NEWS FROM THE COURTS Gonzalez-Torres v. INS, Fifth Circuit
In this case, the court ruled that the petitioners had no constitutional right to suspension of deportation and affirmed the Board of Immigration Appeals order of deportation.
The petitioners, a family from Mexico, were placed in deportation proceedings in 1991. In 1992 they sought suspension of deportation. The Immigration Judge found that while they met the good moral character requirement, there was no evidence that they had been in the US for the seven years required. Also, the IJ found that they would not suffer extreme hardship if deported. They were given orders to voluntarily depart by December 17, 1992. They appealed to the Board of Immigration Appeals, and also, in 1996, filed a motion to reopen the deportation proceedings based on the death of the father of the family. In 1998, the BIA ruled that none of the family members had accrued the seven years residence necessary for suspension of deportation before being placed in deportation proceedings. The requirement that the necessary period of physical presence be attained before deportation proceedings began, known as the stop-time rule, was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Before that, a person could continue to accrue physical presence even after being placed in proceedings.
They then appealed to the Fifth Circuit, arguing that retroactive application of the stop-time rule violated their due process rights. They argued that even if Congress intended the stop-time rule to be applied retroactively, due process concerns of fair notice of the law prevented such application. The Fifth Circuit disagreed. It found that because a grant of suspension of deportation was discretionary, the petitioners had no constitutionally protected interest in being eligible for such relief.
The petitioners also argued that they should be eligible for suspension of deportation because they had accrued seven years of physical residence after being placed in deportation proceedings. The court refused to address this argument on the ground that the petitioners had failed to make it before the BIA. The court therefore upheld the decision of the BIA that the petitioners were not eligible for suspension of deportation.
The opinion is available online at http://www.ca5.uscourts.gov/opinions/pub/99/99-60395-CV0.HTM
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Alfaro-Reyes v. INS, Ninth Circuit
In this case, the court ruled that it lacked jurisdiction to hear claims of constitutional error on direct review from the Board of Immigration Appeals.
Four cases were consolidated in this opinion. Each of the people had been convicted of a controlled substance offense and found ineligible to apply for a waiver of deportation. In each case, proceedings were ongoing when Congress passed the law that rendered them ineligible for a waiver. They sought review of this decision by the Ninth Circuit, claiming that the new law was improperly retroactively applied to them, and that it violated the constitutional guarantee of equal protection by preventing deportable aliens from seeking such a waiver but allowing excludable aliens to pursue it.
The first issue for the court was whether it had jurisdiction. These cases arose under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act, which provides that “there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed” a number of criminal offenses, including controlled substance offenses. The Ninth Circuit had previously ruled that this provision divested it of jurisdiction to hear statutory claims on appeal, and now ruled that it also precluded review of claims of constitutional error.
The court found that language of the IIRAIRA to be clear and straightforward. “There shall be no appeal” clearly indicates Congress’s intent to eliminate direct appellate review of deportation proceedings. The court found such a conclusion was supported because one of the goals of the IIRAIRA was to eliminate a number of the ways in which aliens could seek to avoid deportation. The constitutional issues that would be raised if all possibility of review was eliminated were not an issue for the court because it has previously ruled that habeas corpus remains available to examine claims of constitutional error in deportation proceedings. So while the court dismissed the case for lack of jurisdiction, the petitioners are still free to bring a habeas corpus case in the federal district court.
The opinion is available online at http://laws.findlaw.com/9th/9770443.html.
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Contreras v. Corinthian Vigor Insurance Brokerage, Inc., Northern District of California
In this case, the court ruled that Contreras’s employer reported her undocumented status to the INS in retaliation for her filing a claim for unpaid wages and that this retaliation violated the Federal Labor Standards Act.
Contreras was employed by Corinthian as a secretary for almost two years from 1995 to 1997. She claimed that after she filed a claim against Corinthian for unpaid wages, the company reported her to the INS for working without authorization. She filed suit against Corinthian, alleging that they improperly reported her in retaliation for the claim, in violation of the Federal Labor Standards Act.
