Sunday, February 12, 2006

Ng: Aggravated Felony Even Though Hired Undercover Police Officer

Ng v. Gonzales
Filed 02/07/06, No. 04-4672
February 7, 2006

Ng v. Gonzales (3d Cir. Feb. 7, 2006) (precedential):

You can commit a crime by hiring someone you think is a hitman but actually is an undercover police officer. Here, the immigrant wanted to hire a hitman to kill someone, but the police intervened and arranged a sting operation -- the immigrant wound up thinking he hired a hitman, but he actually wound up asked an undercover detective posing as a hitman.

Because crimes are analyzed under the categorical approach (conduct covered by the statute as written, not the details of a particular case), use of interstate commerce facilities in the commission of a murder-for-hire is an aggravated felony. It's irrelevant that in fact no murder was going to happen because the person he hired was actually an undercover detective pretending to be a hitman.

Duvall: Issue Preclusion Applies In Immigration Court

Duvall v. Gonzales
February 7, 2006
Filed 02/07/06, No. 04-4412

Issue Preclusion applies against the government in most immigration cases. Unfortunately for the immigrant in this case, the Third Circuit said that her continued criminal actions meant her case fell into an exception so that the government was not hampered by issue preclusion.

Issue preclusion is a doctrine that prevents someone from relitigating an issue that they previously litigated fully and lost. The Third Circuit ruled that this doctrine can be invoked in many cases to prevent ICE from relitigating an allegation they litigated and lost before -- such as trying and failing to prove alienage in one case then trying to relitigate the issue in a case years later.

The Third Circuit also ruled that the issue preclusion doctrine applies in immigration court, not simply in federal court appeals of immigration cases. It rejected ICE's argument: The doctrine of collateral estoppel has long been understood to apply in all proceedings that may be deemed “adjudicative,” no matter whether the governing entity is a “court” or an “agency.”

Here things get confusing -- the Third Circuit carved out an exception of cases where issue preclusion won't apply, because "collateral estoppel was borne of equity and is therefore 'flexible,' bending to satisfy its underlying purpose in light of the nature of the proceedings."

It's hard to comprehend the Third Circuit's analysis, but it ruled that the immigrant in this case could not invoke issue preclusion because she fell into an exception: (a) it's clear she's not a US citizen, (b) she committed crimes after the initial case ended, and (c) Congress has repeatedly tried to make it easier to deport people who commit serious crimes.

So, what's the rule going forward? It's unclear, but a plausible view is that issue preclusion can always be used in all cases except where the immigrant commits crimes after the initial case ended.

Saturday, February 04, 2006

Decision Vacated in "She-says versus the BIA-says" Case (not precedential)

Jumaev v. Gonzales
Nos: 04-1555 & 04-3470
Decided Jan. 30, 2006 (Filed Apr. 30, 2005, so it took 9 months to decide the case)
Not Precedential

"She-says versus BIA-says" -- the lawyer says she mailed a notice of appearance, which would require the IJ to send her a copy of any decision in the case. The BIA says she never mailed it.

She says she even has a copy of the notice in her own file. The BIA says she never mailed it so it is irrelevant whether she still has a copy of it in her file.

The BIA concluded without any explanation that it examined the package of what was submitted and concluded she never mailed the notice of appearance. The Third Circuit ruled that "without an explanation from the BIA of how it determined that the 'package' it examined was the complete package submitted by Aristova, we do not find substantial evidence under the circumstances of this case that the entry of appearance was not filed."

The Third Circuit also prodded the BIA to analyze how the motion included in the package a cover letter that showed her name and address, how the motion to reopen cntained her name and address, and how the package included an index that listed a notice of appearance as being included in the package. Ah the joys of administrative litigation...

Glaring Errors on Credibility Require Overturning Denial of Asylum (not precedential)

"J.C." v. Gonzales
No. 04-4685
Jan. 31, 2006
Not Precedential decision

The IJ denied asylum and the BIA agreed. The Third Circuit reversed. The Third Circuit noted that "the problems with several of the IJ’s credibility determinations are so glaring that it would be manifestly unjust if we were to let them pass without comment" even though the immigrant did not raise the issue in its appeal.

Basically, the IJ had a hard time comprehending the asylum-seeker's testimony. At the end of the case, the IJ incorrectly concluded that the asylum-seeker wa confused and got her facts backwards. The Third Circuit strongly disagreed, saying that "Rather, the confusion appears to rest with the IJ."

Also, at one point the asylum-seeker mistakenly said "sterilization" instead of "abortion" and quickly corrected herself. The IJ ruled this one slip proved she was so "clearly confused" that the entire testimony must have been fabricated. The Third Circuit disagreed and ruled it was just a minor slip and certainly not proof that the entire story was a lie.

I won't bother summarizing two other errors by the IJ, which the Third Circuit ruled were not bases for finding the asylum-seeker not credible.

Ineffective Assistance Can Toll 180-day motion deadline (not precedential)

In Bejar v. Ashcroft, 324 F.3d 127, 131 (3d Cir. 2003), the Third Circuit explained that if a lawyer did an extremely ineffective job of representing someone, in some cases that can be an exceptional circumstance that allows the immigrant to file a motion to reopen more than the usual 180 day limit after the decision.

In the not-precedential decision of Nawaz v. Gonzales, No. 04-3411 (3d Cir. Feb. 2, 2006), the Third Circuit corrected the BIA and reaffirmed that a lawyer's extremely ineffective job of representation can be a basis to allow a motion to reconsider or reopen more than 180 days after the court's decision. In this case, the court mailed notice of a court date to the lawyer, but the lawyer is sure she never received it. When the immigrant did not show up in court, the court entered an in absentia deportation order. Three months after the decision, the immigrant's lawyer made a motion to reopen because she never got the court notice. Many months later (more than 180 days after the decision), the immigrant filed a motion for reconsideration and raised the issue of ineffective assistance of counsel. The Third Circuit explained that the BIA must analyze whether the late motion for reconsideration should be allowed because of extraordinary circumstances.