Monday, December 26, 2005

M.B.: IJ Cannot Deny Asylum where Testimony Was Essentially Consistent

"M.B." v. Gonzales
Dec. 13, 2005
(the surname of the asylum-seeker is printed in the Third Circuit's decision)

The IJ incorrectly based a ruling that the asylum-seeker was not believable on two supposed reasons: (1) the aslum-seeker supposedly confused his brother's name with his cousin's and (2) the asylum-seeker supposedly looked like an actor reciting rehearsed lines by adhering closely to his written account. The IJ ignored evidence in support of the asylum claim such as his physical burns. In a footnote, the Third Circuit expressed concern with how the immigration judge interrupted the asylum-seeker's testimony, referred to a newspaper article he had excluded from the evidence, and took over the immigration agency's cross-examination of the witnesses.

First, an IJ cannot rely on inconsistency with an asylum-seeker's first affidavit when the asylum-seeker submitted a second affidavit to explain the first affidavit had an error.

Second, the asylum-seeker did not just mimic what was in the written affidavit. He elaborated on it during questioning and only seemed to mirror what was written when the IJ interrupted and asked yes-or-no questions limited just to the facts in the written affidavit.

Morgan: Derivative Citizenship pre-2001 on Legal Separation Depends on the Laws Covering the Marriage

Morgan v. Gonzales
Filed 12/21/05, No. 04-3254
Morgan v. Atty Gen USA

This case dealt with the rule on derivative citizenship (when a child automatically obtains citizenship upon one of his parents becoming a citizen) that existed for those who turned 18 before 2001. If you are under 18 today, look at the Child Citizenship Act of 2000 on citizenship for children, which is much easier to satisfy than the old rule.

This case focused on 8 U.S.C. section 1432(a), the prior rule on children whose parents separate and the parent who has custody becomes a United States citizen. You need to look at the statute to see all the requirements for deriving citizenship, but the Third Circuit only had to focus on one requirement in this case: that there must be a legal separation of the parents. But watch out, there could be other ways to derive citizenship -- the avenue used by the immigrant in this case is not the only way.

The Third Circuit asked: what is "legal separation" -- can it include actual separation that was never reinforced or acknowledged in a court order?

The Third Circuit's answer is: there must be some formal action that complies with what is required in the laws of the other countries or states that arguably had the power to rule on the parents' marriage.

In this case, Jamaica requires a court decree of judicial separation to obtain a judicial separation. The immigrant never did that. Another option was to satisfy Pennsylvania law, which requires not just living separate and apart for two years but also a court order that concludes that one spouse clearly manifested and communicated to the other spouse an intention to dissolve the marital union.

Here, the immigrant did not obtain a Jamaican court decree or a Pennsylvania court order (and in fact had no proof of communicating an intention to dissolve the marital union).

The rule of thumb is that if the relevant laws for legal separation require a court order, a separation that never involved a court order of any kind will not satisfy the requirement for derivative citizenship that the parents have legally separated.

Pinho: Motive for Vacating Conviction Must Be Revealed In The Record

Pinho v. Gonzales
Filed 12/20/05, No. 04-3837
Pinho v. Atty Gen USA

Esteemed attorney Thomas Moseley gained a striking victory for immigrants who successfully have their convictions overturned and wish to use that fact to prevent the government from deporting them based solely on the convictions that they've overturned.

The Third Circuit ruled that if the record of conviction states that a conviction is overturned because of a problem with the original conviction, then an immigration court cannot rely on that conviction in trying to deport someone.

The immigration officials have for whatever reason adopted a rule that if the motive for overturning a conviction is solely to help avoid deportation (or any other immigration consequence), the immigration courts must ignore the fact that the conviction has been overturned or modified. (This rule is described in In re Pickering, 23 I. & N. Dec. 621 (B.I.A. 2003).) This is a very harsh rule to adopt, but the Third Circuit ruled that immigration officials may adopt this rule even though it treats some exonerated-convicts differently from others in immigration court.

The Third Circuit describes PTI or pre-trial intervention in New Jersey which if done carefully can avoid immigration impact because it might be possible to avoid pleading guilty or admitting that you have committed the crime along with obtaining a dismissal of the charges through the PTI program. The Third Circuit suggests that from 1992-1999, prosecutors wrongly prevented anyone who arguably possessed drugs with intent to distribute them near a school from entering the PTI program.

In this case, the New Jersey judge who overturned the prior conviction stated on the record that the reason was the procedural flaw in the earlier conviction, that the defendant had not been given effective assistance from his trial counsel. The immigration attorneys argued to the Third Circuit that despite the clear language that the decision was based on a procedural flaw, the Third Circuit should look around behind the clear language and conclude that the true, unstated motive for overturning the conviction was merely to help the immigrant avoid consequences in immigration court.

