Third Circuit Finds that PA Felony Eluding Statute is Divisible

The Third Circuit has determined that a Pennsylvania statute criminalizing eluding the police as a felony is divisible between three grading factors. The Court further found that the third grading factor could be violated by a driver who recklessly flees or attempts to elude law enforcement in an attempt to transport himself or another person to a hospital would still violate the statute. This conduct is not reprehensible, and thus, the statute is not a categorical match to the definition of a crime involving moral turpitude.

The full text of Ndungu v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/202562p.pdf

Third Circuit Finds that Equitable Estoppel Cannot Confer Citizenship

The Third Circuit has determined that a non-citizen who was erroneously granted a certificate of citizenship, which was not revoked for 21 years, cannot use the doctrine of equitable estoppel to obtain a declaration of citizenship from a federal court. “It is unfortunate that the government erroneously issued Lall a Certificate of Citizenship in the first place. And it is inexcusable that it quickly discovered its error but failed to correct it for over twenty-one years. Of course, it is Lall’s own subsequent criminal conduct that has brought the consequences of the government’s dereliction down on his head. Still, that dereliction has fundamentally changed Lall’s identity and place in the world. He turns to us for assistance, but we cannot provide the relief he seeks. Not every wrong is ours to right. “

The full text of Lall v. Department of Homeland Security can be found here:

https://www2.ca3.uscourts.gov/opinarch/202051p.pdf

Third Circuit Transfers PFR to Sixth Circuit

The Third Circuit has determined that the Sixth Circuit is the proper appellate venue for a detained matter filed with the Cleveland Immigration Court, even though the immigration judge was sitting in Virginia, and the applicant was detained in Pennsylvania. “Therefore, in the context of remote proceedings or hearings, the physical locations of the IJ and other participants are not what dictates the answer to the question of where the proceedings occur. Instead, we agree with the First, Second, Seventh, and Ninth Circuits that ‘proceedings’ take place in the Immigration Court in which the proceedings began, unless there is a formal change of venue. Judicial venue under § 1252(b)(2) thus aligns with administrative venue.” The court, accordingly, transferred the petition for review to the Sixth Circuit,

the full text of Castillo v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/232123p.pdf

Third Circuit Finds that Confinement as a Result of Conviction Includes Pre-Conviction Confinement

The Third Circuit has determined that the phrase “confined as a result of conviction,” as it is found in the list of good moral character bars, includes time spent in pre-conviction confinement.

The full text of Aguilar v. Attorney General can be found here:  https://www2.ca3.uscourts.gov/opinarch/183320p.pdf

Third Circuit Finds that PFR Filing Deadline is Claims Processing Rule

The Third Circuit has determined that the 30-day deadline to file a petition for review of a final removal order is a claims processing rule, not a jurisdictional rule. The court also determined that a reinstatement order is not administratively final until a final agency decision is issued on the applicant’s withholding of removal and CAT applications.

The full text of Inestroza-Tosta v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/221667p.pdf

Third Circuit finds that NJ Robbery Conviction is not CIMT

The Third Circuit has determined that a New Jersey robbery conviction does not qualify as a crime involving moral turpitude under the pre-Diaz-Lizarraga standard because New Jersey’s definition of theft does not include an intent to permanently deprive others of their property. The Court further concluded that the force required to commit robbery is only that which is necessary to wrest the object from the victim, and does not require the infliction of any type of bodily harm.

The full text of Diaz Almanzar v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/213092p.pdf

Third Circuit Finds PA DUI Statute Indivisible

The Third Circuit has determined that Pennsylvania’s DUI statute - which criminalizes driving under the influence of controlled substances - is overbroad and indivisible with respect to the identify of the substances the person was using. The court noted that under state law, jurors do not to unanimously agree what substance a defendant is under the influence of to convict.

The full text of Pesikan v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/203307p.pdf

Third Circuit Defers to Finding that NJ Disorderly Persons Offenses are Convictions; Remands Gender-Based Asylum Claim

The Third Circuit has deferred to the agency’s determination in Matter of Wong that New Jersey disorderly persons offenses are convictions for immigration purposes. However, the court remanded for further analysis of whether the proposed social group of “Honduran women in a domestic relationship where the male believes that women are to live under male domination” is cognizable for asylum purposes.

The full text of Avila v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/221374p.pdf

Third Circuit Construes Polygamy Bar to Good Moral Character

The Third Circuit has construed the polygamy bar to good moral character to require the applicant to have knowingly entered into two marriages simultaneously. It does not require any evaluation of the applicant’s subjective beliefs regarding the practice of polygamy.

The full text of Al-Hasani v. Secretary of Department of Homeland Security can be found at: https://www2.ca3.uscourts.gov/opinarch/221603p.pdf

Third Circuit Finds Incomplete NTA Precludes In Absentia Removal Order

The Third Circuit has determined that an incomplete Notice to Appear (i.e., one lacking the date and time of a first hearing) precludes the entry of an in absentia removal order. “According to the Department, this disjunctive phrasing makes Madrid-Mancia’s defective NTA immaterial. Madrid-Mancia got a ‘Notice of Hearing,’ and that alone, it concludes, is enough for in absentia removal. That is not enough because § 1229a(b)(5)(A) always requires a complete NTA. And the Attorney General cannot cure defects in an NTA by sending out a self-styled ‘Notice of Hearing’ because announcing the time and date of a removal hearing for the first time is not a ‘change or postponement’ in the time or place.”

