Saturday, January 31, 2009

Liu (not precedential): Numerous IJ Errors In Chinese Asylum Case

Liu v. Filip
No. 07-3294
Not Precedential
January 30, 2009

Judge Sloviter and Barry with Judge Eugene E. Siler, Jr. (from the Sixth Circuit). Per curiam decision.

Overturning the BIA and IJ Charles Honeyman for improper reasoning in denying the asylum claim of someone from China.

Briefly, numerous errors by the BIA and IJ in denying the asylum claim: one minor inconsistentcy of a date in a cousin's letter was too minor to justify finding the witness not credible; testimony was he escaped by the back door, not the front door; escape not inherently improbable where church members outnumbered police and interfered with their chase and he knew the area so possible he could outrun the police; odd circumstance of getting a notarized birth certificate in hiding does raise questions but does not go to the heart of the claim.

IJ improperly called the wife a star witness whose absence from testifying was suspicious -- actually, she did not there when the police tried to capture her husband.

Chen (not precedential): New Evidence Includes Evidence After The Merits Hearing Even If The Final Decision Was Months Later

Chen v. Filip
Not Precedential
January 22, 2009
Judge Barry, Smith, and Hardiman. Per Curiam opinion.

Overturning the BIA. The case was originally heard by IJ Rosaline K. Malloy, but the error was made by the BIA, not IJ Malloy.

Asylum-seekers can file a motion to reopen a case by focusing on new evidence that was not previously available. The BIA must look at all the new evidence. Evidence is new if, among other things, it was not available at the time of the merits hearing conducted in immigration court.

Evidence is new if it was not available at the time of the merits hearing, regardless of how much time passed before the IJ issued a decision in the case. After all, the asylum-seeker submits evidence at the merits hearing. So unless the IJ rules otherwise, the record is closed at the merits hearing and anything that arises afterwards could not have been presented in the case.

Because certain evidence was new, the BIA erred by refusing to explicitly consider the new evidence of changed circumstances under the test in Zheng v. Mukasey, 2008 WL 5006072 (3d Cir. Nov. 26, 2008).

Doe (not precedential): Evidently Strategic Waiver Overcomes Phone Obstacles To Finding A Lawyer

Doe v. Filip
Nos. 06-4953 & 07-1701
Not Precedential
January 22, 2009

Judges Scirica, Fuentes, and Hardiman. Opinion by Judge Fuentes

Pro bono counsel for Mr. Doe were Laura E. Neish (argued) and Charles E. Stewart of Zuckerman Spaeder of NY, NY. For the government, Kevin J. Conway (argued) and Richard M. Evans of OIL.

The Third Circuit affirmed the BIA and IJ Annie S. Garcy in ordering removal of a Haitian asylum-seeker.

Mr. Doe appeared in immigration court and did not have a lawyer. The court did not appoint a lawyer for him. He said he would waive his right to fight his case and waive his right to appeal. Two weeks later, he filed a motion in which he said he wished to fight his case and seek asylum. The Third Circuit concluded that even if Mr. Doe experienced problems trying to find an attorney due to restrictive phone rules where he was detained, that was nothing that would allow him to take back his initial decision not to fight the case. The Third Circuit quickly noted that its current view is that immigrants have no Sixth Amendment right to counsel and turned to the test for due process -- to show the obstacles to obtaining a lawyer violated due process, you must show you were prevented from reasonably presenting your case and substantial prejudice resulted.

In looking at whether the restrictive phone rules prevented Mr. Doe from reasonably presenting his case, the Third Circuit did not focus on what obstacles it posed or how it might have prevented him from a reasonable presentation. Instead, the Third Circuit focused on how evidently Mr. Doe had a motivation for giving up his case -- to try to get out of detention sooner by being deported quicker. It is not clear, though, how the Third Circuit's focus on alternative motivation is relevant to the issue of whether the telephone rules prevented him from reasonably presented his case. It seems like the alternative motivation merely suggests that if Mr. Doe had affirmatively insisted that the detention staff block his phone access as part of a grand strategy to seek deportation sooner, that would have been a knowing waiver as part of an intelligent strategy. Here, though, Mr. Doe did not ask for his phone access to be blocked. It's not clear how the Third Circuit's analysis matches the legal rule it stated.

