Saturday, February 28, 2009

Liu (Not Precedential): No Time Limit To Reopen Asylum Claim Due To Changed Country Conditions

Liu v. Mukasey
No. 07-4798
Not Precedential
2008 WL 4531956
October 10, 2008

Judges Rendell, Jordan, and Van Antwerpen. Per curiam decision. Pro se appellant.

The BIA erred because a motion to reopen to seek asylum that is based on changed country circumstances can be made at any time. This is clear in the law, including the regulation at 8 CFR 1003.2(c)(3)(ii), which says just that. The Third Circuit granted the appeal in part. IJ Charles M. Honeyman issued the original decision, but the Third Circuit criticized only the BIA for a ruling that the IJ had not dealt with.

Diaby (not precedential): Reopening For Changed Country Circumstances Does Not Require Extensive Details

Diaby v. Mukasey
July 8, 2008
2008 WL 2656260
Not Precedential

Judges Scirica, Charagares, and Aldisert. Per Curiam decision. For Mr. Diaby, Lawrence Spivak of New York City. For the government, Nancy E. Friedman and Andrew Oliveira of OIL. The case was first heard by IJ Riefkohl but the Third Circuit criticized only the BIA, not anything the IJ had ruled on.

When an asylum-seeker makes a motion to reopen a case to seek asylum based on changed country conditions, the asylum-seeker only needs to make a prima facie case for reopening. That means he or she must show a reasonable likelihood or a realistic chance of winning asylum. In reviewing a prima facie case, the BIA must accept factual allegations unless they are inherently unbelievable. It was wrong for the BIA to ignore the factual allegations by merely pointing out that it wished to see additional detail about them.

Hussain (not precedential): General Reference To BIA Enough To Preserve Issues

Hussain v. Mukasey
No. 06-2576
2008 WL 83847
January 9, 2008
Not Precedential

Judges Fisher, Hardiman, and Aldisert. Decision by Judge Fisher. John J. Hykel of Philadelphia for Mr. Hussain. For the government, Mary R. Pelletier of the Tax Division and Nancy E. Friedman of OIL.

The Third Circuit held that the BIA erred by concluding that Mr. Hussain did not raise a particular in his appeal of the denial by IJ Miriam K. Mills. In his brief to the BIA, he explained past events and that a well-founded fear of persecution can be based on past persecution. The BIA erred by concluding that Mr. Hussain did not raise the issue of past persecution.

The Third Circuit overturned the BIA and remanded the case for further proceedings.

Patel (Not Precedential): Motion To Reopen Asylum Claim Requires Merely "Reasonable Likelihood" That Relocation Unreasonable

Patel v. Mukasey, No. 06-2884
December 20, 2007
Not Precedential
2007 WL 4526023

Judges Rendell, Greenberg, and Van Antwerpen. Decision by Judge Rendell. For Mr. Patel, Michael G. Radigan of Matawan, NJ. For the government, David E. Dauenheimer and Virginia M. Lum of OIL.

The Third Circuit overturned the BIA in this case. IJ Riefkohl originally heard the case, but the Third Circuit criticized only the BIA's decision on a motion to reopen, not anything that the IJ had ruled on.

The Third Circuit overruled the BIA by stressing that a motion to reopen for someone who seeks asylum is to show a reasonable likelihood that it would be unreasonable for an asylum-seeker to relocate elsewhere in the country. The BIA inappropriately required Mr. Patel to prove that relocation would be impossible or unreasonable. The Third Circuit stressed that to reopen a case, proof of a reasonable likelihood that relocation would be unreasonable is enough for the topic of relocation. Same rationale for a motion to reopen to seek relief under CAT.

Perez-Mirachal (not precedential): IJ Has Discretion To Grant Or Deny Continuance For Post-Conviction Motion Not Yet Filed

Perez-Mirachal v. Muksaey
April 23, 2008
Not Precedential
No. 07-1806
275 Fed. Appx. 141

Judges Sloviter and Jordan with Judge Alarcon from the Ninth Circuit. Opinion by Judge Alarcon. John J. Garzon of Sunnyside, NY for Mr. Perez-Mirachal. Paul Fiorino and Andrew Oliveira of OIL for the government.

