NEWS FROM THE COURTS Sousa v. INS, First Circuit
In this case, the court ruled that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 worked retroactively to make a crime considered an aggravated felony today an aggravated felony regardless of when it was committed.
Artur Manuel Sousa, a native and citizen of Portugal, has been a permanent resident of the US since 1971. In 1990 he was convicted of unarmed robbery and given a suspended sentenced of 3 to 5 years. In 1998, the INS began deportation proceedings against him. Before both the Immigration Judge and the Board of Immigration Appeals Sousa conceded deportability and tried to seek a waiver under either the old waiver of deportation provision or the newer cancellation of removal provision. The BIA found he was not eligible for a waiver because the Illegal Immigration Reform and Immigrant Responsibility Act had eliminated it in all cases beginning after April 1, 1997. It did not address the cancellation of removal provision.
Sousa appealed to the First Circuit, arguing for the first time that he had not been convicted of an aggravated felony. The government argued that the court did not have jurisdiction because in failing to raise this claim before the IJ and the BIA, Sousa had failed to exhaust the available administrative remedies. The court found that even if Sousa had failed to exhaust administrative remedies, the issue he raised was one that was likely to come before the court again, so it addressed it directly.
Sousa was convicted in 1990. At that time, the only aggravated felonies were murder, drug trafficking, and trafficking in arms or destructive devices. Thus, at the time of his conviction he was not convicted of an aggravated felony. Later in 1990 the definition of “aggravated felony” was expanded to include crimes of violence, which includes robbery. However, Sousa was still not an aggravated felon because the law specifically did not apply to crimes committed before it was enacted. However, in 1996 Congress enacted the IIRAIRA, which made all crimes of violence punishable by one year or more aggravated felonies, and specifically provided that this expanded definition apply to all offenses, regardless of whether they were committed before it was enacted. The court found that this elimination of any temporal restriction was clear and unambiguous, unlike the temporal application of provisions dealing with the elimination of waivers of deportation, a much-litigated subject.
Because Sousa was clearly convicted of an aggravated felony, he was removable. In a direct appeal to a court of appeal, the court’s jurisdiction is limited to determining whether the person committed a crime leading to deportation and whether they are an alien, so the court could not hear any arguments about whether Sousa should have received a waiver of deportation, an issue he is free to raise in an application for a writ of habeas corpus before a federal district court.
The text of the opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2000,0926-Sousa.shtm.
*********
Lake v. Reno, Second Circuit
In this case, the court ruled unconstitutional a provision of the Immigration and Nationality Act, which distinguished between mothers and fathers of illegitimate children for the purpose of passing on US citizenship.
In 1998 the INS began removal proceedings against Frederick Lake, claiming he had been convicted of an aggravated felony. Lake sought to avoid deportation through a claim of US citizenship. He had been born in 1953 in Jamaica to a US citizen father and Jamaican mother. His parents never married, but throughout his life, Lake’s father was in contact with him, spoke of Lake as his son to his family, and listed Lake as a son in the family Bible. However, Lake was never formally legitimated. Lake’s claim to citizenship was rejected by the Immigration Judge and the Board of Immigration Appeals because his father had not acknowledged paternity in the manner required by the Immigration and Nationality Act (INA) the in effect. Issues of acquisition of citizenship at birth are determined by the law in effect at the time of the birth.
Lake appealed the deportation order, claiming that application of the INA provision at issue violated equal protection. In 1952, Section 309(a) of the INA required US citizen fathers of illegitimate children to legitimate them in writing under oath before the child turned 21 in order to pass citizenship. No such requirement was imposed on mothers of illegitimate children.
A 1998 Supreme Court case dealt with this same issue, resulting in a very fragmented opinion, in which no position represented the majority of the Court. In the case, Miller v. Albright, there were five different opinions. Only one justice found that without doubt section 309 was constitutional. Three justices found section 309 unconstitutional. Two more indicated that they would agree that section 309 was unconstitutional, but found that Miller did not have standing, a critical element. The two justices found that the law applied to Miller’s father, but not directly to Miller himself. Thus Miller was considered to be a third party who was only indirectly affected by the alleged equal protection violation. A third party whose constitutional rights were not directly violated generally does not have standing to bring a lawsuit protecting those rights, except in limited situations.
There are three requirements that must be met for a third party to successfully assert third party standing. The person asserting the right must suffer an injury, they must have a close relation with the third party, and there must be something that prevents the third party from asserting the right.
