Saturday, May 19, 2007

Johnson (not precedential): ICE Cannot Reopen A Case Unless Evidence Is Material

In Johnson v. Gonzales, Nos. 04-1575, 05-3579, 05-4569 (3d Cir. May 17, 2007) (not precedential), the Third Circuit ruled that essentially useless evidence from ICE cannot be considered new evidence that requires reopening a case. This is quite a sensible ruling.

This case involves confused identities, which made it impossible for ICE to prove that the man in the courtroom was not a United States citizen. The gentleman says his name is Troy and has no idea of his citizenship or where he was born. He was raised by his brother, Robert, who took care of him until Robert was killed. The police gave Troy a birth certificate they found in Robert's home and that birth certificate was for a person named David who is a Jamaican citizen. But what if the police was wrong and the gentleman really was Troy, not the David whose birth certificate they found lying around?

Well, then any attempt to deport "David" is going to fail if the immigration judge does not believe the guy in the courtroom really is David. Especially if the birth certificate does not list the same mother as the man's brother and does not have the same last name as the man's brother. There are lots of reasons why you might think the birth certificate is not the man in the courtroom.

ICE provided great proof that the David in the birth certificate was not a US citizen, but the IJ and BIA concluded it did not prove by clear and convincing evidence that the guy in the courtroom was David. Case over... for now. The guy next applies for a social security number but the social security office insists that he must write down information that matches the I-94 identity information that ICE had given him when the first case ended based on their belief the guy was "David." Reluctantly, he jotted down those details. ICE tried to reopen the case because of those applications. The IJ and BIA agreed to reopen the case. The key question -- was the new evidence material to the case?

The Third Circuit concluded the IJ and BIA erred by reopening the case. The decision was arbitrary, irrational, or contrary to law. ICE was relying on evidence directly tied to the same mistaken impression that the IJ and BIA found completely inadequate in the first case. It actually is pretty funny to see how ICE was asking the Third Circuit to make it really easy for them to reopen this case when they usually oppose other people's requests to reopen a case by complaining that it should be very hard to reopen a case.

In the end, the gentleman is left as not deportable (the government cannot clearly prove he is deportable) yet for now, not a citizen (he hasn't yet been able to prove he is a US citizen). But it seems that even though he is for now in limbo, his attorney has a strategy to get him some kind of status (but the court's decision does not explain what that might be).

Congratulations to Joseph Hohenstein for his victory, over David V. Bernal and Ernesto H. Molina, Jr. of OIL (the office of immigration litigation)!


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