Saturday, November 22, 2008

Bradley (pending): Stay of Removal Issued on Visa Waiver Program Adjustment

Kirk Semple wrote an article for the New York Times on November 20, 2008 titled A Residency Dream, Now a Nightmare, that reports that the Third Circuit granted a stay of removal while it hears an the appeal of Mr. Bradley.

The reporter talked to Mr. Bradley's lawyer Harry Asatrian, who explained that Mr. Bradley entered on the visa waiver program and overstayed, marrying a United States citizen. He then applied for legal permanent residence in New Jersey and twice asked to reschedule the USCIS interview due to work conflicts. The second time, USCIS refused to postpone the interview and on July 5, 2008, USCIS denied the application.

Mr. Bradley filed an administrative appeal (probably to the AAO) on June 24, 2008.

Rather than let the appeal play out, ICE swooped in and arrested/detained Mr. Bradley on October 8, 2008.

There are a few issues involved:
  • Is the waiver of removal proceedings by those who enter on the visa waiver program valid if the immigrant was so jet-lagged and groggy at the airport that it was not a knowing and voluntary waiver? (There is some basis to think the answer is that it would not be valid if the manner in which it was signed can be proven.)
  • Can the entrant even raise this issue to any court? The government is arguing that the Third Circuit is not even allowed to listen to this issue because the disputed waiver is a complete waiver that eliminates any constitutional claims. (The government's argument as portrayed in the article does not make much sense -- it assumes that the disputed waiver is valid in arguing that no constitutional claim exists. But the issue of whether the disputed waiver is valid is the point of the appeal.)
  • Can the entrant introduce evidence beyond the signed piece of paper about how the waiver was signed and obtained? Stephen F. Day, OIL counsel on the case, argues that the form is the prima facie evidence. (The question is whether the prima facie evidence is open to rebuttal through other evidence -- I don't see why not. If it's open to rebuttal through other evidence, OIL's argument should not succeed.)
On November 10, 2008, the Third Circuit issued a stay of removal. In the meantime, ICE released Mr. Bradley from detention while the appeal is pending, so Mr. Bradley experienced five weeks in the immigration detention center in Elizabeth, NJ, that is run by CCA. (The article did not mention the conditions in detention centers, such as plexiglass barriers when meeting family and fairly open living and bathroom facilities. A glimpse of those conditions was portrayed in the film The Visitor.) It would be interesting at the end of the case to look back on whether detaining Mr. Bradley was a wise use of taxpayer funds.

In the meantime, there is always a possibility that the case could be settled -- if USCIS just lets Mr. Bradley pay again and file a second adjustment application (rather than trying to get the first one reopened), maybe he can get his chance to prove whether he deserves legal permanent residence status and make the whole appeal moot. Although the issue could recur if ICE decides to detain more people who sign visa waiver forms after long international flights.

Update: the Third Circuit issued a decision in Bradley v. Holder on April 22, 2010.

Thursday, November 20, 2008

Massaquoi (not precedential): Mentally Ill Person Loses Asylum Claim

Massaquoi v. Mukasey
No. 07-2417
Not Precedential
November 20, 2008

Judges Smith, Cowen and Thompson (District Judge Anne E. Thompson from D.N.J.)
Opinion by Judge Thompson

Affirming the BIA, which had overturned IJ Robert P. Owens

Benjamin D. Yerger of Lancaster, PA argued the case for Mr. Massaquoi. Jeffrey L. Menkin argued the case for the Office of Immigration Litigation.

An expert testified about the lack of mental health care in Liberia and how the public there perceive the mentally ill. The Third Circuit held that the evidence given by the expert was not strong enough to support an asylum claim because it seemed tenuous, speculative, and uncorroborated. Without knowing more about the case, it is very difficult to interpret the Third Circuit's comment that there was no "solid evidence" about persecution.

It is difficult to see how this opinion will be significant in other cases because it is hard to tell what kind of evidence the Third Circuit sees by definition as not being solid.

Quantanilla-Suarez (not precedential): IJ Can Reopen Sua Sponte For Any Or No Reason

Quantanilla-Suarez v. Mukasey
No. 07-3245
Not Precedential
November 19, 2008

Judges McKee, Nygaard, and Roth. Per curiam opinion.

Affirming BIA and IJ R.K. Malloy

An IJ seems to have complete discretion to reopen a case sua sponte for any or no reason at all. The Third Circuit ruled that it had no power to review the reason (or no reason) that an IJ reopens a case sua sponte. The Third Circuit drew on its decision in Calle-Vujiles v. Ashcroft, 320 F.3d 472 (3d Cir. 2003), in which it held that it had no power to review the reason (or no reason) that the BIA reopens a case sua sponte. So the IJ and BIA can reopen a case on their own accord for any or no reason at all.

The strongest argument for some level of review is that perhaps the IJ can only reopen a case sua sponte for exceptional circumstances. The Third Circuit in this case rejected that view, though.

The Third Circuit can review a due process claim, but you have to show you were prevented from reasonably presenting your case due to the mistake the court made. There wasn't enough proof of that in this case.