NEWS FROM THE COURTS Calcano-Martinez v. INS, Second Circuit
In this case, the court ruled that while the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 did eliminate the court’s jurisdiction to review removal orders, it did not eliminate federal court habeas corpus jurisdiction to hear cases brought to challenge a removal order.
This case involved three petitioners, each a permanent resident who had been convicted of an aggravated felony. They sought a waiver of deportation under former section 212(c) of the Immigration and Nationality Act, but were ruled ineligible because of their criminal convictions. They each appealed this ruling to the Second Circuit.
The first issue for the court was whether it had jurisdiction. The court has addressed this issue in similar contexts recently. First, after the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996, the court ruled that its jurisdiction stripping provision did eliminate the ability of a court of appeals to hear a deportation case on direct review, but did not affect the ability of the federal court to hear it via a writ of habeas corpus. Second, under the IIRAIRA’s transitional rules, the court again ruled that while direct review had been eliminated, habeas corpus had not.
Whether habeas corpus jurisdiction exists is vital for petitioners, such as those in this case, who have criminal convictions. This is because one of the provisions of the IIRAIRA eliminates appellate court jurisdiction to review cases of those ordered deported because of criminal convictions.
The INS argued that the following provision eliminated the writ of habeas corpus as a means to review a deportation order: “Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from an action taken or proceedings brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.” The court found that while this provision was clearly intended to limit the review of deportation orders, it would not stretch the provision to include elimination of habeas corpus, which was not mentioned in the statute. It is a long-standing principle of US law that jurisdictional statutes cannot be repealed by implication, which was the heart of the INS’s argument.
Therefore, the court ruled that while it could not hear the claims before it, such claims could be made before a district court through a petition for a writ of habeas corpus, and dismissed the cases without prejudice to the filing of a petition for habeas corpus.
The opinion is available online at http://laws.findlaw.com/2nd/984033.html.
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St. Cyr v. INS, Second Circuit
In this case, the court ruled that neither the provision of the Anti-Terrorism and Effective Death Penalty Act restricting eligibility for a waiver of deportation nor the provision of the Illegal Immigration Reform and Immigrant Responsibility Act eliminating the waiver and replacing it with cancellation of removal could be retroactively applied to a person who pled guilty.
St. Cyr, a citizen of Haiti, entered the US as a permanent resident in 1986. Most members of his family are either citizens or permanent residents. In March 1996 he pled guilty to selling a controlled substance. At the time of his plea he would have been eligible for relief from deportation under section 212(c) of the Immigration and Nationality Act, which provided a waiver of deportation for permanent residents who had lived in the US for at least seven years and had not been convicted of an aggravated felony punished by five or more years in prison.
On April 1, 1997, the INS placed St. Cyr in deportation proceedings. By this date, waivers of deportation had been eliminated. The Anti-Terrorism and Effective Death Penalty Act of 1996 had severely limited the class of people who could seek a waiver, and would have excluded St. Cyr because of his drug trafficking conviction. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 then completely did away with the waiver, replacing it with a new form of relief called cancellation of removal. No one convicted of any sort of aggravated felony, which was expanded to include all drug crimes but simple possession, is eligible for cancellation of removal. Because of these laws, the Immigration Judge held that St. Cyr was ineligible to seek any form of relief from deportation.
St. Cyr filed an application for a writ of habeas corpus with the district court, arguing that application of the AEDPA and the IIRAIRA to him was impermissibly retroactive. The district court agreed, and ordered that St. Cyr be given the opportunity to apply for any form of relief that would have been available to him at the time of the commission of the crime. The INS appealed.
Based on the opinion in Calcano-Martinez v. Reno, discussed above, the court does have jurisdiction over this case.
A number of Supreme Court cases have developed a framework for how a court is to approach a possible retroactive statute. First, the court should look to see whether Congress made an express statement about the temporal reach of the statute. In the absence of such a statement, the court must determine whether the statue at issue has a retroactive effect. If it does have a retroactive effect, it will fall to the long-standing presumption against retroactivity.
