< back
NEWS FROM THE COURTS
Nguyen v. INS, Fifth Circuit 
Nguyen was born in Vietnam in 1969.  His father, a US citizen, was a serviceman in Vietnam.  His mother abandoned him at birth.  In 1975, he came to the US as a refugee and went to live with his father.  In 1992, he pled guilty to two charges of sexually assaulting a minor.  The INS placed him in deportation proceedings in 1995, alleging he was deportable as someone convicted of two crimes of moral turpitude.  He sought to avoid deportation through a claim of US citizenship.  Despite this claim, he was ordered deported. 
His father obtained a court order naming him Nguyen’s father, based on a DNA test.  This evidence was presented to the Board of Immigration Appeals, which nonetheless dismissed his appeal.  He then appealed to the Fifth Circuit.  
The Fifth Circuit has a very restrictive view of its jurisdiction over immigration cases following the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act.  For it to take jurisdiction of this case, it must find that Nguyen is a US citizen. 
There are two bases upon which a person can obtain US citizenship – birth and naturalization.  A person born in the US is automatically a citizen.  Those born outside the US can obtain birth citizenship only through federal law.  Federal law dealing with children born out of wedlock grants US citizenship automatically to children born of US citizen mothers; for a child born out of wedlock to a US citizen father to obtain US citizenship, the father must take affirmative steps to prove the paternity of the child before it is 18.  Nguyen’s father did not take these steps until Nguyen was over 18. 
Nguyen argued that despite this, he should still be considered a citizen, because the statutory scheme violates equal protection by making it more difficult for men to confer citizenship upon their children than for women.  The Supreme Court has addressed this argument, and found that the statute did not violate equal protection.  However, because the Court’s opinion was severely fragmented, with no opinion carrying a majority of the Justices, the Fifth Circuit conducted its own analysis.  
The Fifth Circuit found the statute constitutional, because it tries to achieve important governmental objectives of fostering the development of a parent-child relationship while the child is a minor.  Moreover, the law is narrowly tailored to achieve these results.  Therefore, Nguyen was found not to have US citizenship, and the court would not review the deportation order. 
********* 
Fuller v. INS, District of Connecticut 
In this unusual case, the court granted the petitioner’s request for a writ of habeas corpus. 
Vincent Fuller, a native of Jamaica, had been a lawful permanent resident since 1977, when he was five years old.  In 1992 he was convicted of selling a controlled substance.  On December 24, 1996, the INS placed him in deportation proceedings.  On July 23, 1997, an Immigration Judge ordered him deported.  Fuller did not appeal this decision to the Board of Immigration Appeals, but he did file a motion to reopen with the IJ.  This motion was denied.  On March 12, 1999, Fuller filed a petition for a writ of habeas corpus and to stay his deportation.  Because of errors in the court clerk’s office, Fuller’s petition was misdocketed, and did not come to the attention of the judge.  On March 18, Fuller was deported.  As INS agents were putting him on a plane, Fuller told them of the petition for habeas corpus.  The agents called the local INS office and were told nothing had been filed on his behalf, so they deported him. 
When Fuller’s attorney learned he had been deported, he immediately filed a motion for an emergency hearing.  The INS moved to dismiss this request, claiming that Fuller’s failure to exhaust his administrative remedies, and his deportation, deprived the court of jurisdiction.  At the hearing on these motions, when asked by the court why the US Attorney’s office did not follow its standard procedures in this case – the US Attorney is supposed to call the INS when the Attorney receives a petition filed in court – the Assistant US Attorney’s answer was that the office did not know about the petition, saying “he was deported before I got – before I saw – it’s unfortunate, but that’s the way it is.”  The court found the actions on the part of multiple government agencies – the INS, the US Attorney’s office, and his own court clerk – that led to Fuller’s deportation were more than unfortunate.  Fuller was deported when, if proper procedure was followed, the judge would have issued a stay of deportation allowing Fuller to remain in the US while his case was resolved. 
The court was fully prepared to reach the merits of Fuller’s petition, but to do so it first had to address the INS claim that the court was without jurisdiction to do so.  The INS made two arguments in this respect: first, that because Fuller had failed to exhaust his administrative remedies he could not seek relief in court; and second, that since he was deported the court was without jurisdiction. 
It is a longstanding requirement in habeas corpus law that a petitioner must exhaust any available administrative remedies before seeking habeas corpus.  However, there is an equally longstanding rule that exhaustion is not required when it would be pointless.  The judge found that an appeal to the BIA would have been pointless in Fuller’s case.  He sought relief under section 212(c) of the Immigration and Nationality Act.  Because of a decision by the US Attorney General finding that such relief was retroactively denied to those such as Fuller, the BIA could not grant this relief.  Because seeking administrative relief would not have redressed Fuller’s complaint, the failure to do so was excused and would not prevent the court from hearing his petition for habeas corpus. 
