Tag Archives: Immigration opinions

New opinions — an immigration reversal and 1L property-class flashbacks

Flores v. AG — immigration — reversal — Fuentes

Our government decided to remove a Guatemalan woman who had pled guilty to being an accessory after the fact to murder — she saw her jealous ex-boyfriend kill her current boyfriend, but did not tell police because because the murderer threatened to kill her and her 3-year daughter if she did. She contested her removal because “her father, who had physically and sexually abused her as a child, wanted to kill her” and “she had been raped by members of a local gang immediately following her previous removal to Guatemala.” The BIA ruled against her on the grounds that her conviction was related to obstruction of justice and thus so serious that she was ineligible for withholding of removal. The Third Circuit today reversed in a thorough and compelling opinion.

Joining Fuentes was Ambro; Shwartz dissented. Arguing counsel were Marcia Kasdan for the petitioner and Andrew Insenga for the government.

US v. Cardaci — property / tax — partial affirmance — Jordan

I could be mistaken, but I’m pretty sure I’ve never seen this sentence in a court opinion before: “To give one admittedly extreme example, it stands to reason that a healthy twenty-six-year-old wife would have a greater interest in a life estate than would her ailing eighty-nine-year old husband.” Will today’s opinion containing that sentence become the leading case for this proposition? I’m eager to find out.

After a husband’s business nosedived and he failed to pay around $80,000 in taxes, the government sued him for back taxes, seeking a forced sale of the home where he lived with his wife. The district court decided the husband’s share of the jointly owned house wasn’t worth enough and instead ordered the husband to start paying the government rent instead. Today, the Third Circuit held that the district court did have the power to order a forced sale of a jointly owned house in New Jersey, but it remanded for reconsideration of the remedy.

Joining Jordan were Greenaway and Rendell. Arguing counsel were Julie Avetta (subject of this 2009 Washington Post “OnLove” essay, and also an accomplished classical singer) for the government and Anthony Monzo of Monzo Catanese for the homeowners.

Three big new opinions by Judge Hardiman

In re: Trustees of Conneaut Lake Park — civil — reversal — Hardiman

Pennsylvania law bars insurance companies from paying out fire insurance to a “named insured” if the owner of the property owes back taxes on it. The main purpose of this law, the Third Circuit noted today, is to keep property owners from profiting from arson.

This appeal arose from a fire at a beach club owned by one corporation and operated by another. The operator insured the club against fire damage, there was a fire, and the operator submitted a claim. It emerged that the owner owed taxes on the property; the non-payment happened long before the operator ever entered the picture. But the upshot was that the vast majority of the operator’s insurance payout — hundreds of thousands of dollars — went to various government bodies to pay off the owner’s back taxes, not to cover the fire losses of the operator who paid the policy. Not surprisingly, the operator sued. (The suit was transferred to bankruptcy court when the owner filed for bankruptcy.)

The district court ruled that the operator was entitled to the insurance payout because the PA statute was ambiguous and the legislative intent was to apply it only to insureds who were themselves the tax-delinquent property owners. Today, the Third Circuit reversed, holding that the plain language of the statute required it to be applied to any named insured and rejecting the operator’s argument that the outcome violated the takings clause. The court left the door open for the operator to try to recover money from the owner in the bankruptcy proceedings.

Now, I’m no insurance expert, but I suspect this holding could create a giant mess for Pennsylvania. Does the Third Circuit’s reading of PA law mean that now every would-be tenant in the state needs to research and then monitor their property owner’s property tax payments or face catastrophic loss from denial of fire-insurance proceeds they bought and paid for in perfect good faith? Is that realistic? How many PA tenants don’t even know the identity of their property owner? Do PA tenants need to insist that future property leases require the owners to be and stay current on property taxes as a lease condition? What about current leases? Unless I’m mistaken, the consequences of today’s paean to plain meaning could be broad and profoundly disruptive.

The opinion does not address these concerns, but it defends its holding with a policy argument of its own, warning that the insurer’s “interpretation could incentivize an end run around Section 638 by permitting unscrupulous owners to use the corporate form to collect insurance proceeds without satisfying their delinquent taxes.” Fair point. But, in my view, the problem the court avoids is nothing compared to the problems it creates. If the operator seeks en banc rehearing, I think it deserves a serious look.

Joining Hardiman were Fisher and Greenaway. Arguing counsel were John Mizner for the operator-insured and Arthur Martinucci of Quinn Buseck for the appellants.

 

Cazun v. AG — immigration — affirmance — Rendell

The Third Circuit today affirmed the denial of an asylum applicant’s appeal, upholding the government’s rule that aliens subject to reinstated removal orders are ineligible to apply for asylum. Although the panel was unanimous on the outcome, it divided along ideological lines on the rationale. The majority found the statute ambiguous and applied Chevron deference to the agency’s interpretation, but the concurrence in the judgment found the statute unambiguous and thus that Chevron was inapplicable.

