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NEWS FROM THE COURTS
Aragon-Ayon v. INS, Ninth Circuit 
In this case, the court addressed the retroactivity of the 1996 change in the definition of “aggravated felony” and ruled that Congress intended it to be applied retroactively.  
Aragon pled guilty to assault with a deadly weapon in 1992, and served one year in prison and three years on probation.  There was no indication that Aragon made this plea for immigration reasons, nor that he had been informed of any possible immigration consequences.  In 1997, the INS arrested him and started deportation proceedings against him as an alien convicted of an aggravated felony.  Aragon sought to avoid deportation by arguing that the 1996 change in the definition of aggravated felony should not be applied retroactively.  In 1996, many new offenses were added to the definition of aggravated felony, and the time in prison required was shortened from five years to one year. 
There is a general presumption against retroactivity. However, laws may be made retroactive when Congress expressly says so.  The court found that there was such a clear expression here.  Part of the change in the definition of aggravated felony provided that it applied “regardless of whether the conviction was entered before, on, or after” the enactment date of the 1996 amendments.  It also provided that “the amendments made by this section shall apply to actions taken on or after the date of the enactment of this Act, regardless of when the conviction occurred.”  Aragon used this second provision to argue against the retroactive application of the amendments.  He argued that the phrase “actions taken” was ambiguous, and could refer to either the criminal act of the alien or INS actions.  If the statute was ambiguous, the court could determine on its own whether it should be applied retroactively. 
The court found there was no ambiguity in the phrase.  According to the court, other sections of the Immigration and Nationality Act make clear that the “actions” at issue were actions of the INS.  Moreover, the legislative history indicated that Congress intended the law to apply to criminal convictions that occurred before the new law was enacted.  
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Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, District of Columbia Court of Appeals 
This case arose from a National Labor Relations Board (NLRB) order reinstating employees who were wrongfully fired for attempting to organize a union, as well as ordering backpay.  After the intial order, the employer, Hoffman Plastics, learned that one of the employees involved was an undocumented immigrant without work authorization.  The employer then claimed that it was not able to award backpay because such an award would conflict with immigration law.  The court disagreed, and ordered the employer to grant backpay.  
The court began its analysis by noting the tension between labor and immigration law.  Labor law forbids employers from firing workers for engaging in union activities, while immigration law makes it unlawful to hire workers without proper employment authorization.  It has been long established that even undocumented workers receive the protection of labor laws.  Indeed, without this protection, employers would have an incentive to hire undocumented workers, because they could fire undocumented workers for union activities when they could not fire US workers.  
A NLRB hearing on Hoffman’s labor practices revealed one of the fired employee’s undocumented status.  After this came out, the NLRB amended its order calling for reinstatement and backpay to call for only backpay, as reinstatement is not available to those without work authorization.  Hoffman appealed this ruling, arguing that because the employee was undocumented, backpay should not be awarded.  It did not dispute that it had engaged in unfair labor practices.  
This case centered on interpretation of a Supreme Court opinion released in 1984 called Sure-Tan v. NLRB.  In that case the Court ruled that while reinstatement is not authorized unless the worker has become work authorized, back pay is appropriate as long as the amount is determined by how long the worker would have continued working but for the unfair labor practice.  However, the Court’s opinion also contained a sentence that could be read to imply that undocumented workers could never receive back pay:  “In computing back 
pay, the employees must be deemed ‘unavailable’ for work during any period when they were not lawfully entitled to be present and employed in the United States.”  Hoffman relied on this sentence in making its argument that since the worker was never authorized to work in the US, no backpay could be awarded.  It also argued that this decision was superseded by the Immigration Reform and Control Act of 1986 (IRCA), which made it unlawful for US employers to hire people without work authorization.  
The District of Columbia Court of Appeals rejected this argument.  It believed that since in Sure-Tan back pay could be awarded in the proper circumstances, and that because the case specifically found that undocumented workers are protected by the National Labor Relations Act (NLRA), there was no prohibition on the award of back pay.  
