NEWS FROM THE COURTS

Ashki v. INS, Sixth Circuit

In this case, the court upheld the retroactive application of the stop time rule, and found that the applicant was not eligible for suspension of deportation.

Ashki, a native of Iran, entered the US in 1984 on a student visa.  Later that year she married a US citizen, who filed an application for a green card for her.  The INS found that the marriage was fraudulent and was entered into solely for immigration purposes and then moved to deport Ashki.  Seeking to avoid deportation she filed an application for asylum, which was denied in 1987.  In 1996, Ashki moved to reopen her deportation proceedings so that she could seek suspension of deportation.  The motion was denied because the Board of Immigration Appeals found that Ashki did not have the required seven years of physical presence in the US.  The Board based this conclusion on its application of the stop time rule enacted in 1996.  This rule provides that a person’s period of physical presence in the US ends when they are served with a notice of a deportation hearing.  The Board found that when Ashki was served with this notice, she had only been in the US for two years.  Ashki appealed to the Sixth Circuit.

Prior to 1996, there was no stop time rule and a person could apply for suspension of deportation regardless of the circumstances under which they accrued seven years in the US.  The law enacted in 1996 was not clear about whether the stop time rule was to be applied retroactively, so in 1997 Congress amended the provision to make clear that it was to be applied regardless of when the person was first placed in deportation proceedings.  Because of this, the court upheld the Board’s denial of Ashki’s motion to reopen.

Ashki also argued that because some aliens are exempted from the stop time rule, it violates equal protection.  The court dismissed this argument because it is well established that Congress may make distinctions among classes of aliens that it would not be able to make with any other group.  Ashki also argued that the stop time rule violated her due process rights.  The court dismissed this argument because as a person who is in the US without authorization, she has no right to remain in the US.  Moreover, the court ruled, because suspension of deportation is a discretionary form of relief, one has no right to it.  Therefore, it upheld the decision of the Board denying the motion to reopen.

The opinion is available online at http://laws.findlaw.com/6th/00a0406p.html.

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Roman v. INS, Seventh Circuit

In this case, the court, while critical of the reasoning of the Board of Immigration Appeals, nonetheless upheld its decision denying asylum.

Roman, a Romanian national, sought asylum in the US in 1993.  He believed that he would face persecution if deported to Romania because of his refusal to cooperate with the government.  Throughout his life, he refused to join the Communist Party.  He was, however, able to attend college and became an aviation engineer.  This position allowed him to travel abroad at least twice a year.  He was in Nigeria when Ceausescu’s regime was overthrown in December 1989.  When he returned to Romania, he participated in demonstrations against the Communists who remained in power.  At the time he was part of a group working to privatize the airline for which he worked.  He was warned to stop these activities and was threatened several times.  His car was also tampered with. 

The Immigration Judge hearing his asylum application requested the State Department’s Board of Human Rights and Humanitarian Affairs to produce an advisory opinion on Roman’s claims.  Issued in January 1994, this document claimed that there was no way Roman could have been treated as he claimed under the Ceausescu regime, given his relative prosperity and freedom.  It also said that while Romania was struggling with transition, there was general respect for civil rights and anti-Communist sentiments were widespread. 

The IJ concluded that Roman should not be granted asylum, finding that his claim that he would be persecuted was purely speculative and was not supported by any corroborative evidence. 

Five years after the asylum hearing, the Board of Immigration Appeals finally heard the case, and dismissed Roman’s appeal.  The Board found that while Roman may have been harassed, it did not rise to the level of persecution.  Also, relying on the State Department document, the Board found that he could not have a reasonable fear of future persecution.  Roman then appealed to the Seventh Circuit.

On appeal Roman argued that by delaying its decision for five years, the Board denied him due process.  The court did not agree, primarily because Roman had not argued that the delay caused the Board to rule on facts that were no longer the case.

Reviewing the merits, the Seventh Circuit found that Roman was persecuted, but that he failed to show that the persecution was by the government.  On the issue of future persecution, while the court did agree with the Board, the court also reminded it that it should not uncritically accept State Department documents.  However, because Roman failed to present any evidence other than his own statement that contradicted the State Department report, the court had no choice but to accept the Board’s finding that Roman did not have a reasonable fear of future persecution. 

