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NEWS FROM THE COURTS
Lopez-Elias v. Reno, Ninth Circuit 
In this case, the court ruled that burglary of a vehicle was an aggravated felony for immigration purposes.  Therefore, the deportation order against Lopez-Elias was upheld.      
In 1985, Lopez-Elias was convicted in Texas of burglary of a vehicle.  He was sentenced to four years in prison, but the sentence was suspended.  In 1998, the INS placed him in removal proceedings.  An Immigration Judge ordered him deported, finding he had committed a crime of theft punishable by more than one year in prison.  The Board of Immigration Appeals affirmed.  
Lopez-Elias appealed to the Ninth Circuit, claiming that the 1996 changes to immigration law should not be retroactively applied to his crime, which occurred in 1985.  The INS claimed that the court lacked jurisdiction to hear his case.  
A court always has jurisdiction to examine whether it has jurisdiction to hear a case.  An essential part of jurisdiction in this case is whether Lopez-Elias committed an aggravated felony.  If his crime was an aggravated felony, the court could not examine the merits of his case, whereas if it was not, the court could.  The INS claimed that its decision that the offense was an aggravated felony should be deferred to unless it was contrary to the law as stated by Congress.  The court found that the INS was requesting deference in a situation where it was not warranted.  
Deference to an administrative agency’s interpretation of the law it is charged with enforcing, known as Chevron deference for the Supreme Court case in which the principle was announced, according to the Ninth Circuit, is not appropriate when the issue is a court’s jurisdiction.  A court’s jurisdiction is for the court to determine. 
The court found that Lopez-Elias’ offense was not a qualifying theft offense, but was a crime of violence qualifying for deportation.  Under a Supreme Court decision, Lopez-Elias’ offense of burglary did not qualify as a theft offense.  However, under Ninth Circuit precedent, his crime would qualify as a crime of violence.  Therefore, even though the INS did not seek his deportation on the basis of the commission of a crime of violence, he remained deportable. 
  
Patel v. INS, Ninth Circuit 
In this case, the court found that the Immigration Judge improperly found Patel not credible, and granted his request for asylum. 
Patel claimed to have suffered past persecution in India, motivated by his political opinion.  Patel was an active youth leader of the Bharatiya Janata Party (BJP).  During his asylum hearing, he testified that members of the Congress Party had beaten him and threatened to murder him because of his political activism.  He was hospitalized for two days because of the beating, and he was threatened with murder at his home.  
The Immigration Judge who heard Patel’s case found his testimony not credible for eleven separate reasons.  The Ninth Circuit found that none of the reasons given by the Immigration Judge were valid reasons on which to base a credibility determination. 
The IJ found first that it was not reasonable to think that someone attempting to recruit a person to join a political party would threaten to kill that person, as Patel was.  The Ninth Circuit found this a conjectural opinion and an invalid basis for an adverse credibility determination.  The IJ also found Patel not credible because the events he described were not mentioned in the documentary evidence he presented.  This was an invalid basis because the fact that documentary evidence is not totally complete cannot, by itself, support an adverse credibility determination. 
The other grounds the IJ gave were based on minor discrepancies between Patel’s written application and his testimony at the asylum hearing, as well as on Patel’s failure in the past to be completely honest, such as not informing Indian authorities about the beating and lying to Border Patrol agents when he was apprehended.  According to the Ninth Circuit, factors such as this have no bearing on whether a person suffered persecution. 
Having ruled that the IJ made an improper adverse credibility determination, the Ninth Circuit then ruled that because Patel showed past persecution on account of political opinion, he was entitled to asylum. 
  
In re Perez-Gonzales, Board of Immigration Appeals 
In this unpublished decision, the Board ruled that the respondent was not deportable because he was not an alien.<ぐ颵ᇏ芻ꨀ봀௎噓�۷?譗Ѿ੷譟廎沔> 
In 1995, an Immigration Judge reached the same conclusion and terminated the deportation proceedings against him.  
In deportation proceedings, the INS bears the burden of proving that a person is deportable.  On of the fact s that must be proven in every deportation case is that the person the INS is attempting to deport is an alien.  Until the INS proves a person is an alien, they do not have to show the time, place and manner of their entry.  
To prove Perez-Gonzales was an alien, the INS sought to introduce a form entitled “Record of Deportable Alien.”  To ensure that the information gathered on this record is not gathered in a way that violates due process, the officer that apprehended the alien cannot be the person that interrogates the alien and signs the form.  It seems that Perez-Gonzales said nothing during his interrogation, at least with regard to his nationality.  In this case, the same officer not only arrested, but also interrogated, and there was no evidence of alienage other than Perez-Gonzalez’ silence.  Therefore, the INS had not carried its burden of proving that Perez-Gonzalez was an alien, and could not deport him.