Monday, February 26, 2007

Lavira: CAT for Haiti Prison Conditions Possible

Lavira v. Gonzales, No. 05-3334 (3d Cir. Feb. 26, 2007)

Great victory by Valerie Birch of the Pennsylvania Immigration Resource Center!

The BIA and IJ Sease erred by refusing to analyze the argument made by an HIV-positive amputee convicted of a small drug crime that he specifically would face torturous conditions if deported to Haiti where they would put him in deplorable prison conditions.

Even though general CAT requests based on the overall prison system have not succeeded in front of the Third Circuit, the Third Circuit repeatedly said it left open the possibility that CAT might be proper if there is specific proof of what a particular person would suffer if put in the awful Haiti prisons.

The immigrant in this case provided sustantial evidence, but the BIA and IJ Sease did not address the evidence and flatly denied CAT. The Third Circuit pointed out what it has said many times before -- particular proof for the individual about torture he may suffer if deported must be analyzed, because it can serve as the basis for CAT relief, even for prisons in Haiti.

In a similar vein, the court must analyze the argument about whether the small drug crime fits a six-factor test to find out whether it is a particularly serious crime the disqualifies him for various types of relief. Great decision by the Third Circuit, which remanded the case for further analysis.

Wednesday, February 21, 2007

Sieprawski (not precedential): Potential Late Petition For Review If BIA Violated Regulations

Sieprawski v. Gonzales, No. 05-4227 (3d Cir. Feb. 21, 2007) (not precedential) notes that if there is proof the BIA failed to obey its regulations to mail out its decision to the proper address on file, you can file a petition for review more than 30 days after the BIA's defective mailing. In this case, though, there was no proof the BIA violated its rules. And if the post office lost the mailing then, well, I guess the BIA says the injustice falls completely against the immigrant. Seems like an extremely harsh and unsympathetic attitude by the BIA.

Jeune: Pennsylvania Drug Possession Not Necessarily Trafficking Aggravated Felony

Jeune v. Gonzales
Filed 02/20/07, No. 05-3103

Pennsylvania possession with intent to manufacture or deliver a controlled substance is not always an aggravated felony for drug trafficking.

As a follow-up to the analysis in Garcia v. Gonzales, 462 F.3d 287 (3d Cir. 2006), the statute in question, 35 Pa. Cons. Stat. Ann. 780-113(a)(30), is not categorically an aggravated felony and on the facts of this case, it is possible that the conviction could have fit in the federal exception to federal trafficking for possession without renumeration.

As set out in Gerbier v. Holmes, 280 F.3d 297, 313 (3d Cir. 2002), there are two ways an offense can be held as an aggravated felony for illicit trafficking: either first (the illicit trafficking approach) if the state criminal statute contains a trafficking element or second (the hypothetical federal felony approach) if the conviction would qualify as a felony under the Federal Controlled Substances Act.

First, where the record of conviction contains virtually no details, a plain conviction under the Pennsylvania statute does not categorically qualify as an aggravated felony because it covers more than simply crimes involving the unlawful trading or dealing of a controlled substance. The Third Circuit gave no weight to how the sentencing judge used the sentencing provision titled trafficking because any conviction (trafficking or non-trafficking) under that statute would always trigger that sentencing provision. Just because the sentencing provision is titled trafficking does not automatically make the criminal statute into a trafficking statute.

Second, it does not necessarily qualify as a felony under the Federal Controlled Substances Act because it is unclear whether the crime involved distributing a small amount of marijuana for no renumeration. Under the federal laws, that type of activity is not a felony. The Pennsylvania statute encompasses distribution without renumeration along with trafficking. The record of conviction left it entirely unclear whether he had a miniscule amount of marijuana, so it would not necessarily be a felony under federal law and cannot be considered an aggravated felony.

This type of analysis is extremely complex but as you can see, extremely important! Great work by Steven Morley (overturning the ruling by IJ Donald Ferlise and the BIA).

Kibinda: Being Hit By Object Not Necessarily Persecution

Kibinda v. Gonzales
Filed 02/20/07, No. 05-4237
Being held for five days and being hit by an unidentified heavy object requiring seven stitches does not necessarily constitute extreme abuse that rises to the level of persecution, especially where there is no proof of the attackers’ motive. As far as future persecution, lack of punishment after discovering his possible loyalties suggests no real fear of future persecution. Although disproportionate punishment for desertion can qualify, he did not have enough proof of that in his case. Keep in mind the Third Circuit applied a standard of whether there was substantial evidence to support the BIA and IJ's decision.

