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NEWS FROM THE COURTS
Bell v. Reno, Second Circuit 
In this case, the court affirmed the deportation order against Bell. 
Bell, a native of Panama and permanent resident of the US since 1965, was convicted in 1985 of sodomy charges for the abuse of three minors and sentenced to five to fifteen years.  He was placed in deportation proceedings in 1998. 
At the time of his conviction, there was no such thing as an aggravated felony in immigration law.  The concept of aggravated felonies was introduced in 1988, and included murder, drug and firearms trafficking crimes.  The law was made to apply only to convictions obtained after the law went into effect.  In 1990, the aggravated felony law was expanded.  The expanded definition was not to apply to deportation proceedings begun before March 1, 1991.  In 1996, the aggravated felony law was again expanded.  One of the new crimes covered was sexual abuse of a minor. 
The INS sought to deport Bell as an aggravated felon.  Bell argued that the 1988 law directing that the aggravated felony provision be applied only prospectively had never been amended, he was not deportable.  The Immigration Judge and the Board of Immigration Appeals disagreed, finding that the 1990 law removed the temporal limitation on convictions found in the 1988 law.  Bell sought review in the Second Circuit.  
The first issue for the court was whether it had jurisdiction to hear the case.  Deportation orders based on a conviction of an aggravated felony are not reviewable.  A federal court can review only two things – whether the person is in fact an alien, and whether they had in fact committed an offense that precluded review.  Bell did not dispute that he was not a citizen, leaving as the only issue whether he was convicted of a qualifying offense. 
The Board had determined that Bell’s conviction did render him deportable as an aggravated felon, which would preclude federal court review.  This was based on the Board’s prior holding that the 1990 law removed the temporal limitation of the 1988 law.  If this is a reasonable interpretation of the 1990 law, it is to be accorded deference.  There are two steps in determining whether an agency interpretation of a statute is reasonable.  First, the court looks to the intent of Congress.  If the agency interpretation follows this intent, it is reasonable.  If congressional intent is not clear from the statute, the agency interpretation is reasonable if it is based on a permissible construction of the statute. 
The court found that there was no clear statement of congressional intent and that the statute was open to many reasonable interpretations.  However, it found the Board’s interpretation was not reasonable because it retroactively applied a statute that was ambiguous in its intended temporal scope.  Despite this, it upheld the Board’s decision under a different part of the 1990 statute, one that called for all the amendments made in the 1990 statute to apply in all deportation proceedings begun after 1991.  Therefore, it ruled that the Board’s decision was correct and affirmed the deportation order. 
The text of this case is available online at http://www.findlaw.com/2nd/994138.html 
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Ladha v. INS, Ninth Circuit 
In this case, the court ruled that the Board of Immigration Appeals erred in denying the application of asylum because it was not supported by corroborative evidence. 
The Ladhas, a husband, wife and daughter, are Pakistani citizens.  Mr. and Mrs. Ladha were born in Bombay but moved to Karachi after the partition of British India.  Indians who emigrated to Pakistan after the partition are called Khoja or Mohajir.  While these people are Muslim, they are a very small part of the Muslim population in Pakistan.  Also, the Khoja are members of the Shia branch of Islam.  Over 75% of the Muslim population in Pakistan belongs to the other branch, Sunni.  Relations between the two branches are unstable, and there are an increasing number of violent incidents between members of the two branches.  Moreover, there is a significant spilt in the Khoja community.  The Mohajir Quami Movement is a political group that represents the interests of Indian immigrants in Pakistan.  This organization is severely split, and there are hostile relations between the two wings. 
The INS sought to deport the family for overstaying their visas.  They conceded deportability, but sought asylum and withholding of deportation.  Mr. Ladha was the leader of a group of six Khoja churches and supported the MQM.  According to his testimony, Sunni Muslims do not believe the Khoja are Muslims, and would harass Khoja attending religious services.  He related numerous violent incidents.  In the first, in 1988, he arrived at one of his churches to find people breaking doors and windows.  When he tried to approach them, they hit him.  The police report he filed was not acted on.  According to Ladha, the people involved were Sunni Muslims.  In 1989 a group of Sunni came to a shop he owned and beat them, threatening them to stop supporting the MQM.  Their support did not stop, and in 1990, when Mr. Ladha was not at home, a group of armed Sunni militants came to his house and beat his wife and daughter.  After this incident, they came to the US. 
The Board of Immigration Appeals denied their applications, finding that they had failed to provide corroborating evidence and that they had failed to provide a reasonable explanation for this failure.  No credibility determination was made. 
Under the asylum regulations that existed at the time the Lhada’s made their application, credible testimony can sustain an applicant’s burden of proof without requiring corroborating evidence.  While the Board has increasingly required corroborating evidence, the Ninth Circuit has flatly held that such evidence is not required.  Therefore, the court ruled that the Lhadas are eligible for asylum.  It found that if their testimony was credible, they had established past persecution giving rise to the presumption that they have a reasonable fear of persecution if returned to Pakistan and that this had not been rebutted by the INS.  Therefore, the court remanded to the Board to make a credibility determination with orders to grant asylum if the testimony is found to be credible.  
The text of the case is available on line at http://www.findlaw.com/9th/9870772.html 
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Alberto-Gonzalez v. INS, Ninth Circuit 
In this case, Alberto-Gonzalez was convicted of burglary in 1986 and placed in deportation proceedings.  He obtained a waiver of deportation under section 212(c) of the Immigration and Nationality Act.  In 1991, he was convicted on a charge of receiving stolen property and in 1994 he was convicted of felony burglary.  In 1994, the INS against placed him in deportation proceedings. 
