NEWS FROM THE COURTS US v. Garcia-Martinez, Ninth Circuit
In this case, the court found that there is no institutional bias in expedited removal proceedings, and that such deportations can later be used in a prosecution for being unlawfully present in the US following deportation.
Aurelio Garcia-Martinez, a citizen of Mexico, was charged with being a deported alien unlawfully present in the US. Garcia-Martinez sought to avoid conviction by arguing that the underlying deportation was unfair. He had been deported using the expedited removal process. The trial court found that while the expedited removal was unfair because Garcia-Martinez was not informed of the fact that he could avoid expedited removal by seeking an individual hearing before an Immigration Judge, Garcia-Martinez had not suffered any prejudice. It sentenced him to three years in prison and three years probation. Garcia-Martinez appealed.
To avoid prosecution, Garcia-Martinez must show both that the underlying removal violated his due process rights and that he suffered prejudice as a result. The heart of his claim that the underlying deportation was unfair was that the INS officer who finalized the removal order was institutionally biased. While the Ninth Circuit has not decided this issue in the expedited removal context, it has previously ruled that Immigration Judges do not suffer from institutional bias. This, plus a Fifth Circuit case finding no institutional bias in the expedited removal process, persuaded the Ninth Circuit to reject the claim.
Moreover, Garcia-Martinez could not show that he was prejudiced by the expedited removal. He would not have been eligible for any relief from deportation because of an aggravated felony conviction. He argued that prejudice should be assumed because of the institutional bias of the INS officer, but after the court had rejected the bias argument, the claim of prejudice was similarly rejected.
The text of the opinion is available online at http://laws.findlaw.com/9th/9950546.html.
*********
Boz v. US, Eleventh Circuit
Ivan Boz, a citizen of the Bahamas, entered the US in 1983. He never had lawful immigration status. In 1995 and 1997 he was convicted of minor car theft offenses. After serving 120 days in jail for the 1997 offense, the INS took Boz into custody, pending deportation for conviction of two crimes involving moral turpitude. In April 1998 the deportation order became final. The INS has not been able to remove Boz, and he has remained in custody since sometime in 1997.
Boz filed a petition for a writ of habeas corpus seeking his release. The district court denied the petition, viewing it as a request to review the deportation order, and saying that it did not have jurisdiction. Boz appealed.
The Eleventh Circuit realized that Boz was not seeking a review of the deportation order but of his continuing custody. It did not seem that the INS would be able to deport him, and his detention could continue indefinitely. The court found that there was no jurisdictional bar to hearing the case, and remanded the case to the district court for a hearing.
The facts and outcome of this case are not unusual except for the court that issued it. The Eleventh Circuit last year issued a decision, Richardson v. Reno, in which it ruled that an alien still in deportation proceedings cannot challenge their detention in a writ of habeas corpus. The language of that opinion was extremely broad, stating that the new judicial review provisions of the Immigration and Nationality Act were sufficiently broad to eliminate habeas corpus jurisdiction. In the present case, the Eleventh Circuit limited Richardson, finding that the judicial review provisions found to preclude habeas corpus jurisdiction in that case did not apply here because deportation proceedings were over. While there are factual differences between this case and Richardson, this opinion does signal that the Eleventh Circuit may be backing off its strict interpretation of the judicial review provisions of the INA.
The text of the opinion is available online at http://www.findlaw.com/11th/9912234.html.
*********
In re (name withheld), Board of Immigration Appeals
In this nonprecedent case, the Board determined that negligent homicide is not a crime of violence and thus not an aggravated felony that can be the basis for deportation.
The respondent was convicted in Arizona of negligent homicide and sentenced to two and a half years in prison. The Arizona statute provides that criminal negligence exists where a person fails to perceive a substantial risk that the result will occur. A crime of violence, as used in immigration law, is defined in the US Code. The US Code provides that a crime of violence as one that has as an element the use or threatened use of physical force, or a substantial risk that physical force will be used during the commission of the offense. In applying this standard to offenses, the Board looks only at the statutory requirements of the offense, not the individual circumstances.
Nothing in the Arizona statute made the use of physical force a requirement, instead focusing on the failure to perceive a risk. Therefore, it is not a crime of violence and not an aggravated felony.
The opinion is not available online. < Back | Next > Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. | 
