NEWS FROM THE COURTS Castro-Baez v. Reno, Ninth Circuit
In this case, the court ruled that a conviction of rape under California law is a conviction of an aggravated felony for immigration purposes.
Castro-Baez, a native of Mexico, has been a permanent resident of the US since 1989. In 1996 he was convicted of rape by the California courts. In 1998 the INS placed him in deportation proceedings, claiming his rape conviction was for an aggravated felony. The Immigration Judge found him deportable an ineligible to seek any form of discretionary relief. The Board of Immigration Appeals upheld this ruling, and Castro-Baez appealed to the Ninth Circuit.
Castro-Baez argued that because the California rape statute does not mirror federal rape statutes, a California rape conviction could not be an aggravated felony. The court disagreed, finding that the Immigration and Nationality Act clearly made rape an aggravated felony. The definition of aggravated felony in the INA includes rape, and while the INA does not define rape, another section of the INA makes clear that aggravated felonies for immigration purposes include offenses in violation of both federal and state laws.
Moreover, in a previous case, the Ninth Circuit had held that rape under the INA should be defined according to its “ordinary, contemporary, and common meaning.” The statute under which the conviction was obtained should then be compared to this meaning. In making this comparison, the court looks only to the definition of the crime, not the circumstances of the individual offense. Castro-Baez was convicted under a statute that defined rape as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . where a person is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.” The court found that this definition was encompassed by the ordinary understanding of rape, and therefore that Castro-Baez had been convicted of an aggravated felony.
The case is available online at http://laws.findlaw.com/9th/9970484.html
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US v. Maldonado-Ramirez, Eleventh Circuit
In this case, the court upheld an enhanced sentence based on prior convictions of aggravated felonies, but reversed the trial judge’s order that Maldonado-Ramirez not contest any deportation order instituted against him.
Maldonado-Ramirez was prosecuted for illegally reentering the US after being deported. He was convicted and his sentenced was enhanced on the basis of prior convictions that the judge found qualified as aggravated felonies. The judge also made a condition of his parole after release that he not contest his deportation. Maldonado-Ramirez appealed, claiming that the aggravated felony definition was ambiguous in that it did not specify whether an aggravated felony was determined by the sentence actually imposed or by the amount of time actually spent in prison. The court disagreed, finding that another provision clarified that the determining factor was the sentence imposed. Therefore, the court found that Maldonado-Ramirez’ sentence was properly enhanced.
Maldonado-Ramirez also appealed the judge’s decision to condition his release on not contesting his deportation. The Eleventh Circuit found this condition was improper. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, federal courts cannot order deportations. According to the Eleventh Circuit, when the judge attempted to eliminate Maldonado-Ramirez’ right to contest his deportation, it essentially ordered him deported. Therefore the court remanded for the judge to modify his order by eliminating the restriction on Maldonado-Ramirez’ right to seek relief from deportation.
The case is available online at http://caselaw.findlaw.com/cgi-moses/getcase.pl?court=11th&navby=case&no=9911190OPN
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Gavilan-Cuate v. Yetter, District of Minnesota
In this case, the court found that federal court jurisdiction over petitions for habeas corpus survived under the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA).
Gavilan-Cuate has been a permanent resident of the US since 1988. He has five US citizen children. In 1998 he pled guilty to conspiring to transport and harbor undocumented immigrants. Because his role in the conspiracy was minor, he was sentenced to only four months in prison. After he was released, the INS placed him in deportation proceedings, on the ground that he had been convicted of an aggravated felony. Since the deportation proceedings began, he has been in INS detention. He filed for a writ of habeas corpus, claiming that he had not been convicted of an aggravated felony.
The INS argued that the court lacked jurisdiction to her his case under the permanent rules of the IIRAIRA. The court disagreed. Minnesota is within the Eighth Circuit, which has not ruled on whether habeas corpus jurisdiction continues under the permanent rules. The Eighth Circuit has, however, ruled that habeas corpus jurisdiction survived under the transitional rules. In so ruling, the court found that for Congress to eliminate a person’s right to seek habeas corpus, it must explicitly say it is so acting. Under neither the transitional nor the permanent rules did Congress specifically mention habeas corpus. Therefore, the court found that Congress had not eliminated habeas corpus under the permanent rules.
The court also found that the offense was not an aggravated felony. While offenses “relating to alien smuggling” are aggravated felonies, the judge found that the offense at issue here, conspiracy to transport and harbor undocumented immigrants, did not qualify. Therefore, the writ of habeas corpus was issued.
The case is not available online, but is available through Lexis at 2000 U.S. Dist. LEXIS 5391
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In re S-A-, Board Immigration Appeals
In this case, the Board amended an order issued in this case in August 1999, and designated the case as a precedential decision.
The respondent is a young woman from Morocco. In her asylum application she claimed that her father physically and emotionally abused her because of her liberal Muslim views. She has an aunt who is a US citizen, who had given her Western style clothes. Her father would beat her when he discovered her wearing these clothes. This aunt testified that the reason for the abuse was his desire that his daughter adhere to his interpretation of Islam. She also stated that seeking the assistance of the police would have been pointless, because in Morocco a father’s power over his daughter is unrestricted. She also testified that because the daughter left Morocco by herself, without the supervision of a male family member, she would be killed if she returned.
The Immigration Judge found the respondent was not credible, and found that the aunt’s testimony was not to be taken seriously. The Board found that the adverse credibility determination was not supported by any specific or cogent reasons, and that the Judge erred in not giving full weight to the aunt’s testimony.
Having found the respondent credible, the Board went on to determine whether the she qualified for asylum. Her testimony alone was sufficient to establish this, and was further supported by her aunt’s testimony and the evidence contained in country condition reports on Morocco. The Board found her treatment at the hands of her father constituted past persecution, because the government would have been unwilling to protect her. Moreover, she held a well-founded fear of persecution, and indeed death, were she to return. Finally, the Board found she suffered this persecution because of religion, specifically, her refusal to adhere to her father’s strict interpretation of the position of Islamic rules concerning women.
The Board noted that it was this religious element that distinguished the case from others involving domestic abuse, in which asylum is not granted.
The case is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3433.pdf.
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