Wednesday, May 31, 2006

Cooke: How To Reopen A Case When IJ Did Not Identify Apparent Eligibility For 212(h) Relief

Filed 05/31/06, No. 05-3191; Cooke v. Atty Gen USA; not precedential.

When an IJ fails to inform a respondent of potential relief that the person is apparently eligible for, the IJ arguably violates 8 CFR 1240.11 (formerly 240.11), which requires IJs to advise respondents of avenues of relief that the person is apparently eligible for. In this case, the IJ and respondent's counsel did not raise 212(h) relief and they lost before the IJ and with the BIA. Later, new counsel filed a motion to reopen based on ineffective assistance of counsel and the IJ's failure to alert them of apparent eligiblity for 212(h) relief. Because the BIA did not address the issue of apparent eligibility (skipping ahead to whether ultimate relief seemed likely), the Third Circuit remanded for further proceedings.

Sunday, May 28, 2006

Chavarria: BIA Mischaracterized Asylum-Seeker's Testimony

Chavarria v. Gonzales

The Third Circuit criticized the BIA for mischaracterizing the asylum-seeker's testimony in a way that made it seem less substantial than it really was.

For example, in analyzing whether certain threats were related to crimes he observed, the asylum-seeker testified how persecutors threatened him while robbing him and told him never to be seen again. This pseudo-robbery attack was similar to other politically motivated attacks on others. The BIA, however, improperly mischaracterized his testimony as saying that threats came from robbers who merely wanted to cover up the ongoing robbery. Congratulations to Tom Moseley, attorney for the asylum-seeker!

Friday, May 26, 2006

Khan: Judicial Review Of Continuance Requests Exists

Khan v. Gonzales
No. 04-4336
May 22, 2006

In this case, the Third Circuit continues its analysis of what types of cases fall outside its jurisdiction based on how Congress for whatever unimaginable reason chose to block any judicial review of decisions by IJs or the BIA that according to a particular subchapter of the laws are put in the Attorney General's discretion.

A motion asking for a continuance falls in a grey area because a regulation (but no statute) dictates that the action is in the AG's discretion. The Third Circuit joined the Second, Fifth, Ninth, and Eleventh Circuits in ruling that judicial review is only blocked if a statute grants discretion to the AG. Because a motion for a continuance is discretionary only according to a mere regulation, judicial review is still possible. This view conflicts with the Eighth and Tenth Circuits. (The standard of review is abuse of discretion, for which the Third Circuit requires proof that the respondent was prejudiced by the ruling.)

Related Third Circuit rulings about when judicial review is barred include Soltane v.
U.S. Dep’t of Justice, 381 F.3d 143 (3d Cir. 2004) (allowing judicial review of preference visa denial for certain special immigrants); Urena-Tavarez v. Ashcroft 367 F.3d 154 (3d Cir. 2004) (denying judicial review of ruling on conditional permanent residence status based on marriage to a citizen); Jilin Pharmaceutical USA, Inc. v. Chertoff, No. 05-2788, __ F.3d __ (3d Cir. May 10, 2006) (denying judicial review of visa revocation).

Monday, May 22, 2006

Judge Edward Becker Passed Away May 19th

Legendary judge Edward R. Becker passed away at the age of 73 after a battle with prostate cancer on Friday, May 19, 2006. He was a senior judge at the Third Circuit and from 1998 to 2003 was the chief judge of the Third Circuit. Deeply admired and respected among lawyers, Judge Becker was widely acclaimed as an exceptional judge and wonderful person.

Just one quote from a concurring opinion by Judge Becker in Abdulrahman v. Ashcroft, 330 F.3d 587 (3d Cir. 2003) in which the Third Circuit begrudgingly upheld an IJ's denial of an asylum claim:
The Immigration Judge's statements barely cross the line into the realm of fact
finding, although Judge Shadur is correct that, in view of our extremely narrow
standard of review, we are constrained to view them as so doing. While I
join in Judge Shadur's opinion, I write separately to highlight these statements
and to express my extreme discomfiture with them, as they border on the
cavalier. Indeed, in my view, they come extremely close to constituting
reversible error.

Special thanks to Nicole for pointing out Judge Becker's passing and how it would be appropriate to post a respectful note.

Sunday, May 21, 2006

Francoise: Inhumane Prison In Haiti Not Enough For CAT Relief

Francois v. Gonzales
No. 04-4523
May 19, 2006

The Third Circuit disappointingly refused to grant CAT relief (under the Convention Against Torture) for someone who would suffer inhumane, abysmal conditions in a jail in Haiti if deported to Haiti.

Let's summarize the factual situation as viewed by the Third Circuit: in Haiti, many people deported from the United States are held in abysmal prisons without being told how long they will have to stay there (sometimes 6-10 months). The conditions are atrocious and on top of that, prison officials grossly mistreat the detainees in Haiti. The conditions are "inhumane and deplorable."

Let's look at some earlier decisions by the Third Circuit: in Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005), the Third Circuit held that someone who only claims that he will be subjected to harsh prison conditions in Haiti if deported cannot qualify for CAT relief. But the immigrant's lawyer (Regis Fernandez) pointed out that in Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003), the only intent needed to prove CAT relief is to show that the severe pain or suffering that is not the unintended consequence of an intentional act. Based on that definition, shouldn't the intentionally abysmal, atrocious, inhumane, and deplorable conditions trigger CAT relief?

The Third Circuit turned the definition by adding a new element -- "here must be some sort of underlying intentional direction of pain and suffering against a particular petitioner, more so than simply complaining of the general state of affairs that constitute conditions of confinement in a place."

