Tuesday, August 15, 2006

Not Precedential: Failed Challenge To Moving NYC Guy To PA

In the not-precedential decision of Sinclair v. Gonzales, No. 05-2721 (3d Cir. Aug. 14, 2006) (http://www.ca3.uscourts.gov/opinarch/052721np.pdf), the immigrant raised a fascinating challenge to how someone who lived in NYC, was charged due to conduct in NYC, and caught in NYC had to defend himself under the law as interpreted by the court covering Pennsylvania because ICE unilaterally chose to move him from NY to PA. One grey area of the law is whether ICE is allowed to shift someone (and thereby change which court's cases are binding on the case), especially if the person would have succeeded under the law in the state where he lives.

Can ICE strategically move someone and destroy his legal claims? (Sometimes, one circuit court will approve of a theory but circuit court covering where ICE moves him will disapprove of the same theory. Welcome to the confusing and inconsistent area of immigration law.)

This issue was not directly decided by the Third Circuit in the Sinclair case. The Third Circuit ruled that if there is no difference between the laws of the two places, then there is no harm, especially because the government has personal jurisdiction over people no matter where they move them. Even to a state where the person has almost no historical contact.

The issue left unanswered is whether a due process challenge under the Fifth Amendment (and don't forget analogous provisions in state constitutions such as the NY Constitution) would succeed if we can argue the transfer was unfair because the law of the person's home state was favorable but the law of the new state is unfavorable. (By the way, the issue in this case was whether a non-citizen can claim to be a national of the US even though the person never became a sworn US citizen. The Third Circuit said both it and the Second Circuit equally say no, not possible.)

Thursday, August 03, 2006

Bobb: Federal Forgery Conviction can be Aggravated Felony and is not a Hybrid Offense

Bobb v. Gonzales
No. 05-2891
August 3, 2006

For now a brief description: a federal conviction for forgery under 18 USC 510(a)(2) is a crime involving fraud that can be an aggravated felony, whether it is based on a definition in subsection (M)(i) or in subsection (R). Next, the federal conviction for forgery is not a hybrid offense. That's too bad because if something is a hybrid offense, it is a combination of two sets of requirements and immigration would have to prove all of the elements from both sets. Sadly, the Third Circuit ruled that (R) crimes are a subset of (M)(i) crimes and that all immigration needs to prove is that the conduct was a crime under (M)(i). This complex principle of hybrid offenses was explained in Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004). It's pretty complicated.

Tuesday, August 01, 2006

Cabrera-Perez: IJ May Not Order Deportation For Arriving In Court Slightly Late

Cabrera-Perez v. Gonzales
No. 05-3896
August 1, 2006

Immigration judges must remember they are appointed, not anointed.

The Third Circuit in very strong language ordered that immigration judges must allow someone in deportation proceedings to be heard in their case even if they were slightly tardy for a hearing. In this case, the government frequently warned someone that she had to bring witnesses at her next, major hearing. A witness got to her house late so they set off from home a bit late and got a bit lost driving in downtown Newark, NJ. Her attorney arrived exactly on time but by the time she got to the courtroom, she was around 20 minutes late. The IJ had ordered her deported and when she asked the court staff to get the judge to try to be heard, they refused. They tried to reopen the case and, depressingly, the IJ refused to reopen it and the BIA upheld the judge's decision on appeal. The case had to go all the way up to the Third Circuit to do justice and allow her case to be heard on the merits.

Sadly, this is not the first time someone was ordered deported for arriving slightly late, the IJ refused to reopen, the BIA affirmed, and a circuit court had to step in and do the right thing. Jerezano v. INS, 169 F.3d 613 (9th Cir. 1999) (reopening where 20 minutes late but IJ was still in the courtroom working on other cases); Alarcon-Chavez v. Gonzales, 403 F.3d 343 (5th Cir.
2005) (reopening where 20 minutes late and IJ was either still in the courtroom or had just left and still nearby); Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999) (reopening where two hours late due to late arrival of personally-hired interpreter after IJ failed to get an interpreter at prior court appearance that led the immigrant to think she had to bring her own interpreter).

The legal rule is that due process rights exist in immigration cases and the IJ and BIA abused their discretion by refusing to reopen the case for minimal tardiness when the IJ was either still in the courtroom or had recently left but was still nearby. Especially when there was no history of the person arriving late in the case.

The Third Circuit used strong language, saying they would "expect nothing less from immigration judges who sit in this circuit" to reopen such cases and that just like the Fifth Circuit said in Alarcon-Chavez, immigration judges must "remember they are appointed, not anointed."