The INS also argued that because Fuller had been deported, the court did not have jurisdiction.  Prior to 1996, immigration laws provided that once a person had been deported, the courts no longer had jurisdiction over their claims.  This rule was incorporated into the transition rules of the Illegal Immigration Reform and Immigrant Responsibility Act, supporting the INS’ position.  However, prior to 1996, when a petition was filed with a court, deportation was automatically stayed.  After 1996, there was no automatic stay.  This is why, when Fuller filed his petition for habeas corpus, he also sought a stay of his deportation.  If all those agencies involved had followed proper procedure, and the case brought to the attention of the judge in a timely manner, a stay would have been issued.  Speaking about this state of affairs, the court wrote that is was “deeply troubled by the conduct of the INS and the US Attorney’s office in this case. . . . The Government’s dilatory conduct constituted an inexcusable disregard for the gravity of Mr. Fuller’s situation. . . . Yet in its eagerness to impose this sanction (deportation) upon Mr. Fuller, the INS was perfunctory in its minimal efforts to ascertain whether a petition for stay was pending, importantly failing to contact the US Attorney’s office before deporting Mr. Fuller, even in the face of his insistence that some sort of challenge to his deportation had been filed.”  The court concluded that this combination of events, where if the court had been apprised of Fuller’s petition in the beginning, it would have issued a stay, could not remove the court’s jurisdiction.  It found that the law removing jurisdiction after a person was deported did not apply in Fuller’s situation, as it was designed to prevent repeated appeals filed even after a person left the US.  This was Fuller’s first appeal. 
One final issue remained before the court could reach the merits of the case.  For a person to seek habeas corpus, they must be “in custody.”  This requirement has seldom been read strictly, for example, a person who is on probation is considered in custody.  The test that has been developed is whether a person is subject to restrains on his liberty that are not applied to the general population.  The court found this requirement satisfied by the fact that Fuller’s entry into the US, the home of his family, is now severely restricted.  It also relied on an old line of cases allowing aliens to challenge a denial of admission to the US through habeas corpus, and in a line of cases holding that is a person is in custody when the petition is filed, as Fuller was, their subsequent release does not divest the court of jurisdiction.  
Having disposed of any potential bars to jurisdiction, the court then addressed the merits of Fuller’s claim.  The claim was that the denial of relief under section 212(c) of the INA was wrongly applied retroactively.  The court found this to be the case.  The effects of Fuller’s 1992 conviction would be potentially changed after the fact, and in the absence of a clear statement of Congress’s intent that this be the case, such retroactive effect could not be allowed.  Therefore the court granted Fuller’s petition for habeas corpus.  Because Fuller has been absent from the US for some time, the court scheduled a conference at which the parties will discuss Fuller’s current wishes. 
********* 
Singh v. Quarantillo, District of New Jersey 
In this case the court ordered the period of voluntary departure tolled until the INS adjudicated an application for an immigrant visa and adjustment of status filed by the spouse of a US citizen. 
Singh entered the US without inspection in 1994.  In 1995, the INS began deportation proceedings.  Singh sought political asylum.  In 1996, an Immigration Judge issued an order denying him asylum but granting voluntary departure.  He appealed to the Board of Immigration Appeals.  While the case was pending before the Board, Singh married an 18 year old US citizen who filed a petition for an immigrant visa on his behalf.  Singh also filed an application to adjust his status to that of permanent resident.  These applications were filed in November 1997.  In June 1998, the Board heard Singh’s appeal, and affirmed the denial of asylum.  In August 1998, Singh filed a motion to reopen based on the petition filed by his wife and on his application for adjustment.  In January 1999, the Board denied the motion, basing the denial on the lack of an approval notice of the visa application filed by his wife.  Singh did not receive notice of this denial, and did not hear from the INS until April 1999, when he received a letter instructing him to surrender to the INS the next month in preparation for deportation.  The INS had obtained a deportation order in 1998 after the Board denied his application for asylum.  Singh had never been notified of this deportation order.  He was taken into custody in July 1999 and filed a petition for a writ of habeas corpus.  He alleged two grounds for relief.  First, he claimed the Board’s denial of his motion to reopen because the immigration visa petition had not been approved was improper.  Second, he claimed the 1998 deportation order was premature because it was obtained before his period of voluntary departure had expired. 
The District Court addressed two issues, first, whether the filing of the visa petition and adjustment application tolled the deadline for voluntary departure, and second, whether the Board was correct to deny the motion to reopen because the INS had not yet approved the visa petition.  The court found that the only way to preserve Singh’s due process rights was to hold that the voluntary departure order was tolled while the INS dealt with the visa petition and adjustment application.  
