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

Articles Posted in Immigration Law
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In 1993, Tazu left his native Bangladesh, entered the U.S. without inspection, and applied for asylum based on political persecution. Eight years later, an IJ denied that application. Tazu appealed to the BIA, alleging ineffective assistance of counsel. In 2003, the BIA denied his appeal, giving him 30 days to depart. Nearly six years later, he was detained for removal. An attempt at removal failed. His passport had expired; the airline would not let him board the plane. A passport would not likely be issued quickly. In 2009, Tazu was granted supervised release. He complied with the terms of his release, held a job, paid taxes, and raised his children. Seeking a provisional waiver, in 2017, his son, a U.S. citizen, filed Form I-130, which was approved. Tazu did not immediately take the next step, a Form I212. In 2019, the government got Tazu’s renewed passport and re-detained him for removal. He sought habeas relief in New Jersey, filed his Form I-212, and moved to reopen his removal proceedings based on ineffective assistance of counsel. He lost on every front.The Third Circuit ordered the dismissal of the habeas petition; 8 U.S.C. 1252(g) strips courts of jurisdiction to review any “decision or action by the Attorney General to ... execute removal orders.” Section 1252(b)(9) makes a petition for review—not a habeas petition—the exclusive way to challenge a removal action and funnels Tazu’s claims to the Second Circuit. Tazu has a petition for review pending in the Second Circuit. He can stay with his family while that litigation is pending,. View "Tazu v. Attorney General United States" on Justia Law

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Jabateh was a rebel commander during the Liberian civil war. He later fled to the United States seeking asylum. His conduct in Liberia, characterized by brazen violence and wanton atrocities, made honest immigration application impossible. He concealed his crimes and portrayed himself as a persecuted victim. Jabateh’s fraud succeeded for almost 20 years.In 2016, Jabateh was charged with the fraud in his immigration documents, 18 U.S.C. 1546(a) and perjury, 18 U.S.C. 1621. The five-year limitations period for misconduct related to Jabateh's 2001 application for permanent residency had passed, leaving only Jabateh’s oral responses in a 2011 Interview affirming his answer of “no” to questions related to genocide and misrepresentations during his immigration applications. The district court noted “the force of the prosecution’s trial evidence,” establishing that Jabateh personally committed or ordered his troops to commit murder, enslavement, rape, and torture “because of race, religion, nationality, ethnic origin or political opinion.”The Third Circuit affirmed, rejecting challenges to the sufficiency of the evidence and to Jabateh’s 360-month sentence. The court acknowledged that section 1546(a) criminalizes fraud in immigration documents and that Jabateh was not charged with fraud in his immigration documents, only with orally lying about those documents. Jabateh, however, failed to raise this argument at trial. “Given the novelty of the interpretative question, and the lack of persuasive" guidance, the court declined to hold that this reading of section 1546(a) meets the stringent standards for “plain error” reversal. View "United States v. Jabateh" on Justia Law