Wednesday, February 14, 2007

Santiago: Advanced Strategies To Reopen In Absentia Orders

In Santiago v. Gonzales, No. 06-2148 (3d Cir. Feb. 14, 2007) (not precedential), the Third Circuit summarized some of the advanced theories for trying to reopen a case where an immigration judge issued an order in absentia (when the respondent did not show up on the court date). These types of cases are difficult to win, but very important to litigate. They are some of the most satisfying to win because the stakes are so high (if you can't reopen the case, the removal order remains and there is almost no chance to obtain legal status).

In this case, the BIA and IJ Annie S. Garcy made a mistake by not analyzing three advanced issues when someone did not show up for a court date: (1) where the address where items were sent qualified as a 239(a)(1)(F) address [for example, if the respondent never got the Notice to Appear, he or she did not receive the requirement to update addresses], (2) whether proof of not getting the court letter overcomes the rebuttable presumption that a mailing was received by the respondent, and (3) whether ICE can argue that the respondent got constructive notice.

In this case, the respondent had a great deal of evidence that her husband was abusive and probably got the court letters and hid them from her so she honestly never knew of the court date.

It's important not to view IJ Garcy too harshly based on this case. Immigration Judges in the Second Circuit have also frequently made similar errors about whether there is evidence someone did not receive the mailed court notice. See, for example, Silva-Carvalho Lopez v. Gonzales, No. 05-6878 (2d Cir. Nov. 2, 2006). Also, we have successfully won a motion to reopen an in absentia order before Judge Garcy, where she very intelligently and meticulously followed the letter of the law, just as we argued in our motion.

Saturday, February 10, 2007

Various Third Circuit Statistics

Taking the time now to dig into the statistical reports for the federal courts, available from the web site:

In the 12 months leading up to September 30, 2006:
The number of administrative appeals filed went up from 764 to 810 (it had been as low as 274 in 2002 and 178 in 2001!)

In the 12 months leading up to September 30, 2005:
The Third Circuit issued around 2,300 decisions. 85.8% of them were unpublished decisions.
Out of around 4,500 appeals filed, 764 (17%) were administrative appeals. Of the around 3,500 cases pending, 723 (20.8%) were administrative appeals.
For all circuit courts, from 2001 to 2005, appeals from the BIA increased 602% (up 10,589 appeals).

Thursday, February 08, 2007

Caroleo: Harsh Interpretation of Section 212(c) Comparable Ground Of Inadmissibility

Caroleo v. Gonzales, No. 05-3762 (3d Cir. Feb. 7, 2007): section 212(c) relief is not available for someone in the US charged with removal based on a crime of violence aggravated felony. The Third Circuit applies Matter of Brieva, 23 I&N Dec 766 (BIA 2005), and refuses to let someone with legal permanent resident status seek 212(c) relief when charged with an aggravated felony ground of removability.

Section 212(c) granted a way for some legal permanent residents to obtain a waiver if stopped at the border on the way back to the US and charged with a ground of inadmissibility. In Matter of Silva, 16 I&N Dec 26 (BIA 1976), the BIA extended section 212(c) relief to legal permanent residents in the US charged with a comparable ground of removability.

The Third Circuit adopted the same strict approach that the BIA has adopted -- section 212(c) relief will only be available if the ground of removability listed in the case has a comparable ground of inadmissibility, regardless of whether the underlying facts would be punishable as a ground of removability and inadmissibility. Specifically, the Third Circuit feels that it does not matter that attempted murder would not only be an aggravated felony (crime of violence), but also a crime of moral turpitude. The Third Circuit ruled against the immigrant because the legal category of aggravated felonies (for crimes of violence) has no official counterpart and is not exactly the same as crimes of moral turpitude.

We will see whether more courts weigh in on this issue or whether the Third Circuit can be convinced to change its view. Update: on June 1, 2007, the Second Circuit came to a different conclusion in its Blake decision. Let's see whether the Third Circuit changes its mind or gets overruled by the Supreme Court! Further update in December 2007 -- an unpublished Third Circuit decision (Calderon-Minchola v. Mukasey 3d Cir. Dec. 12, 2007) (not published) suggests the Third Circuit is unpersuaded by the Second Circuit's ruling. Additional update -- around February 2008, Calderon-Minchola filed for a petition for rehearing the case en banc.

In dicta, the Third Circuit mentioned as an aside that someone who agreed to plead guilty before April 1996 can seek section 212(c) relief even if the official guilty plea was not taken until after April 1996. Also, someone who applied for section 212(c) relief when he had been jailed for less than 5 years can later continue to pursue the claim even if by the second time he pursues it, he was by then in jail for more than 5 years.

Further update, December 2011: we had written a while back "Let's see whether the Third Circuit changes its mind or gets overruled by the Supreme Court!" Well, looks like in Judulang v. Holder (Dec. 12, 2011), the Supreme Court overruled the Third Circuit!