FEDERAL COURT UPDATE

Alanis-Bustamante v. Reno, Eleventh Circuit

In this case, the court ruled that for purposes of applying the 1996 immigration laws, a person is placed in deportation proceedings when the INS issued them an order to show cause.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) made many fundamental changes to immigration law.  It also changed the names of many things that are still otherwise the same.  For example, deportation became removal, and an order to show cause – the document the INS issued to initiate deportation proceedings – became a notice to appear.  IIRAIRA also implemented two sets of new rules for appealing a deportation order.  One set, the transitional rules, is applied to cases that were started before April 1, 1997, when the IIRAIRA went into effect.  Permanent rules apply to cases begun after that date.

Bustamante was convicted of possession with intent to distribute marijuana in 1994.  In 1995, while still in prison, he was served with an order to show cause and a warrant of detainer, a document that gives the INS the authority to take custody of a person.  The INS did not, however, file the order with an Immigration Court, which, under INS regulations is necessary to commence formal proceedings.  In June 1997, the INS filed a notice to appear.  The Immigration Judge found him removable and ineligible for a waiver of deportation because the 1996 laws eliminated it for those with drug convictions.  The Board of Immigration Appeals affirmed. 

Bustamante filed a petition for a writ of habeas corpus with the district court.  The district court dismissed the petition, finding that IIRAIRA had eliminated habeas corpus jurisdiction in cases brought to challenge deportation and removal orders.  Bustamante then appealed to the Eleventh Circuit.

The resolution of this case depended on when INS proceedings against Bustamante were started – in 1995 when he was issued the order to show cause and the warrant of detainer, or in June 1997 when the INS filed a notice to appear with the Immigration Court.  If the proceedings began in 1995, habeas corpus relief would still be available.  If they began in 1997, there could be no habeas corpus relief.  Bustamante argued that proceedings against him began in 1995, and the INS, of course, argued that they did not begin until 1997.

The court found that the order to show cause plus the warrant of detainer were sufficient to commence proceedings against Bustamante.  As soon as the INS issued the order to show cause, it had the authority to arrest him.  Moreover, the warrant of detainer meant that even after Bustamante was released from prison, he was subject to INS detention.  Therefore, proceedings began in 1995, making Bustamante subject to the transitional rules, under which an action in habeas corpus is available.  The case was sent back to the district court, which will now decide whether Bustamante is eligible for a waiver of deportation.