Third Circuit Immigration Blog

Galarza: Immigration Detainers are Mere Requests to Local Police

2014-03-04T17:06:00.003-05:00

Ernesto Galarza v. Mark Szalczyk
Filed 03/04/14, No. 12-3991
Appealed from USDC for the Eastern District of Pennsylvania

http://www2.ca3.uscourts.gov/opinarch/123991p.pdf

Judges Fuentes and Cowen voted in the majority with a dissent by Judge Barry.

For Mr. Galarza:
Argued by Katherine Desormeau, with Cecilia Wang, ACLU Foundation, San Francisco. Mary Catherine Roper, Molly M. Tack-Hooper, ACLU Foundation of Pennsylvania. Omar C. Jadwat, Esha Bhandari, ACLU Foundation. Jonathon H. Feinberg, Kairy, Rudovsky, Messing & Feinberg LLP, Philadelphia. Seith Kreimer, Philadelphia.

For Lehigh County:
Thomas M. Caffrey (who argued it), Allentown, PA.

For Attorneys for Amicus Appellant Law Professors and Scholars who Teach, Research, and Practice in the Area of Immigration and Nationality Law and Criminal Law:
Christopher N. Lasch, University of Denver Environment Center, Environmental Law Clinic, Denver. Rebecca A. Sharpless, University of Miami School of Law.

For Amicus Appellant National Immigration Project of the National Lawyers Guild:
Andrew C. Nichols, Winston & Strawn, Washington DC

The Third Circuit concluded that the provisions for DHS to issue immigration detainers is clear that they are mere requests for local police and jails to hold an immigrant for up to 48 hours. The local police are not required to comply with the request. Great work by Mr. Galarza's team!

Oliva-Ramos: Suppression Motions In Immigration Court Can Succeed Upon Showing Widespread Violations Or Egregious Violations

2012-09-14T02:21:00.005-04:00

Oliva-Ramos v. Holder
No. 10-3849
September 13, 2012
Precedential
http://www.ca3.uscourts.gov/opinarch/103849p.pdf

Audio of the oral argument is available at:
http://www.ca3.uscourts.gov/oralargument/audio/10-3849RodolfovAttyGenUSA.wma

Judge McKee wrote the opinion, with Chief Judge Rendell and Judge Ambro.

For Mr. Oliva-Ramos, Nancy Morawetz, Alina Das, Nikki R. Reisch (argued), Stephen Kang, Ruben Loyo, Nancy Steffan, Washington Square Legal Services (a clinic at NYU Law School), NY, NY.

For the government, Allen W. Hausman (argued) and Andrew J. Oliveira, OIL, Washington DC.

For amici ACLU, LatinoJustice PRLDEF, AALDEF, Cardozo Immigration Justice Clinic, and Catholic Charities of Newark, Timothy E. Hoeffner (with John J. Clarke, Jr. and Connie Tse), DLA Piper LLP.

The Third Circuit held that the position held by eight out of nine justices of the Supreme Court in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) should be followed. The eight justices included four in a plurality opinion and four in a dissenting opinion. Even though the eight wrote separate opinions in the case, when you add them up, the eight represent a majority of the nine justices.

The Third Circuit's approach is not surprising because it follows a basic principle that courts should pay attention to dicta in Supreme Court decisions. What is surprising is that the Third Circuit is being forced to explain the basic rule while overturning the BIA and rejecting OIL attorneys' arguments. It is unclear why the BIA and OIL attorneys believed otherwise. The BIA believed the view held by eight out of nine justices in Lopez-Mendoza was irrelevant because it was mere dicta.

The BIA also noted that the Supreme Court has not yet concluded in a case that evidence in immigration court should be suppressed. The Third Circuit ruled, quite logically, that this fact does not undermine how the Supreme Court has laid out the possibility to suppress evidence in the appropriate case.

Therefore, the Third Circuit's decision is noteworthy because it lays out what was already clear to everyone (other than the BIA and OIL) -- evidence can be suppressed in immigration court if there are egregious violations of the Fourth Amendment or if the violations are widespread.

In analyzing whether a violation is an egregious Fourth Amendment violation, an illegal action can be egregious without showing that the conduct is so offensive that it shocks the conscience. In addition, an illegal action can be egregious even if the officer conducting the action behaved in good faith -- for example if an officer in good faith follows an illegal ICE policy to detain people without reasonable suspicion and to enter homes during pre-dawn raids without consent.

The Third Circuit adopted a slight variation from the Second Circuit's view in Almeida-Amaral v. Gonzales, 461 F.3d 231 (2d Cir. 2006). The Third Circuit ruled that an illegal act is an egregious Fourth Amendment violation if either (a) it was a constitutional violation that was fundamentally unfair or (b) the violation (whether unfair or not) undermined the reliability of the evidence in dispute.