The Third Circuit held that an IJ has the discretion to grant or deny a continuance request if the basis is to file a post-conviction motion to attack an underlying criminal conviction if the respondent has not yet filed that post-conviction motion in criminal court.

It is hard to discern any bright-line rules from this case, though, because the Third Circuit emphasized it is a case-by-case analysis.

Costa (not precedential): Prompt Withdrawal Of False Testimony After Asylum Interview Avoids Bar To Good Moral Character

Costa v. Mukasey, 2007 WL 4296754 (3d Cir. Dec. 10, 2007) (not precedential).

Judges Barry, Fuentes, and Garth. Decision by Judge Garth. For Mr. Costa, Thomas E. Moseley, Newark, NJ. For the government, Douglas E. Ginsburg and John D. Williams of OIL.

The Third Circuit held that the BIA and Judge Dogin erred by holding that Mr. Costa lacked good moral character due to giving false testimony even though he later voluntarily withdrew them. That was a mistake because the statutory bar to good moral character for false testimony does not apply if the person voluntarily and before any exposure of the attempted fraud corrects the testimony. See Matter of M, 9 I&N Dec. 118 (BIA 1960). It was a valid withdrawal even though it did not take place until after the asylum hearing, because it was done before the merits hearing in the immigration court case.

The Third Circuit remanded for more findings on good moral character.

Nyakatura (not precedential): Receiving A Bribe For Influence Or Reward An Aggravated Felony Either Way

Nyakatura v. Mukasey, 2007 WL 4287592, No. 06-3204 (3d Cir. Dec. 6, 2007) (not precedential).

Catching up on some intriguing cases from a while back.

Judges Scirica, Ambro, and Jordan. Decision by Judge Jordan. For Mr. Nyakatura, Daniel M. Pell (argued the case) of York, PA. For the government, Annette M. Wietecha (argued the case), Mary Jane Candaux, Susan K. Houser of OIL.

The Third Circuit concluded that a conviction for 18 USC 666(a)(1)(B) is an aggravated felony because it relates to commercial bribery. Although the statute discusses penalizing someone who accepts anything of value intending to be either influenced or rewarded, either option is related to commercial bribery so it is not disjunctive in any significant way.

Tuesday, February 03, 2009

Robinson: 2-1 Ruling That Widows Are Not Immediate Relatives If Married Less Than Two Years

Robinson v. Napolitano
No. 07-2977
February 2, 2009

[A full blog posting to come later]

Judges Sloviter and Fuentes voted against Ms. Robinson while Judge Nygaard dissented and voted for Ms. Robinson. The Third Circuit overturned district judge Stanley R. Chesler.

In a case followed by widows and widowers around the country, along with receiving coverage in the New York Times on the day of the decision, the Third Circuit ruled in a 2-1 split decision to overturn the district court judge's conclusion that widows and widowers whose United States citizen spouses died less than two years after they married cannot continue to be considered immediate relatives, even though there was a pending application for legal permanent residence.

According to news reports and press releases, the lawyer for Ms. Robinson, Jeffrey A. Feinbloom, plans to file a motion for the case to be reheard en banc, which means a rehearing with all 21 judges of the Third Circuit.

In other out-of-court developments, the new DHS Secretary issued a directive that placed a priority on examining ways that the current immigrant laws penalize widows and widowers of United States citizen, a sign that provides hope that DHS might try to find a way to provide protection for widows and widowers.

The dispute turns on whether the immigration statute blocks the way for widows and widowers who were married less than two years. The majority focused on language that suggests widows and widowers may only continue if they were married at least two years. Ms. Robinson's lawyer, however, argues that the only mention of the two-year requirement is limited to people who had not yet filed the application for legal permanent residence before the spouse died.

More analysis of this later -- I'll update this blog posting.

New York Times coverage:

Pro-immigrant descriptions from Surviving Spouses Against Deportation: