Justia U.S. 3rd Circuit Court of Appeals Opinion Summaries

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In 1997, Romero, a citizen of Guatemala, was granted voluntary departure, having entered the U.S. without documentation. In 2011, Romero was removed. He returned almost immediately. When he was taken into custody, DHS notified Romero of its intent to reinstate his prior removal order. Romero expressed a fear of returning to Guatemala and was referred to an asylum officer, 8 C.F.R. 208.31(b). Finding that Romero had “a reasonable fear of persecution,” the asylum officer referred the matter to an IJ.The Notice of Referral to Immigration Judge provided the place of the hearing, noting that the date and time were “To Be Determined.” Romero subsequently received a Notice of Withdrawal-Only Hearing that included the date, time, and place. The IJ denied withholding of removal. Before the BIA, Romero cited the Supreme Court’s 2018 “Pereira” decision, and argued that “[a] notice of referral to [an] immigration judge is an analogous document to a notice to appear and must contain a location and a date and time for a removal hearing in order to create jurisdiction for an immigration court.”The BIA rejected Romero’s jurisdictional challenge, reasoning that it lacked the authority to grant the relief Mejia Romero sought – termination of the proceedings – in a withholding proceeding. The Third Circuit denied a petition for review. Romero’s Notice of Withholding-Only Hearing included the information required by the regulations. Pereira’s holding is not readily transferable to 8 C.F.R. 1003.14. View "Romero v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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In 2002, at the age of seven, Sanchez, a citizen of Mexico, entered the U.S. without inspection. In 2012, he obtained Deferred Action for Childhood Arrivals (DACA) status; DHS periodically granted him renewals. In 2019, Sanchez was charged in New Jersey with sexual assault and endangering the welfare of a child. USCIS revoked Sanchez’s DACA status. DHS took him into custody and charged him as being present without having been admitted or paroled, 8 U.S.C. 1182(a)(9)(B)(ii).Sanchez applied for asylum, withholding of removal, and for relief under the Convention Against Torture. The IJ denied asylum, finding that Sanchez failed to meet the one-year filing deadline or show extraordinary circumstances; denied withholding of removal, finding the proposed social group was not cognizable; and denied his CAT claim, finding he did not demonstrate at least a 50 percent chance he would be tortured upon his return to Mexico. Two weeks after the IJ ordered Sanchez’s removal, his state criminal charges were dismissed.The BIA denied remand, citing then-Attorney General Sessions’ 2018 Castro-Tum holding that, under the regulations governing the Executive Office of Immigration Review, IJs and the BIA do not have the general authority to indefinitely suspend immigration proceedings by administrative closure unless a regulation or a previous judicially approved settlement expressly authorizes such an action. The Third Circuit vacated and remanded. The relevant regulations confer the general authority to administratively close cases to IJs and the BIA. View "Sanchez v. Attorney General United States" on Justia Law

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In 1994, K.A., a citizen of Nigeria, entered the U.S. without documentation. In 1997, he married a U.S. citizen. He subsequently committed second-degree robbery (N.J. Stat. 2C:15-1) and received a 10-year sentence, and committed third-degree possession with intent to distribute a controlled substance within 1,000 feet of a school (2C:35-7), resulting in a five-year sentence. K.A. was paroled in 2008. During removal proceedings, K.A. was stopped for DUI and was charged with using inmates’ personal information to submit fraudulent tax returns. K.A. unsuccessfully sought asylum, withholding of removal, and relief under the Convention Against Torture. The Third Circuit denied K.A.’s petition for review.In 2014, Nigeria criminalized same-sex sexual relationships. K.A. had begun a sexual relationship with his male cellmate. K.A. realized that his “identity as a bisexual man [was] permanent” and moved to reopen his immigration proceedings, arguing changed country conditions in Nigeria. He asserted that his New Jersey drug conviction no longer qualified as an aggravated felony and expressed fear that he would be subjected to persecution as a member of the LGBT community. The BIA denied K.A.’s motion. The Third Circuit denied a petition for review. The 2000 New Jersey robbery conviction constitutes an aggravated felony “theft offense” under 8 U.S.C. 1101(a)(43)(G), which constitutes a “particularly serious crime,” sections 1158(b)(2)(B)(i), 1231(b)(3)(B), and disqualifies an alien from seeking asylum. A conviction for a particularly serious crime coupled with a prison sentence of at least five years bars withholding of removal. View "K. A. v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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The defendants each pled guilty to their respective crimes, possession of a firearm by a felon, and wire fraud-identity theft. As part of their plea agreements, each agreed not to argue for a sentence outside the range recommended by the United States Sentencing Guidelines. The government contends that both defendants breached their plea agreements by in fact seeking sentences below the guidelines-recommended ranges. One defense attorney stated” “I would hope Your Honor would consider probation, house arrest, community service, anything other than jail time.” In that case, the sentence roughly a third of the time called for by the sentencing range. The other defendant argued that the defendant’s co-conspirator had received a lower sentence.The Third Circuit vacated the sentences, finding the government’s contentions well-founded. In both cases, defense counsel went beyond presenting facts and advocated for a below-Guidelines sentence. The court rejected one defendant’s argument that evidence discovered during the traffic stop leading to his arrest should have been suppressed because the stop violated the Fourth Amendment; the police officer was justified in stopping his vehicle and did not impermissibly extend the duration of the stop. View "United States v. Campbell" on Justia Law