In deciding whether a violation is fundamentally unfair, the Third Circuit emphasized a flexible case-by-case approach based on a general set of background principles. Courts must pay close attentio to the characteristics and severity of the illegal conduct. Treats, coercion, or physical abuse might be important factors. Physical brutality and an unreasonable show or use of force would also be important. There is no one-size-fits-all approach to analyzing whether illegal conduct is fundamentally unfair. The Third Circuit ordered the BIA on remand to study all factors, including whether ICE intentionally violated Fourth Amendment rights, whether the seizure was gross or unreasonable (e.g. particularly lengthy stop or unnecessary and menacing show or use of force), whether there were threats, coercion, or physical abuse, whether there were unreasonable shows of force, and whether the officers acted based on race or perceived ethnicity. That list is not an exhaustive list of relevant factors.

Turning to proof that violations are widespread, the Third Circuit is one of the first circuits to discuss that in any depth. The Third Circuit believes proof that illegal searches are part of a pattern of widespread violations would trigger suppressing evidence. The Third Circuit noted that it has already received evidence and allegations of widespread illegal immigration raids in the case of Argueta v. ICE, 643 F.3d 60 (3d Cir. 2011).

The IJ and BIA committed reversible error by not allowing Mr. Oliva-Ramos the chance to introduce evidence that ICE's illegal raid was part of a consistent pattern of illegal early-morning raids, such as evidence about ICE Fugitive Operations Teams and ICE arrest statistics. They also erred by ignoring proof in the record that ICE had a policy of rounding up everyone in a home without any particularized suspicion. There is also evidence from a Cardozo Law School clinic's report titled Constitution on ICE (2009).

The IJ and BIA also committed reversible error by granting subpoenas for documents about the home raid and subpoenas to compel officers at the home raid to testify in court.

The Third Circuit also discussed whether ICE's alleged violation of a variety of regulations would justify terminating proceedings. These are important points and you should review the decision for this additional analysis when you argue not just to suppress evidence, but also to terminate proceedings due to regulatory violations.

Points include: the IJ and BIA erred by concluding consent was given without carefully reviewing several pieces of evidence that challenge the voluntariness of the consent given. Also, ICE cannot satisfy 8 CFR 287.8(c)(2)(i) regarding warrantless arrests by claiming someone is a flight risk if ICE cannot prove that the evidence leading them to think he was a flight risk might have been illegally obtained.

Congratulations to NYU Law School's clinic and DLA Piper! Nikki Reisch did an excellent job at oral argument, which the Third Circuit noted in a footnote demonstrated exceptional oral advocacy. The Third Circuit also expressed its gratitude that NYU Law School's clinic represented the client on a pro bono basis. Looking forward to better BIA decisions and ICE analysis about suppression motions in immigration court.

Coroleo update: overruled by Judulang v. Holder (U.S. Dec. 12, 2011)

2011-12-13T00:30:00.000-05:00

In Judulang v. Holder (U.S. Supreme Court Dec. 12, 2011), the Supreme Court seems to have overruled the Third Circuit's 2007 ruling in Coroleo.

The BIA's view on when a legal permanent resident can use section 212(c) relief while being charged with a ground of deportability is invalid. Because the BIA's rule is arbitrary and capricious, the Supreme Court struck it down. I believe this overruled how the Third Circuit accepted the BIA's view in 2007 in Coroleo.

It is arbitrary to allow some people whose crime could trigger a ground of inadmissibility to seek section 212(c) relief but not others, based on the BIA's peculiar view of whether a ground of deportability has a comparable enough ground of inadmissibility to allow section 212(c) relief.

Diop: Mandatory Detention Limited To A Reasonable Period

2011-12-07T09:00:00.000-05:00

In Diop v. ICE, the Third Circuit limited mandatory detention to a reasonable period. Sounds like a reasonable decision!

The ACLU has just come out with a practice advisory. You can find it at this link:
http://www.aclu.org/files/assets/diop_practice_advisory_pdf.pdf

Below is an explanation by the ACLU about its advisory and Diop:

Prolonged Mandatory Detention and Bond Eligibility: Diop v. ICE/Homeland Security

This advisory concerns the Third Circuit’s decision in Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011). Diop addresses whether the government may subject individuals to mandatory immigration detention for a prolonged period of time. The Court held that the Due Process Clause of the Fifth Amendment permits mandatory detention for only a “reasonable period of time,” and construed the mandatory detention statute, 8 U.S.C. § 1226(c), as authorizing mandatory detention only for a reasonable period. When detention exceeds that reasonable period, the noncitizen is entitled to an individualized hearing where the government must show that continued detention is necessary to prevent flight or danger to the community. Id. at 223.
This practice advisory discusses how certain detainees can use Diop to obtain bond hearings. Notably, although the Court held that reasonableness is a “function of the length of the detention,” id. at 232, it declined to adopt a presumptive period of time at which mandatory detention becomes unreasonably prolonged. Instead, the Court held that “[r]easonableness . . . is a fact-dependent inquiry requiring an assessment of all of the circumstances of any given case.” Id. at 234. Nonetheless, the Court recognized that reasonableness is largely a function of time, and that the more mandatory detention exceeds the periods contemplated by the Supreme Court in Demore v. Kim, 538 U.S. 510 (2003)—45 days to complete removal proceedings before the immigration judge (IJ), and five months for those who appeal their cases to the Board of Immigration Appeals (BIA)—the constitutionality of detention without a bond hearing becomes increasingly “suspect.” Id. Thus, your client’s right to a bond hearing will turn on showing that detention has become “unreasonable” in his or her case, with a significant—but not sole—factor being the length of detention.
The ACLU will be monitoring the implementation of Diop on an ongoing basis. Should you have questions or require technical assistance regarding a detention challenge under Diop, please contact Michael Tan at the ACLU Immigrants’ Rights Project, mtan@aclu.org / 212-284-7303.

