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NEWS FROM THE COURTS
Flores-Miramontes v. INS, Ninth Circuit 
IN this case, the court ruled that it could not hear the appeal brought by Flores-Miramontes, but noted that nothing would prevent him from filing a petition for a writ of habeas corpus in support of his claims. 
In 1996, Flores-Miramontes pled guilty to transporting cocaine.  In November 1997, after a trip to Mexico, he was detained at the border and charged with being an inadmissible alien because of a drug trafficking conviction.  The Immigration Judge denied him all forms of relief and ordered him removed.  A week before the deadline for appealing to the Board of Immigration Appeals, Flores-Miramontes gave a notice of appeal to an INS officer, asking the officer to send it to the Board.  The notice was not mailed for a week, and by the time the Board received it, the deadline for appealing had passed.  The Board refused Flores-Miramontes’ request to review its decision dismissing the appeal. Flores-Miramontes then filed an appeal with the Ninth Circuit. 
The INS argued that the Ninth Circuit did not have jurisdiction to hear the appeal.  The court agreed, but not for the reasons suggested by the INS.  The INS argued that one of the 1996 amendments to immigration law eliminated federal court jurisdiction to review removal orders, except for what it called “substantial constitutional claims.”  This amendment provided that “notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal.”  According to the Ninth Circuit, no exception needs to be read into the law eliminating federal court review unless no other forum is available to hear Flores-Miramontes’ claim.  The Ninth Circuit found that there was another forum, namely a petition for a writ of habeas corpus filed with a district court.  
Despite the strong wording of the provision precluding review, the Ninth Circuit found that it could not eliminate habeas corpus without specifically mentioning it.  While the law did specifically repeal habeas corpus under the INA, it did not mention the general habeas corpus statute that is applicable in all cases.  Moreover, the INA provisions referred to judicial review, which is not the same as habeas corpus.  While both are ways of examining an INS decision, review is exactly what it says it is.  Habeas corpus on the other hand, is not review, but an action in a trial court to determine whether a person’s custody violates the Constitution or laws.  Finally, the court noted that its interpretation had the added benefit of avoiding having to decide whether, if the general habeas corpus provision had been eliminated, such elimination would violate the constitutional provision forbidding suspension of the right to seek habeas corpus. 
The court therefore dismissed the review petition, but stayed the removal order for 30 days to allow Flores-Miramontes to file a petition for a writ of habeas corpus. 
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Yazitchian v. INS, Ninth Circuit 
In this case, the court ruled that the petitioners were eligible for asylum and granted their request for withholding of deportation.  
The Yazitchians, a husband and wife in their 60s, are from Armenia.  In 1992, a local television station broadcast a request for photos and other memorabilia regarding a Russian-Turkish war from the early 20th century.  Mr. Yazitchian’s father had fought in the war as a member of the Armenian Revolutionary Federation, or Dashnak.  He was interviewed on television about the photos and about his father.  Right after the interview, someone who saw it being taped threatened him and his wife.  The reason for the threats was the Yazitchians’ were perceived to be supporters of the Dashnak, which had remained a political party, and was in opposition to the government.  
After the television appearance, a government official was sent to work in Yazitchian’s business.  The reason given for this supervision was that Yazitchian was using the business as a front to import weapons from Russia and give them to the Dashnak.  The government representative took so much money from the business that it was forced to close.  Yazitchian suffered more than just this – he was also chased by a car and severely beaten.  During the beating, his assailants called him a member of the Dashnak. 
Despite this evidence, the Immigration Judge and Board of Immigration Appeals found that Yazitchian’s treatment was motivated by personal reasons, not on account of a statutorily protected ground – race, religion, nationality, political opinion or membership in a particular social group.  Both the IJ and the BIA found the Yazitchians to be credible witnesses.  
According to the Ninth Circuit, the extortion Yazitchian suffered was motivated, at least in part, by a political opinion – support of the Dashnak party – that was imputed to him.  It further found that the State Department Country Report on Armenia, which the INS used to attempt to refute Yazitchian’s claims, in fact supported them.  The Report discusses the fact that Dashnak political leaders are persecuted, which would support Yazitchian’s claims.  
The Yazitchian’s showed past persecution, entitling them to a presumption that they would be persecuted if returned to Armenia.  In the absence of INS evidence rebutting this presumption, the Yazitchians are entitled to asylum and withholding of deportation. 
