Sunday, April 27, 2008

Cozac (not precedential): Not Appearing Due To Fear Is Not Exceptional Circumstance, Even If Lawyer Deficient

Cozac v. Mukasey, No. 07-1070 (3d Cir. Apr. 22, 2008) (not precedential)
275 Fed. Appx. 109, 2008 WL 1801092
Judges McKee and Rendell with visiting judge A. Wallace Tashima (senior judge of the Ninth Circuit)

If you miss a court appearance that you knew about, the regulations offer a chance to reopen the case through rescinding the in absentia order as long as you can show an exceptional circumstance for not appearing.

The Third Circuit held that just pointing out your lawyer was deficient is not enough. If the reason you did not go to court was fear of deportation (unrelated to your lawyer's performance), that is not an exceptional circumstance.

As an aside, the Third Circuit mentioned that ineffective assistance of counsel can constitute an exceptional circumstance under 8 U.S.C. § 1229a(e)(1) where counsel made misrepresentations to the alien about the need to attend the removal hearing, the time or place of the removal hearing, or the consequences of not attending the hearing. See Borges v. Gonzales, 402 F.3d 398, 408 (3d Cir. 2005) (reasoning that attorney’s telling immigrant that if he went to court without an attorney he would be deported would constitute ineffective assistance rising to the level of an exception circumstance).

For Cozac, Lawrence H. Rudnick of Steel, Rudnick & Ruben in Philadelphia.  For the government, Paul F. Stone and Ada E. Bosque of OIL.

Guiracocha (not precedential): Immigrant May Not Challenge Validity of State Conviction

Guiracocha v. Mukasey, No. 07-1715 (3d Cir. Apr. 21, 2008) (not precedential)
Judges Smith, Hardiman, and Cowen

The Third Circuit upheld the decision of Judge Henry S. Dogin and the BIA by ruling that when an immigration judge studies whether a conviction is a crime involving moral turpitude, the immigration judge should not look into the details of the case to let the immigrant attack the validity of the conviction.

Although this case at first seems quite unremarkable, it lays the groundwork for what may be a large debate in the coming years about how much an immigration judge should be allowed to look into the details of a case when analyzing crimes involving moral turpitude. The Third Circuit makes a straightforward holding in this case that the immigration judge should not go into conviction details much. There is a good chance that we will return to this theme in the coming years so keep this holding in mind.

Wilks (not precedential): BIA Must Clarify Whether Refusing To Reopen Sua Sponte For Vacated Conviction/Sentence

Wilks v. Mukasey, Nos. 06-4653 & 07-2131 (3d Cir. Apr. 15, 2008) (not precedential)
Judges Scirica, Chagares, Aldisert

If you get a conviction vacated so that it no longer applies for immigration purposes, try to reopen your case. If the BIA denied your appeal long ago, you need to make a motion for the BIA to reopen the case sua sponte. The Third Circuit notices that the BIA frequently reopens a case sua sponte where a conviction is vacated so the immigration consequences are vastly different.

In this case, the BIA was not clear why it denied the motion to reopen sua sponte. Was it because although it would reopen a case if a conviction was vacated, it for some reason thought this case's vacated conviction was not really vacated? Or was it because the BIA believed that despite its track record, even if the conviction here was vacated they still did not wish to reopen the case?

Because there is a possibility that the BIA made a legal error (possibly it would have reopened if the conviction was vacated and it made a legal error in thinking the vacated conviction was not truly vacated), the Third Circuit granted the appeal and remanded the case to the BIA to provide clearer analysis and possibly fix what might have been its mistake.

Saturday, April 12, 2008

Zheng (not precedential): BIA Cannot Start Surprise Analysis Of Corroboration

Zheng v. Mukasey, No. 07-1155 (Apr. 9, 2008) (not precedential)
272 Fed. Appx. 162, 2008 WL 948319
Per Curiam by Judges Rendell, Greenberg, and Van Antwerpen

Another case where the BIA suddenly starts analyzing whether there was lack of corroborating evidence from the asylum-seeker but the BIA fails to give the asylum-seeker a chance to explain why the evidence the BIA wants to see is missing. Here, Immigration Judge Mirlande Tadal did not focus on the lack of corroborating evidence -- the BIA by surprise started analyzing that on its own during the appeal.

It makes sense that IJ Tadal did not go through the required three-part inquiry on corroboration -- the IJ was not concerned with that issue. But it was an error for the BIA to fail to go through the three-part inquiry while it reached a conclusion that the asylum-seeker failed to provide corroboration.

This is not the first time the BIA has made this mistake. The Third Circuit even quoted an earlier decision that said “We have repeatedly held that the BIA’s . . . failure to engage in the three-part inquiry described above requires that the BIA’s findings regarding corroboration be vacated and remanded.” I guess they could have quoted George Santayana, who wrote "Those who do not learn from history are doomed to repeat it."

If the BIA writes in its decision that the asylum-seeker lacked corroboration, immediately check to see whether that issue was fully developed by the IJ. And whether the BIA followed the three-part inquiry that is required.

For all the people who criticize the availability of circuit court appeals in immigration cases, it is very striking that the circuit courts have to overturn many BIA decisions for making the same error in each of the cases. It is strong evidence for expanding federal court review of immigration court decisions, not narrowing federal court review!

For Zheng, Joshua E. Bardavid of NYC.  For the government, Bary J. Pettinato, Ari Nazarov, Katharine Clark of OIL.