Oral Argument Upcoming: Diop/Alli cases Jan. 24, 2011

2011-01-22T09:00:00.001-05:00

Two cases that have been consolidated for appeal purposes look fascinating and will be argued on Monday, January 24, 2011 in Philadelphia at 10am before Judges Fuentes, Chagares, and District Judge Pollak.

The cases are Chiekh Diop v. ICE and Homeland Security (Case No. 10-1113) and Alexander Alli v. Thomas Decker (Case No. 10-2297).

It is difficult to tell for certain, but it is likely that the cases involve the issue of how the ACLU challenges whether the government can detain people for prolonged periods of time (sometimes for many years) while they fight their immigration cases without giving them any hearing to check whether detaining them would be justified.

Even though the Supreme Court has said mandatory detention without review of some types of immigrants might be allowed for short periods, the case law is unclear about prolonged detention without any review. There are very strong arguments why it should be illegal to hold anyone based on impersonal categorizations for a prolonged period of time without offering any opportunity for an immigration judge to review whether the detention would be justified in that specific case.

The oral argument should be very interesting and I hope the ACLU can convince the Third Circuit to step in and make sure immigrants have the ability to have their detention reviewed by an immigration judge when they would be held for a prolonged period.

This is an extremely important issue and the Third Circuit has an excellent opportunity to focus on the issue. It is so important that the Third Circuit should issue a ruling even if it turns out at some point that the particular individuals involved in the cases no longer personally need a ruling. The issue will come up again in many other cases and the Third Circuit should relieve immigrants of the extreme suffering of prolonged detention if it would be illegal for the government to do it without any judicial review.

Letting it go on despite being illegal would not be a good use of the court's time or resources.

Update: the Third Circuit ruled in Diop that mandatory detention must be limited to a reasonable time period. See a different post for a practice advisory from the ACLU.

Johnson (not precedential): BIA Incorrectly Overturned IJ's Factual Findings On Standard Lower Than Clear Error

2010-11-09T09:00:00.000-05:00

Johnson v. Holder
No. 09-1949
http://www.ca3.uscourts.gov/opinarch/091949np.pdf
Not Precedential
May 20, 2010

Judges Ambro, Chagares and Aldisert. Per Curiam.

Overturning the BIA in a case originally decided by IJ Walter A. Durling.

In a claim for protection under CAT, the BIA improperly reversed the IJ's factual findings using a de novo standard of review rather than only upon finding clear error in the IJ's conclusion of what would likely happen if the United States deported him. That standard is the one to apply according to Kaplun v. Holder, 2010 WL 1409019 (3d Cir. Apr. 9, 2010).

Bobb (not precedential): Categorical Approach Required To Analyze Crimes Involving Moral Turpitude

2010-11-05T09:00:00.000-04:00

Bobb v. Holder
No. 08-2644
Not Precedential
http://www.ca3.uscourts.gov/opinarch/082644np.pdf
May 11, 2010

Judges Scirica, Chagares, and Weis. Opinion by Judge Weis.

Overturning IJ Henry Dogin and the BIA.

Use the categorical approach to analyze whether a conviction is a crime involving moral turpitude. Partyka v. Attorney Gen., 417 F.3d 408 (3d Cir. 2005); Jean-Louis v. Holder, 582 F.3d 462 (3d Cir. 2009). Official misconduct in violation of NJSA 2C:30-2 is not a crime involving moral turpitude under the categorical approach because it punishes virtually any action done without authorization by an official. That includes many actions that are not crimes involving moral turpitude.

Wright (not precedential): Modified Categorical Approach Cannot Use Accusatory Document Unless State Court Incorporated It Into Sentencing

2010-11-03T09:00:00.000-04:00

Wright v. Holder

Nos. 05-2536 and 05-3062

Not Precedential

April 16, 2010

Judges Rendell, Fisher, and Garth. Per Curiam.

The BIA incorrectly relied on an affidavit of probable cause to conclude that Mr. Wright was convicted of an aggravated felony (by being related to a controlled substance). The BIA incorrectly overturned IJ Riefkohl's conclusion that it was not an aggravated felony.

