Don't rely on this blog posting or any comments for your analysis -- do your own research!

Sunday, December 07, 2008

Khouzam: Due Process Rights Exist For Removal Orders Including Terminating Deferral of Removal Based on Diplomatic Assurances

Khouzam v. Chertoff
Nos. 07-2926 & 08-1094
December 5, 2008
Judges Rendell, Smith, and Fisher (decision by Judge Rendell)

Arguing for Mr. Khouzam were Lee Gelernt and Amrit Singh (ACLU). Participating in the briefs were Judy Rabinovitz (ACLU), Mortan H. Sklar (World Organization for Human Rights USA), Witold J. Walczak (ACLU Pittsburgh). For amici were Demetrios K. Stratis (for American Center for Law and Justice and European Centre for Law and Justice), Baher A. Azmy of Seton Hall Law School's Center for Social Justice (for Scholars of International Human Rights Law), Jane M. Ricci and Eleanor H. Smith (of Zuckerman Spaeder for Organisation Mondiale Contre la Torture and The Redress Trust), and Paul R. Taskier (of Dickstein Shapiro for Human Rights Watch, Amnesty International, Center for Constitutional Rights, International Commission of Jurists, International Federation for Human Rights).

For the government was Thomas H. Dupree, Jr. Assist on the brief was Douglas E. Ginsburg of OIL.

The Third Circuit held that Congress intended to provide an adequate alternative to habeas actions through circuit court review of petitions for review. This means that the circuit courts should provide for the same protections in petitions for review that a district court would have offered in a habeas petition. In these types of cases, then, circuit courts have all the powers that a district court traditionally would have in a habeas case. It was not raised in this case, but logically this would include the type of factual development that is commonly seen in a habeas case but before REAL ID would not usually be seen at a circuit court. Congress is essentially forcing the circuit courts to expand their procedures to include what district courts handle in habeas cases.

The Third Circuit concluded that it could review the DHS termination of deferral of removal under CAT protection because that was a final order of removal. It does not matter that the inital order of removal (combined with an order for deferral of removal) was placed many years before -- when DHS terminated deferral of removal and sought to deport someone who would be tortured if returned to Egypt, it triggered a new final order of removal that the immigrant was allowed to appeal.

In a blow to the government's expansive view of judicial deference to political questions and the rule of non-inquiry (in which courts in extradition cases often avoid evaluating how fair another country's system is), the Third Circuit agreed with Mr. Khouzam that the courts have the power to review the government's termination of deferral of removal and its assertion that it received adequate diplomatic assurances from Egypt. In a way, this ruling gives a hint at a new vision of the plenary power doctrine -- one that gives less deference to the government and increased judicial review.

The political question doctrine does not shield the case from judicial review because the Constitution does not give the Executive branch the authority to determine whether deportation complies with immigration statutes and regulations. The case involves normal principles of regulatory construction as opposed to being stuck in a hazy world that lacks analytical standards. The case involves basic due process principles and the ability to question certain factual assertions being made by the government. Due process requirements do not implicate diplomatic policy concerns. Also, a President's promise that something would be done does not handcuff the courts into avoiding review for fear of embarrassing the President. Otherwise, a President could always avoid judicial review by making numerous promises to other countries and creating embarrassing situations.

The Third Circuit held that DHS is allowed to create regulations that permit particular review of whether diplomatic assurances can be adequate, even when the country has a record of human rights violations.

Turning to due process rights when DHS considers a specific case, the Third Circuit held that there must be some level of due process given. The Third Circuit rejected the government's attempt to portray certain regulations as prohibiting procedures to challenge diplomatic assurances -- there aren't any limits in the law.

The Third Circuit ruled that due process rights exist for immigrants in removal proceedings in the United States, even for those initially stopped at the border. Basic due process rights include receiving notice and a full and fair hearing on the issues. The government is not allowed to keep hidden basic information about the diplomatic assurances it obtained from Egypt and must permit an opportunity for Mr. Khouzam to submit evidence about whether any assurances would be adequate. The government also must give Mr. Khouzam an opportunity to address the issue.

Also, the Third Circuit ruled that for terminating deferral of removal under CAT, there is a right to have the decision reviewed by a neutral decisionmaker who would make an individualized determination.

