Monday, April 26, 2010

Judges Joseph Greenaway and Thomas Vanaskie Join The Third Circuit

Welcome and congraulations to Judges Joseph Greenaway and Thomas Vanaskie for completing the confirmation process for the Third Circuit!

Judge Joseph Greenaway's confirmation is old news by now, having been confirmed 84-0 by the Senate in February 2010. Here is what we noted about Judge Greenaway last year after President Obama nominated him:

Judge Thomas Vanaskie's confirmation is recent. He was confirmed 77-20 by the Senate on April 21, 2010. We blogged about one not-precedential Third Circuit immigration case where he participated by designation:

As a district court judge, Judge Vanaskie ruled in 2008 in a district court case that forced the government to honor the legal rights of an immigrant (Mr. Khouzam) who feared being tortured if he were deported. Judge Vanaskie compelled the government to comply with United States law, which included legislation that implemented a treaty the United States ratified in 1994. The government appealed Judge Vanaskie's ruling and the Third Circuit not only upheld it, the Third Circuit also described Judge Vanaskie as having written a comprehensive, thoughtful opinion. Here is a blog posting about the Third Circuit's ruling:

Welcome, Judges Greenaway and Vanaskie! We look forward to your rulings in Third Circuit immigration cases.

Friday, April 09, 2010

Akinola v. Weber (D.N.J.): No Mandatory Detention Allowed Where Held 17 Months During Removal Proceedings

Not a Third Circuit case -- rather, a case decided by a federal district court within the Third Circuit.

Akinola v. Weber, Civil Action No. 09-3415 (WJM) (D.N.J. Jan. 26, 2010) (Judge Martini).

For Mr. Akinola: Kole Akinola appearing pro se from Essex County Jail in Newark, NJ. For the governent, Ralph J. Marra, Jr. and Allan B.K. Urgent of the US Attorneys' Office in Newark, NJ.

There are many Constitutional challenges to mandatory detention that have not yet been decided. In Akinola, one of the many unresolved Constitutional challenges was the focus. Does mandatory detention apply to someone who has been held many months while challenging his removal? This is unlike other cases such as Demore v. Kim, 538 U.S. 510 (2003) where all sides presumed that detention while challenging removal would usually be 1.5 months or in a minority of cases would take 5 months -- nothing close to the actual 17 months in this case.

Judge Martini of the District of New Jersey held that for an individual who had been in immigration detention for 17 months while challenging his removal, “the Court is not inclined to accept Respondents’ argument in favor of continued detention based solely on the mandatory language of § 1226(c), particularly where the Supreme Court in Demore did not expressly contemplate the constitutionality of such prolonged detention, and where Respondents have offered no other compelling justification or authority for such prolonged detention . . . .” Akinola v. Weber, Civil Action No. 09-3415 (WJM), slip op. at 14 (D.N.J. Jan. 26, 2010). The court planned to hold a bond hearing, in habeas, on Feb. 18, 2010.

These important Constitutional challenges are being raised throughout the United States.

Thursday, April 08, 2010

Bellot-Paul (not precedential): IJs Have The Power To Exlude Late Filings

Bellot-Paul v. Holder
No. 09-2809
February 1, 2010
Not Precedential

Judges Scirica, Jordan, and Stapleton. Per Curiam decision. Upholding the BIA and Immigration Judge Irma Lopez-Defillo.

IJs have the power to exclude items if the person filing them misses a reasonable deadline. If you miss a deadline, you should see whether the IJ's interpretation of the rule or regulation was improper. If you do not raise such an argument, then you could lose.

This case is very interesting because the Third Circuit and BIA affirm a well-established power of all judges to exclude items from the record if the person submitted them later than a reasonable deadline that the judge had set. Where someone files items late with no excuse and no complaint about the rules or regulations, then an IJ can exclude the item from the record and the BIA and the Third Circuit might uphold that decision.

Let's look at some issues that are not discussed in this decision -- it would therefore be logical that if the government missed a reasonable deadline to submit documents, offered no excuse, and did not challenge any rule or regulation, an IJ would have the power to exclude that item from the record. If an IJ incorrectly believed that he or she had no power to exclude the late-filed document, it would be logical for the BIA and Third Circuit to overturn the IJ's ruling.

It would be particularly unfair if the BIA or IJ gave a free pass to the government whenever it filed documents late, but penalized asylum-seekers who filed documents late. We will wait and see whether the BIA and Third Circuit make a consistent ruling for late-filed government documents. It would be especially important to apply at least an equally harsh rule against the government because there is an additional argument that due process for asylum-seekers (who are not currently viewed as deserving appointed counsel) would require more leniency for late-filed documents by asylum-seekers. Let's see whether that type of case comes up on the Third Circuit's docket in the coming months.

Who knows, maybe EOIR will train the Immigration Judges not to accept blindly all late-filed government documents. It would be a valuable topic for EOIR trainings.

Wednesday, April 07, 2010

Rincon (not precedential): Asylum-Seeker's Inconsistencies Minor and BIA Must Consider Whether To Allow Asylum-Seeker's Unauthenticated Document

Rincon v. Holder
No. 08-1752
January 11, 2010
Not Precedential

Judges Rendell, Fisher, and Garth. Per Curiam opinion. Overturning the BIA and Immigration Judge Annie S. Garcy.

