Thursday, April 30, 2009

Nijhawan-inspired hypotheticals

Before looking at some of the ideas from the Nijhawan oral argument, let's look at some hypotheticals.

First, does it seem unjust and contrary to what Congress must have been thinking to punish two people differently because the states where they committed their crimes define the criminal statutes differently? Let's say someone in State A commits a fraud that causes $15,000 of harm and is punished for committing what State A defines as "theft causing more than $11,000 in damage." That'd be an aggravated felony as a conviction for a crime causing more than $10,000 in loss. Someone in State B, however, commits a similar fraud but State B defines its crime as "theft causing more than $10 in damage" so in some situations, that is not an aggravated felony because the conviction is not for a crime causing more than $10,000 in loss -- it's defined as a fraud causing more than $10 in damage. Is this unjust to such a degree that Congress could not have meant it?

Second, would it seem equally unjust and contrary to what Congress must have intended to punish two people differently because the states where they committed their crimes impose sentences differently? Imagine that State A sentences a certain violent crime with 13 months in jail but State B sentences the same violent crime with 11 months in jail? It's possible that the person sentenced to 13 months in jail has an aggravated felony but the person sentenced to 11 months in jail does not have an aggravated felony. Does this seem so unjust that it must be contrary to what Congress intended?

Third, would it seem unjust and contrary to what Congress must have intended to punish two people differently because the crimes are punished differently due to circumstances that are not part of the criminal statute, not part of the conviction, and were out of the criminal's control? Let's say someone in State A, someone in State B, and someone in State C each obtain by fraud a $1 lottery ticket whose drawing will be done 7 weeks later. In each state, they are convicted of fraud whereby they stole a $1 ticket and deprived the owner of the value of that ticket. After the convictions are final in each state, the ticket in State A turns out to be worth $0 (it doesn't win), the ticket in State B turns out to be worth $9,500 (it wins a minor prize), and the ticket in State C turns out to be worth $20,000 (it wins one of the major prizes). Would you say that Congress absolutely must have intended to punish the three thieves differently based on the result of the lottery drawing that did not take place until 7 weeks after the fraud and a few weeks after the convictions? Would you say that Congress must have intended for the fraudster in States A and B not to have aggravated felonies but the fraudster in State C must be treated as committing an aggravated felony?

Tahiraj-Dauti Panel Rehearing Ordered Involving Forced Drugging And Motions To Reopen After Departing

Tahiraj-Dauti v. Holder
April 29, 2009 -- granting panel rehearing
No. 07-1925

In a decision dated January 30, 2009, the panel of Judges Chagares, Hardiman and visiting Senior District Judge Thomas Selby Ellis III from the Eastern District of Virginia denied the appeal of someone who was suffered forced drugging while being deported.

The petitioners asked for panel rehearing and so did amici curiae of the ACLU, the ACLU of NJ, and the ACLU of Southern California. On April 29, 2009, the Third Circuit panel granted panel rehearing based on the reasons raised by the amici, which probably focused on the forced drugging during deportation.

Next, the Third Circuit panel reissued a decision at which focused on the peculiar and controversial departure bar that appears in a regulation, but arguably not grounded in the INA and perhaps violates the statute and therefore is invalid.

It's not clear now whether the panel rehearing will focus just on the forced drugging issue or whether it will tackle the controversial regulation that purports to bar motions to reopen after someone leaves the country, even if the person only left because he was forcibly deported by ICE.

Wednesday, April 29, 2009

Nijhawan argued at the Supreme Court April 27, 2009

Nijhawan v. Holder, which the Third Circuit decided, was argued on appeal before the Supreme Court on April 27, 2009. For Mr. Nijhawan was Tom Moseley of Newark, NJ.

I will try to offer some thoughts on portions of the oral argument soon. For now, you can find a link to the transcript and one observer's views on the oral argument at the SCOTUS Blog:

Thursday, April 23, 2009

Third Circuit Decision Will Be Argued April 27, 2009 at the Supreme Court (Nijhawan)

Just a few days until the US Supreme Court holds oral argument on Monday, April 27, 2009 in Nijhawan v. Holder. It's Supreme Court case 08-495. The Third Circuit's decision is at 523 F.3d 387 and was titled Nijhawan v. Mukasey. The Supreme Court granted certiorari on January 16, 2009.

The Supreme Court is addressing the question of whether conspiracy to commit bank fraud, mail fraud, and wire fraud is a conviction for conspiracy of an offense involving fraud or deceit in which the loss to the victim exceeds $10,000 where the criminal statute does not include any requirement that the loss exceed $10,000 but the sentencing stipulations note that the victim's loss was much more than $10,000 (it seems like it was on the order of over $100 million).

