Saturday, July 26, 2008

Paredes: Pending Coram Nobis Petition Does Not Stop Use of Conviction in Immigration Court

Paredes v. Mukasey
No. 07-1402
June 9, 2008
Judges Barry, Stapleton, and (Chief Judge of the US Court of International Trade) Restani
Opinion by Judge Restani

The question is whether someone can be deported for convictions where there are still petitions for writs of error coram nobis pending. Here, someone had two convictions and did not appeal them but instead filed petitions for writs of error coram nobis.

The Third Circuit agreed with the BIA and IJ Riefkohl that a conviction is final and can be used to deport someone after direct appellate review of the conviction has been exhausted or waived. Because a petition for writ of error coram nobis is not a direct appeal, the conviction has a sufficient degree of finality that it can be used for immigration purposes. This is similar to how other circuit courts have ruled.

The lawyer for the petitioner was John J. Garzon of Sunnyside, NY.
Lawyers for OIL included: Richard M. Evans, Paul Fiorino, Michelle G. Latour, and Michele Y.F. Sarko.

Sunday, July 13, 2008

Tourchin (not precedential): BIA Must Analyze Each CAT Claim Before Ruling There Are No Valid Claims

Tourchin v. Mukasey (3d Cir. May 7, 2008) (not precedential)
Nos. 02-3821 and 05-4686
277 Fed. Appx. 248, 2008 WL 1962273
Judges Smith, Hardiman, and Cowen
(opinion written by Judge Cowen)

The Third Circuit overturned the BIA's ruling in the case. The Third Circuit did not criticize the rulings by Immigration Judge Alberto J. Riefkohl, it only criticized the BIA.

The immigrant lost before IJ Riefkohl and then hired a lawyer who lost with the BIA but for some reason did not argue for a claim under CAT (the Convention Against Torture). The immigrant filed a motion to reopen with the BIA and claimed that his lawyer on appeal was ineffective by not raising the CAT claim in the BIA appeal. The BIA denied the motion to reopen -- and the Third Circuit criticized how the BIA decided the motion to reopen.

In his motion to reopen, the immigrant argued that if his lawyer on appeal had raised the CAT claim, he would have had a viable claim for CAT protection. He argued that he feared torture if he returned to his country either because (a) corrupt people and poor prison conditions or (b) KGB threats against the immigrant and his loved ones that included killing someone in front of the immigrant to prove their threats were serious.

The Third Circuit criticized how the BIA ruled that the first theory was insufficient to merit CAT protection even if it could be proved but did not say a word about whether the second theory was viable. Its conclusion that the immigrant did not offer any viable theory was improper because it did not analyze all of the theories that the immigrant put forward.

Good thing the Third Circuit was there to force the BIA to make a ruling that addressed all of the issues that the immigrant was raising. From reading the Third Circuit's decision, it does not seem like the BIA did a thorough job of reading the immigrant's arguments. Perhaps there is some merit to people's criticism of the quality of the BIA's work...

For Tourchin, Andrea Farinacci and Staci Schweizer argued the case with help from Melissa Kimmel of Howrey in DC.  For the government, Ada E. Bosque argued with help from John M. McAdams, Jr., John D. Williams, and Douglas E. Ginsberg of OIL along with Peter G. O'Malley of the US Attorney's office in Newark, NJ.

Saturday, July 12, 2008

Ou (not precedential): BIA Flubs Basic Asylum Analysis

Ou v. Mukasey
No. 07-3118
July 11, 2008
Not Precedential
2008 WL 2699690
Judges McKee, Nygaard, and Roth (per curiam)

The BIA must apply basic asylum rules in deciding an asylum appeal. In this case, the BIA made a fatal error by not applying basic asylum rules to the appeal.

An asylum-seeker can show a well-founded fear of persecution either by showing past persecution or a well-founded fear of future persecution. So there are two ways. If the BIA is going to deny an asylum-seeker's claims of past persecution and future persecution, the BIA must address both claims.

In this case, the BIA forgot to address future persecution. The Third Circuit overturned the BIA's decision and remanded the case to force the BIA to address the asylum-seeker's claim of future persecution.

By the way, Judge Riefkohl initially denied the asylum-seeker's claim on the ground that the claim was not credible. The BIA made its ruling on different grounds -- that even if the testimony was credible, it failed to state a valid asylum claim. Therefore, the analysis must assume the testimony is true. The underlying claim involved a fear of how China treats those who practice Falun Gong.

For Ou was Liu Yu of NYC.  For the government, Rebecca A. Niburg and Joan E. Smiley of OIL.

Monday, July 07, 2008

Shah Hashmi: Can't Deny Continuance Based on Case Completion Goals

Shah Hashmi v. Mukasey
531 F.3d 256
No. 06-3934
(3d Cir. July 7, 2008)

Judges Fuentes, Jordan, and District Judge Ditter (opinion by Fuentes).

The BIA and IJ Eugene Pugliese erred by refusing to grant a continuance to someone who had an immediately available application for legal permanent residence status pending. When the potential to obtain LPR status is immediate and possible, an IJ should grant a continuance. The Third Circuit distinguished the Kahn case, where it was acceptable for an IJ to deny a continuance where it appeared to require a potentially indefinite wait before the person could obtain LPR status or if the application seemed frivolous.

Where the IJ relied solely on an attempt to comply with case-completion goals from the Justice Department, that was an improper application of a one-size-fits all goal to a specific case.

Other intriguing details are the Catch-22 situation where USCIS would not rule on the I-130 until ICE counsel sent its file, but ICE counsel initially would not send its file to USCIS until USCIS ruled on the I-130.

Also, the Third Circuit criticiaed how OIL in the Justice Department improperly adopted statements as fact and during oral argument, characterized a divorce as fraudulent even though there was no evidence of that in the record beyond USCIS's intention to investigate. The attorney who handled the oral argument for OIL was Christina B. Parascandola.

The attorney for Shah Hashmi was Regis Fernandez -- congratulations!  He argued for Shah Hasmi.  For the government, Christina B. Parascandola argued the case and worked with Joan E. Smiley and Allen W. Hausman of OIL.