Tuesday, June 23, 2009

Obama Nominates Joseph A. Greenaway, Jr. For The Third Circuit

On June 19, 2009, President Obama nominated Joseph A. Greenaway, Jr., a federal district court judge in Newark, NJ for a seat on the Third Circuit Court of Appeals.

How about a cursory, incomplete, rough scan over some immigration-related cases he decided or was involved in?
  • Abdelfattah v. US DHS, 488 F.3d 178 (3d Cir. 2007), in part overturning Judge Greenaway's district court ruling: FOIA litigation where ICE, FBI, and other agencies claimed an exemption because records were compiled for law enforcement purposes. Third Circuit partly upheld Judge Greenaway but partly overturned him because there was insufficient evidence to conclude that the FBI conducted a proper search for documents. In fact, the FBI never submitted any affidavit to describe its search.
  • Sasonov v. US, 575 F. Supp. 2d 626 (D.N.J. 2008): overturned a conviction because defense counsel in criminal court gave incorrect advice about the immigration consequences of a guilty plea.
  • Kestelboym v. Chertoff, 538 F. Supp. 2d 813 (D.N.J. 2008): district court has subject matter jurisdiction to review a naturalization application even if DHS files an NTA after the case began in district court.
  • Naul v. Gonzales (D.N.J. 2007): rejecting international law as supposedly having "no bearing on this case" even though asylum-seeker might arguably have protections under international law.
  • Pisciotta v. Ashcroft, 311 F. Supp. 2d 445 (D.N.J. 2004): allowing ongoing detention under the government's stay of an IJ's ruling. Relied on regulations that dictate that the BIA resolve custody appeals "as soon as practicable." Would be interesting to see whether Judge Greenaway's confidence in the BIA's compliance with its rules and regulations will be shaken if he reviews immigration appeals at the Third Circuit.

Monday, June 22, 2009

Irorere (not precedential): IJ Cannot Interrupt Immigrants And Stop Them From Presenting Evidence

Irorere v. Holder
Not Precedential
May 1, 2009
Judges Scirica, Chagares, and Weis. Per Curiam decision.

The Third Circuit overturned BIA and IJ Walter Durling for IJ Durling's mid-sentence interruption of the respondent after only a few words and not allowing him to present any further evidence. Particularly when the man had substantial evidence that he then tried to include in his appeal to the BIA.

IJ Durling explained to the man that he had already reached his decision in the case. Nevertheless, even if IJ Durling reached his decision without seeing the evidence the man was ready to offer, the IJ should have at least allowed the man to submit his evidence.

The Third Circuit's decision makes good sense -- just because an IJ is not going to rule in your favor does not mean you should stop submitting evidence to support your argument. It would be improper for an IJ to stop you from submitting evidence. If an IJ makes such an improper ruling, though, you should comply with the IJ's order and lodge a timely appeal.

It would be an improvement if EOIR could train the immigration judges to allow litigants to submit evidence that supports their claims. It would also be helpful if the BIA would step in to fix these problems, rather than upholding the decisions and leaving it up to the individuals to spend the time and money of filing an appeal with a circuit court.

Monday, June 15, 2009

Patil (Not Precedential): BIA Must Consider Evidence When Ruling On Motion To Reopen In Absentia Order

Patil v. Holder
Not Precedential
No. 08-2845
June 10, 2009

Judges Ambro, Fisher, and Jordan. Per Curiam decision.

The Third Circuit overturned the BIA in a case where IJ Henry S. Dogin had denied a motion to reopen. If the court mails notice of a court date by ordinary mail, there is a presumption of receipt that an individual can rebut by producing contrary evidence, such as a sworn affidavit along with circumstantial evidence corroborating the claim of non-receipt. Santana-Gonzalez v. Mukasey, 506 F.3d 274 (3d Cir. 2007).

Here, the BIA made a fatal mistake by not considering all of the evidence that Mr. Patil offered. The BIA is required to consider all relevant evidence. Matter of M-R-A-, 24 I&N Dec. 665, 674 (BIA 2008).

Novas (not precedential): Due Process Problems With Visa Waiver Pilot Program Removal Go Directly To Circuit Courts

Novas v. ICE
No. 07-2218
Not Precedential
December 18, 2008

Judges Fuents, Hardiman, and Garth. Opinion by Judge Fuentes.

Under the Visa Waiver Pilot Program (VWPP), someone who agrees to enter under the program can be deported after overstaying the permitted 90-day visit without any right to contest the deportation other than by applying for asylum.

It gets complicated if the person overstaying marries a US citizen, which means there is a direct opportunity to obtain LPR status. But what happens if ICE tries to deport the person under the VWPP provisions before USCIS can grant LPR status?

The Third Circuit ruled that the proper avenue to address problems with removal would be a Constitutional challenge in a petition for review that you would file directly with the circuit court, not by filing a habeas action in district court. So, the Third Circuit has opened up petitions for review for direct challenges to removal orders under the VWPP program -- orders that do not come from an immigration judge because most VWPP individuals never get to see an IJ.

