Monday, August 29, 2005

Kamara: CAT when threatened by two torturers; the state created danger doctrine

Filed 08/29/05, No. 04-2647
Kamara v. Atty Gen USA
Kamara v. Gonzales
Precedential Case

In this case, the Third Circuit had to overturn the BIA's decision and explain to the BIA that under the Convention Against Torture, someone cannot be deported if there is more than a 50% chance that he will be tortured upon his return. What if there is a substantial chance he will be tortured, combining the odds that two different groups will torture him? Logically, as long as the cumulative odds of torture are more than 50%, he deserves protection. The BIA , however, took the illogical position that he must prove that a particular group is more than 50% likely to torture him and did not allow him to add up the risks from different torturers.

For example, if it's 27% likely that the RUF will torture him and 28% likely that the Sierra Leone government will torture him, he deserves CAT protection (it's 55% likely he'll be tortured). The BIA illogically said that he needed to show the threat from the RUF or Sierra Leone was on its own greater than 50%.

On jurisdiction, the Third Circuit held it could review the appeal of a habeas decision in the district court as if it had arisen from a straightforward petition for review in the world that exists after Congress passed the Real ID Act.

The immigrant challenged whether the BIA's skimpy six-paragraph decision violated due process by not granting him an individualized decision. The Third Circuit, though, said the minimal indicia of individualized decisionmaking was satisfied in this case.

On the "state created danger" doctrine, the government can be sued if it directly and foreseeably puts a person in danger in willful disregard for his safety. The Third Circuit ruled that this doctrine does not apply to removal orders because the federal government meant to pre-empt other doctrines in the immigration area. Not sure whether the Third Circuit's ruling on this issue will survive the test of time. We shall see.

Sunday, August 28, 2005

Asylum claim revived where testimony discrepancies are minor

Filed 08/25/05, No. 04-3420
Ling v. Atty Gen USA
Ling v. Gonzales

It is difficult to overturn an immigration judge's decision that an asylum-seeker was not credible. In this case, though, the Third Circuit ruled that the immigration judge and the BIA were wrong to rule that the asylum-seeker was not credible.
Generally, minor inconsistencies and minor admissions that reveal nothing about an asylum applicant's fear for his safety are not an adequate basis for an adverse credibility finding. The discrepancies must involve the heart of the asylum claim.
In this case, the judge focused on two inconsistencies. First, the asylum-seeker sought a marriage certificate in 1997 but the Chinese authorities refused to issue it because his fiancee was not yet 20 years old, which led to a forced-abortion. An inconsistency is that, oddly, his wife was 20 years old at the time the authorities refused to issue the marriage certificate. The Third Circuit ruled, though, that the marriage certificate issue does not go to the heart of the asylum claim so that minor inconsistency could not be the absis for an adverse credibility finding. The heart of the asylum claim was how his wife was barred from having any more children (through an intrauterine device) for ten years after they ultimately had their first kid.

Second, the asylum-seeker was inconsistent about what month they stopped hiding after his wife got pregnant in May 2000 (which ended in a miscarriage). His written application stated they returned from hiding in October 2000, but in live testimony, he said it was in December 2000 when asked about events near the end of the calendar year. He repeated the December 2000 estimate several times until he was confronted with the discrepancy. He said it truly was October 2000 but he just got confused with the December 1997 forced-abortion after the marriage certificate was denied. The Third Circuit said it was excusable because his explanation for the slip was reasonable and, in any case, the inconsistency was not enough to rule that he was not credible.

Sunday, August 21, 2005

Repapering not needed for transitional REAL ID petitions for review

Filed 08/02/05, No. 04-3726
Jahic v. Atty Gen USA
Jahic v. Gonzales
Not precedential

If you filed a petition for review that was pending when REAL ID was enacted, then you do not need repapering in order for your client to pursue cancellation of removal.

Before 1996, removal proceedings were broken out into two types of proceedings: deportation (for removing those in the US) and exclusion (for removing those who were stopped at the border and the government sought to exclude from officially entering).