Posted in: Criminal Law
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In 2017, Kirschner earned $30,105 by importing counterfeit coins and bullion and then, posing as a federal law enforcement agent, selling them as genuine articles to unsuspecting customers. Searching his home and interdicting packages, agents seized thousands of counterfeit coins and bullion that, according to the government’s expert, would have been worth approximately $46.5 million if genuine. Kirschner pleaded guilty to impersonating an officer acting under the authority of the United States, 18 U.S.C. 912, and importing counterfeit coins and bars with intent to defraud, 18 U.S.C. 485. The court applied a two-level sentencing enhancement because Kirschner’s fraud used sophisticated means; another two-level enhancement because Kirschner abused a position of public trust to facilitate his crimes; and a 22-level enhancement because the “loss” attributable to his scheme was greater than $25 million but less than $65 million.The Third Circuit vacated Kirschner’s 126-month sentence. While the district court was within its discretion to apply the abuse-of-trust and use-of-sophisticated-means enhancements, it clearly erred in applying the 22-level enhancement for loss, and the error was not harmless. While the court focused on what Kirschner intended to do with the high-value counterfeits, it never found that the government proved, by a preponderance of the evidence, that Kirschner intended to sell the coins as counterfeits (not replicas) for the prices the government claimed. View "United States v. Kirschner" on Justia Law

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Shulick, an attorney, owned and operated DVHS, a for-profit business that provided alternative education to at-risk students. The School District of Philadelphia contracted with DVHS to operate Southwest School for the 2010-2011 and 2011-2012 school years. DVHS was to provide six teachers at a cost of $45,000 each; benefits for the staff at a total cost of $170,000 annually; four security workers totaling $130,000 annually; and a trained counselor and two psychology externs totaling $110,000 annually. The agreement was not flexible as to budgeted items. Shulick failed to employ the required dedicated security personnel, hired fewer teachers, provided fewer benefits, and paid his educators far less than required. Shulick had represented to the District that he would spend $850,000 on salary and benefits annually but spent about $396,000 in 2010-11 and $356,000 in 2011-12. Shulick directed the unspent funds to co-conspirator Fattah, the son of a former U.S. Representative, to pay off liabilities incurred across Shulick’s business ventures, keeping a cut for himself.Shulick was convicted of conspiring with Fattah to embezzle from a program receiving federal funds (18 U.S.C. 371), embezzling funds from a federally funded program (18 U.S.C. 666(a)(1)(A)), bank fraud (18 U.S.C. 1344), making a false statement to a bank (18 U.S.C. 1014), and three counts of filing false tax returns (26 U.S.C. 7206(1)). The Third Circuit affirmed, rejecting arguments ranging from speedy trial violations to errors in evidentiary rulings, faulty jury instructions, and sentencing miscalculations. View "United States v. Shulick" on Justia Law

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In 1995, firefighters responded to a fire at a house where Brown, age 17, lived with family members. Three firefighters died when a staircase collapsed. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) opened an arson investigation and offered a $15,000 reward. Wright’s testimony undermined Brown’s alibi. Abdullah testified that Brown later confessed that he had started the fire. The prosecution’s witnesses denied receiving payment or having been promised payment in exchange for their testimony. The state court jury convicted Brown, who was sentenced to three consecutive terms of life imprisonment.Brown filed unsuccessful post-sentence motions concerning payment to witnesses. In 2001, Brown unsuccessfully sought federal habeas relief. Years later, Brown filed a petition under Pennsylvania’s Post Conviction Relief Act (PCRA), alleging newly-discovered evidence based on an expert opinion about the cause of the fire. In response to an FOIA request, ATF provided canceled checks showing it had made payments of $5,000 and $10,000 in 1998 relating to the fire. Abdullah acknowledged receiving $5,000 from ATF after Brown’s trial; Wright acknowledged receiving $10,000. The PCRA court found that Brown’s claims about the prosecution’s nondisclosure of the witnesses’ rewards satisfied exceptions to the PCRA’s time-bar and granted Brown a new trial.Meanwhile, a federal grand jury indicted Brown for the destruction of property by fire resulting in death, 18 U.S.C. 844(i). The state court dismissed the state charges. The Third Circuit affirmed the denial of a motion to dismiss the federal indictment. Retrying a defendant because the conviction was reversed for trial error is not second jeopardy. The court declined to consider an exception to the dual sovereignty doctrine, under which a state crime is not “the same offense” as a federal crime, even if for the same conduct. View "United States v. Brown" on Justia Law