The convictions (NY Penal Law 221.40 and NY Penal Law 221.20) were not aggravated felonies. It was not a state felony including an illicit trafficking element -- nothing involved unlawful trading or dealing of a controlled substance. It was not a hypothetical federal felony -- this requires using a categorical approach rather than the circumstance-specific approach in Nijhawan because INA 101(a)(43)(B) refers to a generic crime. The BIA improperly considered the affidavit of probable cause -- even if hypothetically speaking it was the accusatory document, the BIA may not consider it where the state court never referred to it in the sentence and commitment order.

Munez-Morales (not precedential): Go Beyond Record of Conviction About Loss Amount In Money Laundering Convictions

2010-09-01T09:00:00.000-04:00

Munez-Morales v. Holder
No. 08-4114
Not Precedential
http://www.ca3.uscourts.gov/opinarch/084114np.pdf
May 11, 2010

Judges Ambro, Smith, and Chief Judge Michel. Opinion by Chief Judge Michel.

For Mr. Munez-Morales, Steven A. Morley of Morley, Surin & Griffin in Philadelphia. For the government, Lyle D. Jentzer (argued) and Paul F. Stone of the Justice Department.

Upholding the BIA for going outside the record of conviction to determine whether a money laundering conviction is one in which more than $10,000 was involved. That is the test to see whether it is an aggravated felony.

Pareja: Overturning BIA For Possibly Denying Non-LPR Cancellation Based On Number of Qualifying Relatives

2010-08-31T09:00:00.000-04:00

Pareja v. Holder
Precedential
http://www.ca3.uscourts.gov/opinarch/084598p.pdf
http://www.ca3.uscourts.gov/opinarch/084598po.pdf
July 29, 2010

Before Judges Smith, Fisher, and Greenberg. Opinion by Judge Fisher.

For Ms. Pareja, David A. Isaacson (argued) of Cyrus D. Mehta & Associates in NY, NY. For the government, Linda Y. Cheng (argued) and W. Daniel Shieh.

The Third Circuit overturned the BIA in a case originally decided by IJ Eugene Pugliese.

The Third Circuit harshly criticized OIL and the government attorneys for refusing to offer any argument or explanation about the merits of Ms. Pareja's appeal. The government focused solely on its incorrect belief that the court had no jurisdiction over the issues. The Third Circuit again emphasized the importance for the government to follow Federal Rule of Appellate Procedure 31 and offer guidance to the court -- something the government also failed to do in Leslie v. Holder, 2010 US App. LEXIS 13952 (3d Cir. July 8, 2010).

For non-LPR cancellation of removal, the Third Circuit has the power to consider whether the BIA erred in Matter of Monreal, 23 I&N Dec. 56 (BIA 2001), but the court concluded that it must defer to the reasonable interpretation offered by the BIA of the non-LPR cancellation statute.

Whether the BIA erred by putting weight on the number of qualifying relatives she had, the Third Circuit has the power to review whether the BIA made a mistake. Here, the Third Circuit ruled the BIA was unclear and it was possible that it erred by distinguishing Ms. Pareja's case solely because she had less qualifying relatives. The Third Circuit overturned the BIA and remanded for clarification.

Forteau (not precedential): Appointed Counsel Granted And BIA Must Give Chance To Participate

2010-08-30T09:00:00.000-04:00

Forteau v. Holder
June 4, 2010
Not Precedential
http://www.ca3.uscourts.gov/opinarch/093421np.pdf

Judge McKee, Rendell, and Garth. Decision by Judge Rendell.

For Mr. Forteau, Steven A. Morley (argued) of Morley, Surin & Griffin in Philadelphia. For the government, Nancy E. Friedman (argued), Richard M. Evans, Andrew J. Oliveira.

Overturning the BIA in a case initially heard by IJ Andrew R. Arthur.

In an earlier appeal, the Third Circuit remanded the case to the BIA and ordered that the BIA arrange for appointed counsel if Mr. Forteau desired one. The BIA found appointed counsel but then ignored the appointed counsel and did not give him any opportunity to comment on the case. Instead of giving an opportunity to comment, the BIA instead ruled against Mr. Forteau without ever asking for input.

The Third Circuit overturned the BIA, under the common sense rule that when it demands that the BIA arrange for appointed counsel, the point is that the appointed counsel get an opportunity to be heard, not just to be sitting on the sidelines serving no purpose.

It is great that the Third Circuit is making strides in appointing counsel for indigent immigrants and to make sure the point of appointed counsel is upheld -- appointed counsel should have a chance to participate in a case. The BIA committed a serious due process violation. (Its error seems a bit farcical to an outside observer.)

Arriza-Escobar (not precedential)

2010-08-27T09:00:00.000-04:00

Arriza-Escobar v. Holder
Not Precedential
June 1, 2010
http://www.ca3.uscourts.gov/opinarch/093193np.pdf

Judges Sloviter, Jordan, and Greenberg. Per Curiam.

