NEWS FROM THE COURTS Mahadeo v. Reno, First Circuit
In this case, the court ruled that the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 do not eliminate the habeas corpus jurisdiction of the federal courts.
Soondar Mahadeo, a native of Trinidad and Tobago, has been a permanent resident of the US for 26 years. In 1984 and in 1991 Mahadeo was convicted of possession of marijuana with intent to distribute. In May 1997, the INS began deportation proceedings against him. The Immigration Judge and Board of Immigration Appeals rejected his argument that he should be able to apply for a discretionary waiver of deportation as it existed at the time of his convictions and ordered him deported. Mahadeo filed a petition for a writ of habeas corpus with the district court, seeking an order that would allow him to seek the waiver. The district court ruled that the permanent rules of the IIRAIRA eliminated habeas corpus jurisdiction as a means to review immigration proceedings. Mahadeo filed this appeal with the First Circuit.
The IIRAIRA made such sweeping changes to the structure of judicial review of immigration cases that the changes were phased in. After September 30, 1996, when the IIRAIRA was enacted, the transitional rules were in effect. On April 1, 1997, the permanent rules went into effect. These rules apply only to cases in which deportation proceedings were started on or after April 1, 1997. Therefore, Madaheo’s case was governed by the permanent rules.
In 1998, the First Circuit ruled that habeas corpus jurisdiction survived under the IIRAIRA transitional rules. In this case, the court ruled that the failure of the transitional rules to specifically mention habeas corpus meant that it was not repealed. This ruling was based on a Supreme Court case decided just months before the IIRAIRA was enacted that held that if Congress wants to repeal habeas corpus jurisdiction, it must specifically mention it – in other words, that habeas corpus jurisdiction may not be repealed by implication.
In this case, the INS argued that there were provisions in the IIRAIRA permanent rules that, unlike the transitional rules, did work to repeal habeas corpus. Several provisions in section 242 of the Immigration and Nationality Act, the judicial review provision, were relied on. Section 242(a)(2)(C) provides that “Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [an aggravated felony].” This provision, the court found, did eliminate its ability to review Mahadeo’s case on an appeal directly from the BIA.
The INS also relied on section 242(g), which states “Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate case, or execute removal orders.” Second, the INS relied on section 242(a)(1), which provides that “Judicial review of a final order of removal is governed only by the Administrative Procedures Act.” The APA vests federal appeals courts with exclusive jurisdiction to review agency decisions. Finally, the INS cited section 242(b)(9). This section provides that “Judicial review of all questions of law or fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States shall be available only in judicial review of a final order under this section.” The INS argued that these provisions, read in combination with the rest of the judicial review provisions, indicated Congress’s intent to eliminate habeas corpus.
The First Circuit found that none of the provisions, either singly or in combination, repealed habeas corpus. None of these provisions specifically mention habeas corpus, and given the Supreme Court opinion released only months before the enactment of the IIRAIRA, Congress was on notice that a specific mention was required. While the permanent rules do not specifically preserve habeas corpus, such a mention is not necessary to preserve it. Instead, specific mention is required to repeal it.
Having determined that habeas corpus jurisdiction continues under the permanent rules of the IIRAIRA, the court ruled that the district court erred in dismissing Mahadeo’s petition for lack of jurisdiction. It remanded the case to allow Mahadeo to present his arguments on why he should be allowed to seek a waiver of deportation.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2000,0913-Mahadeo.shtm.
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US v. Dailide, Sixth Circuit
In this case, the court upheld a court order of denaturalization.
The US government sought to denaturalize Algimantas Dailide as a first step to deporting him because of his alleged participation in Nazi persecution. Dailide immigrated to the US in 1950 under the Displaced Persons Act. Under this Act, visas were not available to people who were involved in persecuting civil populations. An application for a DPA visa was a three-step process. First, the applicant had to qualify as a refugee within the “concern” of the International Refugee Organization (IRO). Second, the applicant had to be determined to be a displaced person by the Displaced Persons Commission (DPC). The third step was the formal visa application.
