Monday, October 02, 2006

Joseph: Federal Statute Not Trafficking in Firearms; Overturning Judge Garcy in an asylum case

Joseph v. Gonzales, Nos. 05-1047, 05-2889 (3d Cir. Oct. 2, 2006) (precedential). A conviction under 18 USC section 922(a)(3) is not illicit tracking in firearms, so it is not an aggravated felony. The reason is that the crime does not include a trafficking element. The opinion had interesting language about the need to exhaust administrative remedies by raising the issue to the IJ and BIA first. (So as a tip, include all your claims in your BIA appeal, rather than just your strongest few.)

The question of whether a crime involves illicit trafficking in firearms falls in the type of categories that is analyzed through the categorical approach -- look to the statutory definition of the crime, not the particular facts in the case. The Third Circuit required some type of trading and dealing in the statutory elements to be considered a trafficking type of crime. The particular statute punishes merely moving firearms from one state to another -- there is no requirement of illegal trading or dealing of the firearms. So, not a trafficking type of crime and not an aggravated felony.

In a recent not-precedential case, Zou v. Gonzales, No. 05-4314 (3d Cir. Sept. 27, 2006) (not precedential), the Third Circuit overturned the BIA and Immigration Judge Annie S. Garcy because the IJ's finding of inconsistencies and omissions were either (a) based on a misinterpretation of the record or (b) based on inconsistencies that were not central to the asylum claim. The IJ focused on a bunch of very minor inconsistencies about undisputed facts and incorrectly concluded that the testimony about reasons for returning home were different from the reasons listed in the asylum application. The IJ also relied on speculative and personal opinions not supported by the record.
Stripped of its discussion of minor inconsistencies and its speculation, the IJ’s decision offers little to support her conclusion that Zou was not credible. While she did cite Zou’s demeanor as a factor which “defeated” his credibility, she gave no specific examples to bolster this conclusion, merely describing Zou as “getting tired, nervous, [or] discouraged,” characteristics which do not inherently undermine one’s veracity.


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