Monday, May 30, 2005

Killing Linked To Alien Smuggling

In May, someone was fatally shot in Houston after an argument. Police now believe that the cause of the argument was over how much one person had to pay an alien smuggler. The police called to the scene found one person fatally shot several times and three immigrants who said they had been kept against their will.
Witnesses told police the shooting happened as two men argued over payments for bringing the illegal immigrants into the country. The gunman fled the scene in a green Dodge Ram pickup, police said.
According to the Houston Chronicle article, in July a man who was the brother of someone smuggled for $1,500 was killed after he balked at a demand for $300 on top of the agreed-upon price.

The area of alien smuggling is dangerous and it would be wise from a public policy standpoint for the police to help enforce the criminal laws by encouraging cooperation from victims and those who receive threats to pay the smugglers. It would not make sense from a public policy standpoint to punish victims by turning them in for civil immigration violations if they are out of status at the time they call the police for help.

ICE Spending $369 Million More

According to an article in the Daily Bulletin, ICE has received $369 million in supplemental funding and is devoting those precious resources towards building more detention space and hiring more agents.

At the same time that studies suggest that the solution to saving money is not expanding detention and incarceration, it seems that Congress has chosen to devote taxpayers' money towards building more detention centers and paying millions to the companies that profit from detaining people.

According to the article, it looks like to apply, you do not need a college degree. Although if you have a college degree, then you don't need any job experience to apply.
To qualify for the lowest entry-level position which equates to more than $46,000 a year in the Inland Empire applicants must have a bachelor's degree or three years of law enforcement experience, or some combination of the two.

Wednesday, May 25, 2005

Dangerous use of criminal trespass laws against immigrants

Recently, some local police departments have brought criminal trespass charges against immigrants who entered the United States without permission based on a creative theory that they are in a place where they are not licensed or privileged to be.

This seems to be a gross misuse of the law that is more suited to asking a legislature to pass a new law rather than to invoke an unprecedented application of the law against people whose lives will be shattered while the kinks are worked out. Or the police could have announced its position and allowed it to be challenged in court without first having to force any person to endure the stress of the misguided prosecution.

What people are not focusing enough on is how any wearing away of the rights of non-citizens always poses a threat to the rights of United States citizens.

The same danger exists here -- nothing stops local police from charging a United States citizen with a similar creative, unprecedented theories. For example, if someone has an arrest warrant against them and they are supposed to report to a police station, can the police charge them with criminal trespass because they don't have permission to be anywhere except the police station?

If someone is late for a court hearing, can they be charged with criminal trespass because they have no permission to be anywhere outside the courthouse? We can charge Michael Jackson with criminal trespass because he was late by an hour for one of his court hearings.

If someone refuses to stop when a police officer orders them to, can they be charged with criminal trespass for being somewhere they have no right to be?

If a bartender tells a United States citizen to leave the bar and the patron is slow to leave, can he be charged with criminal trespass for being in the bar without permission?

If a United States citizen jaywalks, he can be charged with criminal trespass because he is standing in a location (the street outside the crosswalk) without permission.

If a United States citizen changes lanes without using his turn signal, he can be charged with criminal trespass because he is located in a car in a spot that he does not have permission to be at.

If an immigrant enters the United States with a valid visa, he applies to renew his visa, and the immigration authorities lose his application so his visa lapses for a week before he gets his renewal approved, can he be charged with criminal trespass for being in the United States during that one week without permission?

What other zany possibilities can you think of?

More stories of the overly harsh immigration laws

A WBAL-TV report sheds some light on two overly harsh parts of today's immigration laws: the difficulty of convincing the immigration authorities of a fact where no paper proof exists and the inflexible rules for deporting people convicted of relatively minor or inconsequential crimes.

First, a Canadian woman married a United States citizen after entering the country by driving to Vermont. The immigration authorities waved her car through the inspection line and, as usual for Canadians, did not stamp her passport or give her any proof of entry.

After marrying, the immigration officials asked her for proof that she entered legally. She explained the situation and why she does not have any paper proof of her entry and the immigration authorities did not believe her, denying her permission to stay in the United States with her husband. Naima Said is the Bouse's attorney. What frustrates her about the Bouse's case is that the couple is being required to produce something border agents don't issue.Naima Said: "They want a passport with a stamp in it, but the regulations say you don't need a passport if you're a Canadian to enter the U.S.
In the second situation, a 25-year old green-card holder who has two U.S. citizen parents is beind held in detention and is facing deportation after leaving the United States briefly to attend a funeral. Back in 2001, he was convicted of possession of drug paraphernalia. He was put on probation and successfully completed his drug treatment program. But, because of a harsh and inflexible 1996 law, the green-card holder is inadmissible and will be separated from his parents unless his lawyers can find a way around deportation.

Sunday, May 15, 2005

Credibility determination overturned when based on illogical reasoning, speculation, or conjecture

Cao v. Attorney General, No. 03-4256 (3d Cir. May 12, 2005): Overturned and remanded the IJ's denial of an asylum claim by someone from China who tried to leak information about infanticide in China to comply with its population control policy. The Chinese government intercepted the attempted leak and detained, interrogated, and abused Cao. The IJ based its decision on the lack of credibility. That is very difficult to overturn on appeal. The Third Circuit, however, noted that the rationale of the IJ was illogical. (The BIA affirmed without opinion, so it is a good thing we had the resource of the Third Circuit to correct the BIA's mistake!)

The Third Circuit noted that whistleblowing against government corruption or against a government practice can qualify for asylum protection.