After a person qualified as a refugee, the US Army Counter Intelligence Corps (CIC) would investigate their background. As part of this investigation, applicants filled out a questionnaire that asked about their wartime activities. This question was not repeated on the visa application. On the questionnaire, Dailide indicated that from 1941 to 1943 he was a forester practitioner. The investigation did not reveal any reason that Dailide should be barred from immigration to the US, and in 1950 he entered the US as a permanent resident. In 1955 he became a US citizen.
Following the fall of the Soviet Union, many wartime records have become available, and have been used to denaturalize and deport many Nazi persecutors who previously escaped detection. Some of this information regarded Dailide, a native of Lithuania. According to this information, Dailide was a member of the Saugumas, a security force that worked with the Nazi government. On the basis of this, the US sought to denaturalize Dailide, specifically on the ground that he was ineligible to receive an immigrant visa because he had willfully misrepresented a material fact on his visa application.
The US government sued in federal district court to denaturalize Dailide. It presented evidence regarding the role of the Saugumas, and that Dailide was a member, and filed a motion for summary judgment. Summary judgment is a mechanism by which judgment can be entered without a trial. For summary judgment to be entered, all of the facts, taken in the light most favorable to the party seeking to avoid summary judgment, must leave no genuine issue of fact. The district court granted the government’s motion, and entered an order denaturalizing Dailide. Dailide appealed to the Sixth Circuit.
According to the court, there were two issues. First, were the Saugumas involved in the persecution of civilian populations? And second, did Dailide assist the Saugumas in the persecution? Documents presented by the government detailed the role of the Saugumas, which showed that it had assisted the Einsatzkommando 3 in arresting and investigating people. The Einsatzkommandos were special SS squads that were deployed in Eastern Europe to eliminate the Jewish population. Evidence showed both that the Saugumas was actively involved in rounding up Jews for mass murders and that on some occasions Saugumas members had killed people themselves.
The court then examined whether Dailide assisted the Saugumas in the persecution. Dailide did not deny being a member of the Saugumas, but had argued that he was a merely a clerk, and that while he was armed, he had never used the weapon. The court found that Dailide’s role in interrogating prisoners was sufficient to establish that he was involved in persecution.
Having found that Dailide was involved in persecution, the court then examined whether he had misrepresented this fact in applying for an immigrant visa. On the CIC questionnaire Dailide indicated that he was a forester practitioner, a clear misrepresentation. This misrepresentation was included in Dailide’s DPC report. Dailide argued that because he did not make the misrepresentation to an organization charged with administering the Displaced Persons Act, the misrepresentation did not make him ineligible for the visa. The court disagreed, finding that his misrepresentation was relied on by the DPC and by the State Department in issuing a visa. Having determined that no issue remained in dispute, the court affirmed the summary judgment order denaturalizing Dailide.
There was a vigorous dissent in which it was argued that many issues did remain in dispute, and that summary judgment was an improper way of disposing of a case involving something as important as US citizenship. In particular, while not disputing the role of the Saugumas or Dailide’s role within the Saugumas, the dissenting judge argued that it had not been established as a matter of law that Dailide had been involved in persecution, and that much more discussion of the misrepresentation was required. As the dissent stated, there remained issues about whether Dailide knew his misrepresentation would be relied on by the DPC and the State Department. Also, Dailide had stated that the reason he lied on the CIC questionnaire was fear of being turned over to the Soviet Union. A misrepresentation will disqualify a person from receiving an immigrant visa only if it is made with the purpose of gaining admission to the US. The dissenting judge, knowing that his opinion could be received the wrong way, concluded his opinion by noting that this case was not about “whether Dailide is a nice man, or whether Nazis are evil. The sole issue before us now is whether a trial is necessary.”
The opinion is available online http://www.ilw.com/lawyers/immigdaily/cases/2000,0908-Dailide.shtm.
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US v. Cruz-Padilla, Eighth Circuit
In this case, the court upheld an order granting a new trial on the basis of improper remarks made about the defendant’s immigration status.
Cruz-Padilla was convicted of possession of methamphetamine and intent to distribute. After the jury verdict, the trial judge granted Cruz-Padilla’s motion for a new trial based on improper prosecutorial arguments. The government appealed.