The opinion is available on line at http://www.ilw.com/lawyers/immigdaily/cases/2000,1206-Roman.shtm

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US v. Rodriguez-Fernandez, Eleventh Circuit

In this case, the court reversed the defendant’s conviction for escaping detention because there was no order for that detention.

In 1997, a final order of deportation was entered against Rodriguez-Fernandez.  At the time he was serving a sentence in a Florida state prison.  When he completed his sentence, the state released him into the custody of the Broward County Sheriffs’ Department, which had issued a detention request.  Two months later, Broward County sheriffs took him to the Krome Detention Center outside Miami where he was placed in INS detention.  A few months later, Rodriguez-Fernandez and another detainee escaped from Krome.  He was eventually captured and tried for escaping.

The provision under which he was prosecuted has three elements that must be proven beyond a reasonable doubt for there to be a conviction.  First, the defendant must have been ordered detained by the INS; second, the detention must have been in preparation for deportation; and third, the defendant must have escaped.  At trial, the defense attorney argued that the government could not prove the first element.  The trial judge disagreed, finding that the testimony of an INS agent that the law required Rodriguez-Fernandez’s detention was sufficient, and a jury convicted him of escape.

Rodriguez-Fernandez appealed.  The Eleventh Circuit found that the lack of an order for his detention called for the reversal of the conviction.  As the court stated “there is no authority for the proposition that the experience and judgment of a detention officer alone” can take the place of an official order of detention.

The opinion is available through Lexis using this citation: 2000 U.S. App. LEXIS 30717.

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In re Vasquez-Muniz, Board of Immigration Appeals

In this case, the Board ruled that for a firearms offense to be an aggravated felony, it must contain the federal jurisdictional element that the firearm have been a part of interstate commerce.

Vasquez-Muniz was admitted to the US as a permanent resident in 1978, when he was five years old.  In 1991, he was convicted of robbery and was sentenced to six months in prison and three years on probation.  In 1996, he was convicted of being a felon in possession of a firearm.  He was sentenced to 32 months in prison.  In 1999, the INS placed him in deportation proceedings, claiming that he was deportable because of the firearms offense.  It later also claimed that the firearms offense was also an aggravated felony for which he could be deported.  Vasquez-Muniz conceded deportability based on the firearms, but challenged the aggravated felony ground. 

At the deportation hearing, the Immigration Judge asked the INS on what basis it concluded that Vasquez-Muniz had been convicted of an aggravated felony.  The INS pointed to a federal criminal law making it a felony for a convicted felon to possess a firearm that has been shipped across state lines.  The INS said that even though there was no requirement in the law under which Vasquez-Muniz was convicted that the gun have traveled across state lines, there is a presumption that any weapon made in the US will travel across state lines and that it was Vasquez-Muniz’ burden to prove otherwise.  The IJ did not find this argument persuasive.  Vasquez-Muniz was found to be deportable on the basis of the firearms offense, but not because of an aggravated felony.  Because he was not deportable for committing an aggravated felony, he was able to apply for cancellation of removal.  The INS appealed.

On appeal, the INS argued that the requirement that the firearm must have traveled across state lines should not be applied in this situation because it is a jurisdictional element necessary only for a federal court to prosecute such possession. 

The Board agreed that the provision was jurisdictional and was part of the law because otherwise Congress would not be able to regulate firearms possession.  However, such a characterization does not change the fact that it is an element of the offense.  For the Board, the primary issue was the definition of aggravated felony, particularly the section including firearms offenses.  This section provides that “an offense described in” the US Code dealing with firearms is an aggravated felony.  The INS argued that this meant only that the offense meet the substantive requirements, not the jurisdictional requirements.

The Board examined the definition of “describe,” and found no cases in which it was used in the way proposed by the INS.  It also examined the use of the word in the US Code, and found that it was consistently used to refer to an entire statute and was not used to mean a similar offense.  The Board also rejected the INS’ argument that Congress did not intend for the INS to have to establish federal jurisdictional elements, finding that if Congress had intended that, it would have included language to that effect in the definition of aggravated felony. 

The Board therefore upheld the ruling of the IJ allowing Vasquez-Muniz to seek cancellation of removal.

The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3440.pdf.