The full text of Madrid-Mancia v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/212291p.pdf

Third Circuit Finds that Asylee who Travels is no Longer Subject to VWP Waiver

The Third Circuit has determined that a non-citizen who enters the US through the visa waiver program (VWP), receives asylum, and re-enters the country as an asylee at a later date, is no longer subject to the waiver of rights that attaches to a VWP entry. Thus, if the asylee is later convicted of an aggravated felony, the Department of Homeland Security must place him in removal proceedings, not re-open the asylum-only proceedings through which he was originally granted asylum, in order to terminate his asylum status and seeks his removal. In these removal proceedings, the asylee can apply for adjustment of status.

The full text of Kosh Ishmael v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/212563pa1.pdf

Third Circuit Construes SIJS Parole Language

The Third Circuit has determined that a Special Immigrant Juvenile is paroled for adjustment purposes only, and is still properly found removable for being present without admission or parole.

The full text of Cortez-Amador v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/221249p.pdf

Third Circuit Defines Fundamental Rights

The Third Circuit has reiterated that only a violation of a fundamental right results in automatic remand without a showing of prejudice. “For a regulation to protect a fundamental right, a violation must be a structural error that necessarily makes proceedings fundamentally unfair. Very few rights will fit this extraordinary category. [T]hese include the rights to counsel and to an unbiased judge. But rights outside this category are not fundamental enough to trigger [a] presumption of prejudice.”

The full text of Gonzalez Aquino v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/213317p.pdf

Third Circuit Finds that Non-Citizen Knowingly and Intelligently Waived Appeal

The Third Circuit has rejected a claim that a non-citizen was coerced into waiving his appellate rights because the judge advised him that he would likely remained detained for another year while awaiting the outcome of the appeal. “[T]t would require much more than an Immigration Judge’s predictive assessment of the timeline for an administrative appeal to compel the conclusion that Mendoza’s waiver was coerced – particularly since such an informative assessment could have augmented his knowledge and intelligence in deciding whether to waive the right.”

The full text of Mendoza v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/212322p.pdf

Third Circuit Finds that PA Retail Theft Conviction is Aggravated Felony

The Third Circuit has determined that a Pennsylvania conviction for retail theft matches the generic definition of a theft aggravated felony. There is an interesting discussion of Pennsylvania’s use of “permissive inferences” in its penal code.

The full text of Baghdad v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/212094p.pdf

Third Circuit Finds Denial of Continuance to Detainee Violated his Due Process Rights

The Third Circuit has determined that the denial of a continuance to a detainee who had recently obtained counsel violated his due process rights. “We are hard pressed to find a more compelling set of facts constituting a violation of Freza’s due process and statutory right to counsel. After Freza diligently sought counsel while incarcerated, he was finally able to obtain counsel the day before his rescheduled merits hearing. However, when that counsel moved for a 30-day continuance so that she could prepare to adequately represent him, the IJ denied the motion, and the BIA affirmed, relying primarily on the fact that Freza’s initial hearing had taken place almost a year before. The IJ and BIA plainly ignored that the delay was due to circumstances completely outside Freza’s control. Indeed, this was Freza’s first request for a continuance of his merits hearing and there was no evidence to indicate that the request was a dilatory tactic by Freza or his counsel. In fact, it was reasonable that counsel would request such a continuance, as she had only met with Freza for the first time less than 24 hours before the merits hearing and she had not had time to review the record. Denying the continuance under these circumstances was clearly an abuse of discretion and a violation of Freza’s due process and statutory right to counsel.”

The full text of Freza v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/212259p.pdf

Third Circuit Finds Error in Denial of Continuance

The Third Circuit has determined that the agency erred in denying a continuance to an applicant for cancellation of removal who wished to present additional lay and expert testimony regarding hardship to his children. “Here, the IJ rested his denial of the continuance on an assumption that witness testimony would be unnecessary and then faulted Martinez for perceived gaps in the record that those witnesses likely would have been able to fill. In the circumstances presented, we conclude that Martinez has demonstrated that the IJ’s decision fell outside the range of permissible decisions, as did the BIA’s decision endorsing that decision.”

The full text of Martinez Roman v. Attorney General can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/12ae7ed4-81e2-4349-a906-0050d41df79e/7/doc/20-3476_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/12ae7ed4-81e2-4349-a906-0050d41df79e/7/hilite/

Third Circuit Finds NACARA Applicant Cannot Mitigate Heightened Standard with 212(h) Waiver

The Third Circuit has determined that an applicant for NACARA cancellation of removal cannot combine the application with a waiver under section 212(h) of the INA. Thus, an applicant convicted of marijuana possession will need to show 10 years of physical presence to qualify for NACARA cancellation.

The full text of Lopez v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/211490p.pdf

Third Circuit Finds PA Stalking Conviction Overbroad and Indivisible as a Crime of Stalking

The Third Circuit has determined that a Pennsylvania conviction for stalking is overbroad and indivisible when compared to the generic definition of a crime of stalking because it includes conduct intending to cause substantial emotional distress, as well as conduct intended to put the victim in fear of serious bodily harm or death.

The full text of Vurimindi v. Attorny General can be found here:

https://www2.ca3.uscourts.gov/opinarch/191848p.pdf

Third Circuit Finds that Non-VWP Citizen still Subject to VWP Restrictions due to Attempted Fraudulent VWP Entry

The Third Circuit has determined that an Albanian citizen who attempted to enter the US using a fraudulent Italian passport through the Visa Waiver Program (VWP) waived his right to contest his removal through any means other than an asylum application, even though Albania is not a VWP country and even though he was not admitted to the United States for 90 days under the VWP.

The full text of Shkembi v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/212592p.pdf