The court had two separate statutes to analyze, section 440(d) of the AEDPA, and section 304(b) of the IIRAIRA. Section 440(d) has been analyzed by at least seven other courts of appeal, with most finding that Congress did not make clear the temporal reach of the statute, and that it does have a retroactive effect when applied to convictions entered into before it was enacted. The Second Circuit agreed with these courts. It then turned its attention to section 304(b), which repealed the old waiver of deportation and replaced it with cancellation of removal.
The INS argued that Congress clearly made this provision retroactive with the effective date provision of the IIRAIRA. The IIRAIRA’s effective date provision make it apply to all cases except those that were pending on its effective date, April 1, 1997. The court found that this effective date provision in no way indicated Congress’s intent with respect to the effect of section 304(b), certainly not with enough precision to overcome the presumption against retroactivity.
Having found that Congress did not make its intent clear, the court when on to examine whether section 304(b) had a retroactive effect. The court found that when applied to aliens who had pled guilty or no contest to crimes that rendered them deportable prior to the enactment of the AEDPA and the IIRAIRA, section 304(b) did have a retroactive effect. About half of all aliens who sought a waiver of deportation when it was still available were granted one, making the form of relief a primary factor in their decision to plead guilty and forego their right to trial. Aliens who have made a decision to plead guilty on the basis of seeking a waiver of deportation who now find themselves ineligible for any relief from deportation have had their reasonable legal expectations upset. It is this upsetting of settled legal expectations that defines retroactivity. Therefore, the court ruled that aliens who pled guilty before the enactment of the AEDPA were still eligible to seek a waiver of deportation, and that those who were not placed in deportation proceedings until after the waiver was replaced by cancellation are still eligible to seek cancellation if they entered their guilty plea prior to the enactment of the IIRAIRA.
The opinion is available online at http://laws.findlaw.com/2nd/992614.html.
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Tang v. INS, Eighth Circuit
In this case, the court found that because the INS had failed to properly serve the alien with notice of deportation proceedings, they were able to continue accruing time necessary to be eligible for relief from deportation even after the attempted service.
Alicia Tang, a native of Hong Kong, entered the US on a tourist visa in late 1981. She overstayed her allowed time in the US, and in 1986 the INS began deportation proceedings against her. At a hearing held in 1987, an Immigration Judge found her deportable. Tang argued that she had not properly been served with the Order to Show Cause, the document formerly used by the INS to institute deportation proceedings. The IJ rejected this argument. Tang filed a notice of intent to appeal. At this point, an internal INS investigation apparently revealed that there was a legitimate question as to whether Tang had been properly served, and the INS and Tang jointly requested that the matter be remanded to an IJ. On October 17, 1990, the INS and Tang entered into a stipulation stating that she had been properly served the Order to Show Cause.
The deportation hearing began again, at which time Tang applied for suspension of deportation. The IJ denied the application, finding that while she met the good moral character and seven years of continuous physical presence requirement, she had not demonstrated that she would experience extreme hardship if deported. Tang appealed this decision to the Board of Immigration Appeals. The appeal was filed on April 12, 1991. The BIA did not make a decision in the case until June 5, 1997.
During the time between when the appeal was filed and when the decision was released, a number of important changes were made in immigration law. One of these concerned the physical presence requirement necessary to apply for suspension of deportation. Before the change, a person could continue to accrue the seven years of physical presence necessary to apply for suspension up until the point of the application. Afterward, the entire period of physical presence must be completed before the person is placed in proceedings. Under the old standard, Tang had accrued the seven years. Under the old standard, she had not. Using the new standard, and finding that Tang was served with the Order to Show Cause in April 1986, the BIA ruled that Tang was ineligible to seek suspension.
The Eighth Circuit reversed the BIA and ordered that it hear the merits of Tang’s appeal. It found that while the stop-time rule created in 1996 did apply to her, the stipulation of service, because it failed to specify a date of service, was taken a providing that service was made on the date it was entered in to, October 17, 1990. Using this date, Tang did accrue the necessary seven years of physical presence before being placed in deportation proceedings, and is therefore eligible to apply for suspension of deportation.
