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NEWS FROM THE COURTS
Liang v. INS, Third Circuit 
  
In this case, the court ruled that aliens retain the right to petition for a writ of habeas corpus even under the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). 
  
Three petitioners were involved in this case.  Each was subject to a final order of removal based on conviction of an aggravated felony, and in each case the INS had not initiated removal proceedings until after April 1, 1997, when new rules governing such proceedings became effective.  Because the IIRAIRA also created transitional rules that applied to some cases, the rules that went into effect on April 1, 1997 are often referred to as the permanent rules.  Each of the petitioners appealed to the Third Circuit, arguing that the retroactive application of new rules expanding the definition of aggravated felony to their offenses, which occurred before the expansion, now rendering them ineligible for relief from removal, violated their Due Process rights.  The INS responded that the court was without jurisdiction to hear their cases. 
  
While this case is not an appeal from a habeas corpus action, the court found its decision in this case would be ultimately determined by whether habeas corpus remained available under the permanent rules.  Because the Constitution prohibits the suspension of habeas corpus, there must be some form of review.  If the remedy of habeas corpus is found to have been eliminated, it will affect how the court interprets the extent of own power to review cases. 
  
Last year, in Sandoval v. Reno, the Third Circuit ruled that the right to petition for a writ of habeas corpus survived the enactment of the transitional rules of the IIRAIRA, in large part because of the longstanding proposition that habeas corpus cannot be repealed by implication, that, in other words, if Congress wants to eliminate this remedy, it must mention it by name.  The transitional rules create a system of review that exists “notwithstanding any other provision of law,” a phrased the Third Circuit found inadequate to repeal habeas corpus jurisdiction. 
  
The court adopted the same position in this case dealing with the permanent rules enacted by the IIRAIRA.  Because of the limited ability of courts of appeals to review removal orders – they can only determine whether a person is an alien and whether they have committed an offense for which they are removable, habeas corpus must be available.  The courts of appeal cannot review the merits of a claim, therefore, under the Third Circuit’s reasoning, the opportunity to seek a writ of habeas corpus from the district courts must remain available.  
  
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Solorzano-Patlan v. INS, Seventh Circuit 
The INS initiated deportation proceedings against Mario Solorzano-Patlan, claiming he was classifiable as an aggravated felon on two grounds – conviction of a burglary offense and commission of a crime of violence.  The court found neither ground was applicable, and ordered the deportation proceedings terminated.
  