The Third Circuit did note that if the telephone rules had interfered with his ability to find a lawyer and the immigration judge ignored repeated requests for time and a list to try to find a lawyer, that might have been a violation.

On another topic, the Third Circuit upheld the BIA's interpretation of the facts regarding legal proceedings one of his relatives more recently started against the people Mr. Doe believes will persecute him. The BIA concluded that the evidence did not prove how the adversaries might connect Mr. Doe to the legal proceedings his relatives started.

Sulistiowati (not precedential): IJ Must Analyze Pattern Or Practice Of Anti-Chinese Persecution In Indonesia

Sulistiowati v. Filip
Not Precedential
No. 08-1148
January 21, 2009

Judges McKee, Nygaard, and Roth. Per Curiam decision. Judge Roth voted to deny the petition for review so it was a 2-1 decision.

The case in immigration court was heard by IJ Rosalind K. Malloy

The BIA and IJ Malloy erred by not analyzing whether there is a pattern or practice of persecution in Indonesia against ethnic Chinese.

A basic legal rule is that someone can seek asylum by proving a subject fear of persecution along with objective proof that a reasonable person in the circumstances would fear persecution. One way to show objective fear of persecution is to show a pattern or practice of persecution against a group of similar people. This is in the law at 8 CFR 208.13(b)(2)(iii)(A).

IJ Malloy did not address whether there was a pattern or practice of persecution in Indonesia of ethnic Chinese people. IJ Malloy did comment that the asylum-seeker did not fully articulate her exact fear, but did not address the issue of a pattern or practice of persecution. The BIA and IJ Malloy erred by not addressing that issue and the Third Circuit overturned the decision, remanding for further hearings.

Martins (not precedential): Acceptable To Deport Immigrants Who Call Police To Report Crimes

Martins v. Filip
No. 06-4350
January 20, 2009
Not Precedential
Judges Scirica, Fuentes, and Hardiman. Opinion by Chief Judge Scirica.

IJ Daniel A. Meisner

It is acceptable for ICE to deport an immigrant who calls the police or 911 to report a crime, as IJ Meisner and the BIA had ruled. The Third Circuit held that interrogating an immigrant who calls the police with a useful tip to report a crime is not an unusual condition. That fact does not demonstrate an unusual condition under which the police is interrogating the immigrant.

Instead, there must be some other detail that would make the interrogation something other than fairly ordinary conditions for interrogating someone. It does not matter that there are policy reasons for not inquiring about or investigating the immigration status of crime victims or crime informants. It also does not matter that the New Jersey Attorney General recently recognized the need to respect those policy concerns.

The Third Circuit held interrogating someone who calls the police with useful crime tips is not an egregious violation of the Fourth Amendment or other liberties that would require excluding the evidence that ICE obtained from the interrogations.

It is also generally acceptable for an immigration judge to prohibit an immigrant from talking with his lawyer or participating in his legal defense during an immigration court case. Unless you can prove more, it is perfectly fine for an immigration judge to go ahead with a deportation case even if the immigrant would be unable to watch, talk, or assist in the legal defense. It sounds like it would be equally acceptable to gag the immigrant or even shut him out of the courtroom. The Third Circuit left open a possibility for challenging a case where the immigrant could show specifically how it affected his defense -- however, the Third Circuit also points out that it refuses to accept any evidence on that point.

In this case, the Third Circuit refused to accept the evidence that purportedly showed how refusing to let the immigrant participate in his defense affected the case. The Third Circuit next ruled that there was no evidence to show how it would have affected the case. (Once it refused to let the immigrant submit any proof, it is logical that the Third Circuit would conclude that it had no evidence in front of it. It is hard to understand, though, how any immigrant would prove something when it has no chance to submit proof -- perhaps the Third Circuit is essentially saying that an immigrant can never complain if an immigration judge gags and bars him from participating in his case. I hope the Third Circuit is not really taking this view.)