Overturning the BIA and Immigration Judge Eugene Pugliese.

A man fearing the MS-13 gang sought asylum and IJ Pugliese and the BIA denied the asylum request. The Third Circuit, however, concluded that the BIA made a mistake by ruling that he did not establish a well-founded fear of future persecution. The BIA said there was no evidence that there could be future harm. Mr. Arriza-Escobar testified about the threats. By saying there was no evidence, the BIA misstated the record. The BIA also incorrectly assumed that if his brother faced no threats, that he could not possibly face threats in the future. That was an improper assumption. Even though it could be an area to explore and analyze, it is wrong to make an assumption that if someone's brother faces no threats, the person could not possibly face future threats.

Jiang (not precedential): Consider Facts As True For Asylum-Based Motions To Reopen

2010-08-26T09:00:00.000-04:00

Jiang v. Holder
No. 08-4806
Not Precedential
May 10, 2010
http://www.ca3.uscourts.gov/opinarch/084806np.pdf

Judges Ambro, Smith, and Chief Judge Michel. Opinion by Chief Judge Michel.

Overturning the BIA and IJ Eugene Pugliese.

For Ms. Jiang, Gary Yerman of NYC. For the government, John J. Inkeles (argued) and Francis W. Fraser and Timothy B. Stanton of the Justice Department.

For a motion to reopen due to changed country circumstances, you must show a realistic chance that you can establish asylum should be granted. Unless inherently unbelievable, facts presented in the motion should be accepted as true. IJ Pugliese and the BIA erred by giving little to no weight to an official letter from a village in China to Ms. Jiang. They should have accepted the alleged facts as true for the purpose of deciding the motion to reopen.

Espinosa-Cortez: BIA Required To Conclude Anti-FARC Colombian Targeted In Part For His Imputed Political Beliefs

2010-08-20T09:00:00.000-04:00

Espinosa-Cortez v. Holder
June 2, 2010
Precedential
http://www.ca3.uscourts.gov/opinarch/084170p.pdf

Judges Rendell, Ambro, and Fuentes. Opinion by Judge Fuentes.

For Mr. Espinosa-Cortez, Peter M. Rogers (argued) of Peters & Rogers, PC in Pittsburgh. For the government, Dalin R. Holyoak (argued), Kristen Giuffreda Chapman, Regina Byrd, and Francis W. Fraser.

The IJ and the BIA concluded a man from Colombia did not have a reasonable fear he would be persecuted due to his political beliefs, which a key part of his asylum claim.

The Third Circuit overturned the BIA even though it took a deferential approach. The Third Circuit concluded that the BIA's ruling was so out of line that it a reasonable adjudicator would be compelled to arrive at a contrary conclusion. The BIA was very far out of line.

Although someone who fears threats from a guerilla organization trying to recruit him does not automatically qualify for asylum, certain facts here would compel a reasonable adjudicator to conclude FARC's pursuit of Mr. Espinosa-Cortez was at least partly motivated by a political opinion it believed he held. For example, his close, direct affiliation with and support of the Colombian government and military. Although he was not directly employed by the government, he was closely affiliated with the government, provided support to it, and depended on it for his livelihood.

Two other distinctions are that he engaged in protracted resistance to FARC's resistance efforts (not merely being approached by guerrillas on a single occasion as in the case of Elias-Zacarias). Also, he made his anti-FARC views known to the persecutors when he rejected their requests.

Johnson: No Jurisdiction To Review Extreme Cruelty for VAWA Cancellation

2010-08-18T09:00:00.000-04:00

Johnson v. Holder

No. 07-2820

Precedential

April 16, 2010

For Mr. Johnson, Ransford B. McKenzie of Brooklyn, NY. For the government, John S. Hogan, Kathleen J. Kelly, and Briena L. Strippoli.

Judges Sloviter, Nygaard, and Chief Judge Restani of the US Court of International Trade. Decision by Judge Sloviter. Upholding the BIA's affirmance of IJ Mirlande Tadal's decision.

The Third Circuit held there was no jurisdiction for a circuit court to review denial of cancellation of removal under the Special Rule for Battered Spouses where it was based on failing to prove extreme hardship. The Fifth, Seventh, and Tenth Circuits have already ruled similarly because the definition of extreme hardship is not self-explanatory and the Third Circuit believes it falls within the discretion of the IJ.

Bradley: VWP Entrant Filing More Than 90 Days After Entry Cannot Block Deportation

2010-08-16T09:00:00.000-04:00

Bradley v. Holder

No. 08-4184

Precedential

April 22, 2010

Haroutyun Asatrian of Strasser Asatrian, LLC in Newark, NJ argued for Mr. Bradley. For the government, Gary J. Newkirk (argued), Stephen F. Day, and Justin R. Markel.

Judges Ambro, Smith, and Aldisert. Decision by Judge Aldisert.

Although there are several issues, one of the biggest concerns the defenses for someone facing summary deportation under the visa waiver program (where you waive the right under almost all circumstances to see an immigration judge in exchange for quick entry into the United States). The Third Circuit ruled that if someone is threatened with summary deportation under VWP, that person can challenge the imminent deportation only if he or she filed an adjustment of status application within 90 days of entering the United States.

One open issue is whether the Third Circuit would alter its rationale based on the so-called 30/60 day rule found at 9 Foreign Affairs Manual 40.63 n.4.7-1 to 4.7.4. Because Mr. Bradley did not raise the issue in his opening brief, the Third Circuit left open how it would rule in a case that raised the 30/60 day rule.

Under the Third Circuit's ruling, if someone is a VWP entrant and did not file for adjustment of status within 90 days of entering, and the government is about to deport the person, there is no way to demand that a federal court block the deportation.

Outside of court and separate from the decision, USCIS in New Jersey for some time is holding cases where a VWP entrant filed for adjustment of status more than 90 days after entering. It's not clear what they would do that -- the Third Circuit's ruling does not prevent USCIS from granting adjustment of status. All it says is that if the government is actively deporting someone before USCIS decides the request for a green card, the immigrant will not be able to get a federal court to block the deportation. We will see whether USCIS adopts a strange interpretation of the Third Circuit's decision (and if so, how soon a federal court can rule on USCIS's interpretation).

Zegrean: IJ Must Get DHS To State Immigrant Is Prima Facie Eligible For Naturalization

2010-08-04T09:00:00.000-04:00

Zegrean v. Holder

No. 08-3714
http://www.ca3.uscourts.gov/opinarch/083714p.pdf

Precedential

April 13, 2010

Judges Barry, Jordan, and Van Antwerpen. Opinion by Judge Barry.

For Mr. Zegrean, David Kaplan (argued) and James J. Orlow of Orlow, Kaplan & Hohenstein in Philadelphia, PA. For the government, Kevin J. Conway (argued) and Sharon Clay.

The USCIS arm of DHS that decides naturalization applications cannot tell an IJ that someone is prima facie eligible because it is not allowed to consider naturalization applications from anyone in removal proceedings. The Third Circuit held that it would be wrong to empower an IJ to make the determination of whether someone is prima facie eligible to naturalize.

It left open the question of who, then, would be empowered to announce that someone is prima facie eligible. It suggested that DHS or Congress should undertake clarifying the situation expeditiously.

The Third Circuit did not explain any solutions -- but maybe the solution would be for ICE counsel to undertake the task of announcing whether someone is prima facie eligible for naturalization.

Kaplun: Assessment Of What Will Happen Is A Fact That An IJ Finds

2010-08-02T09:00:00.000-04:00

Kaplun v. Holder
Precedential
http://www.ca3.uscourts.gov/opinarch/082571p.pdf
April 9, 2010
Judges Ambro, Smith, and Paul R. Michel (Chief Judge of the Federal Circuit). Opinion by Judge Ambro.

For Mr. Kaplun, Thomas E. Moseley of Newark, NJ. For the government, Manuel A. Palau (argued), Terri J. Scadron, Gregory G. Katsas, Paul F. Stone.

Overturning the BIA in a case decided by IJ Charles M. Honeyman. IJ Honeyman granted withholding of removal and protection under CAT (Convention Against Torture) but the BIA overturned it through de novo review.

The Third Circuit overturned the BIA for using the wrong standard of review when analyzing the IJ's finding about the probability Mr. Kaplun would be tortured in the future. The BIA should have reviewed the IJ's ruling de novo as opposed to the clearly erroneous standard (where the BIA will only overturn the IJ if its ruling is clearly erroneous).

The Third Circuit explained that the probability something would happen in the future can be a factual finding. For example, whether it likely will take less than 3 hours next week to drive 100 miles from one house to another. Its likelihood can be established through evidence of the distance, traffic patterns, and typical traffic conditions.

In deciding whether someone is likely to be tortured, there are two issues -- (1) what is likely to happen and (2) does what is likely to happen amount to the legal definition of torture.

This second question -- whether what likely will happen is something that amounts legally to torture -- is a legal question that the BIA must consider de novo. But the first question is a factual finding and the BIA erred in this case by conducting de novo review.

Perez Muniz (not precedential): Unobjected Adherence To Case Completion Goals Difficult To Win On Appeal

2010-06-02T09:00:00.000-04:00

Perez Muniz v. Holder
No. 08-1444
February 8, 2010
Not Precedential
http://www.ca3.uscourts.gov/opinarch/081444np.pdf

Judges Rendell, Jordan, and Senior District Judge Padova. Opinion by Judge Jordan.

Francis X. Geier (argued) with Anayancy R. Houseman of Elizabeth, NJ, for Mr. Perez Muniz. Sharon Clay (argued) with Gregory G. Katsas, Richard M. Evans, and Brooke M. Maurer of OIL, Justice Department.

Upholding the BIA and IJ Annie S. Garcy.

In May 2006, IJ Garcy allowed Mr. Perez Muniz to reinstate his asylum application but only gave two weeks until the merits hearing, noting a desire to meet case completion guidelines. The Third Circuit focused on how Mr. Perez Muniz's lawyer had no objection to the short two week time period before the merits hearing and how IJ Garcy said that her desire to provide a fair hearing was more important than her desire to aide by case completion guidelines.

One point is that you need to object to an IJ's desire to adhere to case completion goals, even if does not seem very diplomatic to do so. Another point is that you should not assume that the Third Circuit will be sensitive to the pressures when an IJ notes case completion guidelines. Instead, object and make the record clear for the Third Circuit.

Daramy (Not Precedential): BIA Improperly Invoked Law Of The Case Doctrine And Erred On The Asylum One-Year Rule

2010-06-01T09:00:00.000-04:00

Daramy v. Holder
No. 08-2537
Not Precedential
February 8, 2010
http://www.ca3.uscourts.gov/opinarch/082537np.pdf

Overturning the BIA and IJ Mirlande Tadal

Judges Scirica, Barry, and Smith. Opinion by Chief Judge Scirica.

The BIA and IJ Tadal both erroneously applied the law of the case doctrine to someone based on rulings in a different case. The law of the case doctrine only applies where it is a later stage of the same case. Here, there was a separate case, not the same case. Even though it involved the same person, it was a second, independent case. The first one started with a Notice to Appear in December 2004 and the new second case started with a Notice to Appear in July 2007.

The Third Circuit notes that res judicata, claim preclusion, and issue preclusion apply in immigration proceedings, citing Duvall v. Att'y Gen., 436 F.3d 382, 386-90 (3d Cir. 2006) and other cases. But res judicata and claim preclusion are not the same as the doctrine of law of the case.

In addition, IJ Tadal and the BIA erred about how to apply the one-year deadline for filing asylum claims. Since the IJ and BIA made their rulings, the BIA clarified the rule in In re F-P-R, 24 I&N Dec. 681 (BIA 2008) that the one year deadline for filing from the last arrival means the arrival just before the person applied, not an earlier arrival.

Judges Joseph Greenaway and Thomas Vanaskie Join The Third Circuit

2010-04-26T09:00:00.002-04:00

Welcome and congraulations to Judges Joseph Greenaway and Thomas Vanaskie for completing the confirmation process for the Third Circuit!

Judge Joseph Greenaway's confirmation is old news by now, having been confirmed 84-0 by the Senate in February 2010. Here is what we noted about Judge Greenaway last year after President Obama nominated him:
http://3dcir.blogspot.com/2009/06/obama-nominates-joseph-greenaway-jr-for.html

Judge Thomas Vanaskie's confirmation is recent. He was confirmed 77-20 by the Senate on April 21, 2010. We blogged about one not-precedential Third Circuit immigration case where he participated by designation:
http://3dcir.blogspot.com/2008/02/junaidi-not-precedential-suggestions.html

As a district court judge, Judge Vanaskie ruled in 2008 in a district court case that forced the government to honor the legal rights of an immigrant (Mr. Khouzam) who feared being tortured if he were deported. Judge Vanaskie compelled the government to comply with United States law, which included legislation that implemented a treaty the United States ratified in 1994. The government appealed Judge Vanaskie's ruling and the Third Circuit not only upheld it, the Third Circuit also described Judge Vanaskie as having written a comprehensive, thoughtful opinion. Here is a blog posting about the Third Circuit's ruling:
http://3dcir.blogspot.com/2008/12/khouzam-due-process-rights-exist-for.html

Welcome, Judges Greenaway and Vanaskie! We look forward to your rulings in Third Circuit immigration cases.

Akinola v. Weber (D.N.J.): No Mandatory Detention Allowed Where Held 17 Months During Removal Proceedings

2010-04-09T09:00:00.000-04:00

Not a Third Circuit case -- rather, a case decided by a federal district court within the Third Circuit.

Akinola v. Weber, Civil Action No. 09-3415 (WJM) (D.N.J. Jan. 26, 2010) (Judge Martini).

For Mr. Akinola: Kole Akinola appearing pro se from Essex County Jail in Newark, NJ. For the governent, Ralph J. Marra, Jr. and Allan B.K. Urgent of the US Attorneys' Office in Newark, NJ.

There are many Constitutional challenges to mandatory detention that have not yet been decided. In Akinola, one of the many unresolved Constitutional challenges was the focus. Does mandatory detention apply to someone who has been held many months while challenging his removal? This is unlike other cases such as Demore v. Kim, 538 U.S. 510 (2003) where all sides presumed that detention while challenging removal would usually be 1.5 months or in a minority of cases would take 5 months -- nothing close to the actual 17 months in this case.

Judge Martini of the District of New Jersey held that for an individual who had been in immigration detention for 17 months while challenging his removal, “the Court is not inclined to accept Respondents’ argument in favor of continued detention based solely on the mandatory language of § 1226(c), particularly where the Supreme Court in Demore did not expressly contemplate the constitutionality of such prolonged detention, and where Respondents have offered no other compelling justification or authority for such prolonged detention . . . .” Akinola v. Weber, Civil Action No. 09-3415 (WJM), slip op. at 14 (D.N.J. Jan. 26, 2010). The court planned to hold a bond hearing, in habeas, on Feb. 18, 2010.

These important Constitutional challenges are being raised throughout the United States.

Bellot-Paul (not precedential): IJs Have The Power To Exlude Late Filings

2010-04-08T09:00:00.001-04:00

Bellot-Paul v. Holder
No. 09-2809

February 1, 2010

Not Precedential
http://www.ca3.uscourts.gov/opinarch/092809np.pdf

Judges Scirica, Jordan, and Stapleton. Per Curiam decision. Upholding the BIA and Immigration Judge Irma Lopez-Defillo.

IJs have the power to exclude items if the person filing them misses a reasonable deadline. If you miss a deadline, you should see whether the IJ's interpretation of the rule or regulation was improper. If you do not raise such an argument, then you could lose.

This case is very interesting because the Third Circuit and BIA affirm a well-established power of all judges to exclude items from the record if the person submitted them later than a reasonable deadline that the judge had set. Where someone files items late with no excuse and no complaint about the rules or regulations, then an IJ can exclude the item from the record and the BIA and the Third Circuit might uphold that decision.

Let's look at some issues that are not discussed in this decision -- it would therefore be logical that if the government missed a reasonable deadline to submit documents, offered no excuse, and did not challenge any rule or regulation, an IJ would have the power to exclude that item from the record. If an IJ incorrectly believed that he or she had no power to exclude the late-filed document, it would be logical for the BIA and Third Circuit to overturn the IJ's ruling.

It would be particularly unfair if the BIA or IJ gave a free pass to the government whenever it filed documents late, but penalized asylum-seekers who filed documents late. We will wait and see whether the BIA and Third Circuit make a consistent ruling for late-filed government documents. It would be especially important to apply at least an equally harsh rule against the government because there is an additional argument that due process for asylum-seekers (who are not currently viewed as deserving appointed counsel) would require more leniency for late-filed documents by asylum-seekers. Let's see whether that type of case comes up on the Third Circuit's docket in the coming months.

Who knows, maybe EOIR will train the Immigration Judges not to accept blindly all late-filed government documents. It would be a valuable topic for EOIR trainings.

Rincon (not precedential): Asylum-Seeker's Inconsistencies Minor and BIA Must Consider Whether To Allow Asylum-Seeker's Unauthenticated Document

2010-04-07T09:00:00.000-04:00

Rincon v. Holder

No. 08-1752

January 11, 2010
Not Precedential
http://www.ca3.uscourts.gov/opinarch/081752np.pdf

Judges Rendell, Fisher, and Garth. Per Curiam opinion. Overturning the BIA and Immigration Judge Annie S. Garcy.

Two main points and a third small one:

Improper for IJ Garcy and the BIA to hold only minor inconsistencies against the asylum-seeker. The asylum-seeker offered reasonable explanations for the perceived inconsistencies.
Improper for the BIA to reject documents not authenticated without analyzing whether the totality of the circumstances still favored admitting the unauthenticated documents. Particularly where IJ Garcy agreed to admit the documents because the government had interfered with the ability to authenticate them.
Improper for the BIA to reject the claim of ineffective assistance of counsel based on the Lozada criteria without ever discussing which criterion it failed or how the overall Lozada analysis applied in this case. The asylum-seeker raised the claim to the BIA only, so this was not any error by IJ Garcy.

Bai (not precedential): BIA Must Consider Its Power To Take Administrative Notice Of New Country Conditions

2010-04-06T09:00:00.000-04:00

Bai v. Holder

No. 08-3928

Not Precedential
December 28, 2009

http://www.ca3.uscourts.gov/opinarch/083928np.pdf

Judges Ambro, Chagares, and Aldisert. Per Curiam decision. Overturning the BIA in a case that started with Immigration Judge Margaret R. Reichenberg (but not criticizing IJ Reichenberg's rulings).

The BIA erred in this asylum case by refusing even to analyze whether it should take judicial notice of a country condition report that came out while the case was being appealed. The BIA has the power of taking official or administrative notice. The BIA in this case incorrectly ignored its power to take administrative notice of facts by ruling that it may not consider evidence presented for the first time on appeal. The BIA was wrong -- the BIA has the power to take administrative notice of official documents such as the State Department's country condition reports. Sheriff v. Att'y Gen., No. 08-1645, 2009 WL 4042936, at *6 (3d Cir. Nov. 24, 2009).

Therefore, in any asylum case it makes sense to provide the latest country condition report while your appeal is pending and to ask the BIA to take administrative notice of it.