Tuesday, August 31, 2010

Pareja: Overturning BIA For Possibly Denying Non-LPR Cancellation Based On Number of Qualifying Relatives

Pareja v. Holder
July 29, 2010

Before Judges Smith, Fisher, and Greenberg. Opinion by Judge Fisher.

For Ms. Pareja, David A. Isaacson (argued) of Cyrus D. Mehta & Associates in NY, NY. For the government, Linda Y. Cheng (argued) and W. Daniel Shieh.

The Third Circuit overturned the BIA in a case originally decided by IJ Eugene Pugliese.

The Third Circuit harshly criticized OIL and the government attorneys for refusing to offer any argument or explanation about the merits of Ms. Pareja's appeal. The government focused solely on its incorrect belief that the court had no jurisdiction over the issues. The Third Circuit again emphasized the importance for the government to follow Federal Rule of Appellate Procedure 31 and offer guidance to the court -- something the government also failed to do in Leslie v. Holder, 2010 US App. LEXIS 13952 (3d Cir. July 8, 2010).

For non-LPR cancellation of removal, the Third Circuit has the power to consider whether the BIA erred in Matter of Monreal, 23 I&N Dec. 56 (BIA 2001), but the court concluded that it must defer to the reasonable interpretation offered by the BIA of the non-LPR cancellation statute.

Whether the BIA erred by putting weight on the number of qualifying relatives she had, the Third Circuit has the power to review whether the BIA made a mistake. Here, the Third Circuit ruled the BIA was unclear and it was possible that it erred by distinguishing Ms. Pareja's case solely because she had less qualifying relatives. The Third Circuit overturned the BIA and remanded for clarification.

Monday, August 30, 2010

Forteau (not precedential): Appointed Counsel Granted And BIA Must Give Chance To Participate

Forteau v. Holder
June 4, 2010
Not Precedential

Judge McKee, Rendell, and Garth. Decision by Judge Rendell.

For Mr. Forteau, Steven A. Morley (argued) of Morley, Surin & Griffin in Philadelphia. For the government, Nancy E. Friedman (argued), Richard M. Evans, Andrew J. Oliveira.

Overturning the BIA in a case initially heard by IJ Andrew R. Arthur.

In an earlier appeal, the Third Circuit remanded the case to the BIA and ordered that the BIA arrange for appointed counsel if Mr. Forteau desired one. The BIA found appointed counsel but then ignored the appointed counsel and did not give him any opportunity to comment on the case. Instead of giving an opportunity to comment, the BIA instead ruled against Mr. Forteau without ever asking for input.

The Third Circuit overturned the BIA, under the common sense rule that when it demands that the BIA arrange for appointed counsel, the point is that the appointed counsel get an opportunity to be heard, not just to be sitting on the sidelines serving no purpose.

It is great that the Third Circuit is making strides in appointing counsel for indigent immigrants and to make sure the point of appointed counsel is upheld -- appointed counsel should have a chance to participate in a case. The BIA committed a serious due process violation. (Its error seems a bit farcical to an outside observer.)

Friday, August 27, 2010

Arriza-Escobar (not precedential)

Arriza-Escobar v. Holder
Not Precedential
June 1, 2010

Judges Sloviter, Jordan, and Greenberg. Per Curiam.

Overturning the BIA and Immigration Judge Eugene Pugliese.

A man fearing the MS-13 gang sought asylum and IJ Pugliese and the BIA denied the asylum request. The Third Circuit, however, concluded that the BIA made a mistake by ruling that he did not establish a well-founded fear of future persecution. The BIA said there was no evidence that there could be future harm. Mr. Arriza-Escobar testified about the threats. By saying there was no evidence, the BIA misstated the record. The BIA also incorrectly assumed that if his brother faced no threats, that he could not possibly face threats in the future. That was an improper assumption. Even though it could be an area to explore and analyze, it is wrong to make an assumption that if someone's brother faces no threats, the person could not possibly face future threats.