The IJ mistakenly equated late-term abortions with infanticide and was incredulous that the asylum-seeker could be so offended by infanticide but not equally mortified by forced late-term abortions. The Third Circuit called that a mistake. The IJ also made a mistake by assuming that someone could not become indignant about infanticide in a conversation if he already knew it was happening. In other words, the IJ erroneously thought someone can only be indignant when one first hears about something. However, some practices are so undignified that you can be indignant the second or third time you hear about it.

Among other things, the IJ found it incredible that the asylum-seeker's escape relied at one point on bribing an airport official. The Third Circuit, though, points out that bribes are common in China, so there's no reason to find the story incredible just because it says someone was bribed.

The Third Circuit explained that an adverse credibility determination based on speculation or conjecture can be overturned because minor inconsistencies and minor admissions are not enough to reject an asylum application unless they involve the heart of the asylum claim.

Non-precedential affirmances of denying asylum claims

Drishti v. Attorney General, No. 04-1133 (3d Cir. May 11, 2005) (non-precedential): affirmed the IJ's denial of an asylum claim where the IJ based its decision on the credibility of three witnesses, which was further backed up by a 2000 State Department report that did not mention attacks or arrests based on political reasons in Albania in 2000.

Khan v. Attorney General, No. 04-1762 (3d Cir. May 11, 2005) (non-precedential): affirmed the IJ's denial of an asylum claim by a Kasmiri independence advocate from Pakistan. The IJ noted numerous discrepancies and illogical details to Khan's story: he had run-ins from 1996 to 1998 but rejoined the party in 1999 without repercussions, he said he left December 4th but his passport suggests he left December 3 (who knew one day could make such a crucial difference!), and he felt he was being pursued by the Pakistan government yet traveled in and out of Pakistan several times in the early 1990s.

Ndreu v. Attorney General, No. 04-2006 (3d Cir. May 12, 2005) (non-precedential): affirmed the IJ's denial of an asylum claim by someone from Albania because post-1992 incidents were not persecution and pre-1991 incidents can be set aside because of changed country conditions. The IJ felt that post-1992 incidents including a carjacking lacked proof they were because of political reasons due to the total anarchy in Albania in 1997. Also, the asylum seeker never sought medical attention and did not receive death threats so the trauma was not sufficiently severe to constitute persecution. As far as pre-1992 incidents, times have changed in Albania and now the opposition party has access to the media and has run in elections.

Manan v. Attorney General, No. 04-2430 (3d Cir. May 12, 2005) (non-precedential): affirmed the IJ's denial of asylum or other relief by someone who fought the Taliban in Afghanistan. The BIA held that the Taliban has fallen in Afghanistan and there is little threat from the remaining bands of Taliban militia there.

Wednesday, May 11, 2005

Real ID Act passes, punishing immigrants needlessly

On May 10th the Senate joined the House in passing an emergency spending bill that includes buried in the fine print provisions the originally came from a proposed law called the Real ID Act. The proposals were never debated on the floor of the House or Senate and were not the subject of thoughtful hearings. But they are going to become law anyway.

The Real ID Act will weaken the security of our country and its inhabitants. It will probably drive millions of people who drive cars into the awful choice of driving without a license (and therefore also probably without car insurance) or not driving at all. There is no reason to impose this risk on people in America. Supposedly, doing so will prevent potential terrorists from boarding planes. But nothing prevents anybody from boarding a plane with a non-US passport, so anybody can still board a plane even without a driver's license.

The Real ID Act also shamefully cuts back on the historic writ of habeas corpus for the first time since The Civil War.

It also includes extremely confusing provisions that will hurt an innocent immigrant's ability to point out gross errors by the immigration authorities. Depending on how courts try to decipher the confusing language, some immigrants will either face a huge headache to get into court or might even be completely blocked from correcting an obvious mistake.

It also will add a very confusing additional requirement for asylum seekers. Proponents of the change say it will not change anything in the law. But if that was the case, why would they enact it? There's a real danger that it will change the law and handcuff judges from granting asylum to immigrants who clearly deserve it.

Of course, we can't say today how bad all the changes will turn out. But even if somehow the courts rule that the Real ID Act provisions do not overturn certain basic principles, it causes needless anxiety, risk, and a waste of taxpayers' time and money for no good reason other than to help certain Congressmen pitch for more votes in their re-election campaigns.

Tuesday, May 03, 2005

Moving to supplement the BIA record on appeal

Anybody have ideas on how to make a motion to supplement the record on appeal before the BIA?

The Ninth Circuit certainly was perplexed by this question in 2003. In Ramirez-Alejandre v. Ashcroft, 320 F.3d 858 (9th Cir. 2003), it ruled that the BIA must have a process to consider motions to supplement the record. In the case, the BIA rejected the motion, saying nobody is allowed to supplement the record. This confused the Ninth Circuit, because the BIA has in several cases supplemented the record on appeal.

Where does this leave us today? The BIA Practice Manual has a section on motions, but it does not say anything about motions to supplement the record. So, does this mean we can make them or that we cannot (and some other unspecified procedure is the right way to do it?)

Monday, May 02, 2005

Not filing an opposition brief means the motion is unopposed

Under Title 8 CFR 1003.23(a), if a party does not file a timely opposition, then the motion shall be deemed unopposed.

In Wellington v. INS, No. 95-60795, 108 F.3d 631 (5th Cir. 1997), the Fifth Circuit noted that the immigration judge violated the regulations by not considering a respondent's motion to be unopposed when INS failed to submit a timely opposition brief. However, just because a motion is unopposed probably does not mean that it has to be granted.