NEWS FROM THE COURTS

Mendez-Fuentes v. INS, Eighth Circuit

In this case, the court upheld the decision of the Board of Immigration Appeals to deny asylum.

Manuel Mendez-Fuentes, a citizen of El Salvador, sought review of the Board of Immigration Appeals dismissal of his asylum application. The Board had found him not credible.

Mendez-Fuentes claimed that soldiers repeatedly searched his house looking for his brother in law, who the soldiers suspected of producing anti-government propaganda. Despite these searches, the soldiers never found the brother in law, a claim the Board found highly unlikely. The Board also found unlikely Mendez-Fuentes’ claim that his brother in law was engaged in anti-government activities, given that he had been threatened by anti-government forces for refusing to do so. This made Mendez-Fuentes’ claim that the government imputed an anti-government political opinion to him on the basis of his brother in law’s activities particularly unlikely. The letters Mendez-Fuentes submitted in support of his application were found to be insufficiently specific. The Eighth Circuit agreed that Mendez-Fuentes had failed to establish past persecution.

The court also agreed that Mendez-Fuentes failed to show a reasonable fear of future persecution. Since his initial flight he had returned to El Salvador, family members remaining in El Salvador have not been harmed, and the State Department country condition report indicates that political violence has declined substantially since the 1992 peace accord. Therefore, the Eight Circuit upheld the denial of asylum.

The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2000,1016-Mendez.pdf.

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Okongwu v. Reno, Eleventh Circuit

In this case, the court ruled that the district court had jurisdiction to hear a petition for habeas corpus despite the failure to exhaust administrative remedies.

In 1994, Joseph Okongwu, a permanent resident of the US since 1985, was convicted of possession of cocaine with the intent to distribute. In 1995 the INS placed him in deportation proceedings. On January 1, 1996 Okongwu conceded deportability and sought relief under section 212(c) of the Immigration and Nationality Act. By the time his application for relief was ruled on in May, the Anti-Terrorism and Effective Death Penalty Act had been passed, eliminating the eligibility of aliens convicted of drug offenses for section 212(c) relief. Okongwu filed a petition for a writ of habeas corpus with the district court. The court dismissed the petition finding that the Illegal Immigration Reform and Immigrant Responsibility Act eliminated habeas corpus jurisdiction over such petitions.

Okongwu then appealed to the Eleventh Circuit. The first issue it had to decide is whether Okongwu had exhausted his administrative appeals as is required. He did not file an appeal of the denial of his request for section 212(c) relief. The court found that because the Board of Immigration Appeals would have dismissed the appeal, an appeal would have been futile, a common exception to the exhaustion requirement. Therefore, Okongwu’s failure to exhaust his administrative remedies was not a bar to habeas corpus jurisdiction.

The Eleventh Circuit remanded to the district court for it to determine the proper court to hear the case. Okongwu was originally taken into INS custody in Georgia. After he filed his petition for habeas corpus, he was moved to the INS detention center in Oakdale, Louisiana. While the district court did not examine the issue because it dismissed the case on the basis of lack of subject matter jurisdiction, the INS had argued that Okongwu should be required to bring his case in Louisiana, not Georgia. On remand, the court is to determine where the case should be heard, keeping in mind that the federal court that serves Oakdale is inundated with habeas corpus petitions filed by INS detainees.

The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2000,1017-Okongwu.shtm.

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