Split Noted: Must An IJ Provide Notice Of The Need For Corroboration?

Per Pulatov v. Holder (6th Cir. Feb. 25, 2013)

In 2005, Congress passed the REAL ID Act.  The effect of the statute was largely to abrogate several lines of outlier, pro-immigrant precedent from a certain "liberal" circuit.  One of the abrogated lines of precedent held that an Immigration Judge could not require corroboration from a credible alien.

In lieu of the no-corroboration rule, the REAL ID Act provided, in a clause now codified as 8 U.S.C. 1158(b)(1)(B)(ii):

The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.  In determining whether the applicant has met the applicant's burden, the trier of fact may weigh the credible testimony along with other evidence of record.  Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

(Emphases added).  In this unpublished disposition, the CA6 notes, but does not resolve a split between the CA3 and CA9, on the one hand, and the CA7, over whether an IJ must provide notice and an opportunity to respond after reaching the determination that corroboration is necessary.  (p. 7 n.5).

The CA7 concludes that the statute already provides notice of the need for corroboration, because testimony alone only "may be" sufficient, and administrative efficiency does not require a second opportunity to obtain it.

In contrast, the CAs 3 and 9 hold that the statutory language requires opportunity to respond.  Specifically, the Ninth Circuit relies on the  tense of "should provide" and "must be provided" to conclude that the "language focuses on conduct that follows the IJ's determination, not precedes it[;] the statute's future directed language means that the applicant must be informed of the corroboration that is required."  (Third emphasis added).

I come down in the middle of this split.  Specifically, I agree with the Seventh Circuit that the statute provides notice of the general need for corroboration.  And I disagree with the Ninth Circuit that the statute uses future directed language--all of the verbs highlighted are in the present tense.  Thus, I don't think additional advance notice of the need for corroboration is required.

But once an IJ concludes that corroboration is necessary, the statute does mandate--as the CAs 3 and 9 conclude, that the alien be provided an opportunity to respond.  Such a response could take two forms:

1. An explanation that the alien had previously sought the requested corroboration, and was unable to obtain it, in which case the IJ would have to evaluate the explanation and determine whether the requested evidence is reasonable obtainable.  
2. An explanation that the alien had not previously sought the requested corroboration, and believes he would be able to provide it, in which case the IJ would have to determine whether the alien acted reasonably.  

• If the applicant reasonably believed the requested corroboration related to a minor point in his story or would be cumulative, the applicant should be afforded a continuance to obtain the requested evidence.  
• If the applicant acted unreasonably in failing to seek the requested corroboration despite the statutory notice, because it related to a central and uncorroborated point in his story, then the IJ could deny asylum because the alien may simply be seeking to delay the inevitable.

Finally, my apologies for the lagtime between posts.  Nine briefs, two in the Supreme Court, in a month will do that to a man.

Split Noted: Is Control Necessary for USSG 3B1.1?

Per United States v. Samolja (7th Cir. Jan. 25, 2013)

I rarely blog about unpublished cases, but two recent ones have caught my eye.  For other reasons, I cannot blog about one, out of the Fourth Circuit.

Here, however, the Seventh Circuit notes in passing (p.5 n.1) an intra-circuit split regarding whether   a defendant must control others in order to be eligible for an enhancement under U.S.S.G. 3B1.1.  Researching the split revealed that most circuits do require some degree of control, whereas the the CA10, and certain cases of the CA7, do not.

The majority is right.  Here is the relevant statutory text and commentary:

__(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

___(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.

4. In distinguishing a leadership and organizational role from one of mere management or supervision, titles such as "kingpin" or "boss" are not controlling. Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy. This adjustment does not apply to a defendant who merely suggests committing the offense.

By definition, managers, supervisors, and leaders all exercise control.  While the definition of organizer could be broader, in theory, the statutory scheme confirms that it is not.

