NEWS FROM THE COURTS Jideonwo v. INS, Seventh Circuit
In this case, the court ruled that when an alien shows that they pled guilty in reliance on the possibility of a waiver of deportation, subsequent changes in immigration laws cannot be used to make them ineligible for the waiver.
Jideonwo, a native of Nigeria, came to the US on a student visa in 1980. In 1981 he married a US citizen and became a permanent resident. In 1994 he pled guilty to one count of conspiracy to distribute heroin. Throughout the plea negotiations both Jideonwo and his attorney express concern that Jideonwo receive a sentence of less than five years so that he would remain eligible for a waiver of deportation under section 212(c) of the Immigration and Nationality Act. Eventually, Jideonwo was sentenced to four years and eleven months.
In April 1996 the Anti-Terrorism and Effective Death Penalty Act became law. One of its effects was to change the eligibility requirements for a 212(c) waiver. Whereas before a person could obtain a waiver so long as they were sentenced to less than five year, under the AEDPA, a waiver was a possibility only if the person was sentenced to less than one year. In August 1996 the INS placed Jideonwo in deportation proceedings. He applied for a waiver, but the Immigration Judge ruled that the AEDPA applied to him and made him ineligible for the waiver. The Board of Immigration Appeals affirmed. Jideonwo appealed to the Seventh Circuit.
Previous Seventh Circuit cases addressing the jurisdictional limits created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 resulted in the requirement that for the court to hear his appeal, Jideonwo must show that his case raises constitutional issues. The court found that his appeal, in which he argued that the AEDPA should not be applied to his offense, which occurred before it was passed, raised issues of retroactive application of laws that were best addressed under the Due Process Clause. Therefore, the court had jurisdiction.
One of the fundamental ideas encompassed in the Due Process Clause is that a person has the right to know what the law is so that they may behave in conformity with it. This notion prevents the retroactive application of laws that would change the legal consequences of an act already completed. Here it was clear that Jideonwo pled guilty only because he was able to obtain a sentence that left him eligible for a waiver of deportation. Application of the AEDPA to him, rendering him ineligible for a waiver, would clearly change the legal consequences of his decision to plead guilty. Therefore the court ruled that in cases where the alien clearly demonstrates that he pled guilty at least in part on reliance on the availability of a waiver, the AEDPA cannot be applied retroactively to render them ineligible for the waiver.
The opinion is available online at http://laws.findlaw.com/7th/993243.html.
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Barapind v. Reno, Ninth Circuit
In this case, the court ruled that the Board of Immigration Appeals properly stayed action on an asylum application while the applicant was in extradition proceedings.
In 1993, the INS detained Barapind as he attempted to enter the US. He was placed in exclusion proceedings. He made an application for asylum, saying that he suffered persecution on account of his participation in a Sikh student group that advocated the creation of a Sikh home country within India. The application was denied, based in part on a request for Barapind’s extradition filed with the State Department by the government of India that claimed that Barapind was responsible for the deaths of 52 people. The Immigration Judge found him ineligible for asylum as someone who had persecuted people on the basis of their political opinions.
Barapind filed an application for a writ of habeas corpus, and the district court ordered the case remanded to the Board of Immigration Appeals, in part based on a finding that the IJ had erred in taking the allegations in the Indian extradition request as fact. At the same time, the US government filed a request for Barapind’s extradition to India. The INS then filed a request to have proceedings in Barapind’s asylum case stayed pending the resolution of the extradition case. The BIA granted this request.
Barapind then filed a second petition for habeas corpus. The district court dismissed for lack of jurisdiction, ruling that in filing the second petition Barapind was abusing the writ of habeas corpus. Barapind appealed to the Ninth Circuit.
The Ninth Circuit found that the second filing was not an abuse of the writ and that it did have jurisdiction. The first petition sought review of the decision to deny him asylum, this second petition is not addressing the same matter, but rather seeks to have the INS adjudicate the application even though extradition proceedings were ongoing. The court then addressed the two claims at the heart of Barapind’s petition, first, that staying the adjudication of his asylum application violates due process, and second, that the Refugee Act of 1980 preempts some of the relevant provisions in the extradition treaty between the US and India. The court rejected both of these contentions.
While the stay does delay the decision on the asylum application, such delay is not unreasonable, and does not violate due process. The Refugee Act does prohibit the return of a person to a country where they will face a threat to their life or freedom on account of a protected ground; however, because Barapind is not yet subject to a final extradition order, the issue of whether his extradition conflicts with the Refugee Act is not yet ripe for review. Therefore, the court upheld the decision of the BIA to stay further action on the asylum application until the extradition proceedings are completed.