Solorzano-Patlan, who entered the US in 1980 at age three, was convicted in Illinois state court of entering a vehicle with the intent to commit a theft.  He was sentenced to 60 days in prison and two years of probation, during which time he was required to perform community service.  His probation was subsequently revoked for failure to perform the community service and he was ordered to serve three years in prison.  At this time the INS placed him in deportation proceedings.  An Immigration Judge ordered him deported, finding that because his conviction was for burglary, he was classifiable as an aggravated felon under that provision, without specifically analyzing his conviction.  The IJ also found he had been convicted of a crime of violence because of the risk that physical force would be used against the vehicle.  The Board of Immigration Appeals affirmed both grounds.  
The Seventh Circuit found this reasoning unacceptable.  Immigration law is federal, and therefore must be uniform across the nation.  However, many of the grounds for deportation depend on state convictions.  The definition of criminal offenses varies from state to state, meaning that in deportation proceedings the circumstances of the offense must be individually examined to determine whether it meets the federal definition.  In this case, neither the IJ nor the BIA took this step.  The Seventh Circuit found that Solorzano-Patlan’s offence did not fit the federal definition of burglary, and that he was therefore not deportable on this basis. 
The court likewise found that Solorzano-Patlan’s offense could not be considered a crime of violence.  The statute under which he was convicted was very broad, and would encompass both crimes in which there was a substantial risk that force would be used and those in which there was no such risk.  Neither the IJ nor the BIA examined the circumstances of Solorzano-Patlan’s offence, and so could not properly determine whether it was a crime of violence.  Therefore, the deportation order was vacated, although the INS can again attempt to deport him by examining the details of the offense. 
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US v. Sandoval-Barajas, Ninth Circuit 
In this case the court determined that violation of a certain Washington State gun law was not an aggravated felony. 
Sandoval-Barajas, a Mexican national, was convicted in state court under a law penalizing the possession of a gun by a noncitizen.  After a short jail sentence, he was deported.  He was later apprehended attempting to make an undocumented reentry.  When he was sentenced for this, his punishment was enhanced on the ground that he was an alien who had been deported because of an aggravated felony conviction.  Whether the penalty should have been enhanced depended on whether the gun offense was properly classified as an aggravated felony.  
The state law under which he was convicted made it a felony for a noncitizen to possess a gun without having a state license.  However, whether an offense is an aggravated felony is determined not by what the state considers it, but by its classification under federal law.  The federal law that is closest to the state law under which Sandoval-Barajas was convicted provides that it is a crime to be an undocumented immigrant in possession of a gun.  The court found that the state statute, requiring licensing of all noncitizens, encompassed many actions that would not be crimes under federal law, which applied only to those unlawfully in the country.  While there was evidence that Sandoval-Barajas was undocumented at the time of the gun conviction, in determined whether a state offense is an aggravated felony under federal law, the Ninth Circuit does not examine the individual circumstances of the offense, but rather looks only to the language of the statute.  Therefore, because Sandoval-Barajas was not convicted of an aggravated felony, his sentence for unlawful reentry could not be enhanced.  
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Cordon-Garcia v. INS, Ninth Circuit 
Leticia Cordon-Garcia, a native of Guatemala, taught literacy classes funded by a government agency.  After being threatened and beaten by guerrillas, she came to the US and filed an application for asylum.  An Immigration Judge denied her application, claiming he had concerns about her credibility.  On review, the Board of Immigration Appeals affirmed, finding she had not described her persecution with sufficient specificity, nor had she established that it was because of political opinion.  The Ninth Circuit remanded, finding it clear that her treatment was based on the political opinion the guerrillas imputed to her, and ordering an official credibility determination. 
In late 1989, Cordon-Garcia was told by another worker at her school that guerrillas had been by looking for her.  In early 1990, as she was walking home from the school, a man approached her and asked if she was Leticia Cordon.  When she replied affirmatively, the man blindfolded her, tied her up, took her to a river and beat her.  She was told that if she continued to work for the government school she and her family would be in danger.  She was also told that her work teaching literacy made it more difficult for the guerrillas to recruit.  After this incident military aides accompanied her on her way to and from the school.  During this time she learned that the guerrillas were still following her.  After a few months she fled to the US. 
After she left, the guerrillas continued their attempts to locate her.  According to a receptionist at the school, guerrillas continued to go to the school and ask for her.  The guerrillas also approached her father, and when he refused to divulge her location, shot and killed him.  Later her brother was approached.  He was told that if he did not reveal where Cordon-Garcia was, he too would be killed.  The local government provided protection for the family, but after about 18 months stopped.  Even after this passage of time, guerrillas were still looking for Cordon-Garcia.  They approached her uncle, and after he refused to say where she was, shot him and then killed him with a machete.  