The FLSA provides that it is unlawful to fire or otherwise discriminate against an employee because they have filed a complaint against the employer. It is up to the employee to produce proof that the employer improperly retaliated. Contreras produced circumstantial evidence of retaliation. When there is only circumstantial evidence, the employee must also show that they engaged in an activity protected by the FLSA, that they suffered adverse actions from the employer, and a causal connection between their activity and the employer’s actions.
In filing the claim for unpaid wages, Contreras was engaging in action protected by the FLSA. She also suffered adverse actions – her employer reported her to the INS and the Social Security Administration. Finally, the court found a clear causal connection. The employer contacted the INS the day after the first hearing on Contreras’ claim for unpaid wages. Therefore, the court found it clear that the employer had retaliated against Contreras in violation of the FLSA.
The opinion is not available online.
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Arias-Agramonte v. INS, Southern District of New York
In this case, the court ruled that the 1996 immigration laws could not be retroactively applied to the petitioner and reinstated an order granting him a waiver of deportation.
Arias has been a permanent resident of the US since 1967. In 1978 he was convicted of sale of a controlled substance. He was sentenced to two years probation. In 1998 he went to the Dominican Republic for his father’s funeral. Upon his return, he was detained by the INS and charged with inadmissibility as an alien whom the INS knows or has reason to believe is a trafficker in controlled substances. He sought a waiver of deportation, which was granted by the Immigration Judge. In his opinion the IJ stated that “there is no doubt in the court’s mind that the respondent has been rehabilitated and that no purpose would be served for the United States by punishing a man who was given probation in the first place 20 years ago.”
The INS appealed the decision to the Board of Immigration Appeals, which reversed the decision of the IJ on the ground that the Illegal Immigration Reform and Immigrant Responsibility Act repealed the waiver for aliens convicted of aggravated felonies. Arias then filed a petition for a writ of habeas corpus to secure his released from detention. The INS argued that the court lacked jurisdiction to hear his case. The question of whether habeas corpus jurisdiction survives under the permanent rules of the IIRAIRA is currently pending before the Second Circuit, in which the Southern District of New York is located. However, the Second Circuit has ruled that habeas corpus jurisdiction survived under the transitional rules of the IIRAIRA, and the district court felt that it would likely find it survives under the permanent rules. Therefore, the district court ruled that it retained jurisdiction to hear Arias’ habeas corpus petition.
Having determined that it could hear the case, the court moved on to examine the merits of Arias’ claim. Arias argued that application of the IIRAIRA to make him ineligible for a waiver was improperly retroactive. The court agreed. It found that application of the IIRAIRA created new legal consequences to his 1978 conviction. Therefore it reinstated the IJ’s decision granting a waiver of deportation.
The case is not available online.
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In re V-Z-S-, Board of Immigration Appeals
In this case, the Board ruled that grand theft auto is an aggravated felony theft offense that renders a person deportable and ineligible for relief from removal.
The respondent, now 27, entered the US as a permanent resident when he was two years old. In February 1996, he was convicted of grand theft auto and sentenced to two years in prison. Claiming his conviction of a theft offense was an aggravated felony, the INS placed him in deportation proceedings. An Immigration Judge found him deportable, and also ruled that he was ineligible for any form of relief because of his aggravated felony conviction.
The determination of whether an offense is an aggravated felony depends largely on federal law, and the law under which an alien is convicted is compared to an analogous federal law. There are numerous types of theft offenses, some of which do not involve an intent to permanently deprive the owner of his possession. The respondent argued that because he did not intend to keep the car, he was not guilty of theft. The Board disagreed, finding that the law has evolved to a point where the intent to permanently deprive the owner of his property is no longer an essential element of a theft. The Board backed this conclusion up with a Supreme Court case dealing with a federal car theft statute. In that case the Court held that stealing included any unauthorized taking of a car, whether or not it could be classified as common law larceny.
The Board then examined the California statute under which the respondent was convicted and ruled that the respondent had been convicted of a theft offense for which he could have been convicted under federal law. Because the California courts infer an intent to permanently deprive an owner of his property when a car is stolen, the Board found it clear that the respondent’s offense was a theft offense.
The text of the opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3434.pdf.
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