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NEWS FROM THE COURTS
Perez-Lastor v. INS, Ninth Circuit 
In this case, the Ninth Circuit ruled that the method by which an Immigration Judge heard Preez-Lastor’s asylum application violated his due process rights and remanded the case for further proceedings before a different judge. 
Perez-Lastor, a native of Guatemala, is an ethnic Quiche Indian.  His native language is Quiche.  In his asylum application, he claimed that he was persecuted on the basis of political opinion and membership in a particular social group.  
At the hearing. a translator was provided who would translate English into Quiche and Quiche to English.  However, the hearing started off badly when the Immigration Judge refused to admit into evidence a statement in English signed by Perez-Lastor.  The IJ, through the translator, asked Perez-Lastor whether he could read or write English.  When Perez-Lastor said no, the IJ declined to admit the statement.  Throughout the hearing, Perez-Lastor indicated that he did not understand the person who was to be translating English into Quiche.  The problems in translation led the Ninth Circuit to rule that Perez-Lastor did not receive due process in the hearing.  
In analyzing claims based on the incompetence of a translator, the court looks to three things.  First, there should be evidence of incorrectly translated words.  Second, when a witness provides unresponsive answers to translated questions, it is circumstantial evidence of translation problems.  Finally, when the witness claims to have difficulty understanding what is being said to him, it is also evidence of translation problems.  According to the Ninth Circuit, all these factors were present here.  
The transcripts showed continued confusion between “Guatemala” and “Guatemala City,” and there were repeated occasions where the answer given by Perez-Lastor clearly indicated he was not answering the question asked by the IJ.  Also, Perez-Lastor repeatedly complained that he could not understand the translator.  
In an incompetent translation case, whether the translation was inadequate is not sufficient to reverse the outcome of the case.  There must also be prejudice to the outcome.  Here, the court had little doubt that a better translation would have made a significant difference in Perez-Lastor’s case.  The IJ ruled that Perez-Lastor was not a credible witness, a ruling which, according to the Ninthc Circuit, was the result of the translation difficulties.  Therefore, the court remanded the case for another hearing, with orders that none of the testimony from the first hearing should be admitted as evidence. 
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Lettman v. Reno, Eleventh Circuit 
In this case, the Eleventh Circuit affirmed the ruling of the Board of Immigration Appeals that subsequent immigration acts eliminated any restriction on the retroactive application of the aggravated felony ground for deportation. 
Lettman was convicted in 1987 of third degree murder.  He was not placed in deportation proceedings until 1996.  In 1987, the term “aggravated felony” did not exist in immigration law, and was not a basis for deportation.  However, in 1988 Congress passed the Anti-Drug Abuse Act, which both created “aggravated felonies” and made them a basis for deportation.  Lettman’s crime was classified as an aggravated felony in the 1988 law.  The 1988 law provided that the new ground of deportation would not be applied to those whose crime was committed before it was enacted.  
In 1990, Congress passed the Immigration Act.  Along with expanding the list of crimes considered aggravated felonies, this law also provided that, except in certain specified cases, the new aggravated felony grounds for deportation applied even when the crime was committed before the law was effective.  Lettman argued that this referred to only those aggravated felonies that were added in 1990, and not to make the 1988 law retroactive as well. 
It has long been the case that a person can be deported for a crime that was not a deportable offense at the time it was committed.  Given this, plus the fact that in the 1990 Immigration Act Congress intended to create some uniformity in the grounds of deportation and exclusion, the Eleventh Circuit found that the Board’s interpretation of the 1990 law as eliminating the date restrictions of the 1988 law to be a reasonable one.  It therefore upheld the deportation order against Lettman.  
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In re Ocampo-Ugalde, Board of Immigration Appeals 
The respondent entered the US without inspection in 1985.  In 1997, the INS initiated deportation proceedings against him.  He conceded deportability and indicated that he would seek voluntary departure and abandoning his application for relief from deportation.  Voluntary departure was granted.  The respondent then appealed, arguing that he was eligible for cancellation of removal and requesting that his application for relief be reinstated. 
Before the Board could address the merits of the appeal, it first had to determine whether it could hear the case.  This was an issue because when a person accepts voluntary departure, they waive their right to appeal.  Therefore, the Board had to determine whether this waiver actually occurred.  
There are two primary types of voluntary departure – that granted before proceedings are concluded and that granted at their conclusion.  In this case, voluntary departure was granted before proceedings concluded.  There are five conditions that must be fulfilled when this type of voluntary departure is granted.  First, it must be requested at or before the master calendar hearing at which a merits hearing is scheduled.  Second, the applicant must withdraw requests for other forms of relief.  Third, the applicant must concede their deportability.  Fourth, the applicant must waive all appeals, and fifth, the applicant cannot have been convicted of certain crimes.  According to the Board, all of these conditions but one was clearly satisfied.  It was not clear whether the respondent had waived his right to appeal.  While it was assumed he did, nowhere in the record was the waiver of appeal discussed.  
The Board found that because the waiver of appeal was a necessary requirement to voluntary departure, such a waiver must be made explicit in the record.  Because this case lacked such an explicit waiver, the Board could hear the appeal.  The Board then addressed the merits of the appeal.  It found that the respondent had never entered an application for cancellation of removal, so it was not improperly denied.  Ordinarily, this would end the case.  However, because the grant of voluntary departure was not proper, the court remanded to the Immigration Judge so the respondent could make an application for voluntary departure that satisfied the statutory requirements.