Thursday, May 19, 2005

Presence can restart after approved re-entry

Brief summary for now: in Okeke v. Attorney General, No. 03-1831 (3d Cir. May 18, 2005) (precedential), the Third Circuit ruled that approved re-entry can start a new period of continual physical presence that qualifies someone for cancellation of removal!

Cancellation of removal requires a certain period of physical presence in the U.S. For those without a green card, the law requires ten years. There are other important requirements (such as exceptional and extremely unusual hardship to certain types of close relatives), but the decision focused on just one of those requirements -- ten years of presence.

In 1996, Congress passed a rule nicknamed the "stop-time rule," which says that if there is a ruling that a person violated his visa, then the amount of time accrued toward continual presence shall be terminated. So, if someone is in the middle of accruing time toward the 10 years when there is a finding that he is out of status, the amount of time accruing towards the 10 year requirement stops.

In Mr. Okeke's case, he left the country after the clock stopped and then re-entered on a student visa. ICE argued that a new period of ten years could not begin after he re-entered on the student visa because the stop-time rule blocks any future time period from starting. Mr. Okeke argued that the stop-time rule only ends the ongoing time being accrued but does not prevent a new period from starting after a perfectly legitimate, approved re-entry into the U.S.

The Third Circuit agrees with Mr. Okeke. It noted in particular that this is not a situation where someone drags on court proceedings for 11 years hoping that time that he stalls can be counted as a new period of continual presence. The Third Circuit said the stall-game will not work, but if someone leaves the country and legally re-enters, a new period can start. Mr. Okeke left and re-entered with permission. He was not trying to stall his court proceeding and he did not sneak back in the country.

The Third Circuit's decision makes sense because if the U.S. knowingly let Mr. Okeke come back in the country, there's no reason why a new period can't start at that point. The only worry is that the Third Circuit based its decision for now on the exact wording of the statute, not based on other fairness and equity grounds. So, its position might be different if Congress tinkers with the wording of the statute.

Sunday, May 15, 2005

IJ's credibility determination was illogical and unfounded

Cao v. Attorney General, No. 03-4256 (3d Cir. May 12, 2005): Overturned and remanded the IJ's denial of an asylum claim by someone from China who tried to leak information about infanticide in China to comply with its population control policy. The Chinese government intercepted the attempted leak and detained, interrogated, and abused Cao. The IJ based its decision on the lack of credibility. That is very difficult to overturn on appeal. The Third Circuit, however, noted that the rationale of the IJ was illogical. (The BIA affirmed without opinion, so it is a good thing we had the resource of the Third Circuit to correct the BIA's mistake!)

The Third Circuit noted that whistleblowing against government corruption or against a government practice can qualify for asylum protection.

The IJ mistakenly equated late-term abortions with infanticide and was incredulous that the asylum-seeker could be so offended by infanticide but not equally mortified by forced late-term abortions. The Third Circuit called that a mistake. The IJ also made a mistake by assuming that someone could not become indignant about infanticide in a conversation if he already knew it was happening. In other words, the IJ erroneously thought someone can only be indignant when one first hears about something. However, some practices are so undignified that you can be indignant the second or third time you hear about it.

Among other things, the IJ found it incredible that the asylum-seeker's escape relied at one point on bribing an airport official. The Third Circuit, though, points out that bribes are common in China, so there's no reason to find the story incredible just because it says someone was bribed.

The Third Circuit explained that an adverse credibility determination based on speculation or conjecture can be overturned because minor inconsistencies and minor admissions are not enough to reject an asylum application unless they involve the heart of the asylum claim.

More non-precedential decisions on asylum claims

Ndreu v. Attorney General, No. 04-2006 (3d Cir. May 12, 2005) (non-precedential): affirmed the IJ's denial of an asylum claim by someone from Albania because post-1992 incidents were not persecution and pre-1991 incidents can be set aside because of changed country conditions. The IJ felt that post-1992 incidents including a carjacking lacked proof they were because of political reasons due to the total anarchy in Albania in 1997. Also, the asylum seeker never sought medical attention and did not receive death threats so the trauma was not sufficiently severe to constitute persecution. As far as pre-1992 incidents, times have changed in Albania and now the opposition party has access to the media and has run in elections.

Manan v. Attorney General, No. 04-2430 (3d Cir. May 12, 2005) (non-precedential): affirmed the IJ's denial of asylum or other relief by someone who fought the Taliban in Afghanistan. The BIA held that the Taliban has fallen in Afghanistan and there is little threat from the remaining bands of Taliban militia there.

