NEWS FROM THE COURTS Cardoso v. Reno, Fifth Circuit
In this case, the court ruled that the plaintiffs were seeking review of discretionary decisions made by the INS, review that is not permitted under the Immigration and Nationality Act. The court therefore dismissed the complaint.
There were three plaintiffs in this suit. Each claimed that the INS wrongly denied their application for adjustment of status, and sought to prevent any deportation order from being entered against them or executed. The district court dismissed the case, finding that section 242(g) of the Immigration and Nationality Act eliminated its jurisdiction over the case. This section provides that “Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate case, or execute removal orders against any alien under this chapter.”
In dismissing the case, the district court did not address the Supreme Court case of Arab-American Anti-Discrimination Committee v. Reno. This case limited the reach of section 242(g). The plaintiffs claimed that had the district court properly examined this case, their own case would not have been dismissed. Therefore, the Fifth Circuit examined the claims in light of this case.
The court found that although the plaintiffs characterized their claims as seeking to order the Attorney General to grant them adjustment of status, what they were really seeking was to prevent the execution of a removal order. Therefore, it ruled that the district court was correct in dismissing the case for a lack of jurisdiction.
The text of the opinion is online at http://www.ca5.uscourts.gov/opinions/pub/99/99-10316-CV0.HTM
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Lal v. Reno, Seventh Circuit
In this unpublished case, the court ordered the INS to stay its removal of the alien until the Board of Immigration Appeals heard a motion to reconsider its denial of his appeal.
Lal applied for asylum, which was denied. He appealed to the Board of Immigration Appeals. By statute, this appeal must be filed within 30 days of the Immigration Judge’s decision. Twenty-four days after the denial, Lal’s attorney mailed the appeal. However, the Board had just moved. None of the Board’s forms indicated this change, indeed, the old, incorrect address is still listed on many forms. By the time the appeal was received, the 30-day appeal period had expired. The Board denied the appeal because it was not timely filed.
Even as Lal was attempting to have the Board reconsider its decision, the INS sent him a letter telling him to report for deportation. Lal then sought to stay the execution of removal until the Board acted on his motion to reconsider. The court ruled that the INS could not remove Lal until the Board acted on his motion. The court further noted that if the Board refused to hear the merits of his claim, it would likely look favorably on an appeal of this decision.
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Akinwale v. Reno, Eleventh Circuit
In this case, the court ruled that the district court did have jurisdiction to hear Akinwale’s petition for a writ of habeas corpus.
Akinwale, a citizen of Nigeria, became a permanent resident in 1987. In 1993, he was convicted of drug trafficking and sentenced to 25 years in prison. In 1995, the INS began deportation proceedings against him, saying his conviction was an aggravated felony. At his deportation hearing, which occurred in June 1996, Akinwale conceded deportability and requested a waiver of his deportation under section 212(c) of the Immigration and Nationality Act. The Immigration Judge found him ineligible for such a waiver because the recently enacted Antiterrorism and Effective Death Penalty Act eliminated such waivers for aggravated felons. This decision was affirmed by the Board of Immigration Appeals.
In February 1999, Akinwale filed a petition for a writ of habeas corpus, claiming that the IJ and the BIA were in error in applying the AEDPA to his case. The court dismissed the petition, saying that it lacked jurisdiction. Akinwale appealed this ruling to the Eleventh Circuit.
There were numerous changes in immigration law in 1996. One area of changes dealt with judicial review of deportation orders. Determining which set of rules regarding review applies to a case depends on when the case was pending. Cases in which a deportation order became final before October 31, 1996 are governed by the AEDPA. Cases in which the order became final after October 31, 1996 but when proceedings were initiated before April 1, 1997 are governed by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act. Cases that began after April 1, 1997 are governed by the permanent rules of the IIRAIRA. Akinwale’s case is governed by the transitional rules.
The Eleventh Circuit has previously ruled that there is no habeas corpus under the permanent rules, but its rulings on habeas corpus under the transitional rules are not so clear. Examining three prior decisions on habeas corpus under the transitional rules, the court found that in cases where the alien would not have been able to appeal the deportation ruling to the court of appeals, habeas corpus jurisdiction exists. Therefore, the court remanded the case to the district court for proceedings on Akinwale’s petition for habeas corpus.
The text of this case is available online at http://laws.findlaw.com/11th/9910823opn.html
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Lopez-Morgan v. Reno, Southern District of Florida
In this case, the court remanded the case to the Board of Immigration Appeals for consideration of Lopez-Morgan’s application for a waiver of deportation.
