< back
NEWS FROM THE COURTS
Hammer v. INS, Supreme Court 
The Court has denied certiorari in this case involving the deportation of a Nazi concentration camp guard.  Hammer was a member of the Waffen-SS and, according to the government, served at the death camp at Auschwitz.  
********* 
Tasios v. Reno, Fourth Circuit 
In this case the court ruled that section 440(d) of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which eliminated discretionary waivers of deportation for those convicted of certain offenses, could not be retroactively applied in cases where the alien entered a guilty plea, or conceded his deportability before the section became effective. 
Tasios, a native of Greece and lawful permanent resident of the US since 1967, pled guilty in 1995 to conspiracy to distribute cocaine.  He made his plea with the understanding that the trial judge would sentence him to less than five years.  At this time, discretionary waivers under section 212(c) of the Immigration and Nationality Act were not available to those who had served a prison sentence of five years or more.  While Tasios was serving his sentence of 18 months, the AEDPA was passed, which eliminated section 212(c) waivers for those convicted of most drug offenses. 
After his release, the INS began deportation proceedings against him.  Tasios conceded his deportability, and sought a 212(c) waiver.  The immigration judge denied his request, saying that AEDPA section 440(d) applied retroactively to his conviction, thus rendering him ineligible for a waiver.  Tasios filed a writ of habeas corpus, arguing that the immigration judge had misapplied section 440(d).  The district court granted the writ, and the INS appealed. 
The issue in this case is the proper temporal reach of section 440(d) – whether it should apply to cases in which the criminal conduct occurred before it was enacted.  In analyzing this issue, the court used traditional retroactivity analysis, asking first whether Congress specified the reach of the statute and second, if not, does the statute have an impermissible retroactive effect.  The court concluded that Congress did not make clear the temporal effect of the section.  In the absence of a clear statement by Congress, there is a tradition presumption against retroactivity.  There are two primary reasons for this.  First, it is only fair that people have the chance to learn what the law is and behave accordingly.  Second, because retroactive legislative can be used against unpopular groups, allowing statutory retroactivity only in the presence of a clear statement to that effect from Congress creates political accountability.  Because Congress did not make a clear statement that section 440(d) should be applied retroactively, the court found that Congress must not have intended it to have a retroactive effect.  
The INS argued that even when applied to cases such as Tasios’, section 440(d) does not have a retroactive effect.  The court disagreed with this position, finding that such an application has a clear retroactive effect.  A law is retroactive not merely when it is applied to conduct that occurred before its enactment, but when it impairs rights a person had when that conduct occurred, increases their liability for the past conduct, or imposes new duties related to that past conduct.  For the court, the conduct at issue here was not the criminal offense, but Tasios’ reliance of the 212(c) waiver in deciding to plead guilty and then to concede his deportability.  That the waiver was discretionary made no difference, because the law clearly establishes that any change from a discretionary system to a mandatory one is retroactive. 
Thus, according to the Fourth Circuit, section 440(d) cannot be applied in cases where a guilty plea or concession of deportability was entered before the section became effective. 
********* 
Max-George v. Reno, Fifth Circuit 
In this case, the Fifth Circuit ruled that the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) eliminated the right of those deported on the basis of an aggravated felony to seek habeas corpus. 
Max-George, a native of Sierra Leone, entered the US in 1972 at age four.  In 1988, he committed the crime of theft by receiving, meaning essentially that he knowingly took possession of stolen property.  In 1991, he was convicted and sentenced to four years.  In 1998 the INS placed him in removal proceedings and ordered him removed.  While at the time of the commission of the offense and at sentencing the offense was not an aggravated felony, under the IIRAIRA it is one.  Max-George made the argument that IIRAIRA should not be applied retroactively to him, but the Fifth Circuit dismissed this claim with very little discussion. 
Because his case began in 1998, it is governed by the permanent rules of the IIRAIRA.  This case marks the first time the Fifth Circuit has dealt with these rules. 
Max-George did not appeal the removal order to the Board of Immigration Appeals, but did file a petition for a writ of habeas corpus in the district court.  The court dismissed the petition, finding that the permanent rules of the IIRAIRA eliminated its habeas corpus jurisdiction in such cases.  Max-George appealed this ruling to the Fifth Circuit, which affirmed. 