The Third Circuit also concluded that when someone is denied the opportunity even to present evidence and have an issue heard, there is no need to prove that the denial was prejudicial -- where there is a complete lack of process, there is no need to show how it prejudiced the case. Prejudice to the right to access the court is established upon showing the inability to bring a claim to the court -- it is irrelevant whether the claim if heard would ultimately succeed.

The Third Circuit overturned the BIA and negated the government's attempt to terminate the deferral of removal that Mr. Khouzam had received.

Zheng: BIA Must Consider The Evidence Submitted

Zheng v. Mukasey
No. 07-3122
IJ William Strasser

Decided in conjunction with Chen v. Mukasey, No. 07-3199, which was before IJ Donald Ferlise
Judges Sloviter, Greenberg, and Senior District Court Judge Joseph Irenas

Decision by Judge Greenberg

In both cases, the attorney for the immigrant was Gary J. Yerman of New York City. The attorneys arguing the appeals for the government were Ethan B. Kanter in one case and Eric W. Marstellar in another case.

The Third Circuit overturned the IJ and BIA in both appeals due to procedural errors in each case.

The BIA must address the evidence that someone submits in trying to reopen a case based on new evidence. The BIA is not allowed simply to quote passages from one of its earlier decision without identifying or discussing the pieces of new evidence being raised in the particular motion to reopen -- especially when the case that the BIA is relying upon did not involve the types of documents being raised in the particular appeal.

The BIA is also not allowed to conclude that no evidence exists for a certain principle (whether couples with two US citizen children would be sterilized upon returning to Fujian Province) without actually addressing evidence that the immigrant submitted that might prove that point. The Third Circuit is essentially requiring the BIA to consider the actual evidence in the actual appeal rather than make conclusory rejections that never seem to consider the evidence in the actual appeal.

In a diplomatic gesture, the Third Circuit did not demand that the BIA actually consider the evidence it received. Instead, the Third Circuit gently asked the BIA to make a more complete analysis of the evidence that was submitted. We can appreciate the diplomatic understatement -- but it is too bad that these two immigrants are waiting so long just to get a fair hearing in court before the BIA. If we did not have federal court review of the BIA's rulings, they might have been deported based on the BIA's defective and inadequate ruling.

Mehboob: Crimes Involving Moral Turpitude Include Strict Liability Crimes Scoring High On The Depravity-Meter

Mehboob v. Mukasey
November 26, 2008
Judges Smith, Cowen, and District Judge Anne E. Thompson
Opinion by Judge Cowen

Michael S. Henry of Philadelphia argued for Mr. Mehboob. Jeffrey L. Menkin of OIL argued for the government.

Indecent assault under Pennsylvania law can be deemed a crime involving moral turpitude by the BIA and the Third Circuit denied the appeal.

IJ Sease and the BIA held that Mr. Mehboob committed a crime involving moral turpitude and in 2006, the Third Circuit overturned the decision and sent the case back to the BIA on a remand for a fuller explanation. Mehboob v. Att'y Gen., 175 Fed. Appx. 559 (3d Cir. 2006).

The Third Circuit joins the 1st, 2nd, 5th, and 8th Circuits to give some deference to the BIA's analysis of crimes involving moral turpitude. This is a circuit split with the Ninth Circuit, which reviews the issue de novo and does not give any deference to the BIA.

What is complex about this case is that well after the BIA made its ruling, the Attorney General recently and without any notice issued a ruling in 2008 that unexpectedly throws out a categorical approach that had been well-settled for many years and relied upon by many criminal defendants. This case does not touch that controversial issue -- in fact, it does not even acknowledge the Attorney General's recent decision.

Here, the BIA adopted a new category of crimes involving moral turpitude -- strict liability crimes where the conduct is so manifestly contrary to community mores that they have a presumption of moral culpability -- it is not just a regulatory public welfare offense that was created primarily for policy imperatives as opposed to close ties to universal community values. (How is something both universal and tied to a community -- unless the BIA is thinking of a community of all sentient beings in the universe?)

The Third Circuit does not explain how someone is supposed to analyze whether a strict liability offense was enacted to guard against behavior that is considered inherently antisocial and depraved. It is unclear what the antisocial-meter or depravity-meter should be.

The Third Circuit's ruling leaves much to be desired -- it does not give us a clear way to see whether the government has reached its goal (proving that the conduct in question ranks high on the antisocial-meter and the depravity-meter). It might have been better for the Third Circuit to remand the case to permit DHS and the immigrant present depravity experts and antisocial experts, along with experts who are in touch with qualities that are universal and tied to a community.