The Third Circuit rejected the immigration officials' argument, ruling that the motive for overturning a conviction must be discerned by looking at what is stated in the record, without resorting to unstated motives that do not appear anywhere in the record. To adopt hypothetical conjecture of true motives would require forcing state court judges and state prosecutors to testify in immigration court about what their true motives and true, unspoken thoughts were.

Not only would such a procedure by absurd and impractical, it would also fail to give proper respect in federal cases for state decisions about the meaning of state laws.

Therefore, the Third Circuit adopted what it calls a "categorical" approach -- look at the record and what details apply to the category of action taken rather than doing extensive examination of the unstated details in the case.

The Third Circuit also addressed how the immigrant had exhausted all his ways to challenge the ruling before the agency, even though the basis for the argument that gave rise to the case was a request for a work permit that had since been granted.

Szehinskyj: Issue Preclusion for "Assisted in Persecution" Issue

Szehinskyj v. Gonzales
Szehinskyj v. Attorney General
No. 04-3710
December 13, 2005

Issue preclusion can apply in immigration court to prevent a respondent from relitigating an issue that he raised in other proceeding, fully litigated, and wound up losing.

Issue preclusion is also known as collateral estoppel (but courts are moving toward the "preclusion" phrase) and it requires: (1) the issue previously decided is the same as the current one, (2) the previous case actually litigated the issue in question, (3) the previous case's ruling on the issue was necessary to the decision, and (4) the party to be precluded was fully represented in the earlier decision.

In this case, the Third Circuit focused on whether the issue in this case (the immigrant assisted in persecution which makes him deportable) is the same as a previous case involving the same immigrant (the immigrant assisted in persecution which revoked his U.S. citizenship).

The immigrant argued that even though both decisions relied on language that punished anyone who "assisted" in persecution in Nazi Germany, the decision to revoke his citizenship did not focus on assisting in persecution. The immigrant unsuccessfully argued that taking away someone's citizenship focused solely on Nazi war criminals, not Nazi persecutors.

The Third Circuit rejected the immigrant's argument, ruling that the plain language of the statute makes clear it covers assisting in persecution and the full text of the legislator's debate in enacting the denaturalization statute shows the legislators included Nazi persecution, not just a subset of Nazi war criminals when enacting the Holzman Amendment.

Monday, December 05, 2005

Not-precedential critique of IJ shows flaws with the Immigration Court system

Romano-Varian v. Gonzales
No. 04-3208
Filed November 30, 2005
Not precedential

The Third Circuit only needed two weeks from the oral argument to grant the appeal of esteemed lawyer Thomas Moseley. It is hard to summarize this case fairly, but it seems that when an immigration judge says the witnesses are all telling the truth, the court should probably not rule that the immigrant should be faulted for not bringing someone from his workplace to testify.

To be able to pursue cancellation of removal for someone who does not have permanent resident status, an immigrant must show ten years of continual physical presence before the day that the removal case begins. Here, the only issue was whether he was in the United states in the last half of 1992. He got an unsworn letter from his company saying he'd been working there since 1989. The immigration judge was somewhat unhappy that the immigrant failed to bring a live witness to testify that he had worked at the company since 1989 and was unimpressed when he explained that nobody at the company was willing to take time off work to testify for his case. He instead brought a few witnesses who were no longer working at the company.

The Third Circuit overturned the judge's ruling, noting that minor inconsistencies are not an adequate basis for finding someone to be not believable. Also, the judge's own comments that the immigrant's witnesses were all there telling the truth makes it less justifiable for her to rule physical presence had not been shown.

What was going on? The Third Circuit named the immigration judge (Judge Garcy), but is it all her fault or something that only one judge does? Perhaps it is a reflection of the underfunded, understaffed immigration court system rather than anything about a particular judge. There is such pressure to move and finish cases, it can build up frustration with the time-consuming task of patiently sifting through witnesses and information and waiting for additional supporting evidence.

The Third Circuit did not rule on whether the immigration judge's refusal to grant a delay to allow the immigrant to get additional witnesses was reversible error, but it is enlightening to see the immigration judge's statements as quoted by the Third Circuit. Read these not to critique the judge in this case -- instead, read them as a reflection of the unfair pressures that most immigration judges probably feel. The solution is to increase funding and staffing for the immigration court system. If judges today feel this kind of pressure, something needs to be fixed in the entire system:
“[T]his Court cannot really then consider the motion to adjourn without considering the pressures placed upon an Immigration Judge by the Chief Immigration Judge himself.”

“I’m not inclined to adjourn the case for more evidence, because it wasn’t my idea, I mean I had another case I could have done this morning.”

"I’m trying to digest this new instruction from the Chief Immigration Judge . . . . Let me tell you something. The days of needing more time are now over.”

“[T]he Chief Immigration Judge would probably be furious if he had an idea that a case was going to be adjourned, where we’re paying for a Spanish interpreter . . . .”