Thursday, August 26, 2010

Jiang (not precedential): Consider Facts As True For Asylum-Based Motions To Reopen

Jiang v. Holder
No. 08-4806
Not Precedential
May 10, 2010

Judges Ambro, Smith, and Chief Judge Michel. Opinion by Chief Judge Michel.

Overturning the BIA and IJ Eugene Pugliese.

For Ms. Jiang, Gary Yerman of NYC. For the government, John J. Inkeles (argued) and Francis W. Fraser and Timothy B. Stanton of the Justice Department.

For a motion to reopen due to changed country circumstances, you must show a realistic chance that you can establish asylum should be granted. Unless inherently unbelievable, facts presented in the motion should be accepted as true. IJ Pugliese and the BIA erred by giving little to no weight to an official letter from a village in China to Ms. Jiang. They should have accepted the alleged facts as true for the purpose of deciding the motion to reopen.

Friday, August 20, 2010

Espinosa-Cortez: BIA Required To Conclude Anti-FARC Colombian Targeted In Part For His Imputed Political Beliefs

Espinosa-Cortez v. Holder
June 2, 2010

Judges Rendell, Ambro, and Fuentes. Opinion by Judge Fuentes.

For Mr. Espinosa-Cortez, Peter M. Rogers (argued) of Peters & Rogers, PC in Pittsburgh. For the government, Dalin R. Holyoak (argued), Kristen Giuffreda Chapman, Regina Byrd, and Francis W. Fraser.

The IJ and the BIA concluded a man from Colombia did not have a reasonable fear he would be persecuted due to his political beliefs, which a key part of his asylum claim.

The Third Circuit overturned the BIA even though it took a deferential approach. The Third Circuit concluded that the BIA's ruling was so out of line that it a reasonable adjudicator would be compelled to arrive at a contrary conclusion. The BIA was very far out of line.

Although someone who fears threats from a guerilla organization trying to recruit him does not automatically qualify for asylum, certain facts here would compel a reasonable adjudicator to conclude FARC's pursuit of Mr. Espinosa-Cortez was at least partly motivated by a political opinion it believed he held. For example, his close, direct affiliation with and support of the Colombian government and military. Although he was not directly employed by the government, he was closely affiliated with the government, provided support to it, and depended on it for his livelihood.

Two other distinctions are that he engaged in protracted resistance to FARC's resistance efforts (not merely being approached by guerrillas on a single occasion as in the case of Elias-Zacarias). Also, he made his anti-FARC views known to the persecutors when he rejected their requests.

Wednesday, August 18, 2010

Johnson: No Jurisdiction To Review Extreme Cruelty for VAWA Cancellation

Johnson v. Holder
No. 07-2820
April 16, 2010

For Mr. Johnson, Ransford B. McKenzie of Brooklyn, NY. For the government, John S. Hogan, Kathleen J. Kelly, and Briena L. Strippoli.

Judges Sloviter, Nygaard, and Chief Judge Restani of the US Court of International Trade. Decision by Judge Sloviter. Upholding the BIA's affirmance of IJ Mirlande Tadal's decision.

The Third Circuit held there was no jurisdiction for a circuit court to review denial of cancellation of removal under the Special Rule for Battered Spouses where it was based on failing to prove extreme hardship. The Fifth, Seventh, and Tenth Circuits have already ruled similarly because the definition of extreme hardship is not self-explanatory and the Third Circuit believes it falls within the discretion of the IJ.

Monday, August 16, 2010

Bradley: VWP Entrant Filing More Than 90 Days After Entry Cannot Block Deportation

Bradley v. Holder
No. 08-4184
April 22, 2010

Haroutyun Asatrian of Strasser Asatrian, LLC in Newark, NJ argued for Mr. Bradley. For the government, Gary J. Newkirk (argued), Stephen F. Day, and Justin R. Markel.

Judges Ambro, Smith, and Aldisert. Decision by Judge Aldisert.