Shah (not precedential): IJ Duty To Develop Record On Missing Corroboration

Shah v. Mukasey, No. 07-1954 (3d Cir. Apr. 11, 2008) (not precedential), per curiam by Judges Fuentes, Weis, and Garth.

The BIA erred by penalizing an asylum-seeker for not presenting corroborating evidence without analyzing the person's explanation for why he didn't submit it to the court. (Immigration Judge Donald Vincent Ferlise heard the case but did not address the corroboration issue -- the IJ found the asylum-seeker not credible and the BIA held that IJ Ferlise's rationale was unfounded and conducted its own analysis of corroborating evidence.) The Third Circuit also criticized the BIA's refusal to give the asylum-seeker time to gather the corroborating evidence.

The basic rule, once again, is:
Before denying a claim for lack of corroboration, the BIA must engage in a three-part inquiry: “(1) an identification of facts for which ‘it is reasonable to expect corroboration;’ (2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if he or she has not, (3) an analysis of whether the applicant has adequately explained his or her failure to do so.” Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001)
An IJ has a duty to tell asylum-seekers what type of corroborating evidence they expect to see. That gives asylum-seekers a chance to gather the evidence expected. The asylum-seeker offered an explanation why he didn't have the corroborating evidence -- the IJ never told him what to get and if he had a little time he would be able to get it.

The BIA tersely said it "was not persuaded" but the Third Circuit didn't know what the BIA could mean because the asylum-seeker's explanation seemed reasonable. So the Third Circuit held the BIA erred as a matter of law and remanded to the BIA with a direction to remand the case to an IJ to let the asylum-seeker gather the corroborating evidence.

If an IJ or the BIA denies a case for lack of corroboration, check the record to see whether they had identified what kind of evidence they wanted and offered time to gather it. If they didn't do that, check to see whether they analyzed why the excuse of not being given time to gather the corroborating evidence was not a good excuse.

Additional note: The Third Circuit took up this issue because of how compelling the issue is even though the asylum-seeker did not raise it in his Third Circuit brief. So the Third Circuit waived the requirement to include issues in the appeal brief (similar to the exhaustion doctrine but not exactly the same) based on how compelling the glaring error was.

Sunday, April 06, 2008

Kaita: Vacating Adverse Credibility Determination and Criticizing IJ Interruptions and Chaotic Transcript

In Kaita v. Mukasey, No. 06-3288 (3d Cir. April 3, 2008), IJ Cabrera and the BIA erred in relying on the IJ's unfounded finding that Ms. Kaita's story was not believable and by relying on a transcript that had serious problems.

First, the Third Circuit ruled that it would not review the denial of asylum because it had no power to review Ms. Kaita's failure to prove that she filed her asylum claim within one year of arriving in the United States. (There are exceptions for changed circumstances or extraordinary circumstances, but Ms. Kaita did not argue that either of those applied.)

Second, the Third Circuit examined Ms. Kaita's effort to prove that she qualified for withholding of removal -- which requires proving there is a clear probability that her life or freedom would be threatened due to her race, religion, nationality, member in a particular social group, or political opinion. The IJ denied Ms. Kaita's claim because the IJ believed her testimony was inconsistent and vague. The Third Circuit examined whether the IJ and BIA had adequate evidence to defend that conclusion -- and found that the IJ and BIA had erred because there wasn't supporting evidence.
  • The IJ and BIA complained about time gaps in her story. But the Third Circuit noted there are no significant time gaps in her story.
  • The IJ and BIA complained that she could not remember significant dates. But the Third Circuit noted she did remember significant dates generally, such as clearly remembering a traumatic event happened in 1997 but could not remember the exact date due to trauma and there were was confusion about the questions and interpretation.
  • The IJ and BIA erred by believing she first testified she did not know when she was hospitalized but then testified she was in the hospital on January 25th. The Third Circuit noted that the IJ and BIA misread the record -- she never said she could not recall any of the dates she was in the hospital. A fair interpretation of her testimony is she could not remember the exact date she checked in.
The Third Circuit criticized how the IJ handled the case because the transcript stands out due to the extent of the IJ's interruptions, frequently in what the Third Circuit believed was an antagonistic manner. It seriously impeded the Third Circuit's ability to understand the record. For example, Ms. Kaita testified she was "some time over 51," meaning older than 51 but nearly 52 years old. The IJ commented that it would be strange for anyone to say they are "sometimes" older than 51. When Ms. Kaita testified about how rebels killed another woman by torture until the woman bled to death, the IJ immediately interrupted to say "Okay, so she bled to death. Let's move on."

The IJ usurped her lawyer's role by cutting off questions at times and telling Ms. Kaita what she should testify about, rather than the topic raised by her lawyer's question.

The IJ also incorrectly believed that someone who could at times correct the interpreter's English language translation must by definition be able to testify in English and does not need an interpreter. The Third Circuit noted that a few corrections does not necessarily mean she understands English well or can communicate fully in English in a legal proceeding. It might simply mean she understands some English and in some instances as well as or better than the interpreter.

The Third Circuit remanded the case on the issues of withholding of removal and CAT.

Matthew Harris represented Ms. Kaita and Ada Bosque argued the case for OIL. The judges were Judge Sloviter, Judge Ambro, and visiting District Court Judge Louis Pollak.

The opinion is available at: