NEWS FROM THE COURTS

Aybar-Alejo v. INS, First Circuit

In this case, the court found that it did not have jurisdiction, in effect upholding a final order of deportation.

In 1992, Aybar-Alejo was convicted in Rhode Island State court of possession of a firearm under a law that forbids foreign citizens from possessing or controlling a firearm. The INS instituted deportation proceedings shortly thereafter. Under federal firearms law, possession of a weapon is construed to mean both actual and constructive possession, which can be shown by evidence of indirect control, and less than actual physical possession. Because Rhode Island used the same concept of constructive possession, the conviction can be used by the INS. Finding that this was the case, the court dismissed the case for lack of jurisdiction.

The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2000,1103-Aybar.pdf.

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Nelson v. INS, First Circuit

In this case, the court upheld the denial of asylum, and also found there was no due process violation in the asylum hearing.

Laeila Nelson, a citizen of Suriname, sought asylum in the US after fleeing her home country. An Immigration Judge denied the application and ordered her deported for remaining past the time allowed under her nonimmigrant visa. Throughout the proceedings, she was not represented by an attorney, although the IJ repeatedly told her about the availability of pro bono legal assistance. After the deportation order, Nelson finally secured counsel and filed an appeal with the Board of Immigration Appeals. The BIA affirmed the IJ’s ruling. Nelson appealed to the First Circuit, claiming that her due process rights had been violated, and that she was eligible for asylum.

The First Circuit said that there was no due process violation, finding that the IJ made numerous efforts to encourage Nelson to seek counsel. The court also found that while Nelson had been detained three times, on each occasion suffering physical violence, she had not suffered past persecution. Because she could not demonstrate past persecution, there was no presumption that she would face persecution is returned to Suriname. Without this, she had to show that there was a reasonable probability that she would be persecuted if returned. The court found there was no such probability. She had remained in Suriname four years after her last detention. Moreover, since then the government of Suriname had changed from a dictatorship to a democracy, and incidents of human rights violations have decreased. Therefore, she was not eligible for asylum.

The opinion is available online at http://caselaw.lp.findlaw.com/cgi-moses/getcase.pl?court=1st&navby=case&no=992283.

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Iavorski v. INS, Second Circuit

In this case, the court found that there is an exception to the statutory requirement that motions to reopen be filed within 90 days of the decision, and that the statute of limitations on motions to reopen may be tolled when fairness demands it.

Iavorski, a citizen of Russia, entered the US in 1995 on a tourist visa. He overstayed the visa and sought asylum. His application for asylum was denied, but he was given the opportunity to voluntarily depart the US rather than be deported. He was told that if he did not voluntarily depart the US within one year, he would be ineligible for many forms of relief, including adjustment of status. He claims his attorney told him an appeal would be filed, but in fact one never was. Iavorski did not depart within the one-year period, and in April 1998 was selected in that year’s diversity visa lottery. He filed a request under the Freedom of Information Act to determine the status of his deportation case, and learned that no appeal had been filed. He secured new counsel who filed a motion to reopen. The Immigration Judge denied the motion as untimely, coming more than 90 days after the original decision. INS regulations require motions to reopen be filed within 90 days. Iavorski appealed the denial to the Board of Immigration Appeals, which also denied the motion, finding it did not fall within the only exception for late motions to reopen, that of changed country conditions.

Iavorski appealed to the Second Circuit, arguing that because he received ineffective assistance of counsel his late motion to reopen should be allowed. The court addressed the idea of equitable tolling of statutes of limitations, that is, allowing late motions in order to ensure that a legal proceeding was fundamentally fair. Whether a statute of limitations can be tolled depends on legislative intent.

Before 1990, there was no limit on either the number of motions to reopen that could be filed, nor any time limit on when they had to be filed. In 1990, Congress passed a law requiring the INS to promulgate regulations setting a limit on both the number of motions and the time in which they could be filed. The INS developed the 90-day rule in response. The history of this regulation indicates that despite the new time limit, there would still be cases in which a late motion to reopen will be accepted. In 1996, when these time limits were codified, there was no indication that the approach of the regulation was to be abandoned.

The INS argued that under the principle requiring court deference to agency interpretations of its rules, the Board of Immigration Appeals decision denying the motion should be upheld. The Second Circuit disagreed. The deference rule applies when the agency is interpreting a rule that is uniquely within its area of expertise. The INS is not uniquely qualified to interpret statutes of limitations, so no deference to its interpretation is required.