By a quirk in the law, anyone in exclusion proceedings could not apply for the forerunner of a form of relief called cancellation of removal. (There are many harsh, onerous requirements for cancellation of removal that I won't get into here.) But, after 1996, anyone who is in a removal proceeding could seek cancellation of removal.

Therefore, some people who were put into exclusion proceedings before 1996 asked the government to "repaper" their case by launching a new removal proceeding. This way, they could seek cancellation of removal (available in all removal proceedings launched after 1996, but not in pre-1996 exclusion proceedings). Strange but true.

Well, under the REAL ID Act, any petition for review that was pending on May 11, 2005 will automatically be treated as if it had been filed in a post-1996 removal proceeding. Therefore, the Third Circuit ruled, any case that had a petition for review pending on May 11, 2005 is automatically eligible for the forms of relief available in post-1996 removal proceedings and repapering is not necessary.

This was a big deal in this appeal because the issue was whether the government acted improperly by refusing to "repaper" the case. As it turns out, repapering is not necessary so the issue of whether the government had the right to refuse to repaper is irrelevant.

Ah, the quirky and unexpected consequences of rushed legislation like the extremely harsh REAL ID Act.

Lusingo: media blitz can be basis for asylum claim and rejects government's "myopic" assertions

Filed 08/19/05, No. 03-4418
Lusingo v. Atty Gen USA
Lusingo v. Gonzales

The Third Circuit held that fear of retaliation from one's former government because it is embarrassed by the coverage given during a media blitz can be a basis for asylum if there is evidence the country persecutes those who embarrass it.

Here, a 16-year old came to the U.S. from Tanzania for a Boy Scout event and ran away, unknowningly launching a media frenzy while people searched for him. He turned himself in to the police, who rudely turned him over to immigration authorities for deportation. After he expressed fear that if deported Tanzania would punish him for embarrassing them, the media printed stories about how Tanzania treats children badly in prison. Very embarrassing for Tanzania.

The BIA incorrectly rejected the asylum claim based on their ruling that it was objectively unreasonable: they did not understand why it was relevant that Tanzania persecutes street children whose existence embarrass it publicly and it was concerned that his parents who still live in Tanzania have not been persecuted.

The Third Circuit rejected the BIA's rationale. First, the BIA completely missed the point of what is happening to street children: the point is that Tanzania persecutes those who embarrass it. It is irrelevant that the 16-year old in question is not a street child. He embarrassed Tanzania by causing a media frenzy about Tanzania's poor treatment of children, not because he himself purported to be a street child. Second, it is irrelevant that the parents have not been persecuted, because the parents had no idea the child was going to try to stay in the United States and the parents had no control over the media frenzy. So, the fact that Tanzania has not persecuted the kid's parents is not proof that Tanzania will not persecute the kid.

The Third Circuit remanded the case for the BIA to explain itself further. But the Third Circuit rejected two "myopic" arguments that the government tried: first, the government actually argued that the lack of any letters to the editor in Tanzania's newspapers suggests nobody in Tanzania cared about the embarrassing media frenzy. This is "disingenuous or embarrassingly naive" because if Tanzania persecutes those who embarrass it publicly, perhaps nobody wrote a letter to the editor because they feared persecution. Second, the government argued that fact that the ambassador of Tanzania said to the media that the boy will not be persecuted is proof that he is safe to return. This is "myopic" because if Tanzania is planning to persecute the boy, it would never have its ambassador publicly admit that. Instead, it would have its ambassador lie to the media and say the boy is supposedly safe to return, while secretly planning to persecute him. Ah, our taxpayer dollars hard at work.

Rodriguez-Munoz: Can't get 212(c) for an aggravated felony and cancellation of removal simultaneously

Filed 08/16/05, No. 05-1732
Rodriguez-Munoz v. Atty Gen USA
Rodriguez-Munoz v. Gonzales
Precedential decision

First, the jargon-filled explanation: An immigrant who has an aggravated felony conviction along with other crimes of moral turpitude cannot seek simultaneous 212(c) and cancellation of removal because the aggravated felony makes him ineligible for cancellation of removal. This does not affect the availability of relief under Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993), which permits simultaneous adjustment of status under § 245(a) and 212(c) relief.

