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THIRD CIRCUIT RULES AGAINST JUSTICE DEPT. PHILADELPHIA — Rejecting the U.S. Justice Department’s position on a fundamental issue in immigration law, the Third Circuit U.S. Court of Appeals has ruled that the federal district courts have jurisdiction to consider claims alleging violations of the United Nations Convention Against Torture. Third Circuit Judge Thomas Ambro’s opinion in Ogbudimkpa v. Ashcroft is sharply critical of the Justice Department for taking “flip-flopping positions” and employing “Catch-22 tactics” in its handling of immigration cases. The ruling clears the way for Nigerian citizen Christopher Ogbudimkpa to pursue a habeas corpus petition to seek cancellation of a deportation order on the grounds that, if he were returned to Nigeria, he would be imprisoned, tortured or possibly executed. Government lawyers argued that since the Convention Against Torture, or CAT, is not a “self-executing” treaty, an alien has only those CAT claims that Congress has expressly provided. In the context of a non-self-executing treaty, the government argued, the question for the courts is whether there is evidence that Congress intended to provide for the availability of habeas review. The Third Circuit disagreed, finding instead that since Congress implemented CAT by enacting the Foreign Affairs Reform and Restructuring Act of 1998, the proper question was whether FARRA “deprives” the federal district courts of habeas jurisdiction, and “not whether it grants it.” “ Habeas relief is available for an individual who claims his or her continued detention violates a statute or a treaty. CAT has been implemented by FARRA and its accompanying regulations,” Ambro wrote in an opinion joined by Third Circuit Judge Dolores Sloviter and visiting U.S. District Judge Petrese Tucker of the Eastern District of Pennsylvania. — The Legal Intelligencer D&O POLICY PROCEEDS NOT ADELPHIA ASSET NEW YORK — The proceeds of an insurance policy covering legal expenses of the Rigas family and Adelphia Communications Corp. officers is not an asset of the bankrupt company, a Southern District judge has ruled in a case of first impression in the Second Circuit U.S. Court of Appeals. Judge Harold Baer found that Bankruptcy Judge Robert Gerber incorrectly stated that litigation over the proceeds was subject to an automatic stay under 11 U.S.C. � 362(a)(3), but that the bankruptcy judge could extend a stay if he hears more from the parties and decides such a course is warranted. The ruling comes after Gerber allowed John, Timothy, James and Michael Rigas, who are charged with multiple counts of corporate fraud in managing the communications company, to apply for $300,000 each in legal defense costs under the directors and officers policy, which covers wrongful acts. The issue has divided circuits elsewhere in the country, Baer said, and has yet to be addressed in the Second Circuit. — The New York Law Journal

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