Two new opinions, one of them permitting collateral attacks on un-appealed removal orders

U.S. v. Dohou—criminal / immigration—reversal—Bibas

When an immigration judge ordered the removal of a man from Benin who’d been convicted of conspiring to sell marijuana, the man did not appeal the removal order. When the man then allegedly resisted efforts to put him on a plane, he was indicted the crime for hindering his removal. The man sought dismissal of the hindering charge on the ground that his lawyer at the underlying removal proceeding had been ineffective.

The district court held that it lacked jurisdiction over a collateral attack on the removal order, but today the Third Circuit reversed based on the text of the relevant jurisdiction statute, which authorizes review of prior removal orders that have “not been judicially decided.” He didn’t appeal the removal order, so no Article III judge considered it, so it was never judicially decided. On the merits, the court remanded the man’s ineffective-assistance-of-counsel claim for fact finding.

Joining Bibas were Ambro and Krause. Arguing counsel were former Fisher clerk Quin Sorenson of the MDPA federal defender for the man and Michelle Olshefski of the MDPA U.S. Attorney’s office for the governemnt.


U.S. v. Johnman, Jr.—criminal—affirmance—Matey

A statute requires persons “convicted of an offense” under specified laws to pay a special assessment. If a person is convicted of more than one offense, does the statute require more than one special assessment? Today, the Third Circuit answered that question in the affirmative, relying on a lengthy analysis of the text and courts’ pre-enactment interpretation of the same language in a different statute. The court rejected the defendant’s argument that the rule of lenity was triggered by inconsistent lower-court interpretations.

Joining Matey were Krause and Rendell. Arguing counsel were Alison Brill of the DNJ federal defender for the defendant and Robert Zauzmer of the EDPA U.S. Attorney’s office for the government.