It's listed as the first of two cases slated for Monday, April 27. Stay tuned. It could be an excellent opportunity for the Supreme Court to get back to basics and impose some long-needed sense to the categorical approach to analyzing the immigration consequences of criminal convictions. The immigrant in the case has a strong argument that it is not an aggravated felony.

for the listing of the case on the Supreme Court web site.

Listed for the petitioner is Thomas E. Moseley of Newark, NJ. Listed for the government is Curtis E. Gannon, Assistant to the Solicitor General, Justice Department, Washington DC.

Wednesday, April 22, 2009

Croitoru (not precedential): The Ultimate Expression Of Frustration With USCIS Refusal To Provide Information

In re Gheorghe Croitoru
No. 09-1675
Not Precedential
April 20, 2009

Judges Barry, Ambro, and Smith. Per Curiam decision.

I admire the enthusiasm of Mr. Croitoru, who it seems is so frustrated that it is difficult to obtain a copy of his entire immigration file (also referred to as his A-file or alien file) along with the file of his parents, that he went off and filed a writ of mandamus in the Third Circuit against USCIS! Love the enthusiasm.

Unfortunately, the Third Circuit pointed out you need to file the writ of mandamus in the district court first, not directly in the Third Circuit. And also, you would need to show that no alternative remedy is available. The Third Circuit referred to FOIA, perhaps not knowing that FOIA takes an extremely long time for USCIS to respond to (and many people say the quality and quantity of their responses are quite disappointing).

Nevertheless, the debate about whether a FOIA would effectively be futile must be heard first in the district court, not the Third Circuit. So this case is truly fascinating for the depths of frustration USCIS causes someone who earnestly seeks a copy of his own file (and that of his parents). Good luck, Mr. Croitoru!

Monday, April 20, 2009

Sixth Circuit Criticizes a Not-Precedential Third Circuit Decision About Crime Involving Moral Turpitude

A posting about a decision from another circuit court -- the Sixth Circuit. In Singh v. Holder, Nos. 07-3353, 07-4468 (6th Cir. Apr. 16, 2009), the Sixth Circuit diverged from a not-precedential Third Circuit case. The issue in question is whether intentionally placing someone in fear of physical injury should be considered morally turpitudinous. If the answer is yes, then a conviction for that crime would be a crime involving moral turpitude, which would have negative consequences such as authorizing deportation of someone who had legal permanent residence status effective since 1990, owned a liquor store, owned a BP gas station, has a wife in the US, has two teenage children in the US due to a conviction involving punching an acquaintance after a night of drinking (for which he did not get any jail time, five years of probation, and paid $6000 in restitution, fines, and costs).

In a not precedential decision, the Third Circuit held that offenses that involve placing an individual in fear of physical injury are morally turpitudinous. Campbell v. Mukasey, 174 Fed. App'x 89 (3d Cir. 2006). The Sixth Circuit heavily criticized that decision, noting that none of the three cases that the Third Circuit cited provide strong support for that proposition because they involve different types of crimes. Apprehension of assault requires no intention to harm the other person physically. Not trying to harm the other person is less inherently base, vile, or depraved than trying to hurt someone, so it is less likely to be a CIMT. The Sixth Circuit therefore remanded the case for the BIA to address the issue.

Tuesday, April 07, 2009

Oei (not precedential): BIA Improperly Overturned IJ's Factual Findings Without Stating It Was Clearly Erroneous

Oei v. Mukasey
No. 07-4561
Not Precedential
December 1, 2008

For Ms. Oei, James M. Tyler of Schubert, Bellwoar, Cahill & Quinn in Philadelphia. For the government, Virginia M. Lum and Brooke M. Maurer of OIL.

Per curiam decision before Judge McKee, Nygaard, and Roth.

IJ William Van Wyke denied Ms. Oei's asylum claim and held that Ms. Oei filed the application in an untimely manner due to the one-year rule that normally requires asylum applications to be filed within one year of the most recent arrival to the United States.

Before 2002, the BIA could engage in independent fact-finding. But for appeals filed after September 25, 2002, the BIA must defer to the IJ's factual findings unless they are clearly erroneous. The BIA may not engage in its own independent factfinding. Filja v. Gonzales, 447 F.3d 241, 253 (3d Cir. 2006). The BIA ignored the rules and simply replaced the IJ's factual findings with its own without any analysis of whether the IJ's findings were clearly erroneous.

The BIA did not use the correct legal rule in its analysis.

Sunday, April 05, 2009

Sandie: Corroboration Properly Required In This Particular Case; Stay of Removal Does Not Stay Voluntary Departure Unless Requested

Sandie v. Holder
No. 07-1865
April 3, 2009

Judges Smith, Cowen, and district court judge Anne B. Thompson. Decision by Judge Smith.