The court also found that the Board was incorrect in its decision to deny the motion to reopen.  To allow a person’s access to relief to depend on INS processing would be inappropriate, because in this case had the INS been able to process the applications in a timely manner, the Board would not have been able to deny Singh’s motion to reopen because there was no approval order.  The court found that such an approach undermined congressional intent to allow US citizens to petition for visas for foreign-born spouses.  While marriages entered into while a person is in deportation proceedings are treated with suspicion, the couple must be afforded the opportunity to prove that the marriage is bona fide.  The Board’s approach in this case denied that opportunity, and was therefore reversed by the court.  
The court ordered further proceedings in this case to be stayed until the INS ruled on the visa petition and application for adjustment, and until the Board, with the benefit of these INS rulings, hears Singh’s motion to reopen. 
********* 
Kiareldeen v. INS, District of New Jersey 
In this case, the court awarded attorneys fees of over 0,000. 
For many months prior to October 1999, Kiareldeen was held in INS custody on secret evidence that was not shared with him or his attorneys.  He sued, seeking his release, arguing both that the use of secret evidence violated his due process rights, and that his rights were violated by the use of uncorroborated hearsay evidence to continue his detention.  This court ordered him released, and when the INS failed to pursue an appeal, this order became final and Kiareldeen was released.  
The Equal Access to Justice Act (EAJA) allows a prevailing party to collect reasonable attorney fees in a suit against the US when the US takes a position that is not substantially justified.  In a suit for fees under the EAJA, the US has the burden of proving its position was justified.  
The US attempted to avoid paying fees in this case through a number of arguments.  First, it argued that Kiareldeen was not a prevailing party – that he was not released because of the court order, but because of the administrative process of the INS.  The court disagreed.  It found that the media attention created by the lawsuit clearly contributed to the government’s decision to abandon their efforts to continue Kiareldeen’s detention.  The government also argued that Kiareldeen should not be considered to have prevailed because he did not attain the benefits he sought because the government continues to detain aliens on the basis of secret evidence.  The court found this irrelevant because Kiareldeen was suing not to have the entire secret evidence law declared unconstitutional, only unconstitutional as it applied to him.  
The court then addressed the government’s argument that its position had been substantially justified, and resoundingly rejected it.  The court wrote that “Throughout this litigation, the [government has] asserted marginal legal propositions. . . .  Even now, the government continues to advance that this court lacked jurisdiction over the habeas petition, and thus over the present motion.  The court has already dismissed that argument based on unambiguous Third Circuit precedent. . . .  The court’s earlier opinion observed that many of the government’s basic legal propositions, from threshold jurisdictional issues to constitutional ones, were untenable under existing precedent.  Review of the government’s arguments here confirms that conclusion.” 
The government made a final effort to avoid a finding in favor of Kiareldeen, arguing that he should not receive a fee award because he had committed an immigration violation by overstaying his visa.  The court did not agree, finding that his “admitted visa overstay [is not] sufficient grounds to deny an otherwise proper fee award, particularly when compared to the government’s pattern of concealment and legal misdirection.” 
********* 
Peart v. State of Florida, Supreme Court of Florida 
In this case the Florida Supreme Court ruled that noncitizens that are not advised of the possible immigration consequences of a guilty or no contest plea must be given an opportunity to change that plea if they are later threatened with deportation.  
Under a rule governing Florida criminal trials, judges must advise all noncitizens of the possible immigration consequences of their pleas.  In the case before the court, such advice was not given.  The court ruled that the defendant could file a writ of coram nobis, which is used to correct judgments and sentences that are based on incorrect facts.  Such writs must be filed within two years of the time the defendant learns, or should learn of, his possible deportation.  In most cases, this will be when the INS begins deportation proceedings.  Finally, the court ruled that the defendant need not show he would have been acquitted if he had gone to trial instead of entering the plea, only that they were not advised of the possible immigration consequences of the plea. 
********* 
The Reinforced Earth Company v. Workers’ Compensation Appeal Board, Commonwealth Court of Pennsylvania 
In this case, the court ruled that an employee who is injured on the job is entitled to workers’ compensation benefits regardless of their immigration status. 
The claimant was injured at work by a falling beam.  He was no longer able to perform the same job as a result of these injuries.  He sought workers’ compensation benefits.  The employer sought to have these benefits denied, basing its argument on the fact that the worker was working without INS authorization.  The employer argued that the Immigration Reform and Control Act of 1986, which made it illegal to employ people who do not have INS authorization, eliminated the worker’s right to collect benefits.  The court disagreed. 
Nothing in the Pennsylvania workers’ compensation law prohibits unauthorized workers from receiving compensation.  The court also rejected the employer’s argument that public policy should prevent awarding workers’ compensation benefits to workers without INS authorization.  Not only did the court reject the employer’s view, it found that public policy actually called for such benefits to be awarded to undocumented workers.  Without such benefits, employers would be given an incentive to hire undocumented workers, because they would not have to compensate them for on the job injuries.