Finally, the Third Circuit ruled that it would not accept new evidence because its approach before REAL ID was not to consider additional evidence on appeal. It did not address how the rule applies after REAL ID, which funneled most immigration appeals to circuit courts rather than allowing habeas suits where there is new evidence.

Monday, January 19, 2009

Jurado-Delgado (not precedential): Lying To The Government Is A CIMT and Cancellation Stop-Time Rule Applies Retroactively

Jurado-Delgado v. Mukasey
January 15, 2009
Not Precedential
Judges Sloviter and Jordan. Also, Judge Arthur Alarcon (visiting from the Ninth Circuit). Opinion by Judge Jordan. Judge Sloviter wrote a concurring decision.

For Jerado-Delgado, George A. Terezakis of Mineola, NY. For the government, Jesse M. Bless argued and worked with Edward J. Duffy and Ernesto H. Molina of OIL. Oral argument held.

Two points from the decision are: first, making an unsworn falsification to authorities under 18 Pa. Cons. Stat. Ann. 4904(a) is something that the BIA may conclude is a crime involving moral turpitude.

Second, the Third Circuit creates a circuit split with the Ninth Circuit about whether crimes can retroactively be used to block cancellation of removal for legal permanent residents. In Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. 2006), the Ninth Circuit prohibited invoking the stop-time rule for crimes before IRRIRA was enacted in a way that ended an immigrant's hope to get cancellation of removal. The Third Circuit disagrees, arguing that because someone seeks relief under an IRRIRA-created avenue, the person waives all retroactivity objections to another provision in IRRIRA regarding that relief. Judge Sloviter did not join this part of the decision and wrote a concurring opinion. Unlike the majority, Judge Sloviter believes the Landgraf test for retroactive application of statutes does need to be run in this case. Judge Sloviter explains that under step two of the Landgraf analysis, retroactive application would be acceptable because he did not have any vested rights when he acted that would be affected by retroactive application of the requirements.

Zheng (not precedential): IJ Erred In Denying Chinese Asylum Claim

Zheng v. Mukasey
January 14, 2009
Not Precedential

Judges Rendell, Greenberg, and Van Antwerpen. Per Curiam decision.

Overturning the BIA and IJ Richard Randall Ozmun.

IJ Ozmun erred in denying the asylum claim of a Chinese immigrant. The BIA erred in affirming without opinion.

The IJ and BIA erred in two of its four main grounds.

First, the IJ should not have found the testimony implausible. The IJ wrongly assumed it would be easy for the asylum-seeker to find Falun Gong practitioners in Pittsburgh and ignored how the asylum-seeker explained he had difficulty finding them when he tried. The IJ wrongly felt Falun Gong practitioners would always feel comfortable practicing Falun Gong openly in front of relative strangers who do not practice Falun Gong. The IJ wrongly assumed that a 17-year old could never follow his parent's arrangements to get to the US without insisting on learning exactly how the arrangements were originally made. The IJ wrongly faulted the asylum-seeker for not knowing advanced concepts of Falun Gong, because it is adequate for an asylum-seeker to be a mere practitioner who has a basic knowledge of the tenets and practice of Falun Gong.

Second, the IJ should not have concluded that a negative factor was how the immigrant's family has lived without any threats against them in China. The family's lack of receiving threats must be viewed in the context of how his parents did not practice Falun Gong so they are not similarly situated and the asylum-seeker showed how he would be singled out in a way different from his family members who stayed in China.

Mendez (not precedential): Must Consider District Court Recommendation Against Deportation

Mendez v. Mukasey
January 14, 2009
Not Precedential

Judges Fisher, Jordan, and Van Antwerpen. Per Curiam decision.

Overturning the BIA and IJ Frederic G. Leeds.

The immigrant claimed the FBI promised he would not be deported and that he would be in danger if deported due to his cooperation with the US government through a risk that the Dominican Republic government would or could not protected him from.