Wednesday, May 11, 2005

Third Circuit affirms denial of asylum claims

The Third Circuit affirmed the denial of asylum claims in two non-precedential decisions. Both decisions included rulings by immigration judges that relied on credibility determinations. The Third Circuit applied the substantial evidence test, which seems to make it very hard for immigrants to win an appeal.

The cases are:

Drishti v. Attorney General, No. 04-1133 (3d Cir. May 11, 2005) (non-precedential): affirmed the denial of asylum to an Albanian based on evasive and exaggerated demeanor and opinon of testimony's inconsistencies.

Khan v. Attorney General, No. 04-1762 (3d Cir. May 11, 2005) (non-precedential): affirmed the denial of asylum to a Pakistani based on contradictory, evasive, and illogical answers. Also, no evidence he would be subjected to persecution.

Tuesday, May 10, 2005

Stop-time rule for cancellation of removal applied

In the non-precential decision Dudney v. Attorney General, No. 04-3530 (3d Cir. May 9, 2005) (not precedential), the Third Circuit applied the stop-time rule to cut off the number of years a green-card holder (Legal Permanent Resident or LPR) has continued presence in the United States. The issue is critical because under the 1996 laws, an LPR must have seven years of continued presence (along with other requirements) to obtain cancellation of removal.

The Third Circuit relied on two basic principles: the amount of continuous presence the LPR accrues stops upon committing a crime that makes him removable. The clock stops upon committing the offense, not when he is finally convicted for it.

Also, the court noted that the stop-time rule only applies to offenses referred to in section 212(a)(2) [a.k.a. section 1182(a)(2)]. That posed no problem to deporting Mr. Dudney because his particular conviction (a drug conviction) is referred to in section 212(a)(2). Mr. Dudney would have been in better shape if his conviction had been for a firearms offense, because that is not referred to in section 212(a)(2) and threfore it does stop the amount of continuous presence the immigrant has. This is based on the plain language of the statute and the BIA's ruling in In re Campos-Torres, 22 I. & N. Dec. 1289, 1293 (BIA 2000).

Third Circuit overturns BIA because asylum-seeker can have imputed political opinion for beliefs he does not have

In the precedential decision of Singh v. Attorney General, No. 03-2788 (3d Cir. May 5, 2005), the Third Circuit overturned the BIA and granted asylum for two independent reasons: first, the asylum-seeker proved he was persecuted for the imputed political opinion of what his father believed. It is irrelevant that he in fact did not have the same political opinion as his father, because he proved that his persecutors believed that he did have a certain opinion and that was the reason for the persecution. It did not even matter that the asylum-seeker did not really have much knowledge about his father's political opinions. The Third Circuit noted that the asylum-seeker himself was arrested, beaten, threatened, and repeatedly sought out. So it was not imagined or feared persecution, but actual past persecution.

Next, the Third Circuit also overturned the BIA's ruling regarding whether he was eligible for asylum under the "mixed motive" analysis because he was persecuted in significant part for one of the protected grounds. The BIA incorrectly required him to prove the protected ground was "the motivating factor." That is not the correct legal standard. The correct standard is proving that the persecution was motivated "at least in part" by one of the protected characteristics. So, even if one part of the persecutors' motivation was a legitimate security purpose (searching for contraband weapons), he still qualifies for asylum because the mistreatment was also motivated by persecution of his imputed political opinion.

What is particularly troubling about the BIA's erroneous decision is that the immigration judge had gotten it right. The original judge granted asylum. The BIA went in and overturned the grant of asylum. It took the Third Circuit to fix the BIA's error by granting the petition of review.

Tuesday, May 03, 2005

Immigrant deported based partly on invoking 5th Amendment

In Murdock v. Attorney General, No. 04-2338 (3d Cir. Mar. 10, 2005) (not precedential), the Third Circuit allowed an immigrant to be deported partly based on how he invoked his Fifth Amendment rights.

One question was whether the government satisfied its burden of proving the immigrant's alienage by clear, unequivocal, and convincing evidence. The Third Circuit ruled that:

Murdock's refusal to testify entitled the Immigration Judge to draw a negative inference that any answer he may have given would have been adverse to his interests and to conclude that the statement was reliable and trustworthy. United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 154 (1923).
The eighty-year old Bilokumsky case, however, focused on how the immigrant could not claim the Fifth Amendment regading alienage when his only concern was a criminal charge for sedition, a charge that had nothing to do with alienage. Therefore, Bilokumsky is rooted in how the 5th Amendment claim was improper, not that a proper invocation allows drawing a negative inference.

