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NEWS FROM THE COURTS
Breyer v. Meissner, Third Circuit 
In this case, the court ruled that a US law preventing US citizen mothers from passing their citizenship to children born abroad was unconstitutional. 
Breyer was born in Czechoslovakia in 1925 to a US citizen mother and a foreign father.  As a young man he joined the Waffen SS, a Nazi paramilitary organization, and eventually joined the SS Death’s Head Battalion.  During World War Two he served as a concentration camp guard.  Breyer denied having personally murdered or tortured anyone.  On a visa application filed shortly after the war, he admitted his membership in the Waffen SS but not in the Death’s Head Battalion.  The application was denied because of this membership, but shortly thereafter the law changed and membership in the Waffen SS was no longer a bar to immigration.  Breyer immigrated to the US under the Displaced Persons Act of 1948 and in 1957 became a naturalized US citizen.  
In 1992 the US government began proceedings to have Breyer denaturalized.  Breyer conceded that he had obtained his right to immigrate fraudulently, but argued that he could not be denaturalized because his mother was a US citizen through whom he derived citizenship.  While Breyer sought a certificate of citizenship from the INS, the district court ordered his naturalization revoked, finding he had obtained it through fraud.  The INS denied the application for a certificate of citizenship, finding that the law in effect at the time of his birth only allowed fathers to pass derivate citizenship to children, not mothers. 
The court first addressed the law by which a parent can pass US citizenship to a child born in a foreign country.  The court found the law in effect when Breyer was born to be unconstitutional because of its gender-based discrimination.  
In 1934, Congress changed this provision to allow both fathers and mothers to pass citizenship to children born abroad.  However, the new law was applied only prospectively.  In 1994, Congress made the 1934 amendment retroactively apply to those born before 1934.  However, the 1994 law specifically excluded people who would have been excluded from admission under the Displaced Persons Act. 
Breyer challenged the constitutionality of both the law as effective when he was born and the 1994 amendment.  For the court to consider the law as it existed in 1925, Breyer must have standing to assert his mother’s right to be free from gender discrimination.  For a person to assert the rights of a third person, three factors must be present.  First, the person bringing suit must have suffered an injury in fact.  Second, there must be a close relationship between the person suing and the third person.  Finally, there must be a hindrance to the third person asserting their own rights.  The court found each of these elements was satisfied here.  Breyer’s denial of citizenship is an injury in fact, he certainly is closely related to his mother, and because his mother was dead, she could not assert her own rights.  
In cases presenting gender discrimination, a court reviews the discriminatory statute under a standard of review called “heightened scrutiny.”  Under this level of review, the law will be upheld only if the gender based classification serves important governmental objectives and the gender classification is substantially related to achieving those objectives.  The government offered no reasons for the gender discrimination in the law.  Indeed, it refused to address that issue, instead treating the case like one involving the power of the government to regulate whom gets citizenship.  The court said that even had the government attempted to justify the law it would not have succeeded.  According to the court, the law as it existed in 1925 unconstitutionally discriminated against Breyer’s mother, with the effect of depriving him of citizenship.  
However, determining that Breyer should have derived citizenship from his mother at the time of his birth was not the end of the inquiry.  The court then had to address the effect of the 1994 amendment, which maintained the discrimination in cases of those people who would not be eligible to enter the US under the Displaced Persons Act.  Congress’ stated purpose in enacting the 1994 law was to prevent the naturalization of people who participated in Nazi persecution.  No similar exception for children born to US fathers was required to fulfill this purpose because the Supreme Court had previously established that a person who knew they had US citizenship and engaged in an act they knew would lead to their expatriation could be expatriated.  Because at this time children of US citizen mothers did not know they would one day be granted citizenship, any expatriating act they committed could not have been done with the intent of expatriation. 
The court found that despite the reasons provided for the 1994 amendment, it nonetheless discriminated against US citizen mothers by depriving them of the right to transmit citizenship to their children.  Therefore, according to the court, Breyer was entitled to citizenship dating from the time of his birth.  However, the question still remained whether Breyer voluntarily engaged in acts through which, had he known of his right to citizenship, would have acted as an act of renunciation.  