Joining Rendell was McKee; Hardiman concurred in the judgment. Arguing counsel were Keren Zwick of the National Immigrant Justice Center for the asylum applicant and Carmel Morgan for the government.

 

US ex rel. Gerasimos Petratos v. Genentech — civil / qui tam — affirmance — Hardiman

The Third Circuit issued a significant False Claims Act ruling yesterday, affirming on alternative grounds the district court’s dismissal of a pharmaceutical qui tam action.

The appeal arose from a drug company’s marketing of its “multi-billion dollar cancer drug” Avastin; the company’s head healthcare data analyst alleged that the company concealed key information about the drug’s side effects, which resulted in doctors prescribing the drug more often and the government paying out more Medicare claims. The analyst then sued under the False Claims Act.

The district court dismissed the suit on falsity grounds based on its view that the analyst had to prove that how the drug was used had been rejected by the FDA, not by individual doctors. The Third Circuit disagreed, holding that the district court had conflated two different statutory standards. But the Third Circuit affirmed on alternative grounds, holding that the suit failed on materiality grounds under the recent USSC Escobar decision, essentially because the government continued paying out Medicare claims even after the analyst revealed his information. The court concluded, “Petratos’s allegations may be true and his concerns may be well founded—but a False Claims Act suit is not the appropriate way to address them.”

Joining Hardiman were Scirica and Rosenthal SDTX by designation. Arguing counsel were Matthew McCrary of San Francisco for the appellants, Mark Mosier of Covington & Burling for the company, and Weili Shaw for the government.

UPDATE: this post on JDSupra calls Genentech a “gift to qui tam defendants” because it relied on the government’s non-intervention as evidence that the alleged wrong was immaterial. The post asserts that the government chooses to intervene in less than 25 percent of cases, and “No authority has ever suggested … before” that non-intervention suggests immateriality.

New opinions — Third Circuit reverses in an immigration appeal and rejects the government’s jurisdictional challenge in a criminal appeal

Myrie v. AG — immigration — reversal — Ambro

Jarndyce and Jarndyce, I just learned from Wikipedia, is “a fictional court case from the novel Bleak House by Charles Dickens” which “has become a byword for seemingly interminable legal proceedings.”

The Third Circuit invoked that fictional case today in an opinion sending back — for a fifth time — a Panamanian citizen’s challenge to removal. From the start, the man has argued that, if sent back to Panama, gangs there would target him with impunity. This time, the basis for reversal was that the Board of Immigration erroneously reviewed only for clear error his claim that he likely would be tortured with official acquiescence if removed; the Third Circuit held that this was a mixed question of law and fact that the BIA should have instead reviewed de novo. The court also directed the BIA to consider the petitioner’s circumstantial evidence of official acquiescence to torture.

Joining Ambro were Chagares and Fuentes. Arguing counsel were Nathanael Kibler of Tennessee for the petitioner and Erica Miles for the government.

 

US v. Rodriguez — criminal — affirmance — Restrepo

The Third Circuit today affirmed a district’s denial of a motion for a sentencing reduction. The defendant argued that it was substantively unreasonable for the district court to deny his motion for a sentencing reduction based on a change to the Sentencing Guidelines after his sentencing. The most significant aspect of today’s ruling was that the court rejected the government’s argument that it lacked jurisdiction to review the appellate claims like the one raised here, joining three circuits and splitting with one.

Joining Restrepo were Chagares and Roth. Arguing counsel were Ronald Krauss of the MDPA federal defenders for the defendant and MDPA AUSA Carlo Marchioli for the government.

Three new opinions, including an immigration reversal

Chavez-Alvarez v. AG — immigration — reversal — Ambro

Years after a lawful permanent resident was convicted by a military court of sodomy and other crimes, the government sought to deport him on the theory (among others) that his sodomy conviction was for a crime involving moral turpitude. The BIA upheld removal, “determining that because Chavez-Alvarez’s particular crime was subject to a sentence enhancement because it was committed forcibly, and because the application of the enhancement in his case was the “functional equivalent” of a conviction for the enhanced offense, he was convicted of forcible sodomy.”

Today, the Third Circuit reversed. Applying the categorical approach, the court ruled that a military conviction for sodomy did not require proof of force and, given Lawrence v. Texas, was not a crime involving moral turpitude. The court rejected the argument that the president’s military sentencing guidelines functioned to create separate offenses for categorial-approach analysis.

Joining Ambro were Vanaskie and Scirica. Arguing counsel were Craig Shagin of the Shagin Law Group for the petitioner — by my quick count, this is the fourth CA3 published win for Shagin since 2015! — and Sabatino Leo of the DOJ for the government.

 

Fried v. JP Morgan Chase — civil — affirmance — Ambro

In my book, this is opinion-introduction perfection:

Ginnine Fried bought a home in 2007 for $553,330. It was near high tide in the real estate market, but she had to believe she was getting a bargain, as an appraisal estimated the home’s value to be $570,000. Fried borrowed $497,950 at a fixed interest rate to make her purchase and mortgaged the home as collateral. Because the loan-to-purchase-price ratio ($497,950 / $553,330) was more than 80%, JPMorgan Chase Bank, N.A. (“Chase”), the servicer for Fried’s mortgage (that is, the entity who performs the day-to-day tasks for the loan, including collecting payments), required her to obtain private mortgage insurance. Fried had to pay monthly premiums for that insurance until the ratio reached 78%; in other words, the principal of the mortgage loan needed to reduce to $431,597, which was projected to happen just before March 2016.

We now know that the housing market crashed in 2008, and the value of homes dropped dramatically. Fried, like many homeowners, had trouble making mortgage payments. Help came when Chase modified Fried’s mortgage under a federal aid program by reducing the principal balance to $463,737. The rub was that Chase extended Fried’s mortgage insurance premiums an extra decade to 2026. Whether it could do this depends on how we interpret the Homeowners Protection Act (“Protection Act”), 12 U.S.C. § 4901 et seq. Does it permit a servicer to rely on an updated property value, estimated by a broker, to recalculate the length of a homeowner’s mortgage insurance obligation following a modification or must the ending of that obligation remain tied to the initial purchase price of the home? We conclude the Protection Act requires the latter.

Joining Ambro were Vanaskie and Scirica. Arguing counsel were Jonathan Massey of Massey & Gail (the attorney who won the Chavez en banc last year) for the bank and Antonio Vozzolo of NJ for the homeowner.

 

Edinboro College Park Apts. v. Edinboro University Foundation — antitrust / sovereign immunity — partial reversal — Smith

When apartment owners sued a state university’s foundation and its president for conspiring to monopolize the student-housing market, the defendants asserted they were state actors immune from antitrust liability. Today, the Third Circuit agreed because the university’s anticompetitive conduct conformed to a clearly articulated state policy and the foundations were directed by the university.

Joining Smith were McKee and Restrepo. Arguing counsel were Matthew Wolford of PA for the apartment owners, Matthew McCullough of MacDonald Illig for the foundation, and Kemal Mericli of the PA AG for the president.

 

New opinion — Third Circuit clarifies appellate immigration jurisdiction

Park v. AG — immigration — dismissal — Fuentes

South Korean citizen Sang Goo Park entered the US on a visitor’s visa, and the visa stated that he had been employed at an electronics company when in truth he was a cook. The discrepancy came to light some years later when Park filed an approved petition from his employer to adjust his status. In what seems like an insane misallocation of government resources, the government decided to deport him over this, and years upon years of litigation ensued.

The issue in today’s appeal is crisply summarized in the opinion’s introduction (cite omitted):

He now claims that, in the years since the removal order, he has become eligible for a “§ 212(i)” waiver of inadmissibility. He would like the Board of Immigration Appeals (“BIA” or “Board”) to reopen his removal proceedings so that he might apply for the waiver, but he faces an imposing obstacle. Because of the passage of time, his only route to reopening lies through 8 C.F.R. § 1003.2(a), commonly known as the “sua sponte” reopening provision. Under that regulation, the BIA may reopen a case at any time. The BIA has held, however, that it will do so only in extraordinary circumstances. As a result, the BIA’s discretion in this area is broad—so broad, in fact, that we have no meaningful way to review it, thereby depriving us of jurisdiction over orders denying sua sponte reopening.

Park’s petition invokes one of the limited exceptions to the rule against review. He argues, as he did before the agency, that the BIA has consistently reopened sua sponte for aliens like him who have become eligible for relief from removal after their cases have ended. By ruling consistently in this way, Park contends, the BIA has established a rule or “settled course of adjudication” that it is now bound to follow, or at least from which the BIA may not depart without explaining itself. Park also points to our two precedential opinions interpreting this “settled course” exception, Chehazeh v. Att’y Gen. and Cruz v. Att’y Gen., as weighing in favor of our ability to review the BIA’s decision.

Park’s petition gives us an opportunity to clarify our jurisprudence surrounding the “settled course” exception, which originated over a decade ago but has existed since without a framework. In part, this requires us to interpret Chehazeh and Cruz, which Park reads as being broader than they actually are (a mistake he is not alone in making).

The opinion noted that Third Circuit non-precedential opinons have applied the settled course exception inconsistently, sometimes suggesting that a bare allegation was enough to confer appellate jurisdiction. The court rejected that approach, holding that a petitioner seeking to invoke the exception must establish that the BIA limited its discretion through a settled course, and explaining that this showing must be such that the BIA’s ruling “can be meaningfully reviewed” and “must be persuasive enough to allow the reasonable inference that the BIA’s discretion has in fact been limited.” Applying this framework, the court held that Park’s showing failed and dismissed his petition.

Joining Fuentes were Ambro and Shwartz. Surprisingly, the case was decided without oral argument; petitioner’s counsel was David Kim of New York.