Lake clearly faced an injury – deportation, and the third party was his father. Unlike Miller, Lake’s father was deceased thus irrevocably prevented from asserting his right. The Second Circuit, examining the Supreme Court opinions, found that as seven of the justices appeared to believe Miller had standing, they would have undoubtedly found Lake had standing.
Having determined that Lake had standing, the Second Circuit went on to address the equal protection claim. By analyzing the Supreme Court opinion, the Second Circuit determined that had standing not been an issue in the Miller case, five of the nine justices would have found an equal protection violation. The violation is found using a standard of review called heightened, or intermediate scrutiny, which is typically used in cases of claimed gender-based discrimination. Under this standard of review, a law that treats people differently based on their gender must further important government interests and the law must be substantially related to furthering those interests to overcome constitutional objections.
The government argued that intermediate scrutiny was improper because Congress has plenary power over issues of immigration and naturalization. Therefore, according to the government, the proper standard of review should be a highly deferential one, keeping in mind that when dealing with immigration and naturalization, Congress can enact discriminatory legislation so long as it has a “facially legitimate and bona fide reason” for doing so. The government made this argument without success before the Supreme Court in Miller v. Albright, and it met with no more success before the Second Circuit. The court found that while Congress may enact immigration laws that have discriminatory effect upon certain aliens, they may not enact laws that illegally discriminate against U.S. citizens. Lake’s father’s claim of gender based discrimination, here asserted by Lake, cannot be judged by the deferential standard urged by the government because his father was a US citizen. Therefore, the court found that section 309 violates the constitutional right of Lake’s father.
The court then had to determine the appropriate remedy. The government had argued that even if the court found that section 309 violated the Constitution, it could not declare Lake a citizen. While it is true that a court cannot confer citizenship other than on a basis established by Congress, the Second Circuit found that in declaring Lake a citizen it was not conferring citizenship, but was merely recognizing Lake’s status as a citizen since birth. Because the Immigration and Nationality Act contains a separability clause, which preserves the overall validity of the law even if a portion of it is found unconstitutional. Excising section 309(a) leaves a citizenship scheme in which a US citizen parent, mother or father, can pass citizenship to illegitimate children without a formal act of legitimation, subject only to standard residency requirements which were not an issue in this case.
Therefore, the court found Lake to be a citizen, and thus, not subject to deportation.
The text of the opinion is available online at http://caselaw.findlaw.com/cgi-moses/getcase.pl?court=2nd&navby=case&no=994125.
*********
Angel-Ramos v. INS, Seventh Circuit
In this case, the court ruled that the stop time rule enacted in 1996 applied to all documents used to initiate deportation proceedings, regardless of when the document was issued.
Alma Angel-Ramos entered the US without authorization in 1989. In 1995 the INS raided her place of business and placed her in deportation proceedings for being unlawfully present. Angel-Ramos applied for suspension of deportation. The Immigration Judge told her that to be eligible for suspension, she must have been in the US for a continuous period of seven years at the time the application is filed. Because she had been here for less than six years, he denied her application. The Board of Immigration Appeals affirmed the decision, although on different grounds.
By the time the Board heard the case, the immigration law had changed to require that the seven years of continuous residence be met before the person was placed in deportation proceedings, rather than at the time the person filed for suspension. Since it can take several months between commencement of deportation proceedings and the first hearing before a judge, when the suspension application would be filed, the change make it more difficult for people to meet the seven year requirement. Because Angel-Ramos was here for less than six years when she was placed in proceedings, the Board found she was not eligible for suspension. Angel-Ramos appealed.
Along with changes in the law, there were changes in terminology that created confusion. Before 1996, when Angel-Ramos was placed in proceedings, the document that was used to place a person in proceedings was called an order to show cause (OSC). Afterward, it was known as a notice to appear (NTA). Initially, the law requiring seven years continuous presence for eligibility for suspension referred only to NTAs, creating some confusion. However, in 1997, Congress amended this law to refer to both NTAs and OSCs, regardless of when they were issued.
Finding the statutory scheme clear, the Seventh Circuit upheld the determination that Angel-Ramos was not eligible for suspension of deportation.
The text of the opinion is available online at http://caselaw.findlaw.com/cgi-moses/getcase.pl?court=7th&navby=case&no=993126.
*********
US v. Arrieta, Ninth Circuit
In this case, the court found that the deportation of the defendant, in a mass proceeding in which 13 people were ordered deported at the same time, was a violation of due process and caused prejudice to the defendant. The court determined that this unlawful deportation proceeding could not be used in a subsequent criminal trial for being unlawfully present in the US following deportation.