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Aristy-Rosa, a citizen of the Dominican Republic, was admitted to the U.S. in 1993 as a lawful permanent resident. Several years later, he was convicted of attempted criminal sale of cocaine and was sentenced to five years’ probation. Aristy-Rosa received a notice, charging him as subject to removal because he had committed a crime relating to a controlled substance, 8 U.S.C. 1227(a)(2)(B)(i), his controlled substances conviction constituted an aggravated felony, section 1227(a)(2)(A)(iii), and he was an alien who was inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(II) at the time of his application for adjustment of status. Aristy-Rosa conceded removability and sought no relief from removal. An IJ ordered Aristy-Rosa removed. Aristy-Rosa did not appeal but later filed unsuccessful motions to reopen his removal proceedings to apply for adjustment of status and other relief.In 2017, New York Governor Cuomo fully and unconditionally pardoned Aristy-Rosa for his controlled substance conviction. Aristy-Rosa moved to reopen his removal proceedings, arguing that the pardon eliminated the basis for his removal. The IJ denied the motion, reasoning that it was time- and number-barred and that a pardon fails to extinguish the basis for removal where the underlying conviction was for a controlled substance offense. The BIA and Third Circuit dismissed his appeals. Section 1227(a)(2)(B), which provides for the removal of an alien convicted under any law relating to a controlled substance, contains no pardon waiver. View "Aristy-Rosa v. Attorney General United States" on Justia Law

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Collecto sent a letter to collect on a debt that Hopkins initially owed to Verizon. The letter itemized Hopkins’s debt in a table, concluded that Hopkins owed $1,088.34, and offered to “resolve this debt in full” if he paid $761.84. Hopkins filed a putative class action, alleging that Collecto’s letter violated the Fair Debt Collection Practices Act, 15 U.S.C. 1692 (FDCPA). Hopkins claimed that the debt could not or was not intended to accrue interest or collection fees and that by assigning a “$0.00” value to table columns for interest and collection fees, the letter falsely implied that interest and fees could accrue and increase the amount of his debt over time. Hopkins argued consumers prioritize what debts to pay and, by suggesting that the debt might accrue interest and fees, the Collecto letter gave him the false impression that the debt needed to be prioritized.The Third Circuit affirmed the dismissal of Hopkins’s complaint with prejudice, declining to require assurances by debt collectors that itemized amounts will not change in the future. Doing so would lead to “complex and verbose debt collection letters” that would confuse consumers. Even a hypothetical “least sophisticated consumer” reads a debt collection letter without speculating about what could happen in the future based on true statements concerning the past; “he is not a litigious claim-seeker who hunts, Lagotto-like, for truffles in dunning letters.” View "Hopkins v. Collecto Inc" on Justia Law

Posted in: Consumer Law
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For decades, the U.S. Virgin Islands Government Employees Retirement System (GERS) experienced annual deficits between its assets and projected liabilities to participants. Its aggregate shortfall is now about three billion dollars. The Government of the Virgin Islands (GVI) has sometimes failed to remit to GERS all the employer contributions it is statutorily mandated to make. GERS sued GVI for these contributions, first in 1981, resulting in a consent judgment, and most recently in 2016, when GERS sought to enforce that judgment. GERS claimed that, as far back as 1991, GVI had contributed tens of millions of dollars less than required by the statutory percentages of employee compensation. GERS also claimed that independent of these fixed-percentage contributions, GVI must fund GERS to the point of actuarial soundness.The district court awarded GERS an amount calculated to reflect GVI’s historical percentage-based under-contributions. The Third Circuit affirmed that award of principal but vacated an enhancement of the award that applied late-arriving interest and penalty statutes, enacted in 2005, retroactively. The consent judgment does not require GVI to fund GERS for the gap between its assets and liabilities. Virgin Islands law apparently fails to obligate anyone to fund GERS when employee-compensation-based contributions and associated investment returns fall short of the assets required, based on actuarial assessments, to meet future pension commitments. The citizens of the Virgin Islands (population 106,4052) simply cannot pay the necessary billions. The cure for GERS’s chronic underfunding is legislative. View "Government Employees Retirement System of the Virgin Islands v. Government of the Virgin Islands" on Justia Law