NEWS FROM THE COURTS Vujisic v. INS, Seventh Circuit
In this case, the court reversed the ruling of the Board of Immigration Appeals that desertion from military service could not constitute the basis for a political asylum claim.
Vujisic, an ethnic Serb, was born in the region of Yugoslavia that later became Slovenia. At age 18, in 1989, he joined the Yugoslav army for one year of compulsory military service. He was discharged after one year. Five months later, military police officers came to his home and took him to a base in Serbia for “military exercises.” He was held for several days, during which time the Yugoslav army was invading Slovenia. While he was being held, an officer learned that Vujisic had been born in Slovenia, and accused him of being a spy. He was beaten until another officer came along and stopped it.
After about a week, Vujisic was sent home. After another week, Yugoslav army officers came to his home to again conscript him. He was not home, but the officers forced their way into his home, knocking down his mother. Upon learning of the incident, Vujisic fled to another village, and then to a city, thinking it would be easier to hide there. Despite his efforts, the police followed him from place to place. On one occasion, his father was questioned about his whereabouts, and after he refused to give information, he was dishonorably discharged from the army without pension. Vujisic obtained a Canadian visa and fled Yugoslavia just days before the government closed the Belgrade airport. He then entered the US, making a false claim of US citizenship. The false claim was discovered and Vujisic pled guilty to unlawful entry and applied for political asylum.
An Immigration Judge denied his application, which was affirmed by the Board of Immigration Appeals. The BIA found that punishment for desertion from military service was not persecution on account of political opinion, and that given the changed conditions in the former Yugoslavia, he had no reason to fear persecution if he were returned to Slovenia. Vujisic appealed to the Seventh Circuit.
The court found that Vujisic had presented substantial evidence of past persecution that the IJ and BIA had ignored. The IJ and BIA had erred in finding that Vujisic only faced punishment for desertion, according to the Seventh Circuit, which found that he was singled out because he was Slovenian and refused to fight in the war against Slovenia. Moreover, the BIA erred in ruling that desertion could never be a basis for asylum. While this is often true, there are cases in which it can be. The UN Handbook on Refugees states that if the “military action with which an individual does not want to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft evasion could in itself be regarded as persecution.” The court found the actions of the Yugoslav army against Slovenia to fit this description. It also found that because of the harm his family had suffered, Vujisic had a well-founded fear of persecution. The court also found there was no basis for the BIA’s opinion that changed conditions in the former Yugoslavia meant he would not face persecution if returned. The international community continues to condemn Yugoslavia for its wars against former provinces, and is attempting to bring the Yugoslav President Slobodan Milosevic to trial for war crimes. Therefore, the court remanded the case to the BIA for further proceedings.
The case is available online at http://laws.findlaw.com/7th/993184.html
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Fornalik v. Perryman, Seventh Circuit
In this case, the court had to reconcile conflicting decisions of two INS offices, one calling for deportation, the other for deferred action. It upheld the deferred action order, and ordered the INS office calling for deportation to honor the deferred action order.
Boguslaw Fornalik, a Polish national, is a 17-year-old in deportation proceedings. His mother, father, and three siblings are all permanent residents in the US. He sought permanent residence through his father, or alternately, through a self-petition as the abused child of a permanent resident. In 1995 his father was selected as a winner in the diversity visa lottery. He became a permanent resident on August 22, 1995, leaving only a month for his family to obtain visas and enter the US. This is because the visas reserved under the diversity visa program expire at the end of the fiscal year, September 30. While this would ordinarily be the end of the issue, there were such problems with issuing diversity visas in Poland in 1995, Congress enacted a special law calling for the issuance of an immigrant visa to those who applied for the visa during fiscal year 1995. Boguslaw filed an application under this section, but the INS rejected it saying he had not made an application in 1995. The INS placed him in deportation proceedings.
Seeking to avoid deportation to Poland, where his only family was a 90-year-old grandmother, he filed an application for permanent residence as the abused child of a permanent resident with the Vermont Service Center, where all such applications must be filed. He also sought a writ of habeas corpus, alleging that it was the INS’s failure to notify the National Visa Center and the consulate in Warsaw of the visa available to him that prevented him from obtaining the immigrant visa in a timely manner. The court found that this failure was not the INS’s, but was the fault of Boguslaw’s father, who had failed to file the necessary forms to have such notification given.