Two main points and a third small one:
  • Improper for IJ Garcy and the BIA to hold only minor inconsistencies against the asylum-seeker. The asylum-seeker offered reasonable explanations for the perceived inconsistencies.
  • Improper for the BIA to reject documents not authenticated without analyzing whether the totality of the circumstances still favored admitting the unauthenticated documents. Particularly where IJ Garcy agreed to admit the documents because the government had interfered with the ability to authenticate them.
  • Improper for the BIA to reject the claim of ineffective assistance of counsel based on the Lozada criteria without ever discussing which criterion it failed or how the overall Lozada analysis applied in this case. The asylum-seeker raised the claim to the BIA only, so this was not any error by IJ Garcy.

Tuesday, April 06, 2010

Bai (not precedential): BIA Must Consider Its Power To Take Administrative Notice Of New Country Conditions

Bai v. Holder
No. 08-3928
Not Precedential
December 28, 2009

Judges Ambro, Chagares, and Aldisert. Per Curiam decision. Overturning the BIA in a case that started with Immigration Judge Margaret R. Reichenberg (but not criticizing IJ Reichenberg's rulings).

The BIA erred in this asylum case by refusing even to analyze whether it should take judicial notice of a country condition report that came out while the case was being appealed. The BIA has the power of taking official or administrative notice. The BIA in this case incorrectly ignored its power to take administrative notice of facts by ruling that it may not consider evidence presented for the first time on appeal. The BIA was wrong -- the BIA has the power to take administrative notice of official documents such as the State Department's country condition reports. Sheriff v. Att'y Gen., No. 08-1645, 2009 WL 4042936, at *6 (3d Cir. Nov. 24, 2009).

Therefore, in any asylum case it makes sense to provide the latest country condition report while your appeal is pending and to ask the BIA to take administrative notice of it.

Monday, April 05, 2010

Shehaj (not precedential): Airport Interview Not Proper Basis For Adverse Credibility Determination

Shehaj v. Holder
Not Precedential
No. 08-3812
December 22, 2009

Judges Ambro, Aldisert, and Roth. Opinion by Judge Ambro. Overturning the BIA and Immigration Judge Frederic G. Leeds.

Ms. Shehaj sought asylum and when she arrived in Toronto, Canadian officials interviewed her at the airport and jotted down two pages of notes. Ms. Shahaj conceded that she had lied to the Canadian officials because people who brought her to Canada coached her to lie in order to get released by the Canadian authorities.

IJ Leeds denied the asylum application and said he was "unfortunately compelled" to find Ms. Shehaj not credible due to her lies to the Canadian officials -- even though Ms. Shahaj's story was consistent with news reports and country condition reports.

The BIA upheld IJ Leeds's credibility determination because the BIA held it was not clearly erroneous.

In October 2008, the Third Circuit granted Ms. Shehaj's motion for a stay of removal.

The BIA and IJ Leeds erred by focusing on the lies to the Canadian officials without considering whether the totality of the circumstances and all relevant factors supported finding her not credible. The BIA and IJ also did not address Ms. Shehaj's explanation for why she had lied or to analyze why that explanation would not be adequate.

The Third Circuit also noted that inconsistencies between an airport statement and an asylum-seeker's testimony is not sufficient, standing alone, to find the person not credible. Fiadjoe v. Att'y Gen., 411 F.3d 135, 159 (3d Cir. 2005). Common problems include that the person is often disoriented during the interview, the interviewers usually offer scant and incomplete notes of the interview.

Friday, April 02, 2010

Oladejo (not precedential): BIA Ignored Reasonable Explanation Why Motion To Reopen For Ineffective Assistance Was Late

Oladejo v. Holder
No. 08-3043
March 19, 2010
Not Precedential

Judges Fuentes, Weis, and Garth. Per Curiam. Overturning the BIA. Originally before Immigration Judge Alberto J. Riefkohl, but the Third Circuit only criticized the BIA's ruling, not anything IJ Riefkohl ordered.

A man filed a motion with the BIA arguing that his original lawyer had given ineffective assistance of counsel. The BIA denied the motion by concluding that the man did not attribute the delay in filing the motion to any lawyer's ineffectiveness. However, Mr. Oladejo did argue that the reason he delayed filing his motion was because one of his former lawyer never explained to him the consequences of the BIA denying one of his earlier motions to reopen. One consequence was that his strategy of seeking legal status through adjustment of status was impossible after the BIA denied the earlier motion to reopen.

Thursday, April 01, 2010

Patel: No LIFE Act Confidentiality For Work Authorization Applications

Patel v. Holder
No. 09-1066
March 30, 2010

Judges Fuentes, Roth, and Van Antwerpen. Per Curiam.

Michael A. Younge of Anaheim Hills, CA for Ms. Patel. Regina Byrd, Ernesto H. Molina, and M. Lee Quinn for OIL of the Justice Department.

Upholding the BIA and Immigration Judge Margaret Reichenberg.

The Third Circuit held that the confidentiality provisions of the LIFE Act (the Legal Immigration Family Equity Act) under INA 245A(c)(5) cover adjustment of status applications under the LIFE Act, but not employment authorization applications.

The Third Circuit focused on how the confidentiality provision covered applications filed under INA 245A or LIFE Act section 1104(b) for adjustment of status. Using that narrow focus, the Third Circuit held that the protections did not cover other applications, such as for employment authorization under the Family Unity Provisions.

What is interesting in the immigration world is that many people view adjustment of status applications as going hand-in-hand with work authorization applications. In certain situations, lawyers even refer to them as part of the same one-step packet. Perhaps the key to the case would not be solely the literal words in the statute, but some of the legislative history to show whether Congress had in mind the entire packet (which includes work authorization applications) or just the specific, literal wording of the statute.