Monday, May 18, 2009

Butt (Not Precedential): BIA Cannot Deny Motion To Reopen For Lack Of Approved Labor Certification By Ignoring Approved Labor Certification

Butt v. Holder
Not Precedential
May 15, 2009

Judges Fisher, Jordan, and Van Antwerpen
Per Curiam

In this case, two people wanted an IJ to hold off on a case and later wanted the BIA to remand the case back to the IJ based on the potential for obtaining legal permanent residence through an employment-based application. There are generally three steps: the worker files a labor certification application with the Department of Labor, when that's approved the worker files the approved certification with an I-140 petition, and when a visa is ready for the I-140 petition the worker files an I-485 application for LPR status.

At the time the case was with IJ Frederic Leeds, there was no approved labor certification so it was acceptable for the IJ at some point to decide not to delay the case.

The mistake took place with the BIA, not IJ Leeds. In front of the BIA, one of the two immigrants asked for the case to be sent back down to the IJ because by that time, one person had all three elements -- an approved labor certification, a filed I-140 petition, and a filed I-485 application.

Bizarrely and improperly, the BIA ruled that the man who provided proof of an approved labor certification had not provided any evidence that he had an approved labor certification. It seems like a clear mistake for the BIA to conclude that the man did not provide proof of an item that the man actually provided in his submissions. Based on this clear mistake, the Third Circuit overturned the BIA and sent the case back to the BIA to complete its analysis.

As for the other immigrant, that other person had no proof of an approved labor certification, so it was acceptable for the BIA to decide not to send the case back down to the IJ.

Monday, May 04, 2009

Struggling After Losing At The Third Circuit

Various news articles are now covering the struggles of an immigrant who recent lost his Third Circuit appeal in an asylum case. Maria Sacchetti of the Boston Globe covered "Harvard Peers Press To Stall A Deportation" on April 30, 2009, discussing how Nur Munir was a master's student in Harvard Divinity School, lost his Third Circuit appeal in March 2009, reported to ICE and ICE took him in to detention and put him in the York, Pennsylvania county facility. Harvard students are writing letters to support the request by his lawyer Dennis Mulligan, executive director of the Nationalities Service Center in Philadelphia, for deferred action, which would at least give Mr. Munir a chance to finish his studies before being deported.

The Third Circuit's not-precedential decision is written as a straightforward denial of an asylum appeal. The opinion is at and was by Judges Barry, Smith, and Hardiman in a per curiam opinion, on appeal from IJ Donald Vincent Ferlise and the BIA.

Typical options after losing a circuit court appeal include making a motion to reopen with the BIA, asking for panel rehearing, asking for en banc rehearing, seeking review at the United States Supreme Court, filing a petition with the Inter-American Commission on Human Rights, seeking a private bill, and asking for deferred action. Each option is very difficult to win, though.

Sunday, May 03, 2009

Nijhawan Supreme Court oral argument thoughts

In Nijhawan v. Holder, No. 08-495, the Supreme Court held oral argument on Monday, April 27, 2009. The transcript is available at

This case involves an appeal from the Third Circuit's decision in the case, which is reported at Nijhawan v. Mukasey, 523 F.3d 387 (3d Cir. 2008).

Thomas E. Moseley of Newark, NJ argued for Mr. Nijhawan and Curtis E. Gannon argued for the government. On the brief for Mr. Nijhawan were Thomas E. Moseley of Newark, NJ and Peter C. Salerno of New York, NY. On the brief for the government were Curtis E. Gannon, Donald E. Keener, Jennifer J. Keeney, W. Manning Evans, Holly M. Smith, Andrew C. MacLachlan, Saul Greenstein, and Erica B. Miles. Also for the government were Elena Kagan, Michael F. Hertz, and Edwin S. Kneedler.

The Third Circuit ruled in a 2-1 decision that the amount that a victim lost as part of a fraud conviction can be based on details outside of the actual statute the conviction was based on in order to argue that the conviction is an aggravated felony for immigration purposes. In Nijhawan, the facts were not just outside the statute but also outside of what the jury found. An interesting twist is that Mr. Nijhawan asked the judge at the criminal trial to order the jury to determine how much of the money that he (as opposed to others in the conspiracy) was responsible for, but the judge refused to ask the jury to make that finding.

The INA defines one type of aggravated felony under 8 USC 1101(a)(43)(U) as "an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000."

Mr. Nijhawan's lawyer began by pointing out that the traditional, time-honored approach is a categorical approach that examines whether the statute defining the offense included a requirement that the criminal caused a loss exceeding $10,000.

Justice Kennedy then expanded the approach by offering that it can be an aggravated felony either if the loss finding is required by the criminal statute or if the jury actually makes a factual finding of a loss more than $10,000. Justice Alito then expanded it to if the defendant admits the loss amount during the guilty plea colloquy. However, Mr. Nijhawan's lawyer would not agree to expand it to include when a defendant agrees on the loss amount during post-verdict sentencing because the government only needs to prove post-verdict details by a preponderance of the evidence, not beyond a reasonable doubt.