Ok, now my attempt at a coherent explanation: here, someone not only committed an aggravated felony (intent to sell crack), but also crimes of moral turpitude (pot possession and possession of a drug). Based on a complex set of rules, it so happens that 212(c) relief is available to avoid deportation based on how the intent to sell crack is considered an aggravated felony. Next, the immigrant needs to get something called cancellation of removal to avoid being deported based on the two crimes of moral turpitude. It is hard to get cancellation of removal, but I will spare you the details of the many requirements to qualify for it. One requirement, though, is that you can't have an aggravated felony conviction.

The immigrant argued that getting 212(c) relief to avoid being deported as an aggravated felony convict should also be construed as allowing him to pursue cancellation of removal despite his aggravated felony conviction. The Third Circuit said no, the 212(c) waiver gives him a free pass to avoid deportation based on that conviction but it does not simultaneously give him a free pass to skip the requirement for cancellation of removal that he can't be convicted of an aggravated felony.

Remember, just because the Third Circuit issues a ruling does not mean you can't pursue the rejected theory -- it's possible that one day the U.S. Supreme Court will rule that the Third Circuit was wrong. And it's possible that the Supreme Court will say that only those who unsuccessfully raised the losing argument will benefit from its decision. So, perhaps it is wise to raise the argument that the Third Circuit rejected, in the hopes that the Supreme Court will rule that the Third Circuit's position is wrong.

Note: a few days later, in the non-precedential opinion of (Filed 08/23/05, No. 04-4430) Arriola-Arenas v. Atty Gen USA, the Third Circuit reiterated its view that 212(c) will not allow an aggravated felon to apply for cancellation of removal. And also in the non-precedential decision of (Filed 08/29/05, No. 04-3274) Campbell v. Atty Gen USA And in the non-precedential decision of Martinez-Moreno v. DHS, May 23, 2006,

Zheng: asylum lost because kid did something implausible and lacked corroboration

Filed 08/15/05, No. 04-3008
Zheng v. Atty Gen USA
(Zheng v. Gonzales)

The government successfully asked the Third Circuit to make their non-precedential decision into a published precedential decision. The difference is that a precedential decision can be cited as controlling over the courts covered by the geographic region of the Third Circuit. A non-precedential decision is not binding.

In this appeal, the Third Circuit upheld the immigration judge's rulings that the content of the asylum claim did not seem very plausible and the immigrant failed to come forward with corroborating evidence that should have been available.

First, while 13 years old, he was asked by his schoolteacher in China to write an essay. In an act that is either brazen or implausible, he wrote an essay that heavily criticized the Chinese government for forcibly sterilizing his mother (who had violated the one-child policy). The Third Circuit said it was a bit implausible for someone to write a scatching essay in school. Gee, and I thought kids did the darndest things.

Second, the judge ruled that the immigrant lacked corroborating evidence. The unduly harsh REAL ID Act changed the law and makes it extremely difficult to challenge this finding -- appeals must prove more than that the judge seemed to be wrong, appeals must now submit so much evidence that a reasonable judge would be compelled to conclude that the evidence sought is unavailable.

Here, the immigrant did not submit any explanation for not having testimony from his relatives in China, which he said he was in communication with. He also did not have his school records to corroborate the problem with his schoolteacher.

The Third Circuit denied the appeal, even though it noted that the immigration judge did make two mistakes: the judge said the immigrant was not believable based partly on two illogical conclusions. First, the judge said it was inherently implausible that the schoolteacher told the child to go home and write an explanation as opposed to forcing the child to write an explanation in the schoolhouse. The Third Circuit said the request to go home to write the essay was plausible. Second, the judge ruled it was deceptive for the child not to have listed where he hid for a few weeks when his asylum claim listed his places of residence. The Third Circuit said it is understandable and excusable for a child who probably did not read or sign the actual asylum claim not to list places of hiding.