The opinion is available online at http://caselaw.findlaw.com/data2/circs/8th/972854P.pdf
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Zahedi v. INS, Ninth Circuit
In this case, the court reversed the decision of an Immigration Judge denying asylum, finding that any reasonable person would conclude that the applicant had established a well-founded rear of persecution.
Abbas Zahedi, a citizen of Iran, fled that country in 1996. A small business owner, in 1994 he became aware of the book The Satanic Verses by Salman Rushdie. He was interested in the book because of the turmoil it caused in Iran. Shortly after its publication the Ayatollah Khomeini had condemned the book, calling for Rushdie’s death and the death of anyone involved in publishing or translating it. At his asylum hearing Zahedi explained that he suspected government officials of trying to hide something from the Iranian people and became determined to find out what in the book had elicited such a reaction. In early 1996 he was finally able to locate a copy of the book in Turkey.
He located a friend named Moshen who had been expelled from a university because of his political beliefs. Moshen agreed to translate the book into Farsi, and Zahedi would distribute it. As soon as Moshen completed the translation of a chapter, Zahedi would photocopy it and give copies to people he knew were critical of the government. Zahedi gave out about fifty copies of the first four chapters when Moshen was arrested. Despite their agreement to not inform on each other, Zahedi was concerned that under torture, Moshen would reveal his identity. This would, under the edict issued by Khomeini, mean almost certain death. In fear for his life, he contacted a friend who arranged to Zahedi to secure a visa to Canada. On April 15, 1996, he arrived in Canada.
On the day Zahedi left Tehran, police came to his house with a summons calling him to appear in court. When they found he was not at home, they went to his mother’s and threatened her unless she told him to return. Authorities also harassed other members of his family. After he failed to appear in court, authorities decided to prosecute him for his involvement in reproducing and distributing The Satanic Verses. Although he did not know until later, Moshen died in detention.
The Immigration Judge found Zahedi was not credible, that he had been evasive and did not testify with enough specificity. The IJ also rejected the documentary evidence Zahedi submitted, including a copy of the notice telling him to appear in court, a statement in a newspaper announcing the government’s intent to prosecute him, an official letter also announcing the intent to prosecute, and a copy of Moshen’s death certificate. The IJ found that although Zahedi “may face criminal charges when he returns to Iran, that is a matter for the government of Iran to decide. This is not a basis for the grant of asylum.” The decision was affirmed by the Board of Immigration Appeals, and Zahedi appealed to the Ninth Circuit.
For the Ninth Circuit, the key issue was the treatment of documentary evidence once it has been admitted into the record. Under Ninth Circuit precedents, for an IJ to reject as invalid documentary evidence, the IJ must provide specific reasons for the rejection. In this case, the IJ merely found that because Zahedi’s testimony had been vague and confused, the documentary evidence was unreliable. For the Ninth Circuit, this reason was not a sufficient basis. The IJ never discussed the reliability of the documents, or their lack of reliability.
Going on to examine the documents, the Ninth Circuit ruled that they established Zahedi’s objective fear of persecution. He has been sought by the government of Iran for prosecution on the basis of his attempts to distribute The Satanic Verses, clearly a political “crime.” Others who have been prosecuted for involvement with the book have been tortured and killed. According to the court, even without testifying, the documents produced by Zahedi establish his objectively well-founded fear of persecution.
Moreover, the court found the IJ was incorrect in making an adverse credibility determination. Much of what was seen as evasiveness was due to the difficulty in translating dates from Farsi to English and from the Islamic to the Christian calendar. Much of the basis for the adverse determination related to Zahedi’s testimony about Moshen. His testimony about when he learned about Moshen’s fate was confused, but, according to the Ninth Circuit, not inconsistent. The Ninth Circuit found that a level of confusion in gathering the details about the death of someone tortured for their political activities was understandable, given the risks involved.
The court found Zahedi to be eligible for asylum and withholding of deportation and so remanded the case.
The text of the opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2000,0907-Zahedi.shtm < 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. |
