US v. Fei, Second Circuit
In this case, the court upheld the defendant’s conviction of alien smuggling and manslaughter.
Lee Peng Fei appealed his conviction of manslaughter relating to the deaths of six people he had been smuggling into the US. In 1992 Lee contacted a “snakehead” and arranged to smuggle 300 Chinese nationals into the US. The ship was to travel from Thailand to the US, but was forced to stop of the coast of Kenya, where it was stranded for five months. During this time, all of the immigrants remained on board with inadequate food and deteriorating living conditions. Lee purchased a second ship, the Golden Venture, which was a cargo ship and was not authorized to carry passengers. The immigrants were kept in a 20-foot by 40-foot cargo hold with only one way to get out. They were not given adequate food or water, there were no life preservers, and there were only lifeboats for the crew. Passengers who questioned or complained were beaten.
Lee, who was waiting for the ship in New York, intended to have boats meet the ship and gradually remove the passengers. This plan fell through, and Lee ordered the ship to ground itself at full speed on the coast. The passengers were told to swim. Ten people drowned.
Lee pled guilty to alien smuggling, conspiracy to smuggle aliens, and seaman’s manslaughter. In his appeal, he challenged the manslaughter conviction. The seaman’s manslaughter statute provides for the punishment of captains, pilots or any other person employed on a ship, who, through neglect or misconduct, cause a person’s death. Lee claimed that the pilot of the Golden Venture did not ground the ship where he instructed, but did not present any evidence that the location he selected would have been safer. The trial judge had found this evidence not credible, and further found that the difference between the two locations was not material.
On appeal, the Second Circuit agreed that the difference between the two landing sites was immaterial. Lee knew that the ship did not have life preservers, and yet he instructed the crew to tell the passengers to jump. He knowingly created a dangerous situation in which multiple deaths were foreseeable. Therefore, the Second Circuit found, Lee was properly convicted of manslaughter.
The opinion is available online at http://caselaw.findlaw.com/cgi-moses/getcase.pl?court=2nd&navby=case&no=981713.
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US v. Lopez-Vasquez, Fifth Circuit
In this case, the court ruled that the expedited removal proceeding is fair and does not violate the Constitution.
In June 1998, Juan Manuel Lopez-Vasquez attempted to enter the US by claiming US citizenship. INS inspectors determined that he was not a US citizen, and deported him using the expedited removal process. Because of his false claim to US citizenship, he was barred from entering the US for five years. In December 1998, Border Patrol agents in El Paso discovered Lopez-Vasquez and arrested him when he could not present proof of permission to be in the US. He was indicted for illegally entering the US. Lopez-Vasquez filed a motion seeking to have evidence of his previous deportation excluded from the present trial on the ground that the expedited removal proceeding to which he was subject did not comport with the requirements of due process. The trial court denied the motion, and found Lopez-Vasquez guilty of illegal entry. Lopez-Vasquez appealed.
Before the Fifth Circuit, Lopez-Vasquez argued that the expedited removal process, which is not subject to any form of judicial review, did not afford him due process, and because of this, that it was unconstitutional to use it in his trial for illegal entry. The Fifth Circuit has a three-factor test for determining when a prior deportation or removal order can be challenged in a later prosecution for illegal entry. First, the deportation or removal hearing must have been fundamentally unfair. Second, there must have been no opportunity to seek judicial review of the order. Finally, the alien must be actually prejudiced by the unfairness of the hearing.
Aliens seeking admission to the US, such as Lopez-Vasquez was before his expedited removal, are requesting a privilege. They do not have any rights under the US Constitution before being admitted to the US. Lopez-Vasquez did not enter the US before being placed in expedited removal proceedings, and thus was entitled only to whatever process Congress creates. His expedited removal was conducted in accordance with the procedures created by Congress; therefore he received the process he was due. Because Lopez-Vasquez could not demonstrate the first requirement, that his removal proceeding was fundamentally unfair, he could not challenge the expedited removal order in the trial for illegal entry. Therefore, the judgment of the district court was upheld.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2000,0919-Lopez.shtm
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Pedro-Mateo v. INS, Ninth Circuit
In this case, the court denied asylum on the ground that the applicant had failed to show that the treatment he received was on account of a protected ground.
Santiago Pedro-Mateo is an ethnic Kanjobal Indian and Guatemalan citizen. In late 1991 he was twice kidnapped and almost forced into military service. The first incident involved the Guatemalan army. He was kidnapped, and when he refused to join, was beaten. The army released him when they discovered that he was under 18. In the second incident, he was kidnapped by guerrillas, refused to join, beaten, and released after his age was discovered. Shortly after these incidents, Pedro-Mateo fled to the US.
His application for asylum was rejected by an Immigration Judge, and the decision was affirmed by the Board of Immigration Appeals. The Board found that the only reason the army and the guerrillas tried to recruit him was the fact that he lived in an area of intense fighting, and not because of his religion or membership in a particular social group. The Ninth Circuit agreed, finding that Pedro-Mateo had not suffered any treatment that was not experienced by all people who lived in areas where the fighting was occurring. In short, because everyone in the area was subject to forced conscription by either the army or the guerrillas, Pedro-Mateo could not show that he was singled out, and therefore could not establish persecution.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2000,0915-Pedro.shtm.
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In re Devison, Board of Immigration Appeals
In this case, the Board ruled that resentencing following a youthful offender adjudication was not a conviction for immigration purposes.
Miguel Devison, a native of the Dominican Republic, entered the US in 1996 as a permanent resident. In 1992, he had been adjudicated a youthful offender for a drug offense. He was given five years probation. In 1998 he was sentenced to spend one year in prison for parole violations. In 1999 the INS placed him in deportation proceedings, claiming he had been convicted of a drug offense. It argued that because he was no longer a juvenile when sentenced for the probation violation, the resentencing could not be considered a youthful offender adjudication. The Immigration Judge agreed, also finding that the term “conviction,” as used in the Immigration and Nationality Act, gave no effect to a rehabilitative statute such as a youthful offender statute.
The Board first made clear that for immigration purposes, a finding of juvenile delinquency is not a conviction. As with all immigration issues, federal law controls. Therefore, the statute under which Devison was adjudicated a youthful offender must be compared to the federal juvenile delinquency statute. The Board found that the New York statute was sufficiently similar both in substance and procedure that Devison could have been charged under the federal statute. The Board also had to address the impact of a recent decision, In re Roldan, in which it held that deferred adjudications and expunged convictions were convictions for immigration purposes. The Board found that, given its long history of not considering a finding of juvenile delinquency a conviction, Congress’ failure to specifically include it in the new definition of conviction led support to the idea that it was not a conviction. Moreover, in another section of law enacted at the same time as the definition of conviction, Congress did specifically create one situation in which a finding of juvenile delinquency is to be treated like a conviction, indicating that in other situations, it is not to be so treated.
Another basis for this conclusion is the fact that juvenile delinquency proceedings are civil, not criminal. A juvenile delinquency determination results in a finding of status, not a criminal conviction. Therefore, a juvenile delinquency proceeding cannot result in a conviction, and cannot be used to deport someone.
The case is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3435.pdf.