The BIA and IJ mistakenly assumed that a district court's recommendation against removal was irrelevant once DHS chose to proceed with a removal case. There were two troublesome aspects to the BIA and IJ's view -- first, a district court's recommendation is a very strong statement not a light recommendation. Second, the BIA and IJ thought that once ICE decides to go ahead with seeking deportation, the district court's recommendation was completely irrelevant. On the contrary, it is relevant in several ways -- it is evidence that there may have been an agreement about not deporting the immigrant and it is evidence toward showing the immigrant would be in danger if deported.

The Third Circuit did not raise Rranci v. Mukasey, 540 F.3d 165 (3d Cir. 2008), which outlines relief for informants against transnational organized crime. Before the Third Circuit, the immigrant pursued the case without legal representation. Hope he hires representation, that the IJ gives him appointed counsel, or that he reads this and raises relief under the Rranci case!

Chen (not precedential): Falun Gong-Based Asylum Claims Cannot Be Denied Without Proof

Chen v. Mukasey
Not Precedential
Jan. 12, 2009
Judges McKee, Nygaard, and Roth. Per Curiam decision.

Overturning the BIA and IJ Alberto Riefkohl. The BIA affirmed without opinion and was overturned by the Third Circuit.

The IJ erred in drawing three conclusions about Falun Gong practice that did not have a basis in the record.

First, the IJ mistakenly concluded the asylum-seeker did not provide any corroborating evidence but the asylum-seeker had submitted a corroborating affidavit from her mother, which the IJ did not discuss. Second, the IJ concluded without supporting evidence that the asylum-seeker's parents who did not practice Falun Gong normally would have been punished by China because their daughter practiced Falun Gong. Third, the IJ concluded without supporting evidence that it was impossible for someone in the US to practice Falun Gong alone at home without making connections with Falun Gong practitioners in New York City.

BIA Must Address Documents About Changed Circumstances

In Zheng v. Mukasey, No. 07-3122, 2008 WL 5006072 (3d Cir. Nov. 26, 2008), the Third Circuit required the BIA to have at least some recognition that it considered the documents that someone submits to support reopening a case due to changed country conditions.

If the BIA does not give some recognition to the submitted documents, the BIA erred and will be overturned.

Fang Dong v. Mukasey (Jan. 6, 2009) (not precedential): BIA failed to recognize all documents submitted to it in a motion to reopen. Third Circuit overturned the BIA.

Lin v. Mukasey (Jan. 6, 2009) (not precedential): same as Fang Dong.

Mei Zhou v. Mukasey (Jan. 6, 2009) (not precedential): similar relevant facts as Fang Dong.

Lyou v. Mukasey (Jan. 7, 2009) (not precedential)

Liu v. Mukasey (Jan. 7, 2009) (not precedential)

Salazar Quiceno (not precedential): Particularly Serious Crime And Limiting The Use Of Facts About Innocence

Salazar Quiceno v. Mukasey
December 17, 2008
Not Precedential
IJ Walter A. Durling
Judge Fuentes, Hardiman, and Garth. Opinion by Judge Hardiman. Dissent by Judge Garth.

For Salazar Quiceno, Michael Z. Goldman of Dechert in NYC. For the government, Jeffrey L. Menkin along with Ari Nazarov of OIL. Oral argument held.

IJ Walter A. Durling concluded that a particular armed robbery conviction was not a particularly serious crime so Salazar Quiceno could receive withholding of removal. The BIA overturned the IJ, ruling that particularly serious crimes are analyzed by focusing on the nature of the offense, not the likelihood of future misconduct. The BIA explained this in In re N-A-M-, 24 I&N Dec. 336 (BIA 2007).

The Third Circuit deferred to the BIA's approach. The Third Circuit also said it was acceptable for the BIA to ignore the IJ's factual findings about anything that happened during the crime's commission if it was inconsistent with a guilty plea. It is hard to understand without knowing more about the case (not explained in depth in a not precedential decision) why the Third Circuit came to this conclusion in this case. Logically, factual findings are allowed about the nature of a crime without necessarily relitigating the person's innocence of guilt. The problem might have been that the IJ viewed evidence about the nature of the crime to be evidence of innocence. The solution is that an IJ should view evidence about what happened to address the nature of the crime, not the person's guilt or innocence.