Although the court found that the statute of limitations on filing motions to reopen could be tolled when demanded by fairness, it found that such a tolling was not warranted in this case. According to the court, Iavorski failed to exercise due diligence in pursuing his case, allowing nearly two years to pass before inquiring about the state of his asylum application. Therefore, it denied his late motion to reopen.

The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2000,1109-Iavorski.shtm.

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Loa-Herrera v. Trominski, Fifth Circuit

In this case, the court dissolved a lower court injunction requiring the INS to make individualized determinations before seizing green cards of permanent residents in deportation proceedings.

This was a class action suit brought on behalf of lawful permanent residents in deportation proceedings but without a final order of deportation, whose green cards had been seized by the Harlingen, Texas INS office. Last year a district court issued an injunction setting out guidelines that the INS must follow before seizing green cards. The INS appealed.

The reason the plaintiffs are upset with the seizure of their green cards is that until a deportation order is final, a permanent resident is still authorized to work. While the INS did replace the green cards with other evidence of their status, these documents are not as well known as green cards, and caused them trouble in seeking employment.

The court dissolved the injunction, finding that in creating it the district court had improperly relied on an internal INS memo stating that green cards should be seized only after an individualized determination. The Fifth Circuit found that this policy memo did not create enforceable rights for the plaintiffs, and could not be the basis for an injunction. The court cited an INS regulation detailing when green cards could be seized, saying that it required only that the INS issue some form of temporary evidence of permanent resident status.

The opinion is available online at http://www.ca5.uscourts.gov/opinions/pub/99/99-40122-ev0.HTM.

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US v. Graham, Western District of Washington

In this case, the court found that the warrantless search conducted by US Customs officials was unconstitutional.

In northwestern Washington state, there are numerous ferries connecting US and Canadian cities. One of these begins in Sidney, British Columbia, has a stop in Friday Harbor, Washington, and then terminates at Anacortes, Washington. Between Friday Harbor and Anacortes the ferry is entirely within US territory. Passengers who board the ferry in British Columbia are not subject to inspection by US immigration officials, but are inspected by Canadian immigration authorities. Graham boarded the ferry at Friday Harbor, and his car was searched at Anacortes, leading to the discovery of 85 pounds of marijuana. The government prosecuted him, and he sought to have the marijuana suppressed as the fruit of an unconstitutional search and seizure.

At Anacortes, Graham was approached by a US Customs Service inspector. He told the inspector that he boarded the ferry in Friday Harbor. The inspector demanded to look into his vehicle, and in the back discovered the drugs. There was no warrant for the search, nor was there probable cause for the search, facts the government admitted. Instead, the government argued that the warrantless search was authorized under the exception that allows them in areas close to the border.

The exception to the warrant requirement for searches conducted at the border is well-established. It is based on the idea that such searches are reasonable because the searches are of people who have been outside the US and are seeking to enter. There was no evidence that Graham had been outside of the US on the day he was searched. The exception that the government sought to apply can be used only when there is an actual border crossing, which did not occur in this case. Therefore, the search was an unconstitutional violation of the Fourth Amendment and the drugs seized in it are not admissible in court.

The opinion is not available online.

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In re Davis, Board of Immigration Appeals

In this case, the Board found that the respondent was eligible for relief under neither the pre-1996 nor post-1996 version of withholding of deportation.

The respondent was ordered deported in April 2000 on the basis of an aggravated felony conviction for which he spent more than five years in prison. The respondent argued that he was eligible for relief under section 212(c) of the Immigration and Nationality Act. He based this argument on the fact that in 1996 the bar to relief in section 212(c) was amended to eliminate the requirement that a person be in prison for at least five years to be ineligible for relief, and that federal courts have held that the 1996 amendments to section 212(c) cannot be applied to crimes committed before those amendments. He argued that the 1996 version could not be applied to him, and that the earlier version no longer barred him from relief because the amended version eliminated the five-year standard.

The Board disagreed. Whether Davis was eligible for relief depended on the version of section 212(c) used, which the Board found was the version that existed before 1996, as written then, not with some changes from the 1996 laws. Because he had served more than five years in prison, he was ineligible for a waiver.

The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3439.pdf.

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