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Hernandez-Montiel v. INS, Ninth Circuit
In this case, the court ruled that gay men who adopt female sexual identities are a particular social group, and that persecution because of membership in that group can be the basis for asylum.
Hernandez-Montiel, a Mexican citizen, entered the US in 1994, seeking to avoid the treatment he received in Mexico because of his sexual orientation. Shortly thereafter, he applied for asylum. The Immigration Judge denied his application, finding that he had failed to demonstrate that the mistreatment he suffered was persecution on account of membership in a particular social group. The Board of Immigration Appeals affirmed, finding that any mistreatment Hernandez-Montiel suffered was because of his choice to dress like a woman, not his homosexuality. He appealed the decision to the Ninth Circuit.
The success of Hernandez-Montiel’s asylum application depended on establishing his membership in a particular social group. The Immigration and Nationality Act provides no definition of particular social group, and courts interpreting the phrase have not reached consistent results. The BIA has ruled that membership in a group is demonstrated by a shared, immutable characteristic, a component of a person’s identity that they cannot change. The Ninth Circuit has held that membership in a particular social group can also be demonstrated by a voluntary association.
Hernandez-Montiel testified that at the age of eight he realized he was gay. At 12, he began dressing and acting like a girl. He was forbidden from participating in school activities, and was eventually expelled because of his behavior. On numerous occasions police harassed him, and on one occasion a police officer forced Hernandez-Montiel to perform oral sex on him, threatening him with prison if he told anyone. Two weeks after this incident, Hernandez-Montiel was raped by the same officer, who threatened to kill him if he reported the rape. Along with his testimony, a professor from San Diego State University testified about the treatment of homosexuals in Mexico. The professor testified that homosexuals with female sexual identities are subject to harassment and persecution both by the population at large and by government agents.
The Ninth Circuit found that a person’s sexual orientation and identity are immutable characteristics fundamental to a person’s sense of themselves. Indeed, many courts have granted asylum on the basis of persecution a person suffered because of their homosexuality. However, in this case, the BIA had ruled that Hernandez-Montiel suffered persecution not because of his homosexuality, but because of the way he dressed. The Ninth Circuit avoided this issue by describing the social group of which Hernandez-Montiel was a member as gay men with female sexual identities. Whereas the BIA saw Hernandez-Montiel’s transvestitism as a choice in clothes, the Ninth Circuit saw it as an expression of his deep-rooted sexual identity.
The court also found that Hernandez-Montiel was clearly persecuted because of the outward manifestations of his sexual identity. Most of the persecution he suffered was at the hands of the police, the very force charged with protecting members of the public. Finding he had established past persecution, Hernandez-Montiel was entitled to a presumption that he would fact persecution is returned to Mexico. While the INS can rebut this presumption, they failed to do so in this case. Therefore, the court ordered that Hernandez-Montiel be granted asylum.
The opinion is available online at http://laws.findlaw.com/9th/9870582.html.
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Lim v. INS, Ninth Circuit
In this case, the court held that death threats, combined with other evidence, could lead to a well-founded fear of persecution.
Lim was a police officer in the Philippines from 1972 to 1987. Beginning in 1978, he was assigned to the intelligence branch of the force, and was part of a team investigating the murders of several police officers by the New People’s Army (NPA), the armed part of the Communist Party in the Philippines. He testified in court against those charged with the murders. Shortly after this, he began receiving death threats, and was told he was on an NPA death list. In 1987, after two years of the threats, Lim quit the police force. Nonetheless, the threats continued, and in 1990 several of his colleagues on the police force who were part of the investigation into the NPA were murdered. In May 1991 Lim began to notice that he was being followed. In August of that year, he fled to the US.
Shortly after his arrival, Lim applied for asylum. The Immigration Judge denied the application, finding that Lim had not suffered past persecution, nor did he have a well-founded fear of future persecution. The BIA affirmed this decision. Lim then appealed to the Ninth Circuit.
The Ninth Circuit allowed that part of the motivation behind the NPA’s death threats could be personal revenge; however, it was also clear that the NPA imputed to Lim a political opinion that was opposed to the aims of the NPA. Under Ninth Circuit case law, persecution can be on account of mixed motives, and so long as one of the motives is a protected ground, the persecution can be the basis for an asylum claim.
The court also found that Lim had a well-founded fear of future persecution. For a fear of persecution to be well-founded, a person doesn’t have to be more likely than not to face persecution, or even have a fifty percent chance. Rather, whether the fear of persecution is well-founded depends on its reasonableness. A person may face only a ten percent chance of being persecuted, but it is nonetheless reasonable to fear it. Therefore, Lim is eligible for asylum. < 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. |