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A.A., a Syrian citizen, fled involuntary military service in a government-controlled Militia (Jaysh al-Sha’bi), arrived in New York, surrendered to U.S. Customs and Border Protection, and applied for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (CAT). An IJ granted A.A. deferral of removal under the CAT, finding that A.A. was likely to be tortured if he returned to Syria, but denied his applications for asylum and for withholding of removal, concluding that the Militia is a “Tier III” terrorist organization under 8 U.S.C. 1182(a)(3)(B)(vi)(III); any alien who provides “material support” to a Tier III organization is barred from receiving asylum and withholding of removal. The IJ concluded that A.A. provided material support because, during his service, A.A. trained to use an assault weapon, performed guard duty, and performed errands for his superiors. The BIA rejected A.A.’s argument that the Militia is beyond the scope of the Tier III provision.The Third Circuit denied a petition for review. Although the definition of “organization” does not specifically refer to state actors, the Tier III provision encompasses state actors, including the Militia. There is no statutory exception for individuals, like A.A., who are forced to provide material support to terrorist organizations; while the administrative duress exemption might have afforded A.A. relief, it did not, and A.A. has no right to judicial review of that decision. View "A.A. v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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Romero, a citizen of Mexico, sought admission to the U.S. at a Houston airport in 2011. Relying on a fraudulent passport, he claimed to be a U.S. citizen. Romero was removed to Mexico. In 2013, Romero re-entered and was again removed. In 2013, Romero re-entered and evaded officials for six years. An alien subject to reinstatement of a removal order may seek withholding of removal if the alien has a reasonable fear of persecution based on his race, religion, nationality, membership in a particular social group, or political opinion and may seek relief under the Convention Against Torture (CAT). During a “reasonable fear” interview, Romero, represented by counsel, testified that he is afraid to return to Mexico because Valencia, the father of Romero’s wife’s daughter and an alleged cartel member, will harm him. He stated that he has never been harmed, nor does he fear harm in Mexico based on his race, religion, sex, political opinion, or membership in a particular social group. Romero had been threatened by Valencia by phone but Valencia never acted on the threats. Romero did not report the threats to the police.An IJ affirmed the asylum officer’s determination that Romero did not have a reasonable fear of torture as required for CAT relief or reasonable fear of persecution as required for withholding of removal. The Third Circuit denied a petition for review, concluding that the findings were supported by substantial evidence. View "Romero v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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In April 2020, a Pennsylvania district court ordered the release of 22 immigration detainees because of the COVID-192 pandemic, by granting a temporary restraining order without affording the government an opportunity to be heard. The Petitioners had filed a joint petition, alleging they were at risk of serious harm from COVID-19, although they vary in age from 28-69, have divergent health conditions, have unique criminal histories, and have diverse home and family situations.The Third Circuit vacated those orders, stating that exigent circumstances do not empower a court to jettison fundamental principles of due process or the rules of procedure. Considering all the responsive measures implemented to detect and to prevent the spread of the virus, the challenges of facility administration during an unprecedented situation, and the purposes served by detention, the petitioners did not show a substantial likelihood of success on their claim that the conditions of their confinement constitute unconstitutional punishment and did not establish that the government was deliberately indifferent toward their medical needs. The court too readily accepted the all-or-nothing request for immediate release and erred in not considering as part of the balancing of harm practical difficulties involved in locating and re-detaining the petitioners should the government ultimately prevail or should a petitioner abscond, commit a crime, or violate another term of release. View "Hope v. Warden Pike County Correctional Facility" on Justia Law

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Abdulla was born in Yemen in 1976. His father became a naturalized U.S. citizen. Abdulla’s parents divorced. Abdulla and his brother, Fawaz, joined their father in the U.S. Abdulla became a lawful permanent resident in 1990. Fawaz received proof of citizenship in 1995, Abdulla claims that his application was never processed. In 2014, Abdulla was convicted of food stamp and wire fraud. DHS served a notice to appear (NTA) in removal proceeding on Abdulla, providing that the hearing date and time remained to be set. Abdulla’s counsel argued that Abdulla had acquired derivative citizenship and that DHS had failed to establish that Abdulla’s convictions were aggravated felonies. He did not argue that the NTA was improper for failure to provide the date and time or that the immigration court lacked jurisdiction, given Abdulla’s derivative citizenship.An IJ denied Abdulla’s motion to terminate. Abdulla’s counsel petitioned for asylum, withholding of removal, and relief under the Convention Against Torture, citing Yemen's civil war. On October 4, 2018, the IJ denied Abdulla’s petition and ordered removal. Abdulla’s BIA appeal was due on November 5, 2018, but was filed on December 21, 2018, by new counsel. Abdulla contended that his failure to timely file occurred for reasons that were beyond his control and exceptional because he reasonably expected his prior counsel to preserve his appeal rights and that upon learning that counsel had failed to do so, he acted with “speed, diligence, and zeal.” The BIA dismissed his appeal. The Third Circuit held that it lacked jurisdiction to review the BIA’s decision not to self-certify the late-filed appeal or Abdulla’s unexhausted merits claim and non-colorable due process claim. View "Abdulla v. Attorney General of the United States" on Justia Law