First,Organizers are equivalent to leaders, who must exercise control.  Second, control is inherent to management and supervision, which are deemed to be lesser included forms of organization.  Third, most tellingly, the commentary requires some "degree of control" for any form of organizing, leading, managing, and supervising.  Finally, if there is any degree of ambiguity remaining after reading the text and the canons, the rule of lenity would also favor a control requirement (circuits seem to uniformly apply lenity to the guidelines, though there is some question whether this application is appropriate).

Split Widened: Is the Definition of Arbitration a Matter of State or Federal Common Law?

Per Bakoss v. Certain Underwriters at Lloyds of London (2d Cir. Jan 23, 2012)

The Federal Arbitration Act announced a national policy in favor of arbitration, and the Supreme Court--through cases like Concepcion and CompuCredit--has been active in ensuring that policy is fulfilled.

Nonetheless, several circuit splits persist.  This split concerns the very foundation of the FAA, the meaning of "arbitration" in section 2:

A written provision in a . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . .  shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

Is arbitration to be defined as a matter of federal common law, or a matter of state law?

The CA2 joins the CAs 1, 6, and 10 in applying federal common law.  (p.5.)  In contrast, the CAs 5 and 9 define arbitration with respect to state law.

The majority is clearly right.  The FAA was intended to announce a national policy.  Having that national policy limited by the vagaries of state definitions of arbitration makes no sense.

Despite a clear split, I am not sure this is a candidate for review.  Not only is the CA2 on the right side of the split (or, at the very least, the side of the split clearly favored by recent Supreme Court FAA jurisprudence), but the opposing decisions are also quite old and might be revisited by their respective circuits in light of the last 20 years of that Supreme Court jurisprudence.

On the note of federal common law, the "Erieblogging" series on Prawfsblog is quite informative for those who do not have Civ Pro nightmares.

Split Widened: Must The Statement, Or The Falsity, Be Material For 18 U.S.C. 922(a)(6)

Per United States v. Abramski (4th Cir. Jan. 22, 2013)

Former police officer Abramski was suspected of robbing a bank.  In the course of investigating that crime, for which the Government apparently found no evidence (p.5), FBI agents uncovered Abramski's purchase of a handgun for his uncle.  Abramski purchased the gun because he was able to obtain a favorable police-officer price, and he concealed the fact that his uncle, who was legally entitled to own guns, was the ultimate purchaser.

As a result of this discovery (and the lack of proof of bank robbery), Abramski was indicted for violating 18 U.S.C. 922(a)(6), making a false statement material to the lawfulness of a firearm sale.  In relevant part, the statute criminalizes:

[K]nowingly mak[ing] any false or fictitious oral or written statement . . . intended to deceive such [licensed] importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm . . . .

(Emphasis added).  Abramski challenged the indictment, contending that the concealment of his uncle was not material because the uncle is legally entitled to purchase firearms.  The district court denied Abramski's motion, and Abramski pleaded guilty while reserving his right to appeal.  The Fourth Circuit affirms, in the process widening a split between the CA5 and the CAs 6, 11, and now 4.  (p. 12-13.)

The split concerns whether "material" simply modifies the statutory term "fact," or also modifies "false or fictitious."  Put another way, the split concerns whether the question answered falsely must be material (CA4, 6, 11), or whether the falsity of the answer must itself be material (CA5). 

I agree with the majority school.  The text of the statute indicates that material modifies fact.  Thus, Abramski's concession that the identity of the purchaser is sometimes material--e.g., where the purchaser cannot legally buy guns--dooms his argument. 

More importantly, to be material, a fact does not necessarily have to affect the outcome of the decision (here, the decision to sell the gun).  Instead, a fact must simply be "capable of influencing" the decision.  Kungys v. United States, 485 U.S. 759, 770 (1988).  The identity of the purchaser is capable of influencing the decision to sell a gun, because some individuals cannot buy guns.  Therefore, identity is material.

Split Widened: Must Evidence Be Admissible To Constitute Brady Material?

