Friday, November 24, 2006

Mudric: INS Delay Processing Asylum Claim Not Actionable

Mudric v. Gonzales, No. 05-2913 (3d Cir. Nov. 24, 2006).

In this precedential decision, the Third Circuit ruled that even if INS took an enormously long time for no justifiable reason to process an asylum claim and to process the application by Mr. Mudric's mother to obtain permanent legal permanent residence, there is no basis for him to complain to the court.

The Third Circuit takes a narrow view of when someone can complain about slow action by immigration authorities and no matter how slow INS was, there are no federal statutes or regulations that issue hard-and-fast deadlines for immigration rulings. Because non-citizens are at the mercy of the rights granted by Congress and the statutes do not list deadlines, they have no way to complain to the courts.

Although equitable estoppel can apply against the government in immigration cases, you must show the government made a misrepresentation that you relied upon to your detriment and that the government committed affirmative misconduct. Here, there was no affirmative misconduct for INS merely being exceptionally slow to rule on the applications(!)

Due process in asylum claims offers little protection. It merely requires that the IJ made fact findings they disclose to you, that you can make arguments on your behalf, and that the IJ makes an individualized ruling. It offers little other protection.

Friday, November 17, 2006

Curi (not precedential): Whoops, Missed the BIA's Recent Ruling

In Curi v. Gonzales, No. 05-2563 (3d Cir. Nov. 17 2006) (not precedential), the Third Circuit did not realize that just two days earlier, the BIA made a contrary conclusion on the same legal issue in Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006).

The BIA ruled that an alien who fails to post the voluntary departure bond required by section 240B(b)(3)of the Immigration and Nationality Act, 8 U.S.C. ยง 1229c(b)(3) (2000), is not subject to penalties for failure to depart within the time period specified for voluntary departure. So if you take voluntary departure at the end of the case and never pay the required bond, the rule is you never qualified for voluntary departure and if you do not leave, you will not suffer the penalty of (for example) not being able to seek cancellation of removal for ten years.

The Third Circuit got the case on November 7. The BIA interjected its ruling in another case on November 15. The Third Circuit ruled (arguably incorrectly) on November 17. Whoops! Hope the Third Circuit realizes its mistake, or the attorney in that case informs them.

Any hope that the Third Circuit is reading this blog??

Friday, November 03, 2006

Ghebrehiwot: IJ Must Specifically Analyze Claim Of Pattern Or Practice Of Persecution

Ghebrehiwot v. Gonzales, No. 05-3847 (3d Cir. Nov. 3, 2006) (precedential)

The Third Circuit remanded a case where the IJ did not consider the asylum-applicant's argument that there was a pattern or practice of persecution in the person's home country. Basically, to win asylum, you must show a well-founded fear of persecution that is based on one of five limited grounds (notably, generally being afraid of crime is not on the list). You must show you subjectively have a well-founded fear and that objectively there is a well-founded fear.

The most common way to prove an objective fear is by proving that you were a victim of persecution in the past. That creates a presumption that there is an objective reason to believe in most cases that you may be persecuted again. There is a second way that is less commonly used -- to prove a pattern or practice in the other country that similar people are being persecuted. Here, the IJ made a mistake by focusing on how the person seeking asylum had not been persecuted in the past, but did not focus on the other way to prove that you objectively fear persecution -- a pattern or practice of persecution in the other country. The Third Circuit did not understand why the IJ did not seem to analyze the numerous documents and government reports of persecution in Eritrea against Pentecostals. The IJ did not specifically address whether there was a pattern or practice of persecution in Eritrea. Recent US government reports indicate that Eritrea has been closing all religious facilities other than those in four sanctioned religions. The government argued that this report did not support Mr. Ghebrehiwot's claim, but the Third Circuit said that made no sense -- just because the report suggests persecution against lots of religious groups including Pentecostals does not weaken its support for Mr. Ghebrehiwot's claim of persecution against Pentecostals.

The Third Circuit also separately noted that denying a claim for asylum does not by definition mean that a claim for relief under the Convention Against Torture must also fail. For example, someone might be likely to face torture that the other country will inflict unrelated to any protected ground. That person would not qualify for asylum (no proof of persecution based on a protected ground) but could win CAT relief (likely tortured by the government).

That involves fear of There are two ways to prove that someone has an objective basis for holding a well-founded fear of persecution (which is necessary to win asylum):

Thursday, November 02, 2006

Arguing and Appealing To The Third Circuit

The Third Circuit has posted audio recordings from its annual conference, including a session that discusses effective brief-writing and oral advocacy. The presentation describes how judges on the Third Circuit are flooded with a large number of cases and pieces of paper, so being clear is extremely important. In 2005, the Third Circuit held oral argument in around 22% of the appeals.

Conventional wisdom suggests limiting an appeal to 2-4 issues. I am not sure I agree, though, because of the huge penalty if you do not raise an issue. (Often, if you do not raise an issue, you can never raise it again -- sometimes, you can't follow up on the issue even if your case is sent back for a new hearing. The Third Circuit often rules that an immigrant deserves a new asylum hearing but because the appeal did not include the issue of relief under the Convention Against Torture, it can never be pursued again.)

Great points: be brief, be organized, keep case cites to a minimum, keep the factual history to a minimum, use informative headings, edit repeatedly. A strong brief takes time and energy to write and should not be delegated to a junior lawyer in the office.