Posted in: Immigration Law
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In 2004, Abreu was convicted in Pennsylvania of 22 drug-related counts and was sentenced to 27-54 years’ imprisonment, to run consecutively to a federal sentence Abreu was already serving. The Superior Court of Pennsylvania affirmed. Abreu later unsuccessfully sought relief under the Pennsylvania Post Conviction Relief Act (PCRA). In 2015, Abreu filed a habeas petition under 28 U.S.C. 2254, claiming that his PCRA counsel’s assistance was ineffective in failing to assert that his trial counsel had rendered ineffective assistance. The district court rejected his claims.The Third Circuit granted a certificate of appealability as to claims that trial counsel performed ineffectively by failing to challenge the admission of grand jury testimony and by failing to seek to strike a police officer’s testimony recounting statements made by others. While Abreu’s appeal was pending, he was released on early parole, subject to a federal removal order, and then removed to the Dominican Republic. His federal conviction (not at issue) permanently bars his reentry. The Third Circuit directed the district court to dismiss Abreu’s petition as moot. Without a collateral consequence of Abreu’s state conviction that can be redressed by a favorable decision on his petition, there is no case or controversy under Article III. View "Abreu v. Superintendent Smithfield SCI" on Justia Law

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Argentine citizen Cabeda, a lawful U.S. permanent resident, was convicted in Pennsylvania state court of having involuntary deviate sexual intercourse at age 34 with a 15-year-old boy. Immigration authorities found her removable for having committed a state-law offense qualifying as an “aggravated felony,” 8 U.S.C. 1227(a)(2)(A)(iii), specifically the “sexual abuse of a minor.”The Third Circuit granted her petition for review. Notwithstanding her actual, admitted sexual abuse of a minor, she cannot be removed because the Pennsylvania statute under which she was convicted could conceivably be violated by conduct that falls short of satisfying all the elements of the federally defined crime of sexual abuse of a minor. The categorical approach mandates ignoring what she actually did and focusing instead on what someone else, in a hypothetical world, could have done. The court called this “a surpassingly strange result but required by controlling law.” View "Cabeda v. Attorney General United States" on Justia Law

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Sathanthrasa is a citizen of Sri Lanka and a Tamil, an ethnic minority group that has been persecuted by government forces and the paramilitary Karuna Group. In 2007, Sathanthrasa’s brothers were kidnapped. Sathanthrasa reported the kidnappings to the Human Rights Commission without ascribing blame to the Karuna Group. The Karuna Group abducted and beat him; he suffered “internal injur[ies].” Days later, his father was beaten by men looking for Sathanthrasa, who fled but was picked up by armed officers, detained, and interrogated. Over the next six years, kidnappings remained commonplace. While acquiring the funds needed to leave, Sathanthrasa lived openly with his wife and children. Upon entering the U.S., Sathanthrasa sought asylum, withholding of removal, and protection under the Convention Against Torture. An IJ granted Sathanthrasa withholding of removal, citing the likelihood that Sathanthrasa would be “tortured or persecuted” if he returned to Sri Lanka but denied Sathanthrasa’s petition for asylum “as a matter of discretion,” stating that Sathanthrasa’s history did not amount to past persecution and that Sathanthrasa's explanation for the delay was “unpersuasive.” Only asylum provides a pathway to legal permanent resident status and a basis to petition for admission of family members. The Third Circuit vacated. When a petitioner is denied asylum but granted withholding, the denial of asylum “shall be reconsidered,” and the IJ must consider the “reasons for the denial” and “reasonable alternatives available” to the petitioner for family reunification, 8 C.F.R. 1208.16(e). The IJ failed to consider those factors, thereby abusing his discretion. View "Sathanthrasa v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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Blanco, a citizen of Honduras, is a member of Honduras’s Liberty and Refoundation anti-corruption political party that opposes the current Honduran president. After participating in six political marches, he was abducted by the Honduran police and beaten, on and off, for 12 hours. He was released but received death threats over the next several months until he fled to the U.S. He applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Board of Immigration Appeals affirmed the denial of all relief.The Third Circuit vacated. The BIA misapplied precedent by requiring Blanco to show severe physical harm in order to establish past persecution; by requiring the death threats to be imminent; and by considering the beating and death threats separately. On remand, the BIA must consider the other elements of asylum eligibility: whether the persecution was on account of a statutorily protected ground and whether it was committed by the government or forces the government was unable or unwilling to control. As for the CAT claim, before requiring corroborating evidence, an IJ must identify the facts for which ‘it is reasonable to expect corroboration, ask whether the applicant has corroborated them, and if not, consider whether the applicant has adequately explained his failure to do so. View "Blanco v. Attorney General of the United States" on Justia Law

Posted in: Immigration Law