For Mr. Sandie, Alexander Maltas of Lathan & Watkins in DC and Michele R. Pistone of Villanova Law School's Clinic for Asylum Refugee & Emigrant Services in Villanova, PA. For the government, Lindsay B. Glaunder, Theodore C. Hirt, Michael P. Lindemann, and John D. Williams of various parts of OIL.

IJ Miriam Mills denied the asylum request in March 2006 of a man from Sierra Leone who feared a secret group called the Wonde & Poro Society. IJ Mills focused on how Mr. Sandie did not corroborate his story. The BIA affirmed in February 2007. The Third Circuit concluded that the BIA did not make any error and denied the appeal by Mr. Sandie.

One issue was whether the BIA was required to address how the IJ believed the asylum-seeker's testimony was not credible before analyzing how much corroboration would be needed. Under Miah v. Ashcroft, 346 F.3d 434 (3d Cir. 2003), the BIA must do a new analysis of how much corroboration is needed if the BIA throws out an IJ's conclusion that testimony is not credible. Without much explanation, the Third Circuit held that in this particular case, the BIA was not required to do new analysis of how much corroboration is needed because even if the IJ's conclusion about the credibility was thrown out, the IJ's corroboration analysis did not depend on the credibility determination.

On the issue of corroboration, an IJ is the first to decide whether corroboration for testimony central to a claim should be required. In making that decision, an IJ must identify the testimony to be corroborated, examine whether there is corroboration, and analyze whether the asylum-seeker has adequately explained any lack of corroborating evidence after giving the person a chance to explain. The Third Circuit concluded that the IJ gave notice to the asylum-seeker of the need to provide corroboration. It did not go into details, so it's tough to know what the record on appeal said on this topic. The Third Circuit also inferred that because the asylum-seeker submitted a report that addressed a scar, it is clear that the IJ had warned about the need to corroborate the scar -- this seems to be a stretch as written by the Third Circuit, because sometimes asylum-seekers submit reports about a wide range of topics even though the IJ has not asked for corroboration on those topics. This is typical of expansive, comprehensive litigation styles, not a narrow response to the IJ's explicit requests. For those of us who read the opinion but have no chance to review the record on appeal, it's hard to tell how well-supported the Third Circuit's analysis is.

On another note, the Third Circuit held that if there is a period of voluntary departure, the person appealing needs to make a motion to stay the voluntary departure period (usually alongside a motion for a stay of removal). Unlike in the Sixth, Eighth, and Ninth Circuits, the Third Circuit joins the First, Second, and Seventh Circuits in refusing to extend the voluntary departure period when asked for a stay of removal unless there is another motion alongside it to request that. This is a classic circuit split that might have to be resolved in the Supreme Court.

Liu (not precedential): BIA Ignored Evidence Supporting Asylum Claim From China

Liu v. Mukasey
November 25, 2008
2008 WL 4989132
Not Precedential

Judges Scirica, Chagares, and Aldisert
Per Curiam decision

For Ms. Liu, David J. Rodkin of New York, NY. For the government, Ari Nazarov and Paul F. Stone of OIL.

IJ Annie S. Garcy granted asylum. On appeal, the BIA reversed IJ Garcy and ordered removal because the BIA believed Ms. Liu's fear of forced sterilization was too speculative. The BIA relied on one item -- the 2002 State Department Report released in 2003, which notes that China sometimes required families with more than one child to pay a fee.

The BIA, though, did not mention Ms. Liu's specific testimony about China's true policies against families with more than one child and what her relatives actually experienced. The BIA also did not discuss the IJ's findings that supported Ms. Liu's fear.

The BIA cannot ignore evidence supporting asylum-seekers. The Third Circuit explained that agency determination must be supported by substantial evidence. Dia v. Ashcroft, 353 F.3d 228, 248 (3d Cir. 2003). The BIA erred by stating that Ms. Liu failed to offer specific evidence of her fear -- inf act, she did provide specific evidence so the BIA's analysis is not supported by substantial evidence.

The Third Circuit overturned the BIA's ruling and remanded the case for the BIA to render a decision that actually addresses the evidence that the asylum-seeker submitted.

Wednesday, April 01, 2009

Carrera-Garrido (not precedential): IJ Must Apply Legal Rule That Only Required Reasonable Possibility Of Future Persecution

Carrera-Garrido v. Holder
Not precedential

Judges Ambro, Weis, and Van Antwerpen. Decision by Judge Ambro.

The IJ was Daniel Meisner.

To show objective reasonableness of fear of returning to one's country, you must show there is a reasonable possibility of suffering the feared persecution. IJ Meisner, however, never said that the standard was proof of a reasonable possibility. Instead, IJ Meisner said there was no nexus established and he did not establish that he would be killed. The IJ never appeared to apply the correct standard, apparently applying the wrong standard by requiring a nexus, not just a reasonable possibility. The Third Circuit overturned the BIA and IJ Meisner for further proceedings.