The court also rejected Hoffman’s argument that the IRCA barred back pay.  Hoffman argued that one of the primary purposes of the law was to prevent awards of back pay to undocumented workers.  The court disagreed, finding that the real purpose of the law was to curb undocumented immigration by eliminating some of the economic incentives in hiring undocumented workers.  Without preserving the protections of the NLRA, this purpose of the IRCA would be undermined.  Moreover, congressional reports dealing with the IRCA clearly state that the law is not meant to undermine undocumented workers protection under US labor laws.  
Ultimately, the court ruled that the award of backpay was appropriate, and that were it not granted, the purposes of both the IRCA and the NLRA would be undermined.  
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Louisiana Philharmonic Orchestra v. INS, Eastern District of Louisiana 
In this case, the court dismissed the Orchestra’s appeal of the denial of an H-1B petition for a musician.  
This case had been before the court once before.  The INS had approved numerous petitions for Orchestra musicians, then denied this one without explanation.  The Orchestra appealed to the INS Administrative Appeals Unit (AAU), which affirmed the denial.  The Orchestra sued, claiming the INS action was arbitrary and capricious.  The court ordered the INS to either approve the petition or provide a cogent and rational reason for the denial.  The INS issued an explanation for the denial, stating that previous approvals are not binding on future decisions.  It then asked the court to dismiss the Orchestra’s suit.  
 The court found the INS’ explanation of the inconsistent decisions to be rational.  Essentially, this explanation was that the AAU is not bound by decisions of INS Service Centers, and that had any of the previous H-1B petitions filed by the Orchestra been denied at the Service Center level, the AAU would have affirmed those denials.  
 The Orchestra also argued that the AAU decision was not supported by substantial evidence.  Review of an agency decision under the substantial evidence standard is very deferential, and a court will reverse the agency decision only if the evidence compels a different result than the one reached by the agency.  The court may disagree with the agency’s conclusion, but must uphold it unless the evidence compels a different conclusion.  Here, the court found there was substantial evidence supporting the INS’ conclusion that the skills necessary to be an orchestra musician were not usually associated with a bachelor’s degree. 
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Insixiegnmy v. Kirkpatrick, Federal District of Utah 
This case concerned multiple petitions for writs of habeas corpus brought by numerous petitioners.  The decision in this case dealt with a petitioner named Alberto Carlos Rico.  In its opinion, the court ruled that keeping Rico in detention without a bond hearing violated due process. 
Rico is a lawful permanent resident with two criminal convictions, one for burglary, and one for attempted theft.  He was sentenced to two months in prison, and the rest of his sentence was suspended pending successful completion of three years probation.  He repeatedly violated the terms of his probation and failed to appear at his resentencing.  He left the country for the 1998 Christmas season.  When he returned, the INS arrested him at the airport and ordered him to appear before an Immigration Judge.  He was “paroled” into the US, rather than admitting him.  Under the concept of immigration parole, a person is physically present in the US, but unlike a person who has been admitted into the US, they do not have a legal right to be in the US, and do not have the same legal protections as someone who has been admitted.  
The Immigration Judge ruled that he did not have the authority to hold a bond hearing because Rico was an arriving alien who had been convicted of a crime involving moral turpitude.  The IJ then ordered him removed on the basis of his convictions.  Rico appealed to the Board of Immigration Appeals, which ordered the IJ to issue another decision, as the first did not provide any information on the case that would allow the Board to conduct meaningful review of the case.  The Board’s decision was issued in February 2000. 
In July 1999, Rico filed a petition for a writ of habeas corpus, arguing that the denial of a bond hearing was unconstitutional.  The INS argued that because he was eligible for release on parole, and because he failed to seek it, he could not make the constitutional argument.  The court ordered him to seek parole from the INS District Director, which was denied.  Rico then filed a second petition for habeas corpus, seeking to have an IJ determine whether he should be released on bond during removal proceedings.  
