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NEWS FROM THE COURTS
Galina v. INS, Seventh Circuit 
In this case, the court found that the INS had not rebutted the applicant’s demonstration of a well-founded fear of persecution if deported, and remanded to allow it to try again. 
In 1994, Galina and her husband fled to the US from Latvia.  Galina had been a secretary for an official in the Latvian Green Party.  This party advocated allowing Russian nationals, many of whom had lived in Latvia since 1940, to become Latvian citizens.  About one-third of the Latvian population is Russian.  Galina is Russian and Jewish. 
One day at work she saw a folder on her desk.  Looking inside, she saw a list of people whose property was to be confiscated.  All of the names on the 20-page list were either Russian or Jewish.  She asked her employer about it, suspecting it had been compiled by the party.  The employer told her it was none of her concern and she should forget about it.  After this incident she was given no new work, and her fellow workers became hostile toward her.  After three weeks, she quit. 
After quitting she and her family began experiencing harassment and threats.  She was stopped outside her apartment by men who demanded the list.  Her daughter was attacked and Galina was told it was because of the list.  A few months later, Galina was abducted by men in uniform, taken to the woods and told at gunpoint to leave Latvia.  Two months after this incident she did leave. 
The Board of Immigration Appeals found that while Galina did suffer persecution, the INS had proved that she could not have a well-founded fear of future persecution.  The Board found that the 1998 State Department Country Report on Latvia described an improved situation in which a fear of persecution was not reasonable. 
The Seventh Circuit found the Board’s analysis unacceptable.  According to the court “the Board’s analysis was woefully inadequate, indicating that it has not taken to heart previous judicial criticisms of its performance in asylum cases.  The elementary principles of administrative law, the rules of logic, and common sense seem to have eluded the Board in this as in other cases.  We are being blunt, but Holmes once remarked the paradox that it often takes a blunt instrument to penetrate a thick hide.” 
The court found the Board’s reliance on the Country Report to be inappropriate.  While Country Reports are a good source of information, they are not factual enough to be relied on in the way the Board does.  The Reports are written with an eye to diplomacy, and the conclusions reached, especially about countries with which the US is trying to develop good relations, such as Latvia, may not always provide a full picture.  As the court said, “the country report is evidence and sometimes the only evidence available, but the Board should treat it with a healthy skepticism, rather than, as is its tendency, as Holy Writ.” 
The text of the case is available at http://laws.findlaw.com/7th/993836.html 
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Ontiveros-Lopez v. INS, Ninth Circuit 
In this case, the court found that the Board of Immigration Appeals had abused its discretion in denying Ontiveros-Lopez’ motion to reopen, and remanded the case to allow Ontiveros-Lopez to pursue his claim of ineffective assistance of counsel. 
In 1995, Ontiveros-Lopez was stopped at an INS checkpoint.  He was in a car with his wife, a US citizen, and his sister, an undocumented immigrant.  He was arrested for aiding and abetting his sister’s entry into the US.  Despite Ontiveros-Lopez’ contention that he played no role in her entry, his attorney admitted to the charge in order to pursue relief from deportation.  The lawyer erroneously believed that because he was married to a citizen he could obtain such relief.  Those in deportation proceedings because of alien smuggling activities are not eligible for any form of relief, and are permanently inadmissible to the US.  Because of the lawyer’s mistake, an order of deportation was entered, and affirmed by the BIA.  Ontiveros-Lopez retained a new attorney who filed a motion with the BIA to reopen the case. 
The new attorney requested records on the case from the previous lawyer, but never received them.  A request for the records was also made to the INS, but there was no response.  Finally, the attorney sought the records from the immigration court, which refused to provide access.  It was not until the case was filed with the Ninth Circuit that the new attorney was able to review the record. 
Motions to reopen based on a claim of ineffective assistance of counsel are subject to strict procedural requirements.  The BIA requires that at the time of the motion the applicant supply the following information:  an affidavit explaining the agreement regarding legal representation; evidence that prior counsel was told of the claim of ineffectiveness and given the opportunity to respond; and, either that a complaint has been filed with the appropriate disciplinary authorities, or an explanation as to why none has been filed.  
When Ontiveros-Lopez’ new lawyer filed the motion to reopen, he included an affidavit saying that while he was aware of these requirements, because he had only just received the file he was still in the process if demonstrating his compliance.  Despite this, the Board denied his motion to reopen.  
The Ninth Circuit found that the denial was an abuse of discretion.  While the procedural requirements outlined above are generally required, they are only guidelines and are not mandatory in each case.  In this case, where the attorney provided a reasonable explanation for not complying, and was diligent in his attempts to comply, denying the motion to reopen was improper.  Therefore, the case was remanded to the BIA with instructions to hear Ontiveros-Lopez’ claim of ineffective assistance of counsel/ 
The text of the case is available at http://laws.findlaw.com/9th/9770752.html 
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Szeto v. Reno, Northern District of California 
In this case, the court ruled that the mandatory detention provisions of the INA could not be applied to the petitioner and granted his petition for a writ of habeas corpus. 
Szeto, a Chinese citizen, has been a permanent resident of the US for over 30 years.  In 1979, when he was 20, he was convicted on two burglary charges.  In 1985, while in deportation proceedings, he received a waiver of deportation.  In 1997, he was convicted of shoplifting.  Because of his prior convictions he was sentenced to almost three years in prison.  After his release, the INS took him into custody pending deportation as an aggravated felon. 