It is possible for the nature of a crime not to involve certain activities even though the person is clearly guilty (because the person pled guilty). That would not be relitigating the case -- it would be elaborating on the nature of the crime. Judge Garth makes related but different points in his dissent -- the BIA ignored key facts found by the IJ such as how no weapon was used and that the original sentence involved no term of imprisonment. In ignoring the IJ's findings, the BIA improperly made new factual findings, which is improper. See Sioe Tjen Wong v. Att'y Gen., 539 F.3d 225, 230 (3d Cir. 2008) (quoting 8 CFR 1003.1(d)(3)(i)); In re A-P-, 22 I&N Dec. 468, 476 (BIA 1999).

Judge Garth also points out that the BIA erred by going to a strange middle-ground area of looking at evidence beyond the categorical approach but still trying to impose limits -- the BIA looked at statutory elements, record of conviction, and the presentence investigation report. That's more than is allowed under the categorical approach yet less than is allowed under an expanded approach.

Judge Garth makes excellent points in his dissent. I would not be surprised if the case is heard again either on rehearing or with a further appeal.

Third Circuit Criticizes Government For Deporting Someone With A Stay Request Pending

In Salazar Quincero v. Mukasey (3d Cir. Dec. 17, 2008) (not precedential), the Third Circuit criticized the government and OIL, represented by Jeffrey L. Menkin and Ari Nazarov, for not informing the Third Circuit that ICE within DHS was about to deport someone who had a stay request pending with the Third Circuit. It was the fault of the government that ICE and OIL did not communicate. OIL must keep track of potential deportations so that OIL can warn the Third Circuit that it must act quickly if it wants to rule on the stay request before someone is deported.

The Third Circuit said it is troubled by the oversight in this case and trusts and expects DHS to be more vigilant in the future.

The failure of DHS and ICE to keep OIL informed -- and for OIL not to make sure it would be informed -- gives more reason why there should be automatic stays of removal while circuit court appeals are pending. It is not clear whether DHS, ICE, or OIL received any sanction other than a footnote in which the Third Circuit expressed that it was troubled.

Friday, January 16, 2009

Third Circuit Immigration Case Granted Supreme Court Cert

The Supreme Court granted certiorari to review the Third Circuit's decision in Nijhawan v. Mukasey. The attorney for petitioner is Tom Moseley of Newark, NJ. It will be interested to see whether the Supreme Court overturns the Third Circuit about how to analyze criminal convictions for the purpose of immigration consequences.

Saturday, January 03, 2009

Kesuma (not precedential): BIA Can't Use Wrong Standard For Asylum Cases

Kesuma v. Mukasey
Not Precedential
November 21, 2008
Judges Scirica, Chagares, and Aldisert
Per Curiam

A basic requirement is that the IJ (IJ Charles M. Honeyman) and BIA must apply the correct legal standard when applying the law to an immigration case.  The Third Circuit overturned the BIA because it applied the wrong standard.

To seek asylum, you must prove among other things that you have a well-founded fear of persecution based on a protected ground.  Let's focus on the need to show a well-founded fear.  In this case, the IJ and BIA ruled that the asylum-seeker supposedly had the burden of proving it was more likely than not that she would be persecuted if she returned.

A basic principle is that proof of a well-founded fear is much easier to prove than proving that it is more likely than not you will be persecuted.  The IJ and BIA applied the wrong legal standard.  It is disappointing that OIL counsel for the government argued that it was harmless error because the BIA perhaps silently used the correct standard.  The Third Circuit threw out OIL counsel's argument, noting there is nothing to indicate the BIA had the correct standard in mind.

It is disappointing to see that the BIA and immigration judges are at times applying the wrong legal standard in immigration cases and it requires a second appeal to a federal court to fix the clear mistake.  Congress should expand judicial review of BIA and IJ rulings.