Res Judicata (Claim Preclusion) Applies In Immigration Court

ICE cannot bring a second case based on evidence and charges it could have brought (but for whatever reason did not do so) in a case it tried and lost. This is based on res judicata or claim preclusion.

In Bravo-Pedroza v. Gonzales, No. 03-73999 (9th Cir. Feb. 6, 2007), the Ninth Circuit explained that if ICE brings a case on one theory and for whatever reason chooses not to pursue a second theory then loses the case, ICE may not start a new case based on the second theory using the same evidence it had available the first time.

In Bravo-Pedroza, a lawful permanent resident (someone with a green card) was guilty of three crimes. He obtained a waiver for the first two but did not have any waiver for a petty theft in 1996. From 2001 to May 2003, ICE argued that the petty theft was an aggravated felony that made him deportable. By a change in the law in June 2002, petty theft was not an aggravated felony so ICE lost. Strangely, ICE had a chance to amend the charges and add a charge that the petty theft was a crime of moral turpitude, but ICE chose not to. Therefore, when in June 2003 ICE started a completely new case with that charge, they were barred from doing so because it was fully litigated in the first case and ICE had a complete opportunity from June 2002 to May 2003 to tack on that charge in the first case.

This result is sensible because it treats immigration proceedings in the same way as other civil cases -- if two sides have a dispute, bring all your charges and complaints in one case. You can't let one side pepper the other with a long series of cases based on the exact same facts!

Continued Criticism of Immigration Judge Jeffrey Chase

The Second Circuit heavily criticized IJ Jeffrey Chase again in Ba v. Gonzales (2d Cir. Feb. 21, 2007) (summary order):

We note with concern that, based on the transcript, the tone of this
proceeding is consistent with previous proceedings conducted by this IJ that
have drawn rebuke from this Court. See Islam v. Gonzales, 469 F.3d 53, 56-57
& n.3 (2d Cir. 2006). Here, as they have in other hearings, IJ Chase’s
demeanor and remarks “erode the appearance of fairness and call into question
the results of the proceeding.”1 Id. at 56; see also Guo-Le Huang v. Gonzales,
453 F.3d 142, 150 (2d Cir. 2006). In this same vein, we note one incident in the
hearing that is disturbing because it implicates the attorney-client privilege.
IJ Chase inquired directly of Ba about the communication between Ba and his
attorney: “Did you lie to Mr. Wuestman, yes or no?” Regardless of the relevance
of the inquiry and the answer, it is inconceivable that IJ Chase, as a judge and
lawyer, would not know the impropriety of that question. Accordingly, we request
that the case be assigned to a different IJ on remand. Moreover, given this
Court’s history with IJ Chase, it may improve judicial efficiency if, as
discussed at oral argument, the BIA, sua sponte, closely re-examined all of his
cases that are still on appeal, having in mind our previouslyexpressed
concerns.

The New York Times wrote an article about this case on Sunday, February 25. It is quite an unusual thing for any court to say!

Frequent Immigration Court Mistakes Against Asylum-Seekers

A number of people threatened with deportation instead ask for asylum. There has been an avalanche of criticism in asylum cases where the immigration judges and the BIA (an appellate body formed by the Department of Justice) make frequent mistakes that improperly hurt those seeking asylum. Here's a sampling. Read it to believe it -- so many mistakes against those facing deportation! It must be so frustrating for the circuit courts -- and for the immigrants who have to fight their case for years just to get basic mistakes corrected.

Tang v. BCIS, No. 03-4890 (2d Cir. Feb. 1, 2007) (summary order): IJ Sandy Hom and BIA erred by focusing on discrepancies of asylum-seeker's testimony and written application that her husband filed even though the husband could easily have been lying to invent an asylum claim for himself. IJ Hom and the BIA did not identify how the husband's writings contradicted the asylum-seeker's testimony either.

Liu v. Gonzales, No. 03-4803-ag (2d Cir. Jan. 30, 2007): IJ Philip Morace and BIA erred by concluding the asylum-seeker was not believable because he did not offer enough details about what happened, but the record did not justify that conclusion. For example, he testified he was not present during his wife's sterilization and she did not explain to him how the procedure happened. Yet the IJ complained that he did not provide enough detail about what he was never told about. Also, even if he did not know how doctors conducted sterilization, the way in which someone is sterilized does not affect how an asylum claim can be based on any kind of sterilization. Congratulations to Mark Von Sternberg, Mario Russell of Catholic Charities Community Services along with law students Maame Agyeiwaah, Katie Brandes, and Molly Thomas-Jensen, who filed an amicus curaie brief in support of the asylum-seeker

Hong Chen v. BIA, No. 06-1596 (2d Cir. Jan. 26, 2007) (summary order): IJ Roxanne Hladylowycz and BIA erred by relying heavily on a misapprehension of the record. For example, they thought testimony of a September 2001 arrest contradicted a written application that said an unspecified date after graduating in July 2001, he was arrested. Obviously, not a contradiction.

