NEWS FROM THE COURTS

Patel v. INS, Eighth Circuit
 
Patel, a citizen of India, entered the US on a tourist visa in 1989.  He did not leave when his authorized period of entry was over, and in 1990 the INS moved to deport him.  Patel applied for asylum, which was denied in 1992.  While the appeal of his asylum case was pending, he obtained a work visa by providing false information to the INS.  He sought to adjust his status on the basis of this work visa, but was denied.

After being in the US for seven years, Patel filed a motion with the Board of Immigration Appeals seeking a suspension of deportation.  Before 1996, suspension required that a person demonstrate that deportation would result in extreme hardship, that the applicant was of good moral character, and had been in the US for seven years.  In 1996, Congress amended the requirements to state that the applicant must have been in the US for seven years before being placed in deportation proceedings.

Patel argued that since he had remained in the US for seven years since the INS initially sought to deport him, he met the seven-year requirement.  The Eighth Circuit disagreed, finding that regardless of the seven-year requirement, Patel could not show he was of good moral character, because the Immigration and Nationality Act prevents someone who has given false information to obtain an immigration benefit from demonstrating good moral character.

The opinion is online at http://www.ilw.com/lawyers/immigdaily/cases/2000,1124-Patel.pdf

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Scales v. INS, Ninth Circuit

In this case, the court found that the petitioner was a US citizen and was thus not deportable.

The INS sought to deport Scales on the basis of a conviction for possession with intent to distribute cocaine.  This offense clearly fell under the aggravated felony provisions of the Immigration and Nationality Act, making Scales deportable and ineligible for relief.  Scales sought to avoid deportation through a claim of US citizenship.

Scales was born in the Philippines in 1977 to Aily Topaz, a Philippine citizen, and Stanley Scales, a US citizen who was stationed in the Philippines.  Shortly after Topaz and Scales met, Topaz told Scales she was pregnant, most likely from a previous relationship.  Despite this, Topaz and Scales were soon married, and the petitioner Scales was born after this marriage.  When the petitioner was two, the family moved to the US.  His parents divorced in 1994.  Throughout this time Stanley Scales treated the petitioner as though he were his son.

Initially Scales conceded deportability and admitted that he was a citizen of the Philippines.  Before the Board of Immigration Appeals, however, he argued that he was a US citizen based on the legal presumption that a child born in wedlock is the offspring of the couple.  The BIA rejected this argument, in part based on a statement of non-paternity made by Stanley Scales when the family moved to the US that was necessary for Scales to obtain an immigrant visa.  According to the BIA, for a parent to pass citizenship to a child at birth, there must be a blood relationship between them.  Scales appealed to the Ninth Circuit.

For a US citizen parent to pass citizenship to a child born abroad, the parent must meet certain residency requirements, which Stanley Scales met.  While there are many provisions of the Immigration and Nationality Act that deal with illegitimate children, none address the situation here, where a child is presumed legitimate but is not the natural child of the citizen parent.  The Foreign Affairs Manual (FAM), used by the State Department, does require a blood relationship for citizenship to pass, and the INS argued that the court should defer to this interpretation.  The court disagreed for two reasons.  First, the FAM is used to determine the nationality of people outside the US, while Scales is in the US.  Second, the FAM is not an interpretation of the INA, and it is not an interpretation arrived at after formal rulemaking, which is necessary for an agency interpretation to be given deference. 

Therefore, the court found that Scales was a US citizen at birth.  The case was remanded for further proceedings, which can only be the dismissal of the deportation case.

The opinion is online at http://laws.findlaw.com/9th/9770915.html.

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De La Fuente-Ramos v. INS, Tenth Circuit

In this case, the court dismissed the petitioner’s appeal of a criminal conviction for transporting undocumented immigrants.

De La Fuente was a passenger in a van that was stopped by state troopers in Oklahoma after the troopers saw it driving erratically.  The van contained more than a dozen people of Hispanic origin.  When stopped, the driver indicated that De La Fuente worked for the company that owned the van, and that the company was in the business of transporting people.  The troopers called the INS and escorted the van to the nearest INS office, where the passengers were found to be undocumented.  De La Fuente was charged with transporting undocumented aliens and being unlawfully in the US after being deported.  He filed a motion to suppress the results of the stop, arguing that the troopers did not have reasonable suspicion to stop the van.  The trial judge denied the motion and De La Fuente was convicted.

De La Fuente appealed the denial of his motion to suppress to the Tenth Circuit on two grounds.  First, he claimed that the troopers lacked reasonable suspicion that there had been a traffic violation.  Second, he argued that because there was no evidence that the van was stolen, the troopers were not justified in questioning the passengers. 

For a stop such as this to be constitutional, it must be justified when the stop is first made, and any subsequent questioning or searching must be reasonably related to the reasons for the initial stop.  The court found that the initial stop was justified.  The troopers observed the van touching the center line of the road three times, which provided a reasonable suspicion that the driver was either fatigued or inebriated. 

The court dismissed De La Fuentes’ second argument as contrary to law already established in the Tenth Circuit.  Under Tenth Circuit law, when a driver is unable to produce vehicle registration, as the driver in this case was unable to, a reasonable suspicion that the vehicle is stolen is created and justifies further questioning and searching.  Therefore, the court upheld the denial of the motion to suppress and allowed the conviction to stand.

The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2000,1122-Fuentes.shtm

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