NEWS FROM THE COURTS

Richards-Diaz v. Fasano, Ninth Circuit

In this case, the court ruled that the elimination of waivers of deportation could be applied retroactively.

On February 21, 1996, Richards-Diaz, a lawful permanent resident, was sentenced to 180 days in prison for drug possession.  On June 20, 1997, the INS started deportation proceedings on the ground that Richards had been convicted of an aggravated felony.  An Immigration Judge found he was deportable and that he was not eligible for a waiver of deportation under section 212(c) of the Immigration and Nationality Act.  This decision was upheld by the Board of Immigration Appeals.  Richards then filed a petition for a writ of habeas corpus with a federal district court.  The petition was denied and Richards appealed to the Ninth Circuit.

Before 1996, when the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) were passed, many aliens were eligible for a waiver of deportation under section 212(c).  Only those who were convicted of an aggravated felony and sentenced to at least five years in prison were ineligible.  The AEDPA made anyone convicted of an aggravated felony ineligible for a waiver if they were sentenced to at least one year in prison.  The IIRAIRA eliminated the waiver and replaced it with cancellation of removal, for which no one convicted of an aggravated felony is eligible.

Before the Ninth Circuit, Richards argued that the repeal of section 212(c) was impermissible as the INS was applying it to him.  The Ninth Circuit has already addressed the retroactive application of the new definition of aggravated felony and held that was permissible.  Along similar lines, it ruled in this case that the waiver could be eliminated retroactively, that is, that it could be made unavailable to someone who relied on its availability in deciding to plead guilty to a lesser offence. 

Because there was no evidence taken on whether Richards had indeed actually relied on the possibility of a waiver when he pled guilty, the court remanded the case for a hearing on this issue.

The opinion is available online at http://laws.findlaw.com/9th/9956530.html.

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Gafoor v. INS, Ninth Circuit

In this case, the court reversed the decision of the Board of Immigration Appeals denying asylum. 

Abdul Gafoor, an ethnic Indian from Fiji, sought asylum in the US.  In 1987, the government of Fiji, which at the time was dominated by ethnic Indians, was overthrown by ethnic Fijians.  A government was set up that ensured that Indo-Fijians would not possess political power.  There was also widespread discrimination and violence against Indo-Fijians.  At the time of the coup, Gafoor was a policeman, one of the few Indo-Fijians on the force.  In 1987, while on patrol, he discovered a man raping a 13-year-old girl.  Gafoor arrested him, but was told by his supervisor to release the man because he was a high-ranking army officer.  The man was released, and the supervisor told Gafoor that his life was now in danger. 

The next night, the army officer came to Gafoor’s house with a group of men and beat him in front of his wife and children.  They took him into custody for a week, where he was again beaten, and told not to tell anyone what happened, either about the beating or the rape he witnessed.  Several days after he was released, he was again approached by the army officer and a group of men, who beat him and told him he should go back to India.  Gafoor and his family then fled Fiji and spent the next three years in Canada.  In 1991 he entered the US, and in 1993 the INS began deportation proceedings.  Gafoor then filed an application for asylum.  The Immigration Judge denied the application, finding that the attacks against him were motivated not by his ethnicity, but by revenge for his actions against the army officer.  Gafoor appealed to the Board of Immigration Appeals, which upheld the denial.  Gafoor then filed an appeal with the Ninth Circuit.

The BIA did find that Gafoor suffered persecution, a finding with which the Ninth Circuit agreed.  The issue for the Ninth Circuit was whether this persecution was on the basis of Gafoor’s Indian ethnicity.  Ninth Circuit precedent allows for persecution based on mixed motives, such as, for example, a person’s political opinion and extortion.  The court found that while BIA decisions are given great deference, its decision in this case was not supported by substantial evidence. 

During his beatings he was accused of not supporting the army, and was told to go back to India.  If this testimony is accepted as true, as it was by the Immigration Judge and the BIA, it is evidence that he was persecuted on the basis of his ethnicity and a political opinion imputed to him by his attackers. 

The Ninth Circuit found that the arrest of the army officer was undoubtedly part of the reason for Gafoor’s attacks.  However, the ethnic slurs levied at Gafoor during the beatings made clear that his ethnic background at least in part motivated the attacks.  This becomes even clearer in light of the situation in Fiji, where discrimination against and persecution of Indo-Fijians was widespread.

The BIA had also ruled that because of changed country conditions, Gafoor no longer faced a threat of persecution in Fiji, based on the State Department country condition report for 1992.  Since then conditions in Fiji have changed dramatically.  Before this year, ethnic tensions had been subsiding.  Early this year, however, the government was again overthrown and violence against Indo-Fijians began anew. 

Therefore, the court remanded to the BIA for a new determination of whether Gafoor would face persecution if made to return to Fiji.

The text of the opinion is available online at http://laws.findlaw.com/9th/9871201.html.

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