The Board denied asylum, finding that she had not described her encounters with the guerrillas with enough detail, and that there was no evidence that the guerrillas singled her out because of political opinion.  The Ninth Circuit disagreed with both conclusions.  The details of her encounters with the guerrillas were sufficient, and, according to the court, it was clear that she was approached because she taught at a government school.  While she may not have supported the government, the guerrillas clearly believed she was affiliated with the government, and imputed a political opinion to her that was opposed to theirs.  Finding that if her testimony is credible, she clearly established past persecution, the court addressed the issue of whether she had a well-founded fear of future persecution if returned to Guatemala.  According to the court, the INS failed to show that changed country conditions would make Cordon-Garcia any less subject to persecution, and that the deaths of her father and uncle after her departure clearly indicated a reasonable fear of persecution if she returned. 
Because the Board failed to address credibility, the Ninth Circuit remanded for a credibility determination.  The court also reminded the Board that it should address credibility when first presented with the opportunity, so that cases would not have be heard repeatedly as this one must be. 
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Valerio v. INS, Federal District of Hawaii 
This case arose from the INS’ denial of Shirly Valerio’s application for naturalization.  The INS denied it, claiming she had never been lawfully admitted for permanent residence, as is required by statute.  
Valerio’s father entered the US in 1977 as the unmarried son of a permanent resident; in 1982 he was naturalized.  In 1982 his wife, Valerio’s mother, entered the US as a spouse of a permanent resident spouse.  She was naturalized in 1987, and then applied for permanent residence for her daughter.  Shirly Valerio became a permanent resident in 1988. 
Valerio applied for citizenship in 1997.  She received notice that she had passed the citizenship test, and was told to submit a statement explaining her previous claims to citizenship.  The INS then denied her application on the basis that she had not been properly admitted for permanent residence.  The INS based this claim on the fact that her father had obtained permanent residence through fraud.  While claiming to be the unmarried child of a permanent resident, he was in fact married.  In 1990, the INS discovered this, and in 1991 revoked his naturalization.  The INS denied Valerio’s application for naturalization, claiming that since her father had not properly obtained permanent residence, his wife’s admission was also improper, meaning that she could not apply for permanent residence for her daughter. 
The court found that while the INS’ position was likely substantively correct, the agency had failed to follow necessary procedures to deny Valerio’s application for naturalization.  Mrs. Valerio may be denaturalized, because she was not properly admitted for permanent residence, because the person petitioning for her obtained permanent residence through fraud.  However, the INS had not attempted to denaturalize her.  Until she is stripped of her citizenship, her petition for her daughter is valid – the INS cannot deny the application without taking this crucial step.  
The court vacated the INS decision to deny naturalization, and remanded the case for further proceedings.  While the court did not rule on the question of Mrs. Valerio’s citizenship, it did say that initiating denaturalization proceedings against her would be unlikely, as she is a 12-year citizen of good character. 
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Chamblin v. INS, Federal District of New Hampshire 
In this case, the court ruled that the government must reimburse the attorney who was assigned to represent Chamblin in his successful petition for a writ of habeas corpus.  In appropriate cases, the Criminal Justice Act calls for the reimbursement of attorneys appointed to represent those who cannot afford legal assistance.  In this case, such reimbursement was found appropriate.  
Chamblin was in INS custody while in deportation proceedings.  He requested a waiver under section 212(c) of the Immigration and Nationality Act, which was rejected by the immigration judge and the Board of Immigration Appeals.  He sought a writ of habeas corpus, and requested that an attorney be appointed to help him.  The federal judge granted this request, citing provisions of the Criminal Justice Act.  The petition for habeas corpus was successful, and Chamblin was released from INS detention.  The attorney who represented him then sought payment for his work on the case. 
In opposition to this request, the INS argued that the Criminal Justice Act would not allow it because it provides for the appointment of counsel in criminal cases, not cases of INS detainees.  The judge rejected this argument.  The Criminal Justice Act calls for the appointment of counsel to those petitioning for a writ of habeas corpus, regardless of why they are in government custody.  Nothing in the language or history of the statute indicates such a limitation. 
The Criminal Justice Act imposes a cap of 0 on attorney fees in habeas corpus proceedings, but more can be awarded in appropriate cases, when the matter is complex or takes a long time.  In this case, roughly ,000 in fees was sought.  The court found this case both lengthy and complex.  Chamblin had been in proceedings for more that eight years, proceedings that were made still more complex by the 1996 immigration laws.  Therefore, the requested fees were granted.