< back
 
 
NEWS FROM THE COURTS
Navas v. INS, Ninth Circuit

In this case, the court ruled that the Board of Immigration Appeals had erred in denying Navas’ application for asylum and withholding of deportation.  It remanded the case to the Attorney General for her to grant both asylum and withholding. 
In 1992, at age 17, Navas fled El Salvador.  Four years before his flight, his uncle was murdered by members of the Salvadoran military for his activities on behalf of the guerilla group Frente Farabundo Marti para la Liberacion Nacional (FMLN).  In 1992, members of the military murdered his aunt.  Navas saw three men leaving his aunt’s home after the murder, and when they spotted him they chased him.  The next day the military men went to Navas’ house, and when they could not find him, beat up his mother and threatened to kill both her and Navas if he did not leave the country.  At his asylum, hearing Navas testified that he was politically active despite his young age, and that the men responsible for the murder of his aunt and beating of his mother know about his political activities.  
Navas submitted substantial evidence from independent human rights organizations documenting the abuses in El Salvador, including evidence that human rights violations have continued after the peace agreement between the government and the FMLN.  One reason for this was the incorporation of members of the military into the National Civil Police, where they have continued to murder and torture political opponents.  
Both an Immigration Judge and the Board of Immigration Appeals found that the incidents Navas related did not rise to the level of persecution, and that even if they did, there was no evidence that the persecution was on the basis of political opinion. 
The Ninth Circuit found that no reasonable fact finder could conclude that Navas did not suffer persecution, or that that persecution was not based on his political opinion.  In the Ninth Circuit, death threats alone, such as those Navas received, can constitute persecution.  The fact that he had been threatened with death, plus the murders of his aunt and uncle and the beating of his mother, clearly showed persecution. 
The government argued that even if Navas was persecuted, it was because he was a witness to a crime – the murder of his aunt – not because of his political opinion.  The court disagreed, finding that the evidence that two members of Navas’ family had been murdered because of their political opinion, that Navas had engaged in political activity that was known to his persecutors was more than sufficient to establish that Navas was persecuted on the basis of his political opinion. 
While the INS is generally able to introduce evidence of changed country conditions to attempt to show that there is no longer a reason to fear persecution, the Ninth Circuit found that it was not necessary in this case.  All reports on conditions in El Salvador agree that politically motivated violence continues throughout the country, meaning that Navas continues to have a well-founded fear of persecution if returned. 
The case is available online at http://laws.findlaw.com/9th/9870363.html 
********* 
Bury v. Reno, Eastern District of Pennsylvania 
In this case, the court ruled that, for purposes of seeking relief from deportation, an alien is considered in proceedings from the time they are served with an order to show cause 
Bury, a lawful permanent resident since 1983, was convicted of assault in 1995 and sentenced to two to five years in prison.  He served less than five years.  On April 16, 1996, the INS issued an order to show cause why he should not be deported.  On June 26, 1996, the order was filed with the Immigration Court.  After a hearing, he was ordered deported on April 24, 1998.  Bury had argued that he should be eligible for withholding of deportation under section 212(c) of the Immigration and Nationality Act.  At the time he was served with the order to show cause, he was eligible for such relief.  However, by the time the order was filed with the Immigration Court, the recently passed section 440(d) of the Anti-terrorism and Effective Death Penalty Act had rendered him ineligible.  
The court in this case is in the Third Circuit, and is therefore bound by its rulings.  The Third Circuit has ruled that section 440(d) should not be applied to cases pending when it was enacted.  Therefore, the issue in this case is when is a case pending.  The INS argued that a case is not pending until the order to show cause is filed with the Immigration Court.  Bury argued that the service of the order on the alien initiates a pending case.  
The court agreed with Bury, finding that to allow the INS to control the date a case is considered pending would place too much at the whim of administrative procedures.  In this case the INS chose to issue the order to show cause before the AEDPA was enacted, and it should be bound by the law in force at that time.  To do otherwise “would relieve the INS of the consequences of its choice and permit petitioner to b prejudiced by the INS’s administrative inefficiencies, or, worse still, purposeful delay.”  
Therefore, the court ruled that a case is pending from the moment the INS serves the alien with an order to show cause.  Bury is therefore eligible for section 212(c) relief.  The case was remanded for a hearing on this issue. 
 
< 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.