Saturday, February 16, 2008

Junaidi (not precedential): Suggestions Equitable Tolling for Lozada is Nearly Impossible

In Junaidi v. Mukasey, No. 06-4702 (3d Cir. Jan. 28, 2008) (not precedential), Judges Rendell, Nygaard, and Vanaskie (sitting by designation from M.D. Pa.) refused to apply equitable tolling to someone who raised a Lozada claim (which is a claim that a prior lawyer did such an ineffective job that the client was deprived of a fair hearing).

Equitable tolling is a sensible method of extending the usual deadline to try to reopen a case if there are reasons the client could not have raised them earlier -- such as if someone hid the basis for reopening a case for many months. If someone hid the reason to file the motion for many months, it is only fair to extend the deadline for making the motion by several months also, as long as the client acts diligently throughout the process.

The Third Circuit has held that equitable tolling can apply to the usual 90-day deadline to file a motion to reopen. Mahmood v. Gonzales, 427 F.3d 248, 251 & n.7 (3d Cir. 2005).

What is controversial about this decision is that the court glosses over the fact that the first lawyer allegedly provided ineffective assistance. The court hints that clients are always in a position to know in an instant when a lawyer who promises to give competent assistance is actually making a grave error. I am not so sure that's true -- after all, in the tax arena, how often does a client know within an instant that his accountant has made a slight error on the tax form? Is the court assuming that all clients are experts on immigration law and can detect lawyer errors right away?

The court suggests that to obtain equitable tolling, you should include some allegation against the prior counsel that relates to the inability to meet the 90-day deadline. Many other cases in this area do not set out an explicit requirement in this way. It would be interesting to contrast this case with Jin Bo Zhao v. INS, 452 F.3d 154 (2d Cir. 2006) and to research deeper into cases where equitable tolling has been allowed even without an explicit allegation of something the prior lawyer did that directly affected the client's ability to file a motion to reopen.

Perhaps the best way to distinguish the case is to spend additional time laying out the client's educational background, litigation experience, law school education, and give the client a pop quiz on immigration law to demonstrate whether the client is an expert who could spot an attorney's error in an instant.

Perhaps this means that the amount of work, time, (and therefore cost) of pursuing a Lozada claim should be increased. And perhaps to urge the BIA and the Third Circuit to reject this requirement -- or at least to force the court to make a factual inquiry into the particular client's ability to spot lawyer errors. Puzzling.

Friday, February 01, 2008

Maliqi (not precedential): IJ and BIA Must Give Some Explanation Of Its Decision

Maliqi v. Mukasey, No. 06-3169 (3d Cir. Jan. 23, 2008) (not precedential): IJ Esmeralda Cabrera and the BIA made wholly inadequate decisions while concluding that the person did not prove that he deserved asylum protection.

The Third Circuit pointed out that even though the amount of scrutiny it will exercise is limited, the BIA and IJ must give the Third Circuit something to review. The BIA and IJ cannot announce a conclusion that the asylum-seeker loses without giving some insight into its reasoning and explaining whether the claim was legally flawed or factually unproven. Also, if the BIA and IJ find someone not credible, they must explain why or what parts of the story it found unbelievable.

The Third Circuit overturned the BIA and IJ's decisions because they were inadequate. The supposed analysis they offered were not determinative. If they suggest the testimony was not corroborated, they need to specify what should have been corroborated, whether it makes sense for the asylum-seeker to obtain corroboration, and any explanation the asylum-seeker has for not providing corroboration. The BIA and IJ said it was not clear whether the asylum-seeker past persecution but did not clearly say whether or not he did so -- or why not. If the BIA and IJ believe there was a fundamental change of the circumstances after he suffered past persecution, they must explain why they came to that conclusion, instead of not explaining their reasoning.

In the end, the Third Circuit simply found the BIA and IJ's decisions to be vague, incomplete, and contradictory. It is sad to see that the asylum-seeker had to fight for years and be thankful he could appeal to one federal court so that justice could be done and the improper decisions could be overturned. This case does not exactly inspire much confidence in the BIA or the immigration court system.