Paripovic: last habitual residence can be refugee camp where practically stuck

Filed 08/12/05, No. 03-4193
Paripovic v. Atty Gen USA
(Paripovic v. Gonzales)
(precedential decision)

Asylum law focuses on whether a person has a well-founded fear of persecution that is rooted on one of several protected grounds that prevents him from returning to his home country. An interesting question is how to deal with people who are stateless, not a citizen of any country.

The law requires immigration judges to focus on the country where the person "last habitually resided." In this case, the Third Circuit focused on determining where someone who fled what used to be Yugoslavia last habitually resided.

In this case, the immigrant made a strong case that as a Croatian living in Serbia, he had a well-founded fear that he would be tortured or killed by people wishing to drive Croatians out of Serbia. If he had directly fled to the US, it would have been clear that he last habitually resided in Croatia.

However, he fled to a refugee camp in Serbia, where he was not physically detained but considering he had no place to go, he had no choice other than to stay there. After around two years in the refugee camp, he fled to the United States.

If the immigrant could prove that his time in Serbia was not where he last habitually resided, he would probably win his asylum claim.

The Third Circuit, however, ruled that the key question for where someone last habitually resided is the length of time the person resided in a location, regardless of the person's intent (or whether the person was forced into a location and only stayed there due to having no other choice).

Therefore, the Third Circuit ruled that the two years in Serbia made the last habitually residence Serbia and the immigrant did not qualify for asylum because he did not have a well-founded fear of persecution in Serbia.

There is some language that suggests the Third Circuit's decision might have been different if someone is physically detained or imprisoned (as opposed to being held in a camp and being free to go, but having no practical options other than to keep living in the camp).

Wednesday, August 17, 2005

Partyka: assaulting a cop not a crime of moral turpitude

Filed 08/11/05, No. 04-2804
Partyka v. Atty Gen USA

The Third Circuit held that assaulting a police officer is not a crime of moral turpitude. What, you may ask, is a crime "of moral turpitude"? The answer is, well, it's hard to say. The BIA said it is "conduct that is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed other persons, either individually or to society in general" but, I ask, what the heck does that mean?!

The issue was critical because the immigrant was convicted within five years of entering the country and the maximum possible punishment could have been more than one year. For some odd reason, Congress did not care that his actual sentence was only 90 days of house detention. Someone should fix the law to make it less harsh.

Anyway, the minimum conduct that would qualify as a crime under that particular statute is negligent conduct against someone the person knows is an officer. The Third Circuit said a good working definition of crimes of moral turpitude is "whether the act is accompanied by a vicious motive or a corrupt mind." A reckless act can qualify if it is a serious crime that is committed recklessly. The Third Circuit ruled that it's possible the reckless act was not particularly horrible but could qualify as a conviction, so the statute does punish solely acts that involve moral turpitude.

Mr. Partyka avoided the final hurdle of the danger the conviction record indicated he was convicted under a worse portion of the statute. Fortunately, it was vague so his conviction did not make him deportable.

Judge Alito filed a dissent, because he puzzled about his view that the BIA is the final authority on the meaning of its own decisions, so he would have remanded it to the BIA which would have allowed another chance to deport the immigrant.

Oyebanji: NJ vehicular homicide not an aggravated felony

Filed 08/11/05, No. 03-4143
Oyebanji v. Atty Gen USA

The question here was whether the reckless use of force qualifies as a crime of violence. In Leocal, the Supreme Court held that a criminal DUI offense that either lacks a mens rea component or requires only a showing of negligence in the operation of a vehicle is not a crime of violence type of aggravated felony. The Court noted, however, that Leocal did not present “the question whether a state or federal offense that requires proof of the reckless use of force against a person or property of another qualifies as a crime of violence..."

The Third Circuit tackled the unanswered question and ruled that reckless use of force is not an aggravated felony. The Supreme Court's ruling suggested that for a crime to be a crime of violence type of aggravated felony, there must be active employment and a higher degree of intent than negligent or merely accidental conduct. The Third Circuit said there were arguments for and against both sides, but it held that recklessness is not enough to qualify a crime as a crime of violence type of aggravated felony.