Because the court did not have evidence before it relating to the voluntariness of Breyer’s participation in the Waffen SS and the Death’s Head Battalion, it remanded the case for more hearings on this issue.  The court did find that if Breyer voluntarily took an oath of allegiance to the Nazi state and to the SS, organizations that were completely incompatible with American democracy and the rights of citizens protected by the US Constitution, such an act would be an intentional renunciation of citizenship, regardless of whether Breyer was aware of his citizenship. 
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Ye v. INS, Ninth Circuit 
In this case, the Ninth Circuit became the latest court to rule that burglary of a car is not a burglary offense within the meaning of the Immigration and Nationality Act. 
Ye, now 25, has been a lawful permanent resident of the US since 1983.  In 1994 he was convicted on two counts of vehicle burglary and sentenced to three years and eight months.  Upon his release the INS took him into custody and initiated deportation proceedings, claiming that he had been convicted of an aggravated felony.  Before the Immigration Judge Ye admitted his conviction.  The IJ found, however, that it was not a “particularly serious offense” so that he was eligible for withholding of removal.  The IJ granted his application for withholding.  The INS appealed to the Board of Immigration Appeals, arguing that his conviction was for a crime of violence.  The Board, without addressing whether his conviction qualified as a burglary offense, found that it was a crime of violence and withdrew the order of withholding of removal. 
Ye appealed to the Ninth Circuit, arguing both that his conviction was neither a burglary offense nor a crime of violence and thus not an aggravated felony.  The court agreed that his offense was not a burglary offense.  Unless otherwise defined, burglary must involve the breaking and entering of a dwelling or other structure.  Therefore, Ye’s offense was not a burglary offense. 
A crime of violence is one that involves the use, attempted use or threatened use of physical force, or any felony that involves a substantial risk that physical force may be used.  The INS argued that Ye’s offense fit the second part of the definition.  Because the statute under which Ye was convicted could cover both crimes involving violence and those that do not, the court looked to the individual circumstances of Ye’s offense.  Ye entered a locked vehicle with the intent to steal it, so, for the court, the question was whether this action involved as substantial risk of the use of physical force.  The INS argued that physical force was required to break the lock of the car, therefore making it a crime of violence. 
The court did not find the INS’ argument persuasive.  There are many ways of entering a locked vehicle that do not involve the use of violent physical force.  Because the crime is not one that is inherently violent, it does not involve a substantial risk that force will be used, and is therefore not a crime of violence.  Because Ye had not committed an aggravated felony and was therefore not deportable, the court terminated the deportation order. 
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Rivera-Jimenez v. INS, Tenth Circuit 
In this case, the court remanded to the Board of Immigration Appeals to allow it to redetermine whether the petitioners met the continuous physical presence requirements for suspension of deportation. 
The petitioners, a Mexican family, were placed in deportation proceedings in 1993.  They sought suspension of deportation, which was granted by an Immigration Judge.  The INS appealed, and while the appeal was pending, one of the rules relating to suspension was changed.  Specifically, at the time the suspension application was filed, a person could continue to accrue the seven years of physical presence in the US necessary for suspension even after being placed in deportation proceedings.  After the change, the period of physical presence was ended as soon as a person was placed in deportation proceedings. 
At the time the petitioners were placed in deportation proceedings they had not accrued seven years of physical presence, but by the time the IJ granted the relief, they had.  The Board of Immigration Appeals reversed the grant, finding that they had not accrued the required amount of continuous physical presence because of a two-week trip to Mexico, and that the beginning of deportation proceedings ended the accrual of such time. 
The petitioners appealed, arguing that their trip to Mexico was brief, casual and innocent and therefore did not end the period of continuous physical presence.  They also argued that using the initiation of deportation proceedings to terminate the period of physical presence was wrong. 
The Tenth Circuit found that the issuance of the charging documents beginning the deportation process did in fact terminate the accrual of physical presence.  It also found that the petitioners’ two-week stay in Mexico was not brief, casual or innocent.  They went to Mexico as part of a voluntary departure agreement, and were smuggled back into the US, and it has previously been held that such an absence is not brief, casual or innocent. 
However, among the changes in the law enacted while the appeal to the Board was pending was a new provision that replaced the brief, casual and innocent standard with one based on the length of time absent from the US.  Under this provision, a single absence of 90 days, or combined absences of 180 days would terminate the period of continuous physical presence.  This provision was made to apply to all deportation cases, both begun in the future and those, like the petitioners’, which were already pending. 
Because the Board of Immigration Appeals had not addressed this provision, the court remanded so that it could determine the effect it may have on the petitioner’s claim. 
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Al Najjar v. Reno, Southern District of Florida 
In this case, the court ruled that the use of secret evidence to detain an alien was unconstitutional. 
In 1985 Al Najjar’s then wife filed a petition for an immediate relative.  The application was denied and the INS issued an order for Al Najjar to show why he should not be deported.  Al Najjar failed to appear at the hearing he said because he did not receive notice of it.  The Immigration Judge closed the proceedings.  In 1993 the World and Islam Studies Enterprise, which is affiliated with the University of South Florida, filed a petition for an immigrant worker on behalf of Al Najjar.  This application was approved.  Then, in 1996, the INS reopened the deportation proceedings.  Al Najjar conceded deportability for overstaying his visa, and sought several forms of relief.  The IJ found him deportable and denied all forms of relief.  Al Najjar appealed to the Board of Immigration Appeals.  
While the appeal was pending, the INS took Al Najjar into custody on May 17, 1997.  At the bond determination hearing, Al Najjar presented evidence of his strong community involvement and of his family ties in the US.  The INS presented secret evidence to the IJ, which, according to the summary given to Al Najjar, linked him with the Palestinian Islamic Jihad, a group classified as a terrorist organization by the State Department.  The IJ found that despite his strong ties, the secret evidence showed that Al Najjar was a threat to national security and ordered that his detention be continued.  
Al Najjar appealed this ruling to the Board of Immigration Appeals, making three arguments.  First, he argued that neither the Immigration and Nationality Act nor INS regulations authorized the use of secret evidence.  Second, he argued that the use of evidence that was not made available to him violated his right to due process.  Third, he argued that finding him to be a national security threat violated his First Amendment right to freedom of association.  The Board upheld both the decision to not release Al Najjar on bond and the underlying deportation order.  Al Najjar filed an appeal of the deportation order with the Eleventh Circuit that is still pending, and filed a petition for a writ of habeas corpus with the district court to gain his release from detention.  
Because the Immigration and Nationality Act had been twice amended since proceedings against Al Najjar were instituted, the court ruled that the applicable law was the law that was in force at the time proceedings began.  At that time, non-criminal aliens could be detained and denied bond only if there was a finding that the alien was a flight risk or a threat to national security.  There was no regulation governing the use of secret evidence in such a determination.  
Because Al Najjar claimed his detention violated both statutes and the Constitution, there are two standards of review.  Under the statutory scheme, bond for aliens in deportation proceedings is discretionary, and for a bond decision to be reversed, the alien must show that the denial was an abuse of discretion.  The Constitution, however, places some limits on this discretion.  Particularly, aliens, even those unlawfully present, enjoy due process protection, and resident aliens enjoy First Amendment freedom of speech and association. 
To analyze Al Najjar’s claim, the court first had to determine his immigration status and the precise nature of the proceedings against him.  After this, the court would address three questions:  whether the INA authorizes detention on the basis of secret evidence, whether the use of secret evidence violated his due process rights, and whether continuing his detention because of his association with an alleged terrorist group violated his First Amendment rights. 
At the time of the bond determination Al Najjar had conceded his deportability.  As such, while he has more rights than an alien subject to a final order of deportation, he does not have the rights of a permanent resident.  The government action at issue was the second bond determination at which secret evidence was used.  
The court found that Al Najjar’s statutory rights were not violated by the decision to deny him bond.  While there was no express statutory authority allowing the use of secret evidence in a bond hearing, there is implied statutory authority.  