The section of law at issue, section 242(a)(2)(C) of the Immigration and Nationality Act, provides that “Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [certain] criminal offenses,” including aggravated felonies.  According to the Fifth Circuit, the words “notwithstanding any other provision of law” include the general habeas corpus provision found at 28 U.S.C. § 2241. 
Under this ruling, a court has very limited jurisdiction to investigate three issues.  First, the court may review whether the alien is properly deportable.  Second, the court may examine whether the case falls within section 242(a)(2)(C).  Third, the court may determine whether the review the alien has received satisfies constitutional requirements.  If the answer to each of these inquires is yes, habeas corpus is precluded. 
After determining that the IIRAIRA removed the possibility of habeas corpus under 28 U.S.C. § 2241, the court examined whether this might violate the Suspension Clause of the Constitution, which provides that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”  The Fifth Circuit found no violation of this provision.  Even without 28 U.S.C. § 2241, an alien may bring an action for habeas corpus under the Constitution.  The court noted that this would not provide a broad review as can be had under the statutory provision, but declined to say what the extent of the review would be. 
********* 
Ho v. Greene, Tenth Circuit 
In this case, the Tenth Circuit joined the Fifth Circuit in finding that the Constitution does not prohibit the INS from indefinitely detaining people who are under a final order of removal from the US. 
This case involved habeas corpus petitions filed by two Vietnamese immigrants, both of whom had been convicted of criminal offenses.  Both entered as refugees, but only one adjusted to lawful permanent resident status.  Each was placed in deportation proceedings, with the deportation orders against them becoming final.  Because of the lack of a repatriation agreement between the US and Vietnam, their deportation has not yet occurred, and in the interim they have been in INS detention.  Because they are not likely to be deported, their detention is indefinite.  They filed petitions for habeas corpus, claiming their indefinite detention violated the Constitution.  
In a nutshell, the Tenth Circuit answered that they did not enjoy the protection of the US Constitution, even though they are persons within the US and subject to its jurisdiction.  After first finding that indefinite detention was authorized by statute, the court examined whether the practice was unconstitutional, and gave a resounding no. 
Rather than approach the issue as one involving the petitioner’s right to liberty, the court characterized it as a right to be released pending their removal.  According to the court “any right either Petitioner had to remain in this country was extinguished when their removal orders became final.”  Rather than view the petitioners as being present in the US, the court considered them to be in the same position as someone seeking an initial entry into the US.  It has long been the case that there is no constitutional right to be asserted regarding an application for admission.  Thus, the petitioners have no constitutional right to assert.  
********* 
Tiv v. Reno, Northern District of Illinois 
In this case, the court ruled that the petitioners could bring a constitutional challenge to the mandatory detention statute found at section 236(c) of the Immigration and Nationality Act. 
The cases of four people were joined in this opinion.  Each of them was a lawful permanent resident convicted of a criminal offense.  The INS took each of them into custody during their removal hearings.  Section 236(c) calls for the mandatory detention of anyone convicted of an aggravated felony.  Release is available only in one situation – when the alien is part of a witness protection program.  Each of the four filed a petition for a writ of habeas corpus, arguing that mandatory detention violated their rights to due process. 
The INS filed a motion to dismiss the petitions, arguing that the district court lacked jurisdiction and that the petitioners failed to state a claim upon which relief could be granted.  To support its first argument, the INS used section 236(e) of the INA, which prohibits review of a discretionary bond determination.  The court found this section did not prevent the court from hearing the petitioners’ claims.  According to the court, section 236(e) prevents challenges detention and bond decisions, not to challenges to the constitutionality of the statute itself, such as the petitioners brought.  Therefore, the court had jurisdiction over these petitions. 
