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NEWS FROM THE COURTS
Mattis v. Reno, First Circuit 
In this case, the court ruled that aliens placed in deportation proceedings before April 1, 1997 should be allowed to apply for a waiver of deportation if they could show that they relied on the availability of a waiver in pleading guilty to criminal charges. 
Before 1996, many aliens who were facing deportation on the grounds of criminal convictions could seek a waiver of deportation under section 212(c) of the Immigration and Nationality Act.  That year, however, as part of the Antiterrorism and Effective Death Penalty Act (AEDPA) Congress eliminated the ability of those who had been convicted of “aggravated felonies” to seek a waiver.  This created great confusion about the temporal application of the elimination of the waiver.  While the Attorney General ruled that the AEDPA provision should be applied to all cases, both to pending cases and to those that would be filed in the future, this position has been, for the most part, rejected by federal courts. 
The First Circuit has already made decisions in two cases dealing with the application of the AEDPA provision.  In Goncalves v. Reno, the court ruled that the amended law could not be applied to deny applications for waivers of deportation that were pending when the amended law went into effect.  In Wallace v. Reno, the court ruled the amended law could not be applied in cases where deportation proceedings had begun, but the waiver application had not been filed, when the amendments became effective.  This case answers the questions that had been left unanswered in the earlier cases – whether a person could still seek a waiver if their conviction occurred before the amendments, but they were not placed in deportation proceedings until after.  The court ruled that in most such cases, the waiver of deportation would no longer be available.  Only if the alien demonstrates reliance on the possibility of a waiver in entering a guilty plea or in not contesting criminal charges will they be allowed to seek the waiver. 
Determining the temporal reach of a statute requires an examination of the provision’s retroactive effect.  This is a three-step process.  First, the court asks whether Congress intended the statute to be applied retroactively.  If there is no clear indication of congressional intent, the court proceeds to examine whether the statute has a retroactive effect.  Third, if there is a retroactive effect, the court examines whether that effect is impermissible. 
The court found nothing in the AEDPA provision or in the legislative history indicating how Congress intended the statute to be applied, so it examined whether the statute has a retroactive effect.  The INS claimed that it did not, based on its argument that Mattis could not have relied on the availability of withholding in committing his criminal offenses.  The court found this approach incorrect.  The focus of a retroactivity inquiry is not whether the underlying act would have occurred, but on the changes, if any, in the consequences of the act.  The AEDPA provision did change the consequences of the act, retroactively eliminating a form of relief that had been available.  The court then asked whether this retroactive effect was impermissible.  The court found that the effect was impermissible only in the limited situation where the alien could show that they actually and reasonably relied on the availability of the relief in not contesting criminal charges.  
In most cases, such as this, that announce a new rule, the court would have remanded for an inquiry into whether Mattis had relied on the waiver.  However, the court found that a remand was not necessary in this case, for several reasons.  First, Mattis had five criminal convictions.  While he pled guilty to each of these, each time it was before he had accrued the seven years of residency necessary to be eligible for a waiver.  Because he was not eligible for withholding at the time of his pleas, whether he would ever be eligible depended on when the INS placed him in deportation proceedings.  Moreover, with each of his five convictions, a waiver became more unlikely.  
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US v. Pacheco-Medina, Ninth Circuit 
In this case, the court reversed Pacheco-Medina’s conviction for being found in the US having entered without authorization after being deported. 
On December 7, 1998, Pacheco-Medina was deported to Mexico.  On December 9, he and two companions attempted to enter the US by climbing a fence.  A surveillance camera saw their efforts, and a Border Patrol agent was dispatched to the scene.  The agent arrived just as the three jumped from the top of the fence.  Pacheco-Medina’s companions were caught immediately, but he ran from the agent.  He was, however, caught only a few yards from the border.  At trial, Pacheco-Medina argued he should be acquitted because he was never free from official restraint while in the US.  The district court did not agree with this argument, and he was convicted. 
On appeal Pacheco-Medina renewed his argument for acquittal.  The law under which he was convicted makes it a criminal offense for an alien to enter, attempt to enter, or be found in the US after deportation.  The Ninth Circuit found that certain elements of this crime were without doubt present in Pacheco-Medina’s case – he was an alien, and he had been deported.  However, the question of whether he had entered the US was not so clear.  Under immigration laws, the concept of entry has been given a very technical meaning, and does not depend on whether a person is physically present.  There is a long line of cases, decided both by federal courts and by immigration courts, that a person has not entered the US if, during their time in the US, they are not free from restraint.  Because from the moment he touched US soil, Pacheco-Medina was under observance by a Border Patrol agent, he was never free from restraint while in the country.  Therefore, he did not enter the US.  While Pacheco-Medina was convicted of being found in the US after being deported, it is impossible to be in the US without making an entry.  Because he did not make an entry, he could not be found in the US.  The court therefore reversed the conviction. 
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Castillo-Perez v. INS, Ninth Circuit 
In this case, the court granted a motion to reopen deportation proceedings so that Castillo-Perez could apply for suspension of deportation. 
Castillo-Perez entered the US without authorization in 1987.  He claims he left Mexico after receiving death threats for his activities in the opposition political party.  In 1992, he sought asylum and withholding of deportation, both of which were denied.  In 1994, the INS placed him in deportation proceedings. Castillo-Perez sought legal assistance from an immigration service provider, who assigned a lawyer to represent him during proceedings.  At the first hearing where Castillo-Perez was represented by an attorney, the Immigration Judge told them that they had one month to file any application for relief, and that if none was filed by that date, a deportation order would be entered.  The second hearing was scheduled to occur in three months.  During the month in which the application for relief was to be filed, Castillo-Perez repeatedly called the business that provided him an attorney, and was eventually told that an application for suspension of deportation had been filed.  
When Castillo-Perez went to the second hearing, he learned that no application had been filed.  The IJ deemed the application for relief abandoned and ordered Castillo-Perez deported.  The IJ denied all of Castillo-Perez’ requests for reconsideration.  Castillo-Perez obtained a new lawyer, and filed a motion to reopen and an appeal with the Board of Immigration Appeals.  He argued that because of the ineffective assistance of counsel he received, he should be allowed to file the application for suspension late.  The BIA denied this request, finding that while Castillo-Perez had in fact not received effective assistance from his lawyer, because of the changes in immigration law in 1996, he was no longer eligible for suspension of deportation.  Castillo-Perez appealed to the Ninth Circuit.  
In 1994, when Castillo-Perez was placed in proceedings, to be eligible for suspension a person must have been in the US for seven years.  This seven-year period was calculated from the time of entry to the time the application for suspension was filed.  After 1996, the seven year period was calculated from entry to the time the applicant was served with notice that the INS was beginning deportation proceedings.  Castillo-Perez was served with a notice to appear three weeks short of the required seven-year period.  If the application for suspension had been timely filed, it would have been filed after the seven-year period was achieved.  After 1996, he would not have been eligible for suspension.  The BIA ruled that Castillo-Perez could not seek suspension of deportation because he did not meet the seven-year requirement. 
The Ninth Circuit found the BIA’s reliance of the change of law misplaced.  The Ninth Circuit found that Castillo-Perez clearly established the ineffectiveness of his first attorney, and that this was the reason for the failure to file the application for suspension in a timely manner.  The court also found that the proper remedy for the attorney’s failure was to remand the case and allow Castillo-Perez to apply for suspension under the rules that existed at the time of his initial hearing.  
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Avetova-Elisseva v. INS, Ninth Circuit 
In this case, the court granted Avetova’s application for asylum and withholding of deportation, finding that if forced to return to Russia she would experience persecution on the basis of her Armenian ethnicity and membership in the Mormon Church. 
Avetova, while an ethnic Armenian, was born in Azerbaijan.  In 1990, with the assistance of Soviet troops, she and her family were evacuated to Moscow to escape the ongoing ethnic war between Azerbaijanis and Armenians.  Her situation in Moscow did not improve, and she continued to be subjected to harassment on the basis of both her ethnicity and religion.  The court found that while these events did not amount to persecution, Avetova was still able to demonstrate a reasonable fear of future persecution.  
According to the court, the persecution of Armenians in Moscow occurred at least because the government was unable to stop it, and in many situations, the government acquiesced in acts of persecution.  The ongoing persecution of Armenians, which the INS did not successfully rebut, supported Avetova’s claimed fear of future persecution even though she herself had not suffered persecution in the past.  Therefore the court ordered that she be granted asylum.