On a personal note, having seen pictures and heard first-hand reports of the horrible prison conditions in Haiti, I disagree with the Third Circuit's factual finding that the level of suffering in Haitian prisons does not constitute torture. Their attempt to hide behind requiring intention direction of pain against a particular petitioner might be a smoke screen based on a fear by courts of shaping relief that would qualify too many people. I wonder whether if the abysmal prison conditions affected only a small number of people, CAT relief would be easier to win. But where abysmal conditions affect a large number of people, the need for protection under international law is even greater, not smaller.

I look forward to seeing whether Regis will appeal this case further. Options include asking for review by the United States Supreme Court or turning to the Inter-American Court of Human Rights. Maybe a Hollywood film on Haitian prisons would make the difference?

Sunday, May 14, 2006

Misc. non-precedential, including derivative citizenship CSPA issue

Calix-Chavarria v. Gonzales, No. 05-3447 (3d Cir. May 12, 2006) (not precedential): overturning Judge Walter A. Durling to require BIA to rule whether someone who was under 18 when his mom applied for citizenship but was over 18 by the time she actually became a citizen can derive citizenship by being treated as if he were still under 18 when his mom got citizenship. This would require using the rationale behind the Child Status Protection Act (but CSPA does not cover derivative citizenship issues). The Third Circuit requires the BIA to rule on whether to allow preserving under-18 status where INS took a long time to approve the mother's citizenship application.

"JJ" v. Gonzales, No 05-2638 (3d Cir. Apr. 12, 2006) (not precedential): overturning IJ's negative credibility determination because it was speculative, trifling, or failed to reach the heart of the claim. For example, the IJ latched onto how the asylum-seeker got a person whose name he did not know to arrange for documents to be sent from China to him. It was speculation to believe not knowing that person's name must mean the asylum-seeker faked the documents.

Jules v. Gonzales, No. 05-2847 (3d Cir. Apr. 13, 2006) (not precedential): rejecting appeal claiming derivative citizenship because not exhausted in prior proceedings. Diverging from the Ninth Circuit, which recognized an exception to the exhaustion doctrine for a citizenship claim. Theagene v. Gonzales, 411 F.3d 1107, 1111 (9th Cir. 2005).

Filja: Good Ruling On Reopening Asylum Case Using New Evidence

Filja v. Gonzales
Filed 05/12/06, No. 04-1782

The Third Circuit overturned the BIA's interpretation on what kind of new evidence needs to be shown to file a motion to reopen an asylum case many months after the BIA made its ruling. Asylum cases can take years to resolve so new evidence can arise after the IJ makes a ruling but while the case is being appealed. It makes sense that the strict time limits for a motion to reopen the appeal should be relaxed if brand new evidence arose that could not have been provided at the prior proceeding. The Third Circuit ruled that the "prior proceeding" means the IJ's proceeding, which is where the system accepts evidence and testimony (appeals are rooted in the record developed by the IJ). The BIA mistakenly had ruled the new evidence had to become available only after the BIA a year later rejected the appeal from the IJ's decision.

The Third Circuit also rejected the BIA's cursory statement that it carefully reviewed the record and saw no merit to one of the asylum-seeker's arguments. The BIA must offer more analysis than simply saying they thought about it and believe there is no merit.

Thursday, May 11, 2006

Jilin Pharmaceutical: Federal Courts Can't Review A Visa Revocation

Jilin Pharmaceutical USA, Inc. v. Chertoff
No. 05-2788
May 10, 2006

Due to the harsh Real ID Act that Congress recently passed, federal courts in the Third Circuit have no power to review a visa revocation by immigration officials, regardless of how unfair the visa revocation might have been.

The Third Circuit distinguished between federal lawsuits to challenge when immigration authorities deny a visa application. Federal courts can still review those rulings. But they cannot review anymore visa revocations (when the authorities grant a visa then go back and revoke it).

The basis for this is that in the Real ID Act, Congress in a very controversial decision made certain types of rulings unreviewable by federal courts. The official section is 8 U.S.C. section 1252(a)(2)(B)(ii). It prevents judicial review of almost all decisions that are within the discretion of the Attorney General.

The Third Circuit already ruled in Soltane v. US Dept. of Justice, 381 F.3d 143 (3d Cir. 2004), that the federal courts can review a ruling by immigration authorities not to grant a visa.

Here, though, the Third Circuit ruled that a visa revocation falls within the Attorney General's discretion so federal courts cannot review it. The Third Circuit agreed with the ruling of the Seventh Circuit in El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004) and disagreed with the Second Circuit in Firstland International, Inc. v. U.S. INS, 377 F.2d 127 (2d Cir. 2004). Sometimes when the circuit courts are split on an issue, the U.S. Supreme Court will take a case that raises the issue to clarify what is commonly known as a circuit split. Time will tell whether the split in the circuits gets resolved one way or the other.

Saturday, May 06, 2006

"N.S.": Not Precedential, Upholding Asylum Denial But Warning Judge Garcy

"N.S." v. Gonzales
No. 04-2258
March 31, 2006
Not Precedential

The Third Circuit upheld the IJ's ruling that denied asylum to someone from Egypt. (Some of the support for affirming the ruling was that his testmiony had inconsistencies about the threats he faced, he lacked medical proof of the torture he suffered, and he did not explain why it took so long for him to help his family escape.)

But the Third Circuit warned Judge Garcy by name for "unprofessional and inappropriate conduct" by verbally attacking the asylum-seeker and showing callousness. The Third Circuit offered as an example how the asylum-seeker allowed a former prisoner into his home based on forgiveness and his Christian beliefs. In response, Judge Garcy scolded him, "How dare you bring a stranger into your house without knowing what the crime was that the lady had committed. Why -- how could you do that?"