Friday, March 12, 2010

Yigit (not precedential): Velarde-type Motion To Reopen Must Consider Eligibility Proof Filed Any Time Before IJ's Decision

Yigit v. Holder
No. 08-3625
Not Precedential
December 9, 2009

Chief Judge Scirica, Judge Smith, and Judge Weis. Per Curiam decision. Overturning the BIA and IJ Miriam K. Mills.

The immigrant had a way to obtain LPR status through filing a motion to reopen the case within 90 days of the decision, similar to the method approved in the BIA's decision Matter of Velarde. After filing the motion on time, the immigrant filed additional evidence. The IJ was required to consider all of the evidence filed before making the decision, not limiting analysis just to the items in the original motion to reopen. No reason to ignore the evidence filed after the motion but before the IJ made her ruling.

Thursday, March 11, 2010

Tinizaray-Narvaez (not precedential): Erroneous Denial of Continuance Where Expert's Busy Schedule Caused Delay

Tinizaray-Narvaez v. Holder
No. 08-3333
November 24, 2009
Not Precedential

Judges McKee, Nygaard, and Roth. Per Curiam decision. Overturning the BIA and IJ Annie S. Garcy.

IJ Garcy denied a continuance to allow someone seeking cancellation of removal for non-LPRs a chance to make an expert witness available for cross-examination because the expert was not available on the scheduled merits hearing date. An IJ's decision to deny a continuance is reviewed for abuse of discretion. The IJ acted in an arbitrary manner by faulting the immigrant for submitting the expert report just one week before the hearing, missing the court-ordered deadline. It was arbitrary because the IJ blamed the immigrant for unreasonably delaying the effort to get the expert report on time. However, four or five months of the wait to get the report was purely due to the expert's busy schedule and being unable to conduct the evaluation.

A delay of several months due to a specialist's busy schedule is no one's fault. As far as not being available on the hearing date, it was due to the expert's long-scheduled conflicting appointment to attend a conference. The IJ commented that there was no reason to think the immigrant would make good use of a continuance, but there was no basis in the facts of the case for the IJ's comment.

Wednesday, March 10, 2010

Tang (not precedential): Overturning Adverse Credibility Determination Where Photo Did Not Show Entire Room

Tang v. Holder
No. 08-2586
November 20, 2009
Not Precedential

Judges McKee, Nygaard, Roth. Per Curiam decision. Overturning the BIA and IJ Miriam K. Mills.

The IJ's adverse credibility determination was not supported by adequate evidence. For example, Mr. Tang claimed that a photo of a clandestine church was taken at the location of the church, which was in a single family residence. The IJ concluded it was not in any single family residence and instead seemed to show an auditorium-sized facility. However, the photo did not show the whole room so it was improper to assume the part outside the shot was auditorium-sized. Also, Mr. Tang testified about how houses in his hometown were large.

Tuesday, March 09, 2010

Chen (not precedential): No Violation For Government's Expert Not To Produce Data Where Still Possible To Cross-Examine Methods

Chen v. Holder
November 10, 2009
Not Precedential

For Mr. Chen, Marco Pignone, III of Getson & Schatz in Philadelphia argued the case. For the government, Paul Fiorini argued the case and also on the case was Richard M. Evans of OIL.

Judges Rendell, Ambro, and District Court Judge Terrence F. McVerry. Judge Rendell issued the decision. Upheld the BIA and IJ Rosalind K. Malloy.

It did not violate due process for the government's expert not to reveal her notes or to refer to documents that Mr. Chen wished to challenge. This is because Mr. Chen was nevertheless able to cross-examine the expert about her methodology and findings.

Monday, March 08, 2010

Addo (not precedential): Federal Escape Felony Not A Crime of Violence

Addo v. Holder
No. 05-4076
Not Precedential
December 14, 2009

Judge Sloviter, McKee, and Ambro. Per Curiam on remand from the Supreme Court.