At his first hearing, he admitted his deportability, and sought a waiver under section 212(c).  The Immigration Judge denied the waiver and Alberto-Gonzalez appealed to the Board of Immigration Appeals.  Before the Board heard the case, the Anti-terrorism and Effective Death Penalty Act was passed.  If applied retroactively, section 440(d) of this law would have made Alberto-Gonzalez ineligible for a waiver.  The Board did apply the section retroactively, and found Alberto-Gonzalez ineligible for the waiver.  Alberto-Gonzalez appealed this decision to the Ninth Circuit. 
The Ninth Circuit found that the Board was clearly in error in applying section 440(d) to Alberto-Gonzalez, but before it could reverse the Board’s decision, it had to determine whether it had jurisdiction to hear the case.  If Alberto-Gonzalez had committed an aggravated felony or a crime of moral turpitude that was punished by at least one year in prison, the court would lack jurisdiction.  Alberto-Gonzalez’ sentences for his 1991 and 1994 offenses were under one year, so jurisdiction was not foreclosed by this route.  Aggravated felonies include theft offenses for which the term of imprisonment is at least one year.  The government argued that the crucial element was the maximum possible sentence, while Alberto-Gonzalez argued that it was the actual sentence served. 
The court found Alberto-Gonzalez’ offered interpretation more plausible.  In many places in the Immigration and Nationality Act Congress clearly uses the phrase term of imprisonment to refer to the possible sentence, and their failure to do so here indicates their intent that only the sentence actually served be considered.  Because Alberto-Gonzalez was not an aggravated felon, the court retained jursidication.  The case was remanded to the BIA where, under Ninth Circuit precedent, Alberto-Gonzalez will be allowed to pursue a waiver. 
The text of the case is available on line at http://caselaw.findlaw.com/cgi-moses/getcase.pl?court=9th&navby=case&no=9770473 
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In re Ibanez-Gamboa, Board of Immigration Appeals 
In this unpublished case, the board affirmed the ruling of an Immigration Judge that Ibanez was entitled to deferral of removal under Article 3 of the UN Convention Against Torture (CAT). 
Ibanez, a native of Cuba, was an active opponent of the Cuban government.  He was arrested for his activities and sentenced to spend four years in prison.  During his time in prison he was frequently beaten.  After his release, he was given a government job.  Ibanez believed the purpose of this was to allow the government to monitor his activities.  After a Cuban military officer told him he would be wise to leave Cuba and never return, Ibanez fled to the US in 1995.  
To qualify for relief under the CAT, the applicant must prove that it is more likely than not that they will be tortured if returned to their home country, and that the torture will occur at the instigation of the government, with the consent of the government, or that the government will acquiesce in it. 
The Board began its analysis with an examination of the State Department country report for Cuba, which notes the desperate human rights situation there, and that those who are or have been political prisoners face an even more difficult situation.  However, the report does not provide information about whether one would face torture if returned there.  Even though there was no corroborative evidence to support Ibanez’ testimony, he was a credible witness who was tortured in the past for his political activities.  The evidence of past torture, the government threat to leave the country and not return, plus the State Department’s finding that former political prisoners are persecuted, all combine to make the Immigration Judge’s decision to grant relief under the CAT reasonable. 
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In re Perez, Board of Immigration Appeals 
In this case, the Board ruled that theft of a vehicle is not a burglary offense under the Immigration and Nationality Act, and therefore not an aggravated felony. 
Perez was convicted of theft of a vehicle in Texas and placed in deportation proceedings as an aggravated felon.  To determine whether this offense is an aggravated felony theft offense, the Texas statute must be compared to federal burglary law.  Under a Supreme Court precedent, burglary must include an unlawful entrance into a building or structure with the intent to commit a crime.  Because Perez’ offense did not involve breaking into a structure, it cannot qualify as a burglary offense and so is not an aggravated felony.  Therefore, the Board terminated the deportation proceedings. 
The text of the case is available at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3431.pdf 
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People v. Superior Court, Supreme Court of California 
In this case, the court reversed the decision of the trial court to allow Jose Francisco Zamudio to withdraw a guilty plea because he had not received adequate warnings of the possible immigration consequences of such a plea. 
California law requires that defendants be given the following warning:  “If  you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the US, or denial of naturalization pursuant to the laws of the US.”  The law also provides that if this warning is not given, and the defendant can show that he will suffer adverse immigration consequences, the court shall vacate the guilty plea and allow the defendant to plead not guilty.  
Zamudio was warned of the possibility of deportation and of the denial of naturalization, but was not told that he could be excluded from the US.  The court’s opinion does not reveal whether Zamudio was in deportation proceedings, but he did apply to the trial court to have his guilty plea vacated.  The trial court found that because he had not been warned of the possibility of exclusion, his guilty plea should be vacated.  The state appealed. 
Before the Supreme Court, the state argued that to have the guilty plea vacated, Zamudio must show three things, that he was not properly advised, that his conviction could lead to adverse immigration consequences, and that if he had been properly advised, he would not have pled guilty in the first place.  The court agreed, finding that merely not receiving the complete advisement was not sufficient, but that a showing of prejudice to the defendant was also required.  
While the statute creating the advisement requirement does not contain any specific prejudice requirement, the court found that reading it in conjunction with the rest of the criminal laws, prejudice was required.  One provision in the California criminal code says that a proceeding shall not be declared invalid unless an error substantially prejudiced one of the defendant’s substantial rights.  Combining this with the immigration advisement requirement, the court found that Zamudio must show he was prejudiced by the failure of the court to advise him that his conviction could lead to his exclusion from the US. 
The case was remanded to the trial court for further inquiry into whether Zamudio would have pled differently is properly advised of the immigration consequences of his guilty plea. 
The text of the decision is available at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3431.pdf