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Yue Yu v. Brown, District of New Mexico 
In this case, the court ruled that 1997 amendments to the Immigration and Nationality Act (INA) effecting the special immigrant juvenile provisions could not be applied retroactively. 
The special immigrant juvenile (SIJ) provisions of the INA allow certain aliens under 21 to apply for permanent residence on their own.  Before 1997, the primary requirements to be eligible under the law were that the juvenile have been declared dependent on a juvenile court, and that it has been found that it would not be in the juvenile’s best interest to the returned home.  In 1997, Congress amended the law, adding the requirement that the reason for the decision to make the juvenile a ward of the court be abuse, neglect or abandonment. 
The INS announced, in an Interim Field Guidance memo, that the new law would be applied retroactively.  It then rejected a number of applications that were then pending with the agency.  Many of these people filed suit, claiming the INS improperly denied their applications.  
The INS argued that its decision that the 1997 amendment should be applied retroactively should be accorded deference.  The court disagreed, finding that this type of decision did not warrant deference.  There were three reasons for this decision.  First, deference is due an agency interpretation only when what it is interpreting is a matter that the agency has a unique ability to interpret; the matter at issue here, the temporal effect of a statute, is something courts are at least as equally adept at determining as a government agency. Second, this is not the sort of decision that warrants deference.  Only agency decisions that are made in accordance with specified rule making guidelines are to be accorded deference.  The court found there was no reason to it to defer to this interpretation, which was announced in an Interim Field Guidance memo.  Third, for a federal court to defer to an administrative agency interpretation the interpretation Congress intended must be unclear; here, the court found Congress did not intend the amendment to be applied retroactively.   
The court noted that Congress made no statement as to the temporal reach of the statute.  It therefore examined the history of the statute to see if it could determine congressional intent.  The legislative history revealed that Congress intended to limit the scope of the SIJ provisions, and that some legislators never intended it to be given as broad an application as it was.  Nothing in the history however, addressed the amendment’s temporal scope.  While the amendment may have been enacted to close what was perceived as a loophole, this alone does not call for retroactive application unless Congress clearly states an intent that it be so applied.  
The INS made one final argument in support of its decision to apply the law to pending cases.  It claimed that such application could be made without any retroactive effect.  The court found no legal support for this position.  At the time the plaintiffs made their applications, they were, on the basis of those applications, entitled to permanent residence.  On this basis, they settled into a life in the US.  For a law to retroactively disrupt these settled expectations, Congress must explicitly take them away.  
Because the court found that the law could not be applied retroactively, it ordered the INS to adjudicate the plaintiffs applications in accordance with the law as it existed when the applications were filed.    
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In re S-V-, Board of Immigration Appeals 
In this case, the Board rejected the respondent’s applications for relief and upheld the deportation order against him.  
The respondent, a Colombian national, entered the US in 1981 as a lawful permanent resident.  In 1998 he was convicted of theft and sentenced to four years in prison.  This offense rendered him deportable, and the INS instituted deportation proceedings against him.  The respondent argued that if returned to Colombia he would be threatened by guerrilla and terrorist groups.  He presented evidence detailing the rampant violence and kidnapping in Colombia, and argued that it would be worse for him because of his long time in the US, and the fact that he cannot speak Spanish well.  He sought two forms of relief, withholding of deportation and relief under Article 3 of the Convention Against Torture (CAT). 
The Board found him ineligible for withholding on two grounds.  Withholding is available only where the person’s life or freedom would be threatened because of race, religion, nationality, political opinion, or membership in a particular social group.  Also, withholding is not available to those convicted of “particularly serious crimes.”  The Board not only found his crime to be a “particularly serious crime” rendering him ineligible for withholding, it found that any threat he faced was not on account of any protected ground.  
To get relief under the CAT, an applicant must show that it is more likely than not that they will face torture in the country of removal, and that a government either directly implements the threat, instigates it, or acquiesces in it.  The respondent did not claim that he faced torture directly from the government or that the government of Colombia instigated the violence in the country, but that the government’s awareness of the problem and failure to do anything about it amounted to acquiescence.   
The Board found that for a government to acquiesce to acts of torture, more was required that awareness and the inability to stop it.  It found that the government must “willfully accept” the acts of torture, not merely be unable to control the actions of nongovernmental groups.  Because, according to the Board, the government of Colombia does make efforts to control the paramilitary violence in the country, it has not acquiesced in their actions.