Wednesday, June 02, 2010

Perez Muniz (not precedential): Unobjected Adherence To Case Completion Goals Difficult To Win On Appeal

Perez Muniz v. Holder
No. 08-1444
February 8, 2010
Not Precedential

Judges Rendell, Jordan, and Senior District Judge Padova. Opinion by Judge Jordan.

Francis X. Geier (argued) with Anayancy R. Houseman of Elizabeth, NJ, for Mr. Perez Muniz. Sharon Clay (argued) with Gregory G. Katsas, Richard M. Evans, and Brooke M. Maurer of OIL, Justice Department.

Upholding the BIA and IJ Annie S. Garcy.

In May 2006, IJ Garcy allowed Mr. Perez Muniz to reinstate his asylum application but only gave two weeks until the merits hearing, noting a desire to meet case completion guidelines. The Third Circuit focused on how Mr. Perez Muniz's lawyer had no objection to the short two week time period before the merits hearing and how IJ Garcy said that her desire to provide a fair hearing was more important than her desire to aide by case completion guidelines.

One point is that you need to object to an IJ's desire to adhere to case completion goals, even if does not seem very diplomatic to do so. Another point is that you should not assume that the Third Circuit will be sensitive to the pressures when an IJ notes case completion guidelines. Instead, object and make the record clear for the Third Circuit.

Tuesday, June 01, 2010

Daramy (Not Precedential): BIA Improperly Invoked Law Of The Case Doctrine And Erred On The Asylum One-Year Rule

Daramy v. Holder
No. 08-2537
Not Precedential
February 8, 2010

Overturning the BIA and IJ Mirlande Tadal

Judges Scirica, Barry, and Smith. Opinion by Chief Judge Scirica.

The BIA and IJ Tadal both erroneously applied the law of the case doctrine to someone based on rulings in a different case. The law of the case doctrine only applies where it is a later stage of the same case. Here, there was a separate case, not the same case. Even though it involved the same person, it was a second, independent case. The first one started with a Notice to Appear in December 2004 and the new second case started with a Notice to Appear in July 2007.

The Third Circuit notes that res judicata, claim preclusion, and issue preclusion apply in immigration proceedings, citing Duvall v. Att'y Gen., 436 F.3d 382, 386-90 (3d Cir. 2006) and other cases. But res judicata and claim preclusion are not the same as the doctrine of law of the case.

In addition, IJ Tadal and the BIA erred about how to apply the one-year deadline for filing asylum claims. Since the IJ and BIA made their rulings, the BIA clarified the rule in In re F-P-R, 24 I&N Dec. 681 (BIA 2008) that the one year deadline for filing from the last arrival means the arrival just before the person applied, not an earlier arrival.