Justice Souter and Justice Ginsburg then raised a question that seems out of place for those who are familiar with the widely-accepted absurdities of immigration law -- there may be an apparent inequality if in some cases the result turns on how the state defined its criminal statutes and whether the state statute includes a loss requirement. It might seem unequal for Congress to rest its classification of immigrants' convictions on how a particular state defined its criminal statute. If two neighboring state legislatures defined their statutes differently, someone stealing in State A could be booted out of the country but someone who steals across the state line in State B might not be deportable. As Mr. Nijhawan's lawyer explained, though, that is exactly what Congress intended, even though it may initially seem like unequal results could happen. Taking a step back, Justice Souter and Justice Ginsburg have a sincere, honest concern with the unequal results -- we see this concern among many people who are just beginning in immigration law. Over time, however, we see many unjust, absurd classifications in immigration law. Apparently unequal results exist frequently in immigration law and judges approve the absurd results because that is what Congress intended.

It would be strange if the Supreme Court rules that Congress could not have possibly intended for unequal results based on how different state legislatures define their crimes differently. If the Supreme Court rules that way, would this open the door to challenging all of the other illogical classifications that Congress has enacted and that the courts consistently apply? One rule of thumb is that perhaps Congress did accept these unequal types of results because Congress wanted to limit the scope of immigration court hearings by using the short-cut of relying on unequal state statutes to save a great deal of time in immigration court. That would be an acceptable trade-off to unequal results based on different state statutes.

If time is no obstacle, then Congress could approve full-blown trials in immigration court that could easily extend for weeks and make certain cases twenty times longer than they currently are. Two ways that Congress could build full-blown trials are (a) to throw out all state statutes and have full-blown trials to find out what really happened, what all the witnesses say the loss was, and make a finding of the actual loss or (b) to throw out all state statutes and before the hearing, create model criminal statutes and force every crime to fit into the mold of one of the model criminal statutes. In this scenario, you would have full-blown trials to argue which model statute the crime should be considered as falling under. One pitfall with either of these scenarios is that it makes no sense to throw out all the state statutes that were the basis for the conviction because Congress defined aggravated felonies in terms of the immigrant's conviction, not the conduct that the immigrant committed. There are good reasons why Congress might have focused on convictions, not the conduct of what the people committed -- we presume people to be innocent until proven guilty and convicted. It makes sense that Congress would focus on what people were convicted of, because we no longer need to presume that they were innocent of what they were convicted of. But people are still presumed innocent of actions for which they were not convicted (not just what they were acquitted of, but conduct that nobody accused them of committing). Later in the oral argument, Chief Justice Roberts and Justice Stevens pointed out that Congress focused on being convicted of the offense, while Justice Scalia countered that he believes it is better to interpret Congress as requiring conviction of a fraud offense but not necessarily any conviction of a crime causing a loss of more than $10,000.

It would also make sense to appoint counsel for the indigent and those who are detained for these new full-blown trials on the loss amount. With the heavy factual requirements and weeks of testimony, an indigent person whose liberty hangs in the balance deserves appointed counsel (which courts have not yet recognized for immigration court). Likewise, those who are detained should be given appointed counsel. How else would a detainee do the legwork of gathering factual witnesses, investigating the crime scene, conducting forensics or other examinations, preparing witnesses, and bringing them to the hearing?

Another point about the oral argument is that several justices seem to think that Congress must have intended for the aggravated felony category to include many people, so if there were only a few crimes in state laws that required over $10,000 in loss at the time Congress passed it, Congress never could have meant that. The government's brief suggests that if at the time Congress made the change few existing statutes would qualify, that would effectively mean "that Congress had used an elephant-sized hole to house a mouse." There are several flaws with this approach, however. First, Congress may have been outlining a blueprint to pave the way for more aggravated felonies but not necessarily pointing to the existing statutes as aggravated felonies. For example, if Congress passes a tax credit for all skyscrapers that have 100% fluorescent lights, it is possible that no skyscrapers qualify at the time Congress passes the tax credit, but that Congress is setting out a blueprint to create an incentive for new skyscrapers to have 100% fluorescent lights. Far from using an elephant-sized hole to house no mice, Congress would be making an elephant-sized hole and waiting to see how many people building or re-fitting skyscrapers would try to meet the tax credit Congress created. In the same way, Congress might have been setting out a blueprint for aggravated felonies and waiting to see how many states build or re-word criminal statutes to meet the aggravated felony definition. The lack of statutes existing at the time Congress passed the law does not mean that Congress could not have meant what they wrote (just as the lack of 100% fluorescent skyscrapers at the time Congress makes a tax credit does not mean Congress intended something other than what it wrote). Imagine if Congress passed a tax credit for skyscrapers with 100% fluorescent lighting and Donald Trump demanded the tax credit for a skyscraper with 30% fluorescent lighting by arguing that Congress would not have used an elephant-sized hole to house a mouse.

A separate criticism of the government's argument is that Congress is full of politicians, not just people diligently writing statutes. Politicians often take grandstanding positions that they are passing laws to help the needy, feed the hungry, cut everyone's taxes, defeat all terrorists, and reduce the deficit. On closer inspection, though, it is often not clear how much the actual wording of the laws really meet the campaign promises. When Congress passed the change in the law, politicians were making rhetorical claims of being harder on immigrants. Isn't it possible that politicians were proclaiming that they were making all sorts of grand changes, but that the real wording of the statutes doesn't live up to the hype and should be interpreted as they were actually written, not according to the campaign speeches that politicians were making beforehand?