It overturned the ruling by the district court and held the vehicular homicide crime was not an aggravated felony.

Tuesday, August 16, 2005

Escobar: Honduran street children not a group eligible for asylum

Filed 07/29/05, No. 04-2999
Escobar v. Atty Gen USA

To win an asylum case, you must prove that the person has a well-founded “fear of persecution
on account of race, religion, nationality, membership in a particular social group, or political opinion.” (For example, if you are persecuted just because people want to steal money from everyone, you usually won't win asylum because the bad guys are robbing everyone regardless of their race, religion, or membership in any social group.)

What constitutes a "particular social group"? In the Escobar case, the Third Circuit ruled that Honduran street children do not qualify as a particular social group. In 1985, the BIA reasoned that a particular social group refers to “a group of persons all of whom share a common, immutable characteristic.”

The Third Circuit's summary is that
membership in a “particular social group” can be attributed to
either: (1) those who possess immutable characteristics such as race,
gender or a prior position, status or condition; or (2) those who
possess a characteristic that is capable of being changed but is of
such fundamental importance that individuals should not be
required to modify it, e.g., religion.
So, these have been ruled as particular social groups: Iranian women who found their country’s gender-specific laws offensive and [did] not wish to comply with them; former child soldiers who have escaped LRA captivity (in Uganda); a family targeted for harassment and violence because they were related to an allegedly racist boss in South Africa; children with “disabilities that are serious and long-lasting or permanent in nature and parents who care for them”; Somali women under threat of genital mutilation; a familial sub-clan in Somalia; and former members of El Salvador’s national police.

These have been ruled are not particular social groups: young, urban El Salvadoran males of military age who had not served in the military; youths with gang identification tattoos; voluntary members in a taxi cab cooperative that refused to yield to guerrillas; adult women raped and brutalized as children in El Salvador.

In the Escobar case, the Third Circuit said the three factors were poverty, homelessness, and youth. But because these conditions in Honduras are no worse than conditions in other countries, the Third Circuit ruled it was not a particular social group. Ah, if only they could improve the plight of homeless youth outside of Honduras, they could have won the case.

Monday, August 15, 2005

Popal: PA assault not an aggravated felony

Filed 07/29/05, No. 04-2048
Popal v. Atty Gen USA
(Popal v. Gonzales)
Precedential decision

The Third Circuit overturned the BIA and ruled that someone who is guilty of simple assault under Pennsylvania law is not deportable.

For a brief overview, in 1996 Congress passed a law greatly expanding what is categorized as a so-called aggravated felony. It's clear that mere misdemeanors that state legislatures say are not felonies can be encompassed in the very broad definition of "aggravated felonies." If someone is deemed to be guilty (or admits committing) an aggravated felony, the person is deportable and Congress has ruled out nearly every avenue immigrants are offered to avoid deportation. It is a complicated area, so you should consult with an attorney if you have a specific question.

Getting back to Mr. Popal, he was convicted of misdemeanor assault in Pennsylvania and sentenced to 4-23 months. The issue was whether the crime was an aggravated felony based on the theory that a crime involving the use of physical force is a crime of violence type of aggravated felony.

It's clear that in deciding whether a conviction is an aggravated felony, you must review the criminal statute involved, not the particular actions taken by the immigrant in his case. A conviction will only be an aggravated felony if each part of the relevant statute would be considered an aggravated felony. Here, it was clear that the Pennsylvania statute criminalized conduct that was intentional or reckless. Therefore, the question is whether a reckless assault could be considered an aggravated felony as a crime of violence.

As early as 1992, the Third Circuit ruled that a misdemeanor under state law cannot be an aggravated felony if it punishes reckless conduct. In 2004, the U.S. Supreme Court adopted this approach in Leocal v. Ashcroft, 543 U.S. —, 125 S. Ct. 377, 381 (2004). Therefore, the Pennslvania misdemeanor that punished reckless conduct was not an aggravated felony.