The heart of Cruz-Padilla’s argument was that the repeated references made by the prosecutor to the fact that Cruz-Padilla is undocumented tainted the jury and made it impossible for them to render an impartial verdict. At closing arguments the prosecutor said the following: “The government contends that the reason you should not believe Mr. Cruz-Padilla is the fact that basically from the outset Mr. Cruz-Padilla had been living a lie ever since he came to this country. He is here under fraudulent and illegal circumstances, and as such, he is basically from day to day living a lie. . . . The fact that he’s here illegally and is basically living a lie from day to day makes it easier for him on a day-to-day basis to continue to lie.”
In its appeal the government argued that while the prosecutor’s closing argument was in part related to Cruz-Padilla’s ethnicity, it was merely designed to link his use of a false identity and his ability to lie. The court did not find this argument persuasive. It found the repeated references to Cruz-Padilla’s status reinforced for the jury the fact that he was foreign while adding nothing of any legitimate evidentiary value. Not only were these statements improper, they were, the court found, unfairly prejudicial to Cruz-Padilla. Therefore, the court upheld the trial court order granting a new trial.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2000,0911-CruzPadilla.pdf
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Shoafera v. INS, Ninth Circuit
In this case, the court ruled that rape committed because of the victim’s ethnicity could be grounds for asylum.
Nigist Shoafera, a native of Ethiopia, sought asylum in the US. Shoafera is of Amharic ethnicity. She claimed that a man for whom she worked, who was of Tigrean ethnicity, raped her because of her ethnic background. The Immigration Judge and the Board of Immigration Appeals, while finding her testimony credible, found that she had not established that the rape was because of her ethnicity, and that it was more likely simply the violent act of a person who thought they had the authority to get away with it. Shoafera appealed to the Ninth Circuit.
The Ninth Circuit, relying on the lack of an adverse credibility finding, found that the IJ and BIA had not given sufficient weight to her testimony. Where the IJ and BIA had found her claim that she was raped because of her ethnicity to be purely speculative, the Ninth Circuit found there was no basis for the conclusion that her claim was speculation.
In the absence of any evidence to counter Shoafera’s claim that she was raped because of her ethnicity, the court found that she had established past persecution on the basis of ethnicity. The court remanded for hearings on whether changed country conditions meant that Shoafera could return to Ethiopia without fear of facing persecution.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2000,0911-Shoafera.shtm
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Andreiu v. Reno, Ninth Circuit
In this case, the court ruled that a stay of deportation cannot be entered unless the deportation order is clearly contrary to law.
Dan Marius Andreju, a native of Romania, came to the US in 1991. In 1997 the INS placed him in deportation proceedings, and Andreju sought asylum. An Immigration Judge found that his testimony was not credible and denied asylum. The Board of Immigration Appeals affirmed this decision. Andreju appealed this decision to the Ninth Circuit, and requested that the court stay his deportation pending the court’s decision on the merits of his case.
Prior to 1996, stays of deportation while a case was pending before a court of appeal was routine. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, however, ended the practice of automatic stays. The circumstances in which a stay will be issued after the IIRAIRA was the topic of this case.
The government argued that section 242(f)(2) of the Immigration and Nationality Act prevents any court from enjoining the removal of an alien subject to a final order of deportation unless there is clear and convincing evidence that the deportation order is prohibited as a matter of law. Andreju contended that this section does not apply to stay requests, but only to injunctions.
The court found that the word enjoin as used in section 242(f)(2) encompassed the concept of a stay. The court examined dictionary definitions of these two words, and found that issuance of a stay was the same as an injunction. The court also determined that for it to issue a stay of a deportation order, the alien must prove that the order is manifestly contrary to law.
There was a dissent in which the judge took the majority to task for so confusing the concepts of a stay and an injunction. The dissenting judge also pointed out that this opinion means that asylum seekers who may later proven to have valid claims can be sent to the country where they face persecution before their case has been decided by a court.
The opinion is available online at http://caselaw.findlaw.com/cgi-moses/getcase.pl?court=9th&navby=case&no=9970274. < 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. |
