Sunday, June 25, 2006

Kumarasamy: Habeas Usually Not Allowed If Deported Before Filing Habeas

Kumarasamy v. Gonzales
No. 05-2323
June 23, 2006

The Third Circuit ruled that you can't file a habeas corpus petition (demanding release of someone) if the person was already deported before you filed your petition. (In footnote 6, the Third Circuit says being deported after you filed your petition will not affect the Third Circuit's ability to hear the habeas claim, because you were in custody when you started the case.)

Although many courts have said you do not need to be in actual immigration custody to be able to file a habeas claim, they covered situations where someone was in the US and under a final order of deportation. If you've already been deported, though, the Third Circuit feels that you are not laboring under any greater restraint than others outside the US.

There is one narrow exception -- exceptional circumstances that would otherwise effect a miscarriage of justice. The Third Circuit notes this narrow exception in footnote 5. But it held that narrow exception did not apply in this case, so the habeas petition is improper and the court dismissed the habeas case.

Obale: Staying Period Of Voluntary Departure

Obale v. Gonzales
No. 05-1109
June 22, 2006

The Third Circuit ruled that it does have the power to extend a period of voluntary departure and will apply the same standard as for deciding whether to issue a stay of a removal order. The standard, by the way, is:
(1) a likelihood of success on the merits of the underlying petition; (2) that irreparable harm would occur if a stay is not granted; (3) that the potential harm to the moving party outweighs the harm to the opposing party if a stay is not granted; and (4) that the granting of the stay would serve the public interest. Douglas v. Ashcroft, 374 F.3d 230, 233 (3d Cir. 2004).
The Third Circuit left unresolved the question of whether a request for a stay of removal implicitly also asks for a stay of the voluntary departure period. It's in footnote 10 of the opinion.

The Third Circuit rejected the government's unusual argument that anyone with a voluntary departure order was not able to appeal until they overstayed the voluntary departure period. The Third Circuit rightfully tossed that proposal into the trash. (It would have had a draconian effect on litigants who would need to take the ultimate risk of breaking their promise to leave by a certain date just to get judicial review.)

On the merits, the asylum claim lost because the siblings' asylum applications did not mention what this person suffered and the IJ felt it should have been corroborated or at least the lack of that corroboration should have been explained.

Wednesday, June 21, 2006

Cruz: BIA Must Explain Refusal To Reopen Sua Sponte

Cruz v. Gonzales
June 21, 2006
No. 05-2764

In this complicated appeal, the Third Circuit ruled that the BIA failed to explain its decision. Not only does that make it hard for the Third Circuit to review the BIA's rationale, but the Third Circuit is not able to decipher whether it has jurisdiction over the BIA's ruling.

Congress passed controversial rules that try to stop circuit courts from reviewing a range of BIA decisions for anything other than legal or Constitutional challenges. One category is where the BIA's decision was based on a crime of moral turpitude.

In this case, the BIA ordered the immigrant deported but the immigrant later was able to get the conviction erased in exchange for Pre-Trial Intervention (PTI) in New Jersey, where he did not have to admit his guilt. (It's fascinating to read all the effort Regis Fernandez put into getting the conviction erased, but I won't get into detail here.) Once the conviction was erased, the immigrant asked ICE in Newark to make a motion to reopen the BIA's original ruling. Immigrants do not have the right to file a motion to reopen if it's more than three months after the BIA's decision, so it makes sense to ask ICE whether they are willing to make the motion. It took many months for ICE to respond that it was not willing to make the motion. The immigrant made a motion to reopen and asked the BIA to reopen it of its own accord (using what is called its sua sponte power).

The BIA rejected the motion but never explained whether it held the immigrant was guilty of a crime of moral turpitude (even though it had been erased off the books) or whether it just did not wish to use its sua sponte power although no conviction existed anymore. If the BIA's ruling was that the conviction still had its effect on the immigration status, then the Third Circuit has little ability to review the ruling. But if the BIA acknowledges the conviction no longer exists, the BIA can review whether the BIA has a general, unwritten policy of approving quickly filed motions to reopen where a conviction is erased (just as it has done in ten previous unpublished BIA cases).

The lessons here are: the BIA can be sloppy in its decisions and fail to give its principled rationale (that is needed for the Third Circuit to rule on the appeal), there is hope though it takes tons of work for overturning convictions where the original criminal attorney did not advise the immigrant of the immigration benefit of seeking PTI, it's never too late to try to get PTI and erase the original conviction, and there is a viable argument that the BIA must grant motions to reopen that are filed immediately after the original conviction is legally erased.

(Keep in mind that by saying convictions are erased, I am referring to a particular legal test for immigration purposes in Matter of Pickering. If a conviction is taken off the books simply because the criminal was later rehabilitated, the BIA says the conviction still has the same negative effect for immigration purposes.)

Congratulations, Regis, for getting as far as you have so far in this case! But the work is not over yet...

Friday, June 16, 2006

Stay Granted To Pursue Asylum Claim For Deaf Child

The Third Circuit does not report stays on its web site, but newspapers report that the Third Circuit on June 14, 2006 granted a stay of deportation to permit a family to seek asylum on a ground they tried to raise in a motion to reopen with the BIA -- their nine-year old son who is severely deaf would suffer persecution because of his disability if returned to Indonesia. The Third Circuit concluded the family showed some likelihood of success on the merits of the case. Now they will have time to prepare the full case and have an asylum hearing. Newspapers report that the immigrants' attorney is Joseph Hohenstein and Asian Americans United is helping support the family.

There is some basis to argue that mistreatment due to a disability may qualify for asylum. For example, in Tchoukhrova v. Gonzales, 404 F.3d 1181 (9th Cir 2005), a child born with cerebral palsy who suffered abuse due to his disability in Russia qualified for asylum.

BIA Goofed And Affirmed A Rescinded Order

In the not-precedential case of Mufulu v. Gonzales, No. 05-2018 (3d Cir. June 15, 2006) (not precedential), the BIA made the sloppy mistake of affirming an IJ's rescinded order and ignoring the IJ's order that was being appealed. In the case, Judge Ferlise initially ordered the immigrant deported in April 2002 because nobody showed up, but rescinded his order because the immigrant did not receive proper notice of the hearing. Judge Ferlise held a full hearing on September 2002 and ordered the immigrant deported for a variety of reasons. The immigrant appealed and the BIA affirmed by relying on the rescinded April 2002 order, ignoring the actual order being appealed. The Third Circuit, naturally, overturned the BIA's decision and remanded the case for the BIA to focus on the September 2002 order being appealed from.

Saturday, June 10, 2006

Not-Precedential: Writing Bad Checks not aggravated felony; Credibility Determinations cannot rely on unrelated hearing

Mirat v. Gonzales
No. 05-2808
June 9, 2006
Not Precedential

In this not-precedential case, the Third Circuit ruled that a conviction for writing bad checks under Pennsylvania law is not an offense involving fraud or deceit. Therefore, it cannot be an aggravated felony, which includes offenses involving fraud or deceit causing a loss of over $10,000.

Courts use the categorical approach to decide whether a crime fits a certain category for immigration purposes. They study all of the conduct covered by a particular criminal statute (but it is actually a bit more complicated than this, because the court can divide up a statute to conform to descriptions in the record of conviction).

The offense of writing bad checks requires issuing a check knowing it will not be honored. Nowhere in the definition is fraud an express element. Therefore, it cannot be considered a crime involving fraud or deceit because it is possible to be guilty and not engage in fraud or deceit.

The Third Circuit distinguished its Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004) decision, which held that committing a crime under Pennsylvania's theft by deception statute does involve fraud or deceit, even if the underlying conduct was passing bad checks. That is different because of the different wording of the two Pennsylvania criminal statutes.

The lesson is to read the criminal statutes carefully to see whether fraud or deceit is an element of the crime. And that analyzing immigration consequences of criminal convictions is very complex and difficult.

Lin v. Gonzales
No. 05-3571
June 1, 2006
Not Precedential

The Third Circuit overturned Judge Ferlise and the BIA's negative credibility determination because it was not supported by substantial evidence. The lesson is that a negative credibility determination during testimony on one issue cannot be used to justify a negative credibility determination for testimony by the same person about completely unrelated matters.

In this case, Judge Ferlise in 2001 denied the application for adjustment of status because he did not believe the applicant was telling the truth. Later, in 2003, the applicant tried to reopen the case. The IJ may not rely on a past, utterly unrelated credibility assessment to find someone not credible in a later hearing.

Tuesday, June 06, 2006

Luntungan: Unclear Whether Equitable Tolling Allows Multiple Motions To Reopen

Filed 06/05/06, No. 05-2397
Luntungan v. Gonzales

If you want to make more than one motion to reopen an in absentia order of removal (an order entered because the respondent did not show up in court in a case that started after April 1997), then you should try arguing that equitable tolling should allow more than one motion to reopen. One theory for trying to say the numerical limit should be equitably tolled is that every prior motion to reopen was by ineffective counsel. (The BIA believes that a motion based on ineffective counsel satisfy the three-prong requirements in a case called Lozada.)

The Third Circuit flagged the issue of whether equitable tolling allows more than one motion to reopen, but did not decide the issue. The reason is that the respondent in this case made two earlier motions to reopen and did not claim in his third motion to reopen that both prior motions were made by ineffective counsel -- he only argued that the first motion was made by ineffective counsel. The Third Circuit ruled that the issue of whether equitable tolling applied is irrelevant to deciding the case -- even if equitable tolling did excuse the first filing due to ineffective counsel, the respondent was barred from filing more than one motion to reopen and he did not complain about his second motion to reopen. Therefore, there is no dispute that the new (third) motion to reopen must be rejected.

Thursday, June 01, 2006

Purveegiin: BIA Cannot Overturn IJ's Fact Findings Via One-Judge Review

Purveegiin v. Atty Gen USA
Purveegiin v. Gonzales
June 1, 2006
No. 04-3797

The Third Circuit overturned the BIA's one-judge decision because the BIA's regulations do not permit a single BIA judge to render a ruling that overturns an immigration judge's factual findings. The regulations allow one-judge rulings in a variety of circumstances, including affirming the IJ's ruling or overturning an IJ's legal decision because of clear contrary authority. But there is no authority for a single BIA member to issue a ruling that overturns an IJ's factual findings.

It's notable also that the Third Circuit ruled that the BIA's decision to allow a single member to issue the decision is an action that can be reviewed (because it does not lie explicitly within the agency's discretion).