Szeto filed a petition with the court that convicted him, and successfully had his 1997 conviction vacated.  He pled to reduced charges and was sentenced to 11 months and 29 days.  Because he was not sentenced to at least one year in prison, he was no longer an aggravated felon.  The INS countered this move by charging him with deportability based on the commission of two or more crimes involving moral turpitude.  Despite this change in circumstances, the INS has continued to detain Szeto.  Seeking his release, Szeto filed this petition for a writ of habeas corpus.  
In the petition Szeto argued that mandatory detention, as applied to him, violated his constitutional right to due process.  The government argued that Szeto did not have a right to liberty and that its application of the mandatory detention provision should be given deference.  The court found that as a lawful permanent resident with a strong claim to avoid deportation, Szeto did have an interest in remaining at liberty during the pending deportation proceedings.  
The government also argued that because of Congress’s plenary control over immigration laws, the court should defer to the INS’ interpretation of the mandatory detention statute.  The court disagreed.  According to the court, while Congress’s decisions on substantive immigration laws are due great deference, decisions on how to implement those laws are not due so much deference.  The court found that detaining Szeto during deportation proceedings, given that he was being deported because of crimes of moral turpitude, was clearly excessive in relation to any goal behind detention, such as preventing flight to threats to the community. 
The text of the case is available using the Lexis search engine.  The citation to enter is 2000 U.S. Dist. LEXIS 6738 
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Tapis International v. INS, District of Massachusetts 
In this case, the court ordered the INS to approve the plaintiff’s application for an extension of his H-1B visa. 
Tapis International is an interior design firm specializing in importing custom designed flooring.  It employed Quaid Pindwarawala as showroom manager.  He was responsible for developing the business’s market plan, tracking inventory, and maintaining client relationships, among other duties.  Mr. Pindwarawala has a Bachelor of Commerce degree from a school in India, an Associates Degree in interior design from a US school, and a Masters Degree in business administration from a US school.  In 1994, Tapis first obtained an H-1B visa for Mr. Pindwarawala.  In 1997, it applied for an extension of this visa.  The INS denied the extension application.  
To obtain an H-1B visa, there are two essential requirements.  First, the position must qualify as a specialty occupation.  Second, the beneficiary must be qualified to work in the position.  The INS’ decision in granting or denying an H-1B visa is accorded great deference by courts, and will be reversed only if it is arbitrary, capricious, an abuse of discretion or not in accordance with the law.  The INS can abuse its discretion by failing to adhere to its own regulations, or by making a decision inconsistent with prior precedent.  Tapis argued that denying the extension application after granting the visa initially was an abuse of discretion. 
The INS denied the extension application because it concluded that the position did not require a bachelors degree in a specific specialty.  Tapis said that it required a bachelors degree in marketing, business administration, or a similar field, plus additional training in interior design.  The court found that while the INS was reasonable in requiring a bachelors degree in a specific field, it abused its discretion by ignoring those parts of the regulations that allowed for the equivalent of a bachelors degree.  According to the court, the INS’ interpretation would result in a denial unless Pindwarawala had a degree in design showroom management.  It is not reasonable to take this position, because then H-1B visas would be available only in fields where a degree was offered, ignoring the statutory provision allowing the use of experience and training to show eligibility for the visa.  
The court also found that the INS’ failure to explain the denial of the extension, after having approved the initial visa, was an abuse of discretion.  While the INS can change its position in such situations, it must provide some explanation for the change.  Here none was provided.  By failing to provide this explanation, the INS also abused its discretion. 
Therefore, the court ordered the INS to grant the H-1B extension request, retroactive to the date when the first visa expired.  The INS was also ordered to restore Pindwarawala’s immigration status to what it would have been had the visa extension application been properly granted. 
The text of the case is available using the Lexis search engine.  The citation to enter is 2000 U.S. Dist. LEXIS 6545 
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In re Rodriguez-Diaz, Board of Immigration Appeals 
In this case, the Board ruled that an alien who is not properly informed of the consequences of waiving the right to appeal cannot effectively waive that right. 
The respondent was unrepresented at his deportation hearing.  The Immigration Judge advised him as follows:  “You also have the right to appeal if I make a decision you’re not happy with.  You have 30 days to appeal.  Your appeal must be in English in writing directly to the Board of Immigration Appeals.  Your appellate rights are explained on the piece of paper in front of you.” 
The IJ then found him deportable and not eligible for any form of relief.  He asked the respondent if he accepted this decision as final, and the respondent replied yes.  The IJ took this as a waiver of the right to appeal.  The respondent filed an appeal, which the INS argued could not be heard because of the waiver.  
While the IJ asked if the respondent accepted his decision as final, a term that immigration practitioners understand to be requesting a waiver of the right to appeal, this meaning may be lost on someone who is not represented by legal counsel.  In this case, the respondent’s answer that he accepted the decision as final was not sufficient indication that he understood he was waiving his right to appeal.  While the respondent’s appeal was heard, the Board found it to be without merit and therefore upheld the deportation order. 
The text of the case is available at:  http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3431.pdf