New opinions — an immigration win and two criminal-appeal affirmances

Rodriguez v. AG — immigration — petition granted — Shwartz

The Third Circuit today granted a Domincan Republic citizen’s petition for review because the conviction that triggered his removal proceedings had been vacated and the notice of removal did not say that his placement in a deferred adjudication program supported removal.

Shwartz was joined by Ambro and Fuentes. The case was decided without argument; winning counsel was Fabian Lima.

 

US v. Robinson — criminal — partial affirmance — Roth

A divided Third Circuit panel today affirmed a criminal conviction but remanded, after the government’s concession of error and with no analysis, for a re-determination of whether the defendant is a career offender. The key issue on appeal was whether a defendant who uses a gun during a Hobbs Act robbery commits a “crime of violence” per 18 USC 924(c). The court held that the gun-use crime qualifies as a crime of violence when the defendant is tried and convicted together of both gun use and robbery.

Roth was joined by McKee; Fuentes concurred in part and concurred in the judgment. Arguing counsel were Brett Sweitzer of the EDPA federal defender for the defendant and Bernadette McKeon for the government.

 

US v. Galati — criminal — affirmance — Roth

A similar panel affirmed another criminal conviction against a similar challenge brought by the same counsel. The panel expressly followed the Robinson decision described above and described this case as bearing a striking resemblance.

Joining Roth were McKee and Jordan. Arguing counsel were Brett Sweitzer for the defendant and Mark Coyne for the government.

 

New opinions — “crime of violence” deportation trigger is unconstitutionally vague

Baptiste v. AG — immigration — reversal — Greenaway

The Third Circuit held that the statutory “crime of violence” standard, like the armed-career-criminal residual clause, is unconstitutionally vague. This holding deepens a circuit split. The court ruled that the petitioner here still is deportable, though, because he was convicted of two ‘crimes involving moral turpitude.’

Joining Greenaway were Scirica and Rendell. Arguing counsel were Dickinson School of Law student Penelope Scudder of for the petitioner and Jesse Bless for the government.

 

US v. Henderson — criminal — affirmance — Vanaskie

The Third Circuit today upheld a district court’s ruling that a criminal defendant was an armed career criminal (and thus subject to a much more severe sentence), holding that PA’s Controlled Substance Act — sorry, what follows is gibberish unless you do criminal appeals —  is divisible and thus subject to the modified categorical approach. The case was argued just over a year ago.

Joining Vanaskie were Fuentes and Jordan. Arguing counsel were Renee Pietropaolo for the defendant and Laura Irwin for the government.

New opinions — an immigration reversal on aggravated felonies and a sentencing reversal on loss amount

Singh v. AG — immigration — reversal — Scirica

The Third Circuit today held that a Pa. conviction for possession of counterfeit drugs with intent to deliver is not an aggravated felony that would make the person convicted ineligible for discretionary relief from removal. The court held that the BIA erred by not applying the modified categorical approach. The court granted the petition for review and remanded.

Joining Scirica were Ambro and Jordan. Arguing counsel were Craig Shagin for the petitioner and Elizabeth Chapman for the government.

 

US v. Free — criminal sentencing — reversal — Fuentes

Here’s one you don’t see every day. A guy with plenty of money to pay his debts filed for bankruptcy and hid hundreds of thousands of dollars worth of assets, except he still had enough assets to pay his creditors in full. Not for nothing does the Third Circuit describe this as “bizarre.” The asset-hiding led to criminal convictions for bankruptcy fraud and a two-year sentence.

The issue in today’s appeal was how to calculate the loss amount for sentencing purposes, given that the creditors lost nothing. The district court used the amount the defendant concealed and the amount of debt he sought to discharge in bankruptcy. The Third Circuit reversed for resentencing, ruling that the loss amount is the amount the creditors lost or the amount the defendant intended to gain. The court noted that the resentencing court still could impose the same sentence, even without any loss enhancement, through an upward departure for lying and disrespect to the court. The court rejected as “too clever by half” his argument that the absence of loss rendered the evidence legally insufficient.

Joining Fuentes were Shwartz and Restrepo. Arguing counsel were Martin Dietz for the defendant and Laura Irwin for the government.

 

 

New opinion — Court rejects necessity requirement for class certification

Gayle v. Warden Monmouth County Corr. Inst. — immigration / class action / jurisdiction — reversal — Krause

Today’s lone published opinion was issued by a panel comprised of Judges Fuentes, Krause, and Roth, which sat in February. It’s the third precedential opinion issued by that panel in the past week (Johnson and Hoffman are the other two), and all three are biggies. I went back and looked, and this is the ninth precedential opinion issued by that panel!  (Others include the kindergardener-abduction case, a criminal-sentencing appeal I described as “exceptionally aggressive,” and a big Fourth Amendment home search case.) I don’t normally track such things, but nine published opinions (and counting?) from one panel sitting has to be some kind of a record.

