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

Articles Posted in Immigration Law
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On April 3, 2020, 20 immigration detainees filed a habeas petition (28 U.S.C. 2241), seeking immediate release, claiming that due to underlying health conditions, their continued detention during the COVID-19 pandemic puts them at imminent risk of death or serious injury. The district court found that the petitioners face irreparable harm and are likely to succeed on the merits, that the government would “face very little potential harm” from their immediate release, and that “the public interest strongly encourages Petitioners’ release.” Without waiting for a response from the government, the court granted a temporary restraining order (TRO) requiring the release. The government moved for reconsideration, submitting a declaration describing conditions at the facilities, with details of the petitioners’ criminal histories. The court denied reconsideration, stating that the government had failed to demonstrate a change in controlling law, provide previously unavailable evidence, or show a clear error of law or the need to prevent manifest injustice. The court extended the release period until the COVID-19 state of emergency is lifted but attached conditions to the petitioners’ release. The government reports that 19 petitioners were released; none have been re-detained. The Third Circuit granted an immediate appeal, stating that the order cannot evade prompt appellate review simply by virtue of the label “TRO.” A purportedly non-appealable TRO that goes beyond preservation of the status quo and mandates affirmative relief may be immediately appealable under 28 U.S.C. 1292(a)(1). View "Hope v. Warden Pike County Correctional Facility" on Justia Law

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After overhearing the 2017 murder of his two next-door neighbors and facing repeated threats from local MS-13 gang members for his perceived role in assisting law enforcement, Guzman, then 18 years old, left his home in El Salvador and entered the United States seeking relief under the Immigration and Nationality Act (INA) and the Convention Against Torture (CAT). The Immigration Judge denied his application; the BIA dismissed his appeal. The Third Circuit vacated and remanded, holding that persons who publicly provide assistance to law enforcement against major Salvadoran gangs constitute a cognizable particular social group for purposes of asylum and withholding of removal under the INA, 8 U.S.C. 1158(b)(1)(A), but Guzman failed to meet his burden to show that imputed anti-gang political opinion was a central reason for the treatment he received. The BIA erred in denying Guzman relief under the CAT by “brushing aside” facts and reasonable inferences in assessing whether Guzman is likely to face torture upon removal. View "Guzman-Orellana v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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In 1992 Ricketts pled guilty to embezzlement and transporting a minor in interstate commerce with the intent to engage in sexual activity. The government maintained that Ricketts was a citizen of Jamaica. Ricketts argued that he was a U.S. citizen. The IJ rejected that claim; the BIA dismissed his appeal. While his petition for review was pending, Ricketts was removed to Jamaica. His petition and motion were “procedurally terminated without judicial action” in 2000. Ricketts persuaded the Jamaican Constabulary Force to investigate his citizenship; they agreed with him and he was returned to the U.S. in 2003. In 2005, while Ricketts was in state custody for a criminal theft conviction, DHS reinstated his order of removal. Based on the Jamaican report stating that he is an American citizen, he moved to reopen his removal proceedings. The BIA dismissed his motions, citing the post-departure bar. The Eastern District of New York rejected Ricketts's claim that he was born in Brooklyn in 1964 as Paul Miles and changed his name for religious reasons. He had submitted various official records, including a birth certificate, with Miles's name crossed out and “Junior Mohammed Ricketts” written above it. The Second Circuit affirmed. The Third Circuit then rejected his petition for review from the BIA dismissal. Ricketts’s citizenship claim is the only basis on which he says he is entitled to relief from the order of removal and he cannot now rely on that claim. View "Ricketts v. Attorney General of the United States" on Justia Law