Per Johnson v. Folino (3d Cir. Jan. 16, 2013)

The standard of review governing alleged Brady violations is fairly well settled.  A new trial (or habeas) will be granted only if (1) the state suppressed (2) material evidence (3) favorable to the accused.

The split at issue here concerns the second factor, i.e., how to determine if the suppressed evidence is material.  Suppressed evidence is material if there is a reasonable probability of a different result if the evidence been disclosed. 

The CA4 holds, as a matter of law, that inadmissible evidence can never be material.  Other circuits--the CAs 1,2,6,11 and now 3--hold that while inadmissibility is a factor weighing against materiality, it is not a per se bar.

To be honest, the existence of this split surprised me.  The majority school is simply correct.  While inadmissibility is a factor (and perhaps a strong one) indicating that the supressed evidence could not have affected the trial, it is not outcome-determinative.  For example, inadmissible evidence may later become admissible for purposes of impeachment, or may lead to the discovery of additional, and admissible, evidence by altering case-preparation strategies.  And even if none of these events come to pass, the inadmissible evidence may at least alter case-presentation strategy, such as by inviting the jury to consider a theory that is plausible even though not supported by any (admissible) evidence.  

Thus, the CA4 is simply wrong.  Even the case it relies on goes beyond noting inadmissibility to show that the defense attorney would not have prepared any differently had the suppressed evidence been disclosed.

More generally, my Brady concern focuses mostly on the third factor--favorable to the accused.  I am baffled by the issue of how a prosecutor is supposed to determine what is, and what is not, favorable.

Consider, for example, the sentencing of a drug dealer.  Most prosecutors would think a former co-conspirator's admission regarding drug weight to be prejudicial.  Yet, in one of my cases, we successfully used this evidence to mitigate our defendant's personal responsibility and obtain a variance.  Nonetheless, had the prosecutor in that case not followed an open-file policy, he almost certainly would not have viewed the material as being subject to a Brady disclosure obligation.

My general line of work civil tort defense.  I am consistently surprised by the ability of most plaintiffs lawyers to turn any fact, no matter how harmful on its face, into an apparent strength.  Criminal defense attorneys often display the same adaptability.  Yet a strict interpretation of favorability would limit such adaptation.  Thus, I fall on the side of favoring open-file prosecutions in the interests of justice.

Split Created: Addict's Risk of Relapse As Disability Under ERISA

Per Colby v. Union Sec. Ins. Co. (1st Cir. Jan. 17, 2013)

I hated ERISA cases as a clerk.  They were like petitions for review of agency action, requiring record-intensive factual review in an area where the governing law is generally settled--i.e., defer to "reasonable" interpretations of statute/plan language provided there is "some evidence" to support factual positions.  Except that in ERISA, the "agency" record consisted of hundreds of pages of undecipherable doctor's scrawl and review of that record required some medical knowledge.

But enough about me, and onto this relatively straightforward split.  Can an ERISA plan administrator apply a per se rule barring disability benefits for on-the-wagon addicts?  The CA4 said yes, relapse is a choice not a disability.   The CA1 now says no, the present risk of relapse can (but does not have to) amount to a disability.  (See p. 16, 19-20.)  To the extent it influences your opinion, plaintiffs in both cases were anesthesiologists who became addicted to the drugs they administered.

I agree with the CA1.  The CA4's reasoning just looks sparse to me.  In essence, the CA4 ruled that the pre-existing division in precedent on this point ipso facto rendered the administrator's interpretation of the plan reasonable.  But the CA4 performed no analysis of the plan's text--i.e., the definition of disability--itself.  In contrast, the CA1 performs just such a textual analysis and demonstrates how addiction and risk of relapse fall within the plain language of the plan.