Anyway, today’s opinion arises from a class action suit challenging a federal statute imposing mandatory detention of aliens who have committed certain crimes. The facts and procedural history are complicated, but the gist of it is that the Court ruled today that the district erred by deciding the merits of the suit long after the class representatives’ claims had become moot, depriving both the district court and the Third Circuit of jurisdiction over the entire case except for a motion for class certification. (Oops.) The Court further held that the district court erroneously denied certification based on its view that a class action was “unnecessary” — noting a circuit split, the court held that necessity is not a freestanding basis for denying certification.

Krause was joined by Fuentes and Roth. Arguing counsel were Judy Rabinovitz of the ACLU Immigrants’ Rights Project for the class and Elizabeth Stevens for the government.

New opinions: a big immigration win for the government, and a little preemption circuit split

Castro v. U.S. D.H.S. — immigration — affirmance — Smith

The Third Circuit issued a blockbuster immigration ruling today, holding that (1) federal courts lack jurisdiction to review challenges to expedited removal orders, and (2) the statute depriving courts of such jurisdiction does not violate the Suspension Clause.

On the statutory issue, the court joined a majority of courts to address the issue, citing opinions from the Second, Fifth, and Ninth Circuits and rejecting opinions from the Ninth Circuit and two district courts.

On the Suspension Clause issue, the court admitted it was “very difficult.” The opinion summarized the issue thus:

Petitioners argue that the answer to the ultimate question presented on appeal – whether § 1252 violates the Suspension Clause – can be found without too much effort in the Supreme Court’s Suspension Clause jurisprudence, especially in I.N.S. v. St. Cyr, 533 U.S. 289 (2001), and Boumediene v. Bush, 553 U.S. 723 (2008), as well as in a series of cases from what has been termed the “finality era.” The government, on the other hand, largely views these cases as inapposite, and instead focuses our attention on what has been called the “plenary power doctrine” and on the Supreme Court cases that elucidate it. The challenge we face is to discern the manner in which these seemingly disparate, and perhaps even competing, constitutional fields interact. Ultimately, and for the reasons we will explain below, we conclude that Congress may, consonant with the Constitution, deny habeas review in federal court of claims relating to an alien’s application for admission to the country, at least as to aliens who have been denied initial entry or who, like Petitioners, were apprehended very near the border and, essentially, immediately after surreptitious entry into the country.

Joining Smith were Hardiman and Shwartz. Hardiman also briefly concurred dubitante to express doubt about the opinion’s reasoning on the Suspension Clause issue. Arguing counsel were Lee Gelernt of the ACLU Immigrants Rights Project for the appellants and Erez Reuveni for the government. A large number of amici participated, represented by an impressive array of local and national counsel, and the opinion thanked amici for their valuable contributions.

Given its importance, the case is an obvious candidate for a petition for en banc rehearing, but the panel composition makes me suspect that finding a majority for rehearing will be difficult.

Update: Steve Vladeck has early commentary on the opinion in a post on his Just Security blog here. And it’s harsh commentary: “incredibly novel and misleading,” “simply nuts,” and “hopefully, a strong candidate for en banc review.”

Update2: Noah Feldman has this critical commentary (“The decision is wrong, and the U.S. Supreme Court should review it”) on Bloomberg View.

Rosenberg v. DVI Receivables XVII — civil — reversal — Ambro

Today the Third Circuit held that § 303(i) of the bankruptcy code does not preempt state-law claims predicated on the filing of an involuntary bankruptcy petition by non-debtors. The opinion creates a circuit split with the Ninth Circuit.

Joining Ambro were Jordan and Scirica. Arguing counsel were Lewis Pepperman of Stark & Stark for the appellants and Peter Levitt of Florida for the appellees.

A notable non-precedential immigration case, highlighting an “unfortunate mistake” by government counsel

In a non-precedential opinion today in Chang-Cruz v. AG, the Third Circuit ruled in favor of an Ecuadoran citizen legally in the U.S. who argued that he’s eligible for cancellation of removal because his state convictions for drug-trafficking-related acts near a school were not aggravated felonies. Judge Krause wrote the opinion, joined by Judges Ambro and Nygaard.

Any pro-petitioner immigration ruling is noteworthy, but the end of today’s opinion is particularly interesting:

In closing, we note our expectation that on remand and in future cases the Government will refrain from engaging in the problematic conduct that has marked its performance here. The last time this case was before us, the Justice Department requested and we granted a remand to the BIA for the limited purpose of the BIA considering “what effect, if any, Descamps has on this immigration case.” J.A. 619. Once back before the BIA, however, the Government asserted that Descamps was inapplicable and instead proceeded to argue that the plea transcript was relevant to whether Chang-Cruz should receive discretionary relief, along with an inadequate explanation for why it failed to obtain that plea transcript before the IJ rendered her initial decision cancelling Chang-Cruz’s removal. These were issues well outside the scope of our remand. See Pareja v. Att’y Gen., 615 F.3d 180, 197 (3d Cir. 2010). Most troubling, however, is the Government’s resort before the BIA to a frivolous argument that Chang-Cruz engaged in “obstructionism” by opposing the Government’s remand to the IJ to consider the plea transcript. See J.A. 879. It comports with neither the professionalism nor the ethical mandates of Government counsel to chill vigorous advocacy by asserting that an alien who avails himself of the congressionally prescribed opportunity to seek cancellation of removal thereby loses the privilege of cancellation. We trust that this was an unfortunate mistake that will not be repeated.