Posted in: Immigration Law
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Sumaila was born in Accra, Ghana. At age 26, when his sexual orientation became known, Sumaila was attacked by his father and his neighbors. He went into hiding and eventually entered the United States without authorization. Sumaila sought asylum and withholding of removal and protection from removal under the Convention Against Torture (CAT) because he fears being persecuted or tortured on account of his sexual orientation if returned to Ghana. Ghana criminalizes same-sex relationships and has no track record of combatting widespread anti-gay violence, harassment, and discrimination. While finding Sumaila credible, the Immigration Judge ordered his removal. The BIA affirmed. The Third Circuit vacated the denial of relief. Sumaila has demonstrated that he was targeted on account of his membership in a statutorily protected group; the attack and death threats Sumaila suffered were serious enough to rise to the level of persecution. He is entitled to a rebuttable presumption of a “well-founded fear of future persecution.” Sumaila also demonstrated that his experience was not a random or isolated act of private violence, but part of a pattern or practice of persecution against the LGBTI community in Ghana more generally. View "Sumaila v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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The Nicaraguan government has a “de facto concentration of power in a single party,” the Sandinistas. According to human rights observers, police generally protect or give preferential treatment to pro-government [Sandinista] demonstrations while disrupting or denying registration for opposition groups and “did not protect opposition protesters when pro-government supporters harassed or attacked them.” Herrera described violent attacks against the Liberal Party and testified that she was subjected to a pattern of threatening words and conduct that rose to the level of persecution. Herrera concluded she would be killed for her Liberal Party leadership role if she stayed. After she left, Sandinistas repeatedly visited her family’s home demanding to know where she had gone. Herrera arrived in the U.S. and sought political asylum. The government did not dispute that she was targeted on account of her political opinion, 8 U.S.C. 1101(a)(42), or by members of the ruling Sandinista Party. The IJ concluded that Herrera’s experiences did not “rise to the level of past persecution” because she “was never physically harmed,” “never arrested or imprisoned,” and “[n]ever threatened by a government official.” The BIA affirmed. The Third Circuit vacated, noting that Herrera’s home was burned down, a convoy in which she was traveling came under gunfire, and a political meeting she was organizing was robbed at gunpoint. View "Herrera-Reyes v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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Guadalupe entered the U.S. in 1998. In 2003, he married Torres, a U.S. citizen; he was granted conditional permanent resident status. The couple divorced in 2006. Guadalupe applied for the removal of the conditional basis of his permanent resident status. Torres claimed that Guadalupe married her for immigration purposes. USCIS concluded that Guadalupe’s marriage had not been in good faith and terminated Guadalupe’s status. He was placed in removal proceedings. In 2007, DHS sent him a Notice to Appear (NTA) that omitted the date and time for the removal hearing. Four days later, the Immigration Court mailed Guadalupe a Notice of Hearing that contained the date and time. Guadalupe, with counsel, attended the hearing. The IJ denied Guadalupe relief from removal. The BIA affirmed. Guadalupe failed to depart. In 2018, the Supreme Court decided, in "Pereira," that where an NTA does not contain the date or time for the hearing, the noncitizen continues to accrue time toward the 10 years of continuous residence required to apply for cancellation of removal. Guadalupe moved to reopen his case, arguing that he had accrued the 10 years of continuous residency required to apply for cancellation of removal. The BIA denied the motion, reasoning that the Notice of Hearing cured the defective NTA. The Third Circuit vacated the removal order, holding that Pereira abrogated its precedent. DHS may no longer rely on a Notice of Hearing to cure a defective NTA. View "Guadalupe v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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E.O.H.C. and his daughter fled Mixco, Guatemala, a city plagued by violence, crossed into the U.S. and presented themselves to Border Patrol officers. The government began removal proceedings, scheduling a hearing in San Diego. Under a new DHS policy, the Migrant Protection Protocols, the government returned the two to Mexico to await their hearing. They were left to fend for themselves in Tijuana. E.O.H.C. told the IJ that he did not fear going back to Guatemala. He later alleged that a Border Protection officer advised him to say this. He was not then represented by counsel. The IJ ordered removal. E.O.H.C. waived the right to appeal, allegedly because he feared being returned to Mexico. They were transferred to a Pennsylvania detention facility, where they argued that E.O.H.C.’s appeal waiver was invalid. The BIA granted an emergency stay of removal. The government flew them to San Diego for return to Mexico. They filed an emergency mandamus petition. The government returned them to Pennsylvania. They challenged the validity and applicability of the Protocols and argued that returning them to Mexico would interfere with their relationship with their lawyer and would violate several treaties. The district court dismissed for lack of subject-matter jurisdiction. The Third Circuit reversed in part. When a detained alien seeks relief that a court of appeals cannot meaningfully provide on a petition for review of a final order of removal, 8 U.S.C.1252(b)(9) and 1252(a)(4) do not bar consideration by a district court. One claim, involving the right to counsel, arises from the proceedings to remove them to Guatemala and can await a petition for review. The other claims challenge the plan to return the petitioners to Mexico in the meantime. For these claims, review is now or never. View "E.O.H.C. v. Secretary United States Department of Homeland Security" on Justia Law