The Third Circuit also set forth its rule about how almost anything is admissible in immigration proceedings. An immigration form can be convincing evidence if the statement is sworn, signed by an ICE official and a Senior Immigration Inspector, and the [formerly-INS] District Director certifies that it is the original or a copy from [formerly-INS]'s records.

I think the decision can be attacked on the grounds that the immigrant properly invoked his 5th Amendment right and the exclusionary rule does not apply in a 2005 deportation proceeding (the opposite was true in 1923, as stated in the Supreme Court's decision).

Monday, May 02, 2005

Minor Third Circuit decisions

The Third Circuit often makes a number of minor rulings that it considers non-precedential. These include:

Ruano-Orellano v. Attorney General, No. 04-2306 (3d Cir. Apr. 29, 2005): denying immigrant's argument that he and his attorney did not receive notice of a court hearing because there were no sworn statements in the record that they failed to receive the hearing notice. Pointing out that one of the court's letters was returned for insufficient postage does not undermine how the court sent it a second time with proper postage. Unhelpful that the immigrant never submitted an affidavit to back up his side of the story.

Son cannot claim asylum based on parents' persecution

In Wang v. Attorney General, No. 04-2656 (3d Cir. Apr. 27, 2005), the Third Circuit ruled that a son could not claim asylum based on the extensive persecution his parents faced in China. It seems that the claim focused on China's one-child policy, so in essence the fact that the son was alive was the basis for the persecution that his parents suffered. The Third Circuit ruled that if the son faced no harms of his own, was able to attend school without any difficulties, was never arrested, and was never detained, then the persecution was directed against his parents, not him, and he could not claim asylum.

Perhaps he can argue that a harm against one (in the family) is a harm against all (in the family) to explain why he suffered persecution?

Sunday, May 01, 2005

Late motion to reopen can be accepted if delay due to fraud

In Borges v. Attorney General, No. 04-1835 (3d Cir. Mar. 30, 2005), the Third Circuit ruled that filing a motion to reopen after the 180-day deadline expired can still be accepted if the immigrant can show that there are equitable reasons for the delay. It also ruled that being defrauded by a prior attorney (or notario) could be an acceptable reason to excuse the delay. It does require proving that the immigrant was actually defrauded and tried to make the motion to reopen as promptly as possible.

Motion to extend voluntary departure before deadline can excuse not departing

In Barrios v. Attorney General, No. 03-3211 (3d Cir. Feb. 25, 2005), the Third Circuit ruled that if an immigrant files a motion to reopen a removal proceeding before the deadline to leave under voluntary departure and the motion to reopen is not decided before the deadline arrives, that is an exceptional circumstance that excuses the immigrant for not leaving. Therefore, it is still possible for the immigrant to receive certain types of relief (including obtaining green card status) despite failing to leave by the deadline.

In Barrios, the immigrant married, filed all necessary papers to ask for a green card, and filed a motion to reopen before the voluntary departure deadline came. The Third Circuit was not even concerned that the immigrant failed to ask for an extension of the voluntary departure deadline!

Legal custody can be defined by actual uncontested custody

In Bagot v. Ashcroft, No. 04-2127 (3d. Cir. Feb. 11, 2005), the Third Circuit focused on definintg legal custody in order to decide whether someone was a United States citizen through his parents' citizenship.

The immigration law allowed him (born outside the US to parents who were not US citizens) to become a citizen if one of his parents who has legal custody of him after a legal separation becomes a citizen (along with other requirements such as his admission to the US as a legal permanent resident and still being a minor at the time).

The entire case depended on whether he was in his father's legal custody at the time his father became a US citizen. The Third Circuit laid out a structure for deciding this issue -- the first test is whether the state law where a decree was made would define the parent has having legal custody. The second test is whether the parent had actual uncontested custody. Here, the father had actual uncontested custody because the mother agreed to give custody to the father because of the difficulties she was having raising the kids outside the US.

Third Circuit Commentary

This blog is created for unofficial coverage of Third Circuit decisions, with a focus on immigration-related rulings. Nothing should be taken as legal advice, though. Please visit a licensed attorney for specific questions about your particular case.