 

New opinion — can the government deport you for threatening to slap someone? [updated]

Javier v. AG — immigration — deny and dismiss — Greenaway

At the government’s request, the Third Circuit today issued as precedential an opinion it previously had issued as non-precedential,  holding that a conviction under Pennsylvania’s terroristic-threats statute (18 Pa Cons. Stat. 2706(a)(1)) categorically qualifies as a crime involving moral turpitude to support removal. The statute makes it a crime to “communicate[], either directly or indirectly, a threat to: [] commit any crime of violence with intent to terrorize another.” The court rejected the petitioner’s argument that, because “any crime of violence” includes simple assault and because simple assault is not turpitudinous, therefore the statute included non-turpitudinous conduct. The court reasoned that the turpitude derives from the intent to terrorize. The opinion disagreed with a 2010 non-precedential opinion, Larios v. AG, 402 F. App’x 705 (3d Cir. 2010) (Jordan, joined by Fuentes and Aldisert).

Joining Greenaway were Vanaskie and Shwartz. The case was decided without oral argument.

UPDATE:

The title of my original post about today’s opinion in Javier was, “can the government deport you for threatening to slap someone?”

The court’s answer to that question is that, yes, you can be deported for threatening to slap someone, even though you can’t be deported for actually slapping someone, because an element of a conviction for threats is intent to terrorize.

But the Javier opinion’s reasoning contains a serious gap, in my view: does “intent to terrorize” require anything more, under Pennsylvania law, than ‘intent to make the person think you actually will assault them’? Because, if it doesn’t, then I see no sense in saying assaults aren’t categorically turpitudinous but mere threats to assault are. After all, we’d all agree that hitting someone is worse than making them afraid that you’re going to hit them, no?

I’m not an expert on Pennsylvania criminal law, so I don’t know if “intent to terrorize” requires more than the fear that would result from any believed threat of assault, but the opinion’s failure to discuss the point is concerning.

New opinions — an en banc ruling in the Double Eagle gold coins case, plus an immigration case

Langbord v. US Dept. of the Treasury — civil — affirmance — Hardiman

The en banc Third Circuit ruled that the government was allowed to keep 10 extremely rare and valuable Double Eagle gold coins it seized from the family that had handed them over for authentication. Previously a divided panel (Rendell and McKee with Sloviter dissenting) had ruled for the family. It’s an unusual en banc case in that covers a dizzying list of appellate issues, many of them fact-bound.

The court split 8+1 to 3. Joining Hardiman were Ambro, Fuentes, Smith, Fisher, Chagares, Vanaskie, and Shwartz. Jordan concurred in part and concurred in the judgment, describing the Mint’s strategy of claiming the coins without judicial authorization as “a bad idea.” Rendell with McKee and Krause dissented, criticizing the majority’s reasoning as “at best cryptic and, at worst, sets an incorrect and dangerous precedent that would allow the Government to nullify CAFRA’s provisions at will.”

Arguing counsel were Barry Berke for the family and Robert Zauzmer for the government.

An interesting and odd case.

 

Sunday v. AG — immigration — petition denied — Chagares

The Third Circuit held that the Immigration and Nationality Act does not grant the Attorney General authority to grant a waiver of inadmissibility, and it held that removal cannot be unconstitutionally disproportionate punishment because it is not punishment.

Joining Chagares were Fisher and Barry. Arguing counsel were Keith Whitson of Schnader Harrison in Pittsburgh for the petitioner and Andrew Oliveira for the government.

New opinions — government can deny citizenship for false statements on old immigration applications

The Third Circuit has had a flurry of published immigration opinions in recent weeks, and today brings two more, both government wins.

Saliba v. AG — immigration — affirmance — Greenberg

A citizen of Syria falsely claimed to be a citizen of Lebanon when applying for temporary US residency. The deception got him temporary status and later legal permanent residence, but it was caught when he applied for citizenship. The district court denied his petition challenging citizenship denial, and today the Third Circuit affirmed in a lucid and well-reasoned opinion that is two-spaces-after-the-period away from violating every rule of good typography.

Joining Greenberg were Ambro and Jordan. The case was decided without oral argument, which seems like a missed opportunity because losing counsel speaks six languages.