The INS argued that the district court did not have jurisdiction to hear the petition.  The court disagreed, finding the section of law on which the INS relied applied only to cases seeking review of removal orders, which Rico was not seeking.  
The court then examined Rico’s due process claim.  The stringency with which the court reviews a due process claim depends on the personal interest at stake.  Here that interest was Rico’s interest in being at liberty in the US.  Two factors made this a legitimate interest – the fact that Rico was a lawful permanent resident, and the fact that he was not yet subject to a final removal order.  Not only was this interest legitimate, it was a fundamental interest.  In due process analysis, when a law infringes on a fundamental interest, it is examined with strict scrutiny, meaning that the law must be narrowly tailored to further a compelling government interest.  In cases involving custody and detention, two factors are used – whether the detention is punishment or regulatory, and whether the detention is excessive in relation to the government’s goals.  The court found Rico’s detention regulatory, but excessive in relation to the government’s goals.  
Rico was not seeking an order for his release from the federal court.  Rather he was seeking an order to force the INS to give him a bond hearing before an Immigration Judge.  The court concluded such an order was appropriate.  
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In re Achahbar, Board of Immigration Appeals 
In this unpublished decision, the Board granted asylum to a young woman who had been abused by her father. 
Achahbar, a native of Morocco, claimed that she suffered regular beatings by her father because of their differing religious beliefs.  She held liberal Muslim beliefs, while her father was an ultra-orthodox Muslim.  She said that he prevented her from attending school and from associating with other young people.  She gave numerous examples of her treatment at her father’s hands.  In one case, her aunt, who resides in the US and is a US citizen, sent her a skirt her father believed was too short.  He burned the back of her legs so that she would not want to wear such clothes in the future.  On another occasion, her father saw her giving directions to a young man on the street, and beat both of them.  She did not seek police protection, claiming that such efforts were pointless because under Moroccan law a father’s control over his daughter is not subject to state restrictions. 
On one of her US citizen aunt’s visits to Morocco, the aunt took a picture of her.  On her return to the US, the aunt showed the picture to a young man.  A relationship developed between Achahbar and the young man and marriage was proposed.  Unfortunately, the young man died. However, efforts to bring Achahbar to the US continued.  Eventually, fraudulent documents were obtained and Achahbar entered the US. 
She was apprehended at entry and placed in removal proceedings.  She filed a petition for asylum.  The Immigration Judge found Achahbar was not a credible   witness and denied the request for asylum.  In most cases, the Board adopts credibility determinations of IJs, but in this case it did not do so.  The Board uses a three-part test to determine whether to follow an IJs determination:  first, are the discrepancies cited by the IJ found in the record, second, are these discrepancies a reason to disbelieve a person’s testimony, and third, was a convincing reason for the discrepancies given.  
In this case, the IJ did not make reference to any discrepancies in Achahbar’s testimony.  Because the IJ did not give any specific reasons for disbelieving Achahbar, the Board did not adopt his credibility ruling.  Instead, it examined the record for itself and found her testimony consistent and believable.  The use of fraudulent documents to enter the US did not change this analysis, as the Board believed Achahbar’s statement that she did not understand that they were not legitimate.  The IJ also discounted the testimony of Achahbar’s aunt, finding it was only an embellishment of Achabar’s testimony.  The Board took an opposition view of the aunt’s testimony.  It found her testimony was credible corroborative evidence that strengthened Achahbar’s claim, especially with regard to her unwillingness to seek protection from the government.  Moreover, the State Department country report on Morocco supported Achahbar’s claim, stating the domestic violence against women was common and that the government seldom intervened.  
After finding Achahbar credible, the Board next determined whether she deserved a grant of asylum.  The Board found she had suffered past persecution that the Moroccan government was unable or unwilling to prevent, and that if returned to Morocco she would likely face more persecution.  The Board then addressed the issue of whether the persecution was on account of a protected ground.  Achahbar claimed the cause of her father’s mistreatment of her was their differing religious beliefs and the Board agreed.  Therefore, the Board granted her application for asylum.