A conviction for escape under 18 USC 751(a) is not a crime of violence. Under the Supreme Court's decision in Chambers, failing to report to a penal institution was not a violent felony. Here, this particular person's conviction for escape was essentially a failure to report by not reporting to a community treatment center. Similar treatment seems proper for finding the failure to report not to qualify as a violent crime in Chambers as saying in this case that a failure to report is not a cirme of violence. Therefore, it is not an aggravated felony.

Friday, March 05, 2010

Torres (not precedential): Equitable Tolling For Motion To Reopen Based On Marriage To Citizen

Torres v. Holder, No. 08-3554 (3d Cir. Oct. 16, 2009) (not precedential)

Judges Fuentes, Weis, and Garth. Per Curiam decision. The Third Circuit held that the BIA erred by refusing to allow someone to reopen a case beyond the usual 90-day limit when there was proof that she made diligent efforts to pursue adjustment of status and had not received notice that the BIA had denied her appeal. Therefore, the BIA should have used equitable tolling to extend the period for filing a motion to reopen.

Although IJ Eugene Pugliese had originally ruled in the case, the entire issue on appeal was focused only on the BIA's ruling, not anything the IJ had decided.

Thursday, March 04, 2010

Serna-Garcia (not precedential): Social Group Analysis Must Focus On Proposed Group, Not Just Whether Wealth Alone Suffices

Serna-Garcia v. Holder
September 24, 2009
Not Precedential

Judges Scirica, Chagares, and Aldisert. Per Curiam.

Overturning the BIA and Immigration Judge Henry S. Dogin.

The Third Circuit concluded that the IJ and BIA used the wrong legal standard for CAT claims -- CAT is possible if the government of the home country consents or acquiesces to the torture that is likely to be inflicted, even if the government is not actually doing the torturing.

Also, the IJ and BIA never ruled on the argument that a social group for asylum purposes can be composed of young, single women with financial means who are vulnerable to kidnapping and have been threatened by FARC. The IJ's comment suggesting wealth alone would not be enough to qualify as a social group did not address the proposed social group, which involves more than simply wealth.

Wednesday, March 03, 2010

Purveegiin (not precedential): Government Deported Immigrant Without Alerting Third Circuit Considering A Stay Request

Purveegiin v. Holder, No. 07-1227 (3d Cir. Aug. 25, 2009) (not precedential)

Fascinating -- Mr. Purveegiin asked the Third Circuit for a stay of removal. While the motion was pending and without notifying the court in advance (as is the government's usual practice), the government removed Mr. Purveegiin from the United States. It is disappointing to see that the government sometimes removes people even while their request for a stay of removal is pending and does not inform the Third Circuit about it. The Third Circuit appointed counsel for Mr. Puveegiin, who remained in Mongolia because he and the government were at an impasse about the terms and conditions for him to return to the United States.

Tuesday, March 02, 2010

Bile (not precedential): 2-1 Majority Says No Jurisdiction Over Issue Where Not Appealed To BIA

Bile v. Holder
No. 08-3792
Not Precedential
August 12, 2009
2-1 decision.

Judges Sloviter, Ambro, and Greenberg. Per Curiam decision. It had been before IJ Walter A. Durling.

In the majority per curiam decision, Judges Sloviter and Greenberg held that the issue exhaustion doctrine prevents someone from raising any issue they did not raise to the BIA in any manner, not even mentioning in some way in their notice of appeal to the BIA.

Judge Ambro dissented because the BIA did consider the issue of its own accord by noting that it viewed Mr. Bile as previously being advised of the right to appeal and clearly electing not to appeal. The BIA therefore considered the validity of the waiver of the right to appeal.

One key tip is to it might be too late to bring someone new to work on the Third Circuit appeal. If the person who worked on the BIA appeal did not raise some issues, it might stop them from being raised to the Third Circuit, no matter how good the lawyer at that point is.