NEWS FROM THE COURTS Abovian v. INS, Ninth Circuit
In this case, the court found that the Board of Immigration Appeals had improperly found that Abovian lacked credibility and remanded the case for a new asylum hearing.
Abovian, a citizen of Armenia, claimed a lifetime of persecution in the Soviet Union because of his opposition to Communism. His father was an important member of the Communist Party who was also a KGB spy. As a teenager, Abovian was thrown out of school for refusing to advocate communism. At age 16, he left Armenia and moved to Kazakstan to escape his father. Two years later, in 1960, he was drafted into the Soviet Army. After learning that he was to be stationed in Cuba, he refused to go. He was jailed for six months, during which time he was severely beaten. After he was released, he was sent to a mental institution and declared mentally ill. This meant he could not get a driver’s license or go to a university. Over the next 25 years Abovian was harassed by the KGB.
In 1988, conflicts between Russia and Armenia grew, and harassment of ethnic Armenians forced Abovian to return to Armenia. There, the KGB continued to contact Abovian, demanding that he work for them. He was also interrogated about his membership in a group promoting true democracy in Armenia. After this interrogation, Abovian began receiving threatening phone calls. Also, his daughter was struck by a car, and she recognized the driver as a KGB agent she had seen speak with her father. She was later kidnapped, and Abovian was told it was because of his refusal to work for the KGB. He was given an ultimatum – to work for the KGB or to leave Armenia. He did leave, seeking asylum in the US.
The Board of Immigration Appeals denied Abovian’s application, finding he was not credible because he failed to submit corroborating documentary evidence and because of inconsistencies in his testimony. The Ninth Circuit found that this was not sufficient. It is well established in the Ninth Circuit that corroborating evidence is not required, and the minor inconsistencies relied on by the Board were not a sufficient basis for disbelieving his testimony. Because the Board had not independently reviewed the merits of Abovian’s claim, the Ninth Circuit remanded the case for the Board to determine whether the harm Abovian suffered rose to the level of persecution and whether it was on account of his political opinion.
The text of the opinion is available online at http://laws.findlaw.com/9th/9870934.html
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Larita-Martinez v. INS, Ninth Circuit
In this case, the court ruled that Larita-Martinez had received a fair hearing and affirmed the order denying him suspension of deportation.
Larita-Martinez entered the US without inspection in 1989, at age 14. Since that time, he had been out of the US only once, for about a week, to visit his sick mother in Mexico. When the INS placed him in deportation proceedings, he sought suspension of deportation. He argued that seperation from his family in the US would be an extreme hardship. The Immigration Judge found the hardship caused by separation would be no greater than in any deportation, and denied his application. The Board of Immigration Appeals affirmed without mentioning in its opinion the new evidence that Larita-Martinez submitted, relating to his US family’s legal status in the country. Larita-Martinez appealed, arguing that the Board erred in not examining his newly submitted evidence.
While there is no statutory requirement that the Board examine all evidence submitted to it, the Due Process Clause of the Constitution guarantees a full and fair hearing. According to the Ninth Circuit, this guarantee is so fundamental that it is presumed that a court has examined all the evidence presented to it. For Larita-Martinez to succeed, he must rebut this presumption. The court found that he could not make such a rebuttal, and affirmed the denial of his request for suspension of deportation.
The text of the opinion is available online at http://laws.findlaw.com/9th/9871452.html
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Polanski v. INS, Southern District of New York
In this case, the court denied the INS’s motion to find Polanski permanently ineligible to citizenship on the basis of military desertion during a time of war.
Polanski entered the US in 1982. In 1987, he enlisted in the Marine Corps for a six-year term. In 1990 he stopped attending scheduled meetings. In 1991 his unit was called into active service as part of the Gulf War against Iraq. He reported for duty when called, but did not again return to his unit. A few months later he surrendered to military authorities and filed a conscientious objector application. He was convicted of desertion and discharged for bad conduct.
In 1993, Polanski filed an application for naturalization. The application included a motion to take a modified oath in which he did not promise to bear arms. The INS denied the application on the basis that his conviction for desertion and discharge prevented him from showing good moral character. Polanski appealed this decision, arguing that because his refusal to serve was a result of religious beliefs it was not a sign that he lacked good moral character.
On appeal, the INS attempted to change the basis for its denial from a failure to show good moral character to desertion in time of war, which permanently bars a person from citizenship. Because it was clear Polanski had deserted, the issue was whether the Persian Gulf conflict was a war. Because neither Polanski nor the INS had briefed this issue, the court denied the INS’s request that judgment against Polanski be entered and ordered the parties to address the new issue.
The case is available online using the Lexis service. The citation is 2000 U.S. Dist. LEXIS 8881
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Washington v. Velasquez, Court of Appeals of the State of Washington
In this case, the state court joined the growing number of state courts that are revisiting criminal convictions in efforts to avoid overly harsh immigration consequences. It allowed Velasquez to withdraw a guilty plea and to go to trial.
Velasquez, a 20 year permanent resident, was charged in 1998 with child molestation. In 1999, he entered a plea to a lesser offense of assault. He was never asked by either his attorney or the judge about his immigration status, although the form on which he submitted his plea did contain a statement that guilty pleas can lead to deportation, exclusion, and denial of naturalization. He was sentenced to 365 days, but only served one month. Shortly after he was released, the INS announced its intent to deport him as an aggravated felon.
Seeking to avoid deportation, Velasquez sought to withdraw his guilty plea. In his motion he included his own statement, a statement from his original attorney, and a statement from an immigration lawyer. Both Velasquez and his first attorney stated that they did not believe he could face deportation as the offence to which he pled was a misdemeanor. The trial court granted the motion to withdraw the plea, and the state appealed.
A Washington statute requires that a defendant be advised of the immigration consequences before pleading guilty to any offense. It also provides that if the defendant was not properly advised and does face adverse immigration consequences because of the plea, the trial court may permit the defendant to withdraw his plea. Here, even though Velasquez signed a statement regarding the potential immigration consequences of his plea, the court found that he was not properly advised, and upheld the decision to allow him to withdraw his guilty plea. The court found that even without the statute, Velasquez should be allowed to withdraw his plea, on the basis that because his attorney failed to properly advise him of the adverse consequences of pleading guilty, he did not receive effective assistance of counsel, a right guaranteed by the Constitution.
This case is not available online.
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