Saturday, August 23, 2008

Wong: Circuit Court Won't Overturn BIA Ruling On Pattern and Practice of Persecution of Chinese Indonesians in 2004

Wong v. Mukasey
No. 06-3539
Aug. 20, 2008

Judges Fuentes, Chagares, Aldisert.  Opinion by Judge Chagares.

One of the issues in this case is an issue that affects a large number of people -- whether there has been a pattern and practice of persecution against ethnic Chinese people in Indonesia.  The way this case came to the Third Circuit is that Immigration Judge Charles M. Honeyman and the BIA concluded that the evidence proves there is no pattern and practice of persecution.  The difficult legal standard on appeal is for Ms. Wong to prove that the BIA's analysis is not supported by substantial evidence.  Therefore, just because Ms. Wong lost this appeal does not mean that someone else can't win before an immigration judge in a new case.  Ms. Wong had to prove that under no circumstances could a judge conclude that there is no pattern and practice of persecution.

In this appeal, to prove a pattern or practice of persecution, the persecution must be systemic, pervasive, or organized.  Also, the harm must either be committed by the government or by forces the government is unable or unwilling to control.

To the degree that you try to rely on the 2003 and 2004 State Department reports on country conditions, those reports are not so overwhelmingly clear that it would always be improper for a court to conclude there is no pattern and practice.  The Third Circuit pointed out that the 2004 report said the level of harassment declined, that the government is trying to promote tolerance, and are primary done by private parties.

Some possible lessons are: (a) try to convince the judge and BIA in your case based on the evidence you can find because it will be hard for you or the government to overturn the BIA on appeal and (b) try to introduce evidence that is more convincing than the State Department reports.  (They tried in the Wong case, but the BIA did not find them convincing enough.)

For the petitioner was Joseph C. Hohenstein of Orlow, Kaplan & Hohenstein in Philadelphia, PA.  For the government were David V. Bernal, Lance L. Jolley, Ernesto H. Molina, and Jonathan Potter of OIL.

Saturday, August 16, 2008

Cospito: Collateral Estoppel Applies Only If First Proceeding Sufficiently Adjudicative

Cospito v. Mukasey, No. 07-1619 (3d Cir. Aug. 14, 2008)
Judges Fuentes, Aldisert, and Garth
Per curiam decision

The topic of collateral estoppel also involves the area of issue preclusion, claim preclusion, and res judicata. Each of them seek to prevent the government from arguing something that had already been decided before.

In this case, Ms. Cospito committed theft crimes in 1993 and 1996 but when she sought legal permanent residence status in 1998, she did not mention the convictions. The immigration agency that reviews LPR applications (then INS and now known as USCIS) approved the application. Can INS (now ICE) try in 2002 to deport Ms. Cospito based on the 1993 and 1996 convictions even though in 1998 they granted her LPR status?

The Third Circuit avoided the moral quandry of whether it would be fair to help someone who hid crimes during the 1998 application process and focused on the legal rule for collateral estoppel. Collateral estoppel can be applied against the immigration authorities (DHS, ICE, USCIS, then-INS). But you have to meet the legal standard.

For issue preclusion you must prove:
  1. the identical issue was adjudicated before
  2. the issue was actually litigated
  3. the previous determination was necessary to the decision
  4. the party being precluded from relitigating the issue was fully represented in the prior action
You must prove the prior proceeding was adjudicative in nature. The INS/USCIS approval of Ms. Cospito's LPR application was not an adjudicative proceeding. Key details that distinguish it from adjudicative proceedings is they are not normally adversarial in nature and do not involve an immigration judge.

If you want to raise issue preclusion based on a USCIS approval, look into this case more closely. Research whether you might be able to use issue preclusion against ICE if the type of USCIS approval was quite different from Ms. Cospito's -- were there adversarial types of questions or actions while USCIS reviewed your application? Did it involve a ruling by someone in the process who analyzed both sides of a particular issue?

Steven A. Morley of Morley, Surin & Griffin in Philadelphia, PA and David V. Bernal with Andrew C. Maclachlan of OIL litigated the case. The IJ was Miriam K. Mills.

Wednesday, August 13, 2008

Baloch (not precedential): Saving Asylum-Seeker From Obvious BIA Errors that Mischaracterized the Record and Ignored Corroboration Test

Baloch v. Mukasey, No. 07-2183 (3d Cir., Aug. 13, 2008) (not precedential)
August 13, 2008
2008 WL 3409455

Judges Sloviter, Stapleton, and Cowen. Per curiam decision.
Overturning the BIA and Immigration Judge Miriam J. Mills

Two enormous errors by the BIA in denying someone's asylum claim.

First, the BIA mischaracterized the record, a fatal error. The BIA concluded that the police had a type of warrant (a First Information Report) when they arrested the person but actually the undisputed evidence was that the police did not have that type of warrant. Clear error by the BIA.

But there was more -- the BIA said the asylum-seeker submitted no newspaper articles about his political activity. Seems they ignored one newspaper article that discussed his political activity. Another clear error.

Second, the BIA blamed the asylum-seeker for not collecting corroborating evidence without going through the steps required before penalizing someone for not having corroborating evidence. The test is Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir. 2001), but it seems the BIA did not follow it. For example, you can't penalize someone until you first find out whether he or she had a good explanation for not getting the corroborating evidence.

For Baloch was Dennis Mulligan of Philadelphia.  For the government was Paul Fiorino of OIL in the Justice Department.