NEWS FROM THE COURTS

Cervantes-Gonzalez v. INS, Ninth Circuit

In this case, the court ruled that the petitioner was not eligible for a waiver of inadmissibility.

Cervantes-Gonzalez, a Mexican citizen, entered the US in 1989 without authorization.  To make it easier to obtain work, he bought a fraudulent Texas birth certificate.  He was then able to obtain a Social Security card and several other identity documents.  In 1994 he used these documents to make an application for a US passport.  The documents were found to be fraudulent and Cervantes-Gonzalez was arrested and convicted for possession of fraudulent identity documents.  The INS then placed him in deportation proceedings.  In August 1996, while in proceedings, Cervantes-Gonzalez married a woman who was at the time a permanent resident.  His wife filed an application for an immigrant visa on his behalf, and when it became current he filed an application for adjustment of status under section 245(i) of the Immigration and Nationality Act.

Section 245(i) allows people who entered the US without authorization, or have fallen out of lawful nonimmigrant status while in the US, to seek adjustment of status after paying a $1000 penalty.  To be eligible for adjustment of status under section 245(i), the person must be the beneficiary of an approved immigrant visa petition and must, aside from the unlawful entry or status violation, be admissible.

At Cervantes-Gonzalez’ deportation hearing, which occurred on January 21, 1997, the Immigration Judge ruled that Cervantes-Gonzalez was inadmissible and was not eligible for a waiver of inadmissibility because of the fraudulent document conviction. 

Prior to the enactment of the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, waivers of inadmissibility were routinely granted to spouses, parents and children of permanent residents and US citizens.  The IIRAIRA created a new requirement that the person seeking the waiver show that without it, a US citizen or permanent resident would suffer “extreme hardship.”  Cervantes-Gonzalez argued that this new standard should not be applied to him because his case was pending before it became effective.

Congress did not provide for an effective date for this section of the IIRAIRA, leaving the court to determine whether it should be applied retroactively.  The court found that because the new provision only limited a discretionary power and did not effect the legal consequences of the events that led to the need for a waiver, it could be applied retroactively.

The opinion is available online at http://laws.findlaw.com/9th/9970403.html.

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Munoz-Ortiz v. INS, Ninth Circuit

In this case, the court ruled that the petitioner’s brief and inadvertent departure from the US did not make him ineligible for suspension of deportation.

In 1997 the INS began deportation proceedings against Munoz, a resident of Juneau, Alaska.  The Immigration Judge in Alaska is in Anchorage.  He flew to Anchorage to let the IJ know he wanted to apply for suspension of deportation, and a hearing was scheduled for a later date.  He wanted for his family to be able to attend the suspension hearing, but was not able to afford airfare.  Therefore, the family decided to drive to Anchorage.  Munoz did not know that to drive from Juneau to Anchorage, one must leave and reenter the US, as the road passes through Canada.  Munoz was detained when he attempted to reenter the US.  After explaining the situation to the border agent, and obtaining a letter from his attorney, Munoz was allowed to reenter to attend the suspension hearing.

At the hearing the INS argued that when Munoz entered Canada on his way to the hearing, he interrupted the period of continuous physical presence required to be eligible for suspension of deportation, and that he was now an alien seeking admission to the US.  The IJ agreed with the INS and terminated the deportation hearing in lieu of an exclusion hearing.  Munoz appealed.

The INS argued that the Ninth Circuit did not have jurisdiction because there was no final deportation ordered.  The Ninth Circuit disagreed, finding that the IJ’s decision to terminate proceedings should be viewed as a denial of the application for suspension of deportation because he erroneously believed that Munoz was no longer eligible for suspension.  Appeals from denials of discretionary relief may be heard by the federal courts of appeals.

Instead of analyzing the facts himself, the IJ took the INS’ legal conclusion, that Munoz was no longer eligible for suspension, as a fact, a fact the Ninth Circuit found was not supported by the law.  Absences from the US that are “brief, casual, or innocent” do not interrupt the period of physical presence, and do not create a new admission when the person reenters the US.  Because his absence was “brief, casual and innocent,” Munoz was still properly in deportation proceedings and still eligible for suspension of deportation.  Therefore the court remanded to the IJ for a hearing on the suspension application.

The opinion is not available online.

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Fu v. Reno, Northern District of Texas

In this case, the court ruled that a mandamus action to force the INS to adjudicate a pending application for adjustment of status was possible.

The Fu’s, a husband, wife and daughter, filed for adjustment of status at the INS Texas Service Center based on an I-140 that had been approved for the father.  These applications were filed on September 31, 1997.  After years of INS inaction, they filed suit against the INS on April 30, 1999, seeking a writ of mandamus to order the INS to act on their applications.  The case was assigned to a federal magistrate.  The magistrate ordered the case dismissed, finding that the federal court lacked jurisdiction.  This decision was adopted by the judge.  The plaintiffs filed a motion to reconsider, in which they clarified the jurisdictional basis of their claim. 

The INS argued that section 242(g) of the Immigration and Nationality Act precluded federal court jurisdiction.  This section provides that “Except as provided in this subsection and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action of the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.”  The plaintiffs argued that this provision referred only to deportation issues, while the INS argued that it referred to all actions of the INS.  The court agreed with the plaintiffs, finding that not only had this interpretation had been approved by other courts, it was compelled by the title of section 242, “Judicial review of orders of removal.”

The court then addressed a second jurisdictional issue, whether the federal court had subject matter jurisdiction.  As a general rule, federal courts have jurisdiction to review federal agency action.  The INS argued that the court did not have jurisdiction to issue a writ of mandamus.  Mandamus is available when the party seeking it shows that they have a clear right to relief, that there is a clear duty by the defendant to perform, and that there is no other adequate remedy.  The court found the first and second elements were easily satisfied.  Initially the court had affirmed the finding of the magistrate that the third element was not satisfied, but now reversed itself.  Finding that the plaintiffs did not seek to compel the INS to make a specific ruling on the application for adjustment of status, but only to adjudicate it, and that the plaintiffs had a right to the adjudication in a reasonable amount of time, the court ruled that waiting for the INS to finally reach a decision was not an adequate remedy.

Because there was dispute as to whether the INS delay in adjudicating the applications was reasonable, the court did not issue a final ruling, and instead set the matter for further hearings.

The opinion is available online through Lexis at 2000 U.S. Dist. LEXIS 16110.

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