To support its second argument, the INS used a Seventh Circuit decision declaring the mandatory detention statute constitutional, Parra v. Perryman.  Because the district court in this case is within the Seventh Circuit, decisions from that court are binding upon it.  The district court distinguished Parra, and found it did not preclude the petitioners claims for relief.  In Parra, the petitioner conceded his deportability, admitting that he was an alien and that he had committed an aggravated felony.  In the four cases before the district court, none of the petitioners conceded deportability.  One of the petitioners claimed to be a US citizen, one argued that he had not committed an aggravated felony, one had been granted cancellation of removal, and the fourth had actually been released from detention, indicating that he had some claim to relief from deportation.  Because it is not clear that these petitioners would actually be deported, they are in a position to bring a constitutional challenge to the mandatory detention provisions.  
Because this hearing and opinion was on a motion to dismiss, the court did not issue a decision on the constitutionality of the detention statute.  This decision will come in the next few months after a hearing on that issue. 
********* 
In re Mendoza-Sandino, Board of Immigration Appeals 
In this case, the Board ruled that once an alien is issued an order to show cause or a notice to appear, they are no longer able to accrue the period of physical presence necessary to be eligible for relief from removal. 
The respondents, a Nicaraguan family, entered the US in 1986.  Only days after their entry the INS served them with Orders to Show Cause, the official document that initiates deportation proceedings.  (After the enactment of the Illegal Immigration Reform and Immigrant Responsibility of 1996 Orders to Show Cause were renamed Notices to Appear, and deportation proceedings became removal proceedings).  They failed to appear that the deportation hearing, and were ordered deported.  In 1996 they filed a motion to reopen so they could apply for suspension of deportation (after 1996 this form of relief was renamed cancellation of removal).  The Immigration Judge granted the motion, and granted them suspension.  The INS appealed. 
On appeal the INS argued that the IJ erred in granting relief because the respondents did not meet the requirements of the statute for suspension.  One of the requirements for suspension is that the applicant has seven years of continuous physical presence in the US before making the application.  The INS argued that the respondents could not meet this requirement because of the Orders to Show Cause, which terminate any period of physical presence.  
The crux of the decision in this case rested on whether the Board would allow a person to begin a new period of physical presence following the issuance of an Order to Show Cause.  If allowed, the respondents in this case would clearly qualify, because they were in the US for ten years between being served with the Order and making the application for suspension.  If not, no applicant would ever be able to accrue physical presence after being issued an Order to Show Cause. 
The Board ruled that once an Order to Show Cause, or a Notice to Appear, was issued, an applicant could no longer accrue physical presence, no matter how long they are in the US afterward.  This means that many people who were granted suspension of deportation, and whose cases were appealed by the INS with those appeals still pending, could have their relief revoked because they accrued the necessary time for relief after being served with an Order. 
********* 
In re Saelee, Board of Immigration Appeals 
In this case the Board determined that it had jurisdiction to review an INS decision to continue detention, even when the INS initiated the review.  
Saelee was convicted of armed robbery in 1992.  After being released from custody in 1996, he was taken into INS custody and placed in deportation proceedings.  The deportation order became final, ordering him removed to Denmark or Laos.  Over three years have passed, without the deportation occurring.  According to Saelee, this was because the INS made no effort to obtain the necessary travel documents.  The Board found it was unclear whether the INS had attempted to deport him.  
In 1998 Saelee filed a petition for a writ of habeas corpus.  Shortly afterward, the INS began a review of his detention, and decided he should not be released.  Saelee sought review of this decision by the Board.  The INS argued that because it initiated the detention review, the Board could not review its decision.  The Board found nothing in the statute or regulations that prevented it from reviewing any custody determination, regardless of which party initiated it.  The Board then proceeded to review the INS’ decision. 
The Board accepted without analysis the joint position of the parties that a person in Saelee’s position, whose deportation order became final before April 1, 1997, when the 1996 immigration law became effective, may be released from custody if they satisfy the necessary requirements.  This decision by the Board generated two separate opinion by the Board, one arguing that under no circumstances could someone in Saelee’s position be released, and the other finding that he could be released, but conducting a thorough statutory analysis to reach the conclusion. 
Finding that the INS’ decision to continue detention was not sufficiently analytical, the Board conducted its own review of whether detention should be continued.  Despite the many favorable factors that would indicate he should be released – no disciplinary problems while in prison or in INS custody, and having received education and training while in custody, among others, the Board found that his criminal record and lack of remorse outweighed these.  Therefore, the Board ruled that detention should continue.