 

Koszelnik v. Secretary of Dep’t of Homeland Security — immigration — affirmance — Roth

Stop me if this sounds familiar: a citizen of Poland falsely answered a question on a visa application and as a result gained permanent residency, but the falsehood was later caught when he applied for U.S. citizenship. The district court ruled against him, and the Third Circuit today affirmed, noting in a footnote:

Two panels of this Court are filing opinion in Koszelnik v. Secretary, No. 14-4816, and Saliba v. Attorney General, No. 15-3769, on this day dealing with similar issues. Each opinion is a further precedent supporting the other opinion.

(Saliba had a subtantially identical footnote.)

Joining Roth were Fuentes and Krause. Arguing counsel were John Bleimaier of Princeton for the appellant and Neelam Ihsanullah (who I suspect is no longer a member of the National Immigration Project of the National Lawyers Guild) for the government.

 

If someone approaches you today with this offer — “I will give you $10 if you successfully predict one published opinion for which the Third Circuit will not grant rehearing en banc, but if you lose you have to pay $1,000″ — consider taking a flier on today’s opinions.

Three new immigration opinions

Three published opinions today — all three were immigration appeals, all three involved Hispanic petitioners, all three were decided without oral argument, and all three were government wins.

Bedolla Avila v. AG — immigration — denial — Smith

The Third Circuit issued an opinion applying the convoluted analysis to decide whether a crime counts as an aggravated felony for purposes of removal. First, the court attempts to apply the formal categorical approach to the statute of conviction. But sometimes the statute of conviction is divisible, and in which case the court departs from formal categorical approach and instead uses a modified categorical approach. (If those terms are Greek, they’re explained in the opinion.) Here, the court held that the petitioner was convicted under a divisible statute and used modified categorical analysis to identify the crime of conviction. Having identified the crime he was convicted of, the court then had to decide if it was an aggravated felony, as follows:

there are two independent but valid routes by which an offense may be found to qualify as an aggravated felony. The first, the illicit trafficking route, provides that a crime is an aggravated felony if it is a felony under state law and contains a trafficking element. Id. The second, the hypothetical federal felony route, provides that a crime is an aggravated felony if it would qualify as a felony under the Federal Controlled Substances Act. Id.

Applying the hypothetical federal felony route, the court held that the petitioner’s crime was analogous to possession with intent to distribute cocaine and thus qualified as an aggravated felony.

The court also rejected the petitioner’s argument that simultaneous removal proceedings against a person in front of an immigration judge and the Dept of Homeland Security are prohibited.

Joining Smith was McKee and Hardiman. The case was decided without argument; Sandra Greene of Greene Fitzgerald represented the petitioner.

 

Frias-Camilo v. AG — immigration — denial — Jordan

A native of the Dominican Republic was a lawful permanent resident for 7 years before pleading guilty to conspiracy to possess cocaine, but he “received no jail sentence, no term of probation, no community service, and owed no fines or fees.” The government in all its wisdom decided to deport him anyway. He argued he was not subject to removal because his guilty plea did not result in any punishment. The Third Circuit disagreed and denied his petition.

Joining Jordan were Ambro and Greenberg. The case was decided without oral argument; counsel for the petitioner was Raymond Lahoud of Barkout & Barkout.

 

Ordonez-Tevalan v. AG — immigration — denial — Greenberg

A Guatamalen woman twice entered the U.S. illegally and was caught both times. She tried to prevent removal the second time by explaining that she came to the U.S. in order to escape an ex-boyfriend who had raped her and threatened to kill her. The Third Circuit rejected her appeal on 3 independent grounds — the immigration judge’s credibility findings against her, her failure to prove that the abuse she feared was the result of her membership in a protected class, and her failure to prove that her abuse was caused or allowed by an official.

The court did rule against the government on a jurisdictional issue. While the Third Circuit petition was pending, the parties jointly moved to reopen proceedings in the Board of Immigration Appeals (apparently to correct an error in the record), and the BIA issued new orders denying relief on the same grounds as before. The petitioners did not file a new petition challenging the new orders, and the government argued that the Third Circuit lacked jurisdiction to review her challenge to the old orders. The court rejected this argument on the ground that the new orders did not alter the prior decisions.

Joining Greenberg were Jordan and Scirica. The case was decided without oral argument; counsel for the petitioners was Carol Donohoe of Reading, Pa.

 

 

 

Divided Third Circuit panel upholds deportation based on special court-martial conviction

Gourzong v. AG — immigration — dismissal — Rendell

Under federal law, a non-citizen can be deported if he was “convicted of an aggravated felony,” and “convicted” requires a judgment of guilt “by a court.” Jamaican native Gurson Gourzong was convicted of an aggravated felony by a special court-martial. Unlike a general court-martial, a special court-martial is not necessarily presided over by a legally trained judge, and the record doesn’t clearly establish whether a legally trained judge presided over Gourzong’s special court martial.

Today, a divided Third Circuit panel held that, because “as a general matter” special courts-martial qualify as courts, therefore the special court-martial conviction here was a judgment by a “court,” and accordingly Gourzong was removable. In a footnote, the panel left open the possibility that aliens could prove their specific special courts-martial were not “courts,” but said Gourzong had made no such showing.