Mei Dong v. Gonzales, Nos. 05-1232, 05-3768 (2d Cir. Jan. 25, 2007) (summary order): BIA erred by requiring evidence clearly demonstrating future persecution when the law only requires showing a realistic chance of facing future persecution).

Thavendran v. Gonzales, No. 05-2723-ag (2d Cir. Jan. 26, 2007) (summary order): IJ Sandy Hom and BIA erred by not considering whether there was a pattern and practice of persecution in Sri Lanka against people of Tamil ethnicity, a basic issue in asylum cases.

Qin Wang v. BIA, No. 06-2341-ag (2d Cir. Jan. 25, 2007) (summary order): BIA erred by violating the rule that you can file a motion to reopen at any time if you show changed circumstances in your personal case.

Xiang Tang v. Gonzales, No. 06-3267-ag (2d Cir. Jan. 25, 2007) (summary order): IJ Sandy Hom and BIA erred by finding asylum-seeker not believable only because her husband wrote different account in his own case. IJ should have considered possibility the wife was telling the truth while the husband lied to try to help his own application.

Kasama v. Gonzales, No. 05-3091-ag (2d Cir. Jan. 19, 2007) (summary order): IJ Philip Montante and BIA erred by failing to analyze asylum-seeker's claim of persecution due to disproportionate punishment after refusing to be conscripted into a labor force. Also failed to analyze whether military force the asylum-seeker refused to join was condemned by the international community.

Kourani v. Gonzales, No. 06-2413-ag (2d Cir. Jan. 18, 2007) (summary order): IJ Adam Opaciuch and BIA erred by not explaining why they found the asylum-seeker not credible. They also made a mistake by not realizing that someone who flees to avoid punishment for refusing to join a military force condemned worldwide is a valid basis for seeking asylum.

Diaby v. Gonzales, No. 06-2129-ag (2d Cir. Jan. 18, 2007) (summary order): IJ William Van Wyke and BIA erred by not clarifying misunderstands caused by the interpreter and the transcript is confusing. They also never discredited detailed testimony about what the asylum-seeker suffered.

Smajlaj v. Gonzales, No. 05-6712-ag (2d Cir. Jan. 17, 2007) (summary order): IJ Sandy Hom and BIA erred by using flawed reasoning to conclude that someone fleeing Albania can now safely return because conditions changed since 2000. IJ Hom compared the latest reports with the conditions in Albania in 1990, but never compared it with the conditions in 2000.

Huang v. Gonzales, No. 05-5509-ag (2d Cir. Jan. 17, 2007) (summary order): IJ Joanna Bukszpan and BIA erred by assuming with no supporting evidence (and ignoring contrary evidence) that Falun Gong followers can practice their beliefs freely in their homes in China without facing any punishment.

Cao v. Gonzales, No. 06-2609-ag (2d Cir. Jan. 17, 2007) (summary order): IJ Brigitte LaForest and BIA erred by believing the asylum-seeker has the burden of proving relocation to avoid persecution by the government is unreasonable, when the legal regulations state the opposite. They also made other fatal errors that I won't bother describing here.

Pan v. Gonzales, No. 03-40623-ag (2d Cir. Jan. 16, 2007) (summary order): IJ Theresa Holmes-Simmons and BIA made four fatal errors such as mishearing the testimony about how Mr. Pan's wife removed her IUD in 1997 and incorrectly thinking he said his wife became pregnant in 1997.

Xiao v. Gonzales, No. 06-1637-ag (2d Cir. Jan. 11, 2007) (summary order): IJ and BIA made numerous factual mistakes, such as assuming a notation the person moved in 1993 for marriage must have meant they married in 1993, even though they had a 1990 marriage registration and explained they lived with one of their parents for 3 years before finally moving to their own home.

Mema v. Gonzales, No. 05-2570 (7th Cir. Jan. 11, 2007): IJ and BIA ignored the evidence that the person seeking asylum will be attacked because his enemies confuse him with his identical twin, whose political opinions they disliked.

Gomes v. Gonzales, No. 03-3020 (7th Cir. Jan. 11, 2007): IJ and BIA somehow concluded there was no evidence that asylum-seeker faced threats due to his religion even though they accepted as true all of his evidence, including how attackers told him to renounce Christianity or be killed.

Nakimbugwe v. Gonzales, No. 05-60258 (5th Cir. Jan. 5, 2007): IJ and BIA failed to apply the clear rule that if someone mails an asylum application to the government within one year of arriving, the person satisfies the one-year rule even if the government does not receive it until a few weeks later.

Ticoalu v. Gonzales, No. 05-1620 (1st Cir. Dec. 28, 2006): IJ and BIA acted unreasonably by calling a news article on recent violence in central Sulawesi as completely irrelevant to whether the asylum-seeker could safely return to northern Sulawesi.