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Ragbir, a green card holder from Trinidad and Tobago, was convicted of mortgage fraud in 2000. On his attorney’s advice, Ragbir agreed that the actual loss was $350,000-$500,000, believing that his convictions alone made him deportable. The Third Circuit affirmed Ragbir’s convictions and sentence. Ragbir never sought post-conviction relief. DHS commenced removal proceedings. Ragbir then learned that his stipulation to a loss of more than $10,000 made him deportable. Ragbir’s immigration counsel represented that an attorney would be hired to attempt to vacate the underlying convictions. Ragbir still did not pursue a collateral attack. The IJ ordered him removed; the BIA and Second Circuit upheld the decision. In the meantime, Ragbir married an American citizen and obtained an immigrant visa. The BIA denied a motion to reopen. DHS eventually elected not to renew its discretionary stay of removal. Ragbir then challenged his detention, asserting that his conviction should be overturned because jury instructions given at his trial were erroneous in light of later Supreme Court rulings and asserting ineffective assistance of counsel. The Third Circuit affirmed the denial of the petition. Ragbir had the ability to bring all his claims at least six years before his 2012 petition for coram nobis. He provides no sound reason for his delay. View "Ragbir v. United States" on Justia Law

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Rosa, a citizen of the Dominican Republic, was admitted to the U.S. as a legal permanent resident in 1992, as a child. In 2004, he pled guilty to possession and sale of a controlled substance (cocaine) within 1,000 feet of school property under the New Jersey School Zone Statute. Eleven years later, Rosa was charged as removable for the conviction of a controlled substances offense and of an “aggravated felony” for a “drug trafficking crime.” Rosa denied removability for the aggravated felony, which would have precluded him from being eligible for cancellation of removal. The IJ applied the “categorical approach” and compared the New Jersey School Zone Statute with the federal statute for distribution “in or near schools and colleges” and concluded that the state statute swept more broadly than its federal counterpart in both proscribed conduct and its definition of “school property,” so that Rosa’s state conviction was not an “aggravated felony” under federal law. The IJ granted cancellation of removal. The Board of Immigration Appeals held that Rosa’s state conviction could be compared to the federal statute generally prohibiting the distribution of a controlled substance as a lesser included offense of the Federal School Zone Statute and ordered Rosa removed. The Third Circuit remanded. The categorical approach, which compares the elements of prior convictions with the elements of crimes under federal law, does not permit comparison with any federal crime but only with the “most similar” one. View "Rosa v. Attorney General United States" on Justia Law

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In 1992, Dohou came from Benin to the U.S. on a visitor’s visa. He became a lawful permanent resident. More than a decade later, he was convicted of conspiring to traffic marijuana, an aggravated felony. DHS served him with a notice to appear at a date and time to be set later. After a hearing, the IJ ordered Dohou removed. He never appealed to the BIA or sought review. Agents repeatedly tried to take Dohou to the airport for removal. He resisted. Dohou unsuccessfully moved to dismiss his indictment for hindering his removal, 8 U.S.C. 1253(a)(1)(A)–(C), asserting that the absence of a date and time on the notice to appear deprived the IJ of authority to order removal and ineffective assistance of counsel. The court reasoned that Dohou had been convicted of an aggravated felony, 8 U.S.C. 1252(a)(2)(C), which stripped it of jurisdiction over his collateral attack on the removal order. The Third Circuit vacated. A removal order that was never reviewed by an Article III judge remains subject to collateral attack in a hindering-removal prosecution based on that order; the original removal order was not “judicially decided,” 8 U.S.C. 1252(b)(7)(A). It is not enough that Dohou could have sought judicial review; section 1252(a)(2)(C), which sometimes strips jurisdiction over direct review of removal orders, does not apply to collateral attacks. Dohou’s ineffective-assistance claim requires fact-finding and the district court must decide whether a statutory- or prudential-exhaustion doctrine bars relief. View "United States v. Dohou" on Justia Law

Posted in: Immigration Law