Judge Cowen dissented. The nub of his disagreement came down to his position that it should have been the government’s burden, not the alien’s, to establish that the specific special court-martial at issue qualified as a court. He also disagreed that the special courts-martial typically qualfied as courts, noting that the presiding officers lack military judges’ training and independence. And he criticized the government’s conduct in the case, noting its history of changing its position and its failure to timely file its brief.

Joining Rendell was Fisher; Cowen dissented. Arguing counsel were Craig Shagin of the Shagin Law Group for the petitioner and Jesse Bless for the government. The panel thanked Shagin for agreeing to serve as pro bono counsel for his “excellent advocacy” in the case, and Cowen  praised Shagin as “Gourzong’s able pro bono counsel.”

[As the circuit’s resident typography scold, I register my horror that the majority opinion put its record cites in boldface. My horror is mitigated only partially by the opinion’s use of hard spaces after section symbols.]

New opinions — a major immigration reversal, and an Alito loss

Cen v. Attorney General — immigration — reversal — Krause

The Third Circuit today struck down an immigration regulation, and it’s hard for me to imagine what possessed the government to take the position it did. Here’s the introduction from today’s opinion:

The Immigration and Nationality Act (INA) allows a child under the age of twenty-one whose alien parent has married a U.S. citizen abroad to obtain a temporary “K-4” visa to accompany her parent to the United States and, based on the parent’s marriage, to apply to adjust her status to that of a lawful permanent resident. On a petition for review of a decision of the Board of Immigration Appeals (BIA), we now consider the validity of a regulation that makes it impossible for a child who entered on such a visa to remain with her family and adjust her status from within the United States if she was over the age of eighteen at the time of her parent’s marriage. Because the regulation departs from the plain language of the INA, contravenes congressional intent, and exceeds the permissible scope of the Attorney General’s regulatory authority, we conclude it is invalid. We therefore will grant the petition for review and will reverse and remand to the BIA for further proceedings.

The Seventh Circuit struck down the same regulation in 2013, but the government has continued to enforce it outside that circuit. The Third Circuit today held that the regulation failed at step two of Chevron analysis. The opinion is thorough, and vigorous: “the Government’s reading of § 1255(d) would transform K-4 visas for older K-4 children into nothing more than tourist visas, giving their holders only a glimpse of what life with their families might have been like in America before being sent home because they are legally incapable of fulfilling § 1255(a)(2)’s eligibility requirement. Such a reading defies common sense.”

Joining Krause were Shwartz and Greenberg. Arguing counsel were Scott Bratton for the petitioner and Robert Stalzer for the government.

 

1621 Rt 22 West Operating Co. v. NLRB — labor — affirmance — Jordan

If I were a circuit judge, would I be a little nervous about ruling against a party represented a Supreme Court Justice’s sister? I might. But that’s what the Third Circuit fearlessly did today, ruling in favor of the NLRB in a case where arguing counsel for the petitioner was Rosemary Alito, the Justice’s younger sister and quite a formidible lawyer in her own right.

The appeal arose out of a workplace union election. After the NLRB ruled that the employer engaged in anti-union activities, the employer argued for the first time on appeal that the NLRB’s acting general counsel was serving illegally and therefore his complaint and all that followed were invalid. The Third Circuit held that it lacked jurisdiction to hear this argument because it was not exhausted. The court also rejected the employer’s arguments that an NLRB member should have recused because his chief counsel had previously represented the union in this case but did not participate in the NLRB’s review, that its labor practices were legal, and that the NLRB imposed the wrong remedy.

Joining Jordan, who has been on an opinion tear lately, were Ambro and Scirica. Arguing counsel were Alito of K&L Gates for the employer and Jeffrey Burritt and Benjamin Shultz for the government.

New opinion — a petitioner win in an immigration appeal [updated]

Orozco-Velasquez v. Attorney General — immigration — remand — Roth

The Third Circuit issued a late-in the day opinion granting an immigration petition for review and remanding with instructions for the immigration court to consider the petitioner’s application for cancellation of removal. The appeal turned on interpretation of the Immigration and Nationality Act’s “stop-time” rule, and the court expressly disagreed with other circuits’ interpretation of the rule.

Joining Roth were McKee and Ambro. Arguing counsel were Amanda Johnson of Dechert for appointed amicus petitioner (the petitioner was pro se) and Robert Tennyson Jr. for the government. The opinion expressed appreciation to Stuart Steinberg and former Van Antwerpen clerk Ryan Moore of Dechert for undertaking the amicus curiae assignment pro bono, and noted that law student Johnson argued “adeptly.” It was issued a year and a week after the oral argument.

UPDATE: Amanda Johnson argued the case as third-year law student participating in Penn Law’s federal appellate litigation externship, supervised by Professor Louis Rulli as well as counsel at Dechert. Here is a Penn Law news release with background on the case.