However, the court did find that the use of secret evidence did violate Al Najjar’s constitutional due process rights.  There are three elements in such an analysis.  First is the nature of the personal interest.  Second is the risk that the person will have that interest wrongly denied under current government procedures, and the likelihood that new procedures would protect that interest.  Third is the burden to the government of adopting new, more protective procedures. 
While the INS argued that Al Najjar had no entitlement to release, the court found he was entitled to a fair bond determination.  According to the court, the use of secret evidence in the bond determination rendered it fundamentally unfair.  Moreover, because such evidence is kept secret, the risk that Al Najjar would be wrongly deprived of his liberty interest was unacceptably high.  Additional procedures allowing Al Najjar and others in his situation to confront the evidence against them would do a great deal to minimize the risk that they will be erroneously deprived of his liberty interest.  The government does have a substantial interest in enforcing the country’s immigration laws.  However, it has an equally great interest in ensuring the fairness of administrative and judicial proceedings, and would not be prevented from enforcing immigration laws by sharing evidence.  
Having found that the use of secret evidence violated Al Najjar’s due process rights, the court addressed the proper remedy.  A new bond hearing is required, the procedures for which the court discussed.  First, the IJ is to conduct a review solely on the basis of evidence in the public record.  If this evidence calls for continued detention, the process is at an end.  In the event that the public record is not sufficient, secret evidence may be used.  
The court then turned to the use of Al Najjar’s association with the Palestinian Islamic Jihad as evidence that he is a national security threat.  The court found that his association was not a sufficient basis under the Immigration and Nationality Act upon which to conclude that he was a threat.  Because the INA would not allow this association to be used against Al Najjar, there was no need for the court to address the First Amendment claim.  
The court granted the writ of habeas corpus and instructed the INS to provide another bond determination in according with the guidelines stated in the opinion. 
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Kay v. Reno, Middle District of Pennsylvania 
In this case, the court ruled that the INS could not indefinitely detain aliens who, although subject to a final order of deportation, were not likely to be deported to their home country. 
Kay entered the US as a refugee from Cambodia in 1985, when he was 11 years old.  He subsequently gained permanent resident status.  In 1992, at age 18, he was convicted of armed assault, armed robbery and breaking and entering, all related to a single incident.  He served five years in prison.  During this time, deportation proceedings against him were begun.  When he got out of prison in December 1997, he was taken into INS custody where he has remained since.  During his time in prison he participated in anger management classes and drug and alcohol rehabilitation programs.  He was disciplined twice, each time for minor offenses, one involving non-regulation clothing and the other involving the unauthorized possession of food in his cell.  
Kay has been through an INS release review process twice.  At the first, the INS ruled that he remained dangerous and should not be released.  The second process has not been completed.  The INS has not been able to secure either his deportation to Cambodia.  Under current immigration law, the INS may release aggravated felons such as Kay, but is not required to. 
The issue for the court is whether the indefinite detention of a person who cannot be deported to their home country violates their right to due process.  The court began with an analysis of Kay’s substantive due process rights.  Under this analysis, governmental intrusions into fundamental rights such as liberty must be narrowly tailored and must be designed to further a compelling government interest or it will be found unconstitutional.  While the government attempted to portray Kay’s right as one to be free at large in the US, the court viewed it as the right to be free from imprisonment.  
The government’s objectives in continuing to detain Kay are to ensure his removal, to prevent his flight prior to that, and to prevent him from harming the community.  The court agreed that these objectives might be compelling.  However, the way in which the government aims to fulfill these objectives cannot be excessive.  While the interests of the government and of Kay may be near equal, there is another factor that must be added to the analysis – whether the government will actually be able to deport Kay.  According to the court “if deportation can never occur, the government’s primary legitimate purpose in detention – executing removal – is nonsensical.”  In essence, the less likely deportation becomes, the less compelling the government’s need to detain becomes.  It is at this point that the length of detention becomes an important factor.  
The court found that it was extremely unlikely that Kay would be deported, and that because of this, the government’s interest in detaining to effect that deportation was small.  Therefore, his continued detention was excessive and violates due process.  The court ruled that unless, within 90 days, the INS could show that he would be likely to be deported, he must be released.