The court then turned to Boguslaw’s self-petition. It found that the Fornalik family situation had deteriorated since coming to the US. His mother has moved out and obtained an order of protection against her husband, and Boguslaw himself was subject to physical abuse from his father. After a district court dismissed his petition for habeas corpus, but before the appeal was heard, the Vermont Service Center approved Boguslaw’s petition, and granted him 15 months of deferred action, meaning he would not face deportation for 15 months. Despite this order of deferred action, the Chicago INS office proceeded with deportation. At oral argument before the Seventh Circuit, lawyers for the INS maintained that the deferred action order in no way limited the power of the Chicago office to deport Boguslaw.
The court found that the Chicago office could not simply ignore the ruling of the Vermont Service Center. To resolve the issue of which INS office decision should control, the court ruled that the most recent decision, that of the Vermont Service Center would.
In a final attempt to deport Boguslaw, the INS relied on section 242(g) of the Immigration and Nationality Act. This section removes federal court jurisdiction to review decisions of the INS to commence, adjudicate, or execute deportation proceedings. The court found that while Boguslaw was seeking to avoid deportation, section 242(g) was not applicable here. The heart of Boguslaw’s claim was that his application for permanent residence was improperly denied, with the fact that he was in deportation proceedings being only an incidental factor. Therefore, the court ordered the Chicago INS office to obey the deferred action order.
The case is available online at http://laws.findlaw.com/7th/992442.html
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Pena v. Schiltgen, Ninth Circuit
In this case, the court reversed the ruling of the district court that it lacked jurisdiction to hear the case, and ordered it to hold a hearing on whether Pena should be granted a writ of coram nobis.
Pena, a citizen of Nicaragua, was granted political asylum in 1987 based on his anti-Sandinista activities. He had come to the US in 1980, shortly after the overthrow of the Sandinista government, fearing he would be singled out for persecution because he was a member of the National Guard, the personal protection service of Sandinista President Somoza. While in the US he worked for the FDN, the leading anti-Sandinista group in the US.
In 1984, Pena pled guilty to several counts of possession of cocaine with intent to distribute. According to Pena, the profits made from the sale of the cocaine were being used to fund military operations of the Contras. He further claimed that he believed the US government sanctioned his activities. At the time of his guilty plea, his immigration status was never an issue, in part because the US Attorney prosecuting the case told him it would not affect his status in the US. After his guilty plea, he was granted asylum.
In 1996, the INS notified Pena that it was revoking his asylum because of the conviction, and was placing him in deportation proceedings. Pena filed a writ of habeas corpus, seeking to have a court declare that his conviction could not be used to deport him. One of the requirements to a successful habeas corpus claim is that the petitioner must be in custody. Custody can be actual or constructive. Pena is not in the physical custody of the INS, nor is he yet subject to a final order of deportation, meaning he is not in constructive custody. Therefore, he cannot seek habeas corpus.
However, the court found that it could view Pena’s petition as an application for a writ of coram nobis, a special proceeding used to challenge the validity of a conviction after all other appeals have been exhausted. For a court to grant a writ of coram nobis, four conditions must be met. First, there must be no more usual remedy available. Second, there must be a valid reason for not seeking to have the conviction reversed sooner. Third, the petitioner must be facing severe adverse consequences as a result of the conviction, and fourth, there must have been a fundamental error in the conviction.
The court found that because Pena was not in custody, the more usual remedy of habeas corpus was not available to him, thus satisfying the first requirement. The court also found valid reasons for not attacking the conviction earlier, because he had been granted asylum after the conviction, leaving him to believe it would not be a problem. Deportation was a sufficient adverse consequence of the conviction, satisfying the third requirement. For the fourth requirement, fundamental error in the conviction, the court found many supporting facts. Pena was selling drugs to provide money to arm the Contras against the expressed will of Congress. The US government itself similarly violated the law to provide arms to the Contras, with the activities coming out in the Iran-Contra scandal. Pena believed the US government was aware of his activities, and when it sought to prosecute him, he fully cooperated. He was told he would not face any adverse immigration consequences, and indeed was granted asylum after his conviction. The fact that he is now facing deportation, to the court, indicated that there was a serious error in his conviction. Therefore, the court remanded the case to the district court for a full evidentiary hearing on whether to grant Pena a writ of coram nobis reversing his conviction.
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