That said, I am not on board for all of the CA1 opinion.  For example, the Court bolsters its textual analysis with a reference to the contra proferentem doctrine.  (p. 17.)  But there is a circuit split on whether contra proferentem can ever apply to ERISA plans.  (CA9 yes; CA8 no).  Even assuming the doctrine could apply, moreover, its application is quite troubling where (as here) the plan administrator is explicitly granted discretion to resolve ambiguities.  Unlike certain canons of construction (such as expressio unius or noscitur a sociis), contra proferentem--like the rule of lenity--is a policy-based rule that only comes into play when the statute (or contract) is determined to be ambiguous.  But ambiguity should trigger the administrator's discretion not policy-based canons.  (This is the CA10's approach to contra proferentem in the ERISA context).

The existence of multiple circuit splits make this case an interesting candidate for review, especially where the Court semi-regularly grants cert to clarify ERISA jurisprudence.  If the Court does take cert, I hope it will deal with the contra proferentem issue in the broader context of Chevron deference.  The circuits are currently split on whether to apply traditional canons of statutory construction at Chevron step one, in determining whether the statute plainly addresses an issue.  My view is that some, but not all, of the canons should be applied.  More specifically, the text-based canons should be applied in determining whether Congress has spoken clearly, but not the policy-based canons, which operate more as a thumb on the scale than as an interpretative tool.

Since I opened with a side note, I might as well close with one.  It appears that the First Circuit must batch cases for each panel, and that this panel received the "circuit split" batch.  At least three of my previous posts have related to decisions also arising out of this same sitting.  As before, my best wishes go out to Judge Boudin and his family.

Split Created: What is a Second or Successive Habeas Petition

Per Suggs v. United States (7th Cir. Jan. 17, 2013)

AEDPA bars second or successive habeas petitions.  Here, the prisoner's first petition resulted in resentencing.  Now the prisoner challenges his conviction in a second petition.  Relying on past circuit precedent, a divided panel of the CA7 holds the petition barred, because the conviction issue could have been raised in the first petition.  (p. 8).

The CA2 and CA9 disagree.  (p. 11.)  The correct result is a very close call but I tend to agree with Judge Sykes' dissent and the other circuits:  The petition is not second or successive because the intervening resentencing creates a new judgment, and habeas petitions are directed at judgments.  At bottom, though, I question the panel procedure of the CA7.

The split revolves around the interpretation of a recent Supreme Court decision, Magwood v. Patterson, 130 S. Ct. 2788 (2010).  In Magwood, the Supreme Court held that a petition directed at the new sentence, following resentencing after an initial petition, could not be second or successive:  "[B]oth § 2254(b)'s text and the relief it provides indicate that the phrase 'second or successive' must be interpreted with respect to the judgment challenged." 

Magwood, however, specifically reserved the question here, and did so with a footnote apparently favorably citing past circuit practice:

The State objects that our reading of § 2244(b) would allow a petitioner who obtains a conditional writ as to his sentence to file a subsequent application challenging not only his resulting, new sentence, but also his original, undisturbed conviction. . . .  This case gives us no occasion to address that question, because Magwood has not attempted to challenge his underlying conviction.[fn]

fn.:Several Courts of Appeals have held that a petitioner who succeeds on a first habeas application and is resentenced may challenge only the "portion of a judgment that arose as a result of a previous successful action."

This reservation and citation would seem at first glance to leave past precedent intact.  Nonetheless, the statutory interpretation of Magwood--that second or successive refers to judgments, not claims--fatally undermines past precedent and demands that any petition following a new sentence not be barred because there is a new judgment.

I do not fault the Seventh Circuit majority for following past precedent because it was not explicitly overruled.  This is a very close issue.  I do fault the panel, however, for not pre-circulating their opinion.  As this blog has previously noted, Seventh Circuit Local Rule 40(e) demands precirculation where, as here, an opinion creates a conflict among circuits.  Precirculation would have also been required had the opinion adopted the position of other circuits and overruled past precedent.

In sum, regardless of the position adopted, this case should have been considered for en banc review prior to publication.  And the en banc court may have felt more liberty to depart from past precedent to follow the logic of Magwood.