Lopez-Morgan, a permanent resident of the US, was convicted in 1990 of aiding and abetting a drug smuggling scheme. In 1994, the INS began deportation proceedings against her. In February 1996 she filed for a waiver of deportation. Hearings on the matter were held throughout the spring. In April, the Immigration Judge delayed proceedings while waiting for a report from Lopez-Morgan’s probation officer. At the next hearing, in May, the INS filed a motion to terminate the hearing on the basis of the Antiterrorism and Effective Death Penalty Act, which had gone into force on April 24. When the IJ finally ruled, in November 1996, he found that Lopez-Morgan was not eligible for a waiver of deportation because of the AEDPA. Nonetheless, the IJ also ruled on the merits of her application for a waiver, and found that she was not eligible. The Board of Immigration Appeals affirmed this ruling. It did, however, allow her to seek a motion to reopen to contest her deportability, which she had conceded in order to seek the waiver.
The Board then denied this motion, saying that it was clear she was deportable, and that it would serve no purpose to further examine the issue. Lopez-Morgan did not appeal the Board’s finding because at the time, the Eleventh Circuit, to which the case would have been appealed, refused to hear such cases. Lopez-Morgan then filed a petition for a writ of habeas corpus.
The court found that because appeal of the Board’s decision would have been futile, the failure to make such an appeal would not prevent the district court from hearing a petition for habeas corpus. It then granted the petition and remanded the case to the Board for a hearing on the merits of Lopez-Morgan’s application for a waiver of deportation.
The text of the case is available online at 2000 U.S. Dist. LEXIS 5447.
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Sivathanupillai v. Beebe, District of Oregon
In this case, the judge ordered the INS to release the petitioner from detention.
Sivathanupillai, an ethnic Tamil, is a citizen of Sri Lanka. She claimed to have been raped by a member of the Liberation Tigers of Tamil Eelam, a militant separatist group in Sri Lanka. After the rape, she was arrested by the government, which claimed she was a member of the LTTE. While in custody she was beaten. In 1997 she fled Sri Lanka, seeking to join her brother and sister in Canada. In doing so she used a fraudulent Malaysian passport.
When her flight landed in Portland, Oregon en route to Canada, she was detained by the INS. She has remained in INS custody since then. At her initial asylum screening, she was found to have a credible fear of persecution. However, because she used a fraudulent passport, she was denied asylum. She appealed this decision to the Ninth Circuit, which has not yet heard the case.
In June 1999, she sought parole from detention. In support of her request, she presented affidavits from several Sri Lankan families in the Portland area who stated that they would be willing to support her and ensure she complied with the terms of her parole. She also submitted a psychiatric evaluation in which the physician stated that she would suffer psychological harm from continued detention, and recommended her immediate release. The INS refused to parole her, stating that it was their policy to not release people who arrived either without documents or with fraudulent documents.
Sivathanupillai filed a petition for review with the district court, which ordered the INS to reconsider its custody decision. On January 19, 2000, the INS again denied release, saying that she had not shown either urgent humanitarian reasons for her release or that her release would have a significant public benefit. Moreover, she was deemed a flight risk because she had no family in the US and because she had initially been headed to Canada. She then filed a petition for a writ of habeas corpus with the district court.
The INS argued that the court lacked jurisdiction over discretionary decisions relating to detention. The district court found this argument undermined by a recent Ninth Circuit decision in which the court ruled that because the restrictive review provisions of the Immigration and Nationality Act do not specifically mention habeas corpus, it is not eliminated.
Having determined that it has jurisdiction to review the case, the court went on to address the merits of the case. The standard of review was for abuse of discretion. The court concluded that the INS had abused its discretion in refusing to release her.
Eligibility for parole requires a showing of either urgent humanitarian reasons or a significant public benefit. The INS found that humanitarian reasons were not satisfied because Sivathanupillai did not show that she was facing a medical emergency. The court found this was an inappropriate standard. Under INS regulations, a medical condition that makes continued detention inappropriate is a basis for release. The court found that Sivathanupillai clearly established this. The court also found that the INS wrongly considered her a flight risk based on her use of a fraudulent passport. The court ruled that in failing to consider her individual circumstances, the INS abused its discretion. Therefore, the court ordered the INS to release Sivathanupillai. < Back | Next > Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. |