In this case, the Third Circuit also noted in dicta that it saw no due process violation of applying the VWPP restrictions to someone who signed the VWPP waiver when he was a minor.

If ICE enters a removal order under the Visa Waiver Pilot Program without offering a day in immigration court, file an immediate petition for review to the Third Circuit.

For Mr. Novas, Ysabel Williams of Mount Pocono, PA. For the government, Daryl F. Bloom of the US Attorney's Office in Harrisburg, PA.

Saturday, June 13, 2009

Lin (not precedential): Remand Where BIA Unclear About Basis For Its Decision

Lin v. Holder
No. 08-1596
Not Precedential
June 11, 2009

Judges Barry, Smith, and Hardiman. Per Curiam.

When deficiencies in the BIA's decision make it impossible to review meaningfully, the Third Circuit will vacate the decision and remand the case so that the BIA can further explain its meaning. Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003).

Here, the BIA did not offer a coherent rationale for affirming IJ Frederic Leeds's denial of an asylum-seeker's applications.

On the one hand, the BIA said the IJ's findings were not erroneous, which suggests it affirmed the IJ's credibility determination. On the other hand, the BIA said it believed one of the asylum-seeker's factual assertions, which suggests it did not completely find the asylum-seeker not credible. In addition, the BIA included analysis that would only matter if the BIA found the asylum seeker credible. The vagueness of the BIA's analysis is not resolved by the parties, because they also disagree about what the BIA meant.

The Third Circuit overturned the BIA and remanded for further proceedings. Let's hope the long delay for this to get resolved turns out well.

Issiaka: Asylum-Seeker Testimony Sufficient, Translation Problems, and Criticism of IJ Miriam Mills

Issiaka v. Holder
No. 07-2691
June 11, 2009

Judges McKee and Nygaard with Judge Paul R. Michel from the Federal Circuit.
Opinion by Judge McKee.

The Third Circuit overturned the BIA and IJ Miriam Mills for their improper conclusion that the person seeking asylum was not credible (an adverse credibility determination). That determination was the only ground for denying the request for withholding of removal. The Third Circuit concluded, however, that the reason for finding the asylum-seeker not credible were not supported by substantial evidence.

The BIA and IJ Mills faulted the asylum-seeker for not answering questions about his head wounds that the Third Circuit noted it had difficulty understanding. Although IJ Mills wanted more detail, it was not very clear what kind of detail was desired about the number of founds, that they were deep, and that they were serious. The Third Circuit criticized how the BIA complained about not receiving enough details about the injury when the injured person explained he had bleeding head wounds that were bleeding, were on his head, and happened after others hit him in the head with sticks.

It is admirable that OIL counsel even conceded to the Third Circuit that this ground for disbelieving the testimony was troubling. Other issues the Third Circuit touched on were how the IJ should not have criticized the asylum-seeker for not explaining that he got stitches when it is not clear he ever got stitches. Also, IJ Mills should not have found the asylum-seeker not credible for not mentioning in his asylum petition that he received some medical treatment briefly.

The Third Circuit also reached a legal conclusion that garbled translations and a poor transcript can undermine the evidence on which the IJ or BIA reaches its conclusion to such a degree that the court must overturn the BIA's holding. The problems with the translations can be so harmful that it does not matter whether the asylum-seeker has raised a due process violation. Here, the interpreter spoke a different dialect and a different accent of the French language and the Third Circuit strongly encouraged that EOIR provide a better interpreter.

In another strong criticism of IJ Mills, the Third Circuit strongly encouraged the BIA to remand the case to a different IJ if a remand to an IJ is necessary due to what the Third Circuit viewed as the prosecutorial manner of IJ Mills during the hearing.

Congratulations to Laetitia B. Creech of Philadelphia, PA, who represented Mr. Issiaka and conducted oral argument. For the government were Nancy E. Friedman (argued) and Joan E. Smiley of OIL, the Office of Immigration Litigation in the Justice Department.

Monday, June 01, 2009

Jiang (not precedential): BIA May Not Ignore New Evidence By Incorrectly Calling It Old

Jiang v. Holder
No. 08-3392
May 28, 2009
Not Precedential
Judges Sloviter, Stapleton, and Cowen. Per Curiam.

The BIA erred in a case that was originally heard by IJ Esmeralda Cabrera (but IJ Cabrera did not make the mistakes that the Third Circuit focused on). After losing in immigration court and in a BIA appeal, Mr. Jiang filed a motion to reopen with the BIA. The BIA did not consider the evidence that was included with the motion to reopen. It was a motion to seek asylum based on changed country circumstances, so there was no time limit or numerical limit to the motion.

The BIA seemed to ignore the evidence because it referred to the evidence as material that all could have been submitted in 2002. However, most of the evidence was dated 2005-2007. Given that mistake, the Third Circuit did not have confidence that the BIA appropriately analyzed the evidence in concluding that there was no evidence to support that he would suffer a forced vasectomy in China if he returned.