Although there are several issues, one of the biggest concerns the defenses for someone facing summary deportation under the visa waiver program (where you waive the right under almost all circumstances to see an immigration judge in exchange for quick entry into the United States). The Third Circuit ruled that if someone is threatened with summary deportation under VWP, that person can challenge the imminent deportation only if he or she filed an adjustment of status application within 90 days of entering the United States.

One open issue is whether the Third Circuit would alter its rationale based on the so-called 30/60 day rule found at 9 Foreign Affairs Manual 40.63 n.4.7-1 to 4.7.4. Because Mr. Bradley did not raise the issue in his opening brief, the Third Circuit left open how it would rule in a case that raised the 30/60 day rule.

Under the Third Circuit's ruling, if someone is a VWP entrant and did not file for adjustment of status within 90 days of entering, and the government is about to deport the person, there is no way to demand that a federal court block the deportation.

Outside of court and separate from the decision, USCIS in New Jersey for some time is holding cases where a VWP entrant filed for adjustment of status more than 90 days after entering. It's not clear what they would do that -- the Third Circuit's ruling does not prevent USCIS from granting adjustment of status. All it says is that if the government is actively deporting someone before USCIS decides the request for a green card, the immigrant will not be able to get a federal court to block the deportation. We will see whether USCIS adopts a strange interpretation of the Third Circuit's decision (and if so, how soon a federal court can rule on USCIS's interpretation).

Wednesday, August 04, 2010

Zegrean: IJ Must Get DHS To State Immigrant Is Prima Facie Eligible For Naturalization

Zegrean v. Holder
No. 08-3714
April 13, 2010

Judges Barry, Jordan, and Van Antwerpen. Opinion by Judge Barry.

For Mr. Zegrean, David Kaplan (argued) and James J. Orlow of Orlow, Kaplan & Hohenstein in Philadelphia, PA. For the government, Kevin J. Conway (argued) and Sharon Clay.

The USCIS arm of DHS that decides naturalization applications cannot tell an IJ that someone is prima facie eligible because it is not allowed to consider naturalization applications from anyone in removal proceedings. The Third Circuit held that it would be wrong to empower an IJ to make the determination of whether someone is prima facie eligible to naturalize.

It left open the question of who, then, would be empowered to announce that someone is prima facie eligible. It suggested that DHS or Congress should undertake clarifying the situation expeditiously.

The Third Circuit did not explain any solutions -- but maybe the solution would be for ICE counsel to undertake the task of announcing whether someone is prima facie eligible for naturalization.

Monday, August 02, 2010

Kaplun: Assessment Of What Will Happen Is A Fact That An IJ Finds

Kaplun v. Holder
April 9, 2010
Judges Ambro, Smith, and Paul R. Michel (Chief Judge of the Federal Circuit). Opinion by Judge Ambro.

For Mr. Kaplun, Thomas E. Moseley of Newark, NJ. For the government, Manuel A. Palau (argued), Terri J. Scadron, Gregory G. Katsas, Paul F. Stone.

Overturning the BIA in a case decided by IJ Charles M. Honeyman. IJ Honeyman granted withholding of removal and protection under CAT (Convention Against Torture) but the BIA overturned it through de novo review.

The Third Circuit overturned the BIA for using the wrong standard of review when analyzing the IJ's finding about the probability Mr. Kaplun would be tortured in the future. The BIA should have reviewed the IJ's ruling de novo as opposed to the clearly erroneous standard (where the BIA will only overturn the IJ if its ruling is clearly erroneous).

The Third Circuit explained that the probability something would happen in the future can be a factual finding. For example, whether it likely will take less than 3 hours next week to drive 100 miles from one house to another. Its likelihood can be established through evidence of the distance, traffic patterns, and typical traffic conditions.

In deciding whether someone is likely to be tortured, there are two issues -- (1) what is likely to happen and (2) does what is likely to happen amount to the legal definition of torture.

This second question -- whether what likely will happen is something that amounts legally to torture -- is a legal question that the BIA must consider de novo. But the first question is a factual finding and the BIA erred in this case by conducting de novo review.