Arrieta entered the US in 1986 at age 9. During his stay, he was never in lawful status. In 1996 he was convicted of attempted forcible rape and sentenced to one year in prison. After his release the INS placed him in removal proceedings. During a hearing with 13 other people, where none was represented by an attorney, Arrieta, along with the others, was told that they had the right to produce evidence and witness on their behalf, and that if they did not like the decision reached by the Immigration Judge, they could appeal. When asked as a group if they understood, they all answered yes. Arrieta was then asked individually if he understood his rights and answered yes. He then admitted that he was not a US citizen, had been convicted of an aggravated felony, and was not lawfully present in the US. The IJ ordered him deported, and asked Arrieta if he wanted to appeal. Arrieta said no, and he was deported. Sometime later he unlawfully reentered the US, and in 1998 was arrested.
Juan Mario Arrieta pled guilty to illegally reentering the US following a deportation after his motion to have the indictment against him dropped because the underlying deportation was not valid was denied. He then appealed to the Ninth Circuit.
Under Ninth Circuit precedent, for a person to be convicted of unlawfully being in the US following deportation, there must have been a meaningful opportunity for judicial review of the deportation order. If there was no meaningful opportunity for review, the person can challenge the underlying deportation order if he can show that his due process rights were violated during the deportation proceedings and that the lack of due process caused prejudice.
While Arrieta waived his right to appeal the deportation order, a waiver is effective only if it is given knowingly and voluntarily. Arrieta argued that his waiver was not knowing or voluntary because the IJ failed to inform him of his potential eligibility for relief from deportation, including a waiver under section 212(h). Section 212(h) provides for a waiver of deportation if the deportation would result in extreme hardship to a parent, spouse or child US citizen or lawful permanent resident. Arrieta’s mother is a permanent resident and his child is a US citizen. This information was in the record available to the IJ, but the IJ failed to mention that the waiver was available. Based on this, the court found that the deportation proceeding had violated Arrieta’s right of due process.
Before reversing Arrieta’s conviction, the court also had to find that the lack of due process caused prejudice to him. The government argued that section 212(h) waivers are not available to aggravated felons, so the failure of the IJ to mention it did not prejudice Arrieta. It based this position on expedited removal provisions, none of which applied in Arrieta’s deportation proceeding. The government’s argument was flawed because section 212(h) itself contains a limitation dealing with aggravated felonies, making the provision the government relied on superfluous. Section 212(h) waivers are not available to aggravated felons who have been admitted to the US as permanent residents. If section 212(h) waivers are not available to any aggravated felons, the court reasoned, the part of section 212(h) excluding permanent residents would be meaningless. It is a fundamental canon of statutory construction that laws are to be read so as to give each word meaning, a precept the government position ignored.
Finding that Arrieta could have been eligible for a section 212(h) waiver, the court then found that there was a significant possibility that had he applied for such a waiver, he would have been granted it. He presented evidence of the financial hardship that his mother and child had to endure because of his deportation, and more. He presented evidence of the important role he played in his family, including helping his sick mother raise two younger siblings who were US citizens. Moreover, it was clear that the deportation caused a family separation, and preservation of family unity is one of the fundamental concerns in granting an extreme hardship waiver.
Because Arrieta’s due process rights were violated in his deportation hearing, and because that violation caused him prejudice, the deportation order cannot be used in a criminal proceeding against him. Therefore, the court reversed the conviction for being unlawfully in the US following deportation.
The text of the opinion is available online at http://caselaw.findlaw.com/cgi-moses/getcase.pl?court=9th&navby=case&no=9950368.
*********
In re Rodriguez-Ruiz, Board of Immigration Appeals
In this case, the Board ruled that a person may not be deported when the underlying ground for deportation is a conviction which has been vacated by a New York state court.
The respondent, a citizen of Mexico and permanent resident of the US, pled guilty in 1999 to third degree sexual abuse and received one year of probation. Six months after the conviction, the INS placed him in deportation proceedings, saying he had been convicted on an aggravated felony. A couple of months later the court that had convicted him vacated the conviction. The New York statute under which the conviction was vacated provided that vacation made it “as if said conviction had never occurred.”
The INS did not argue that despite being vacated it was still a conviction for immigration purposes because it was too clear that the New York statute was not merely rehabilitative. Rehabilitative statutes do not, as a general rule, eliminate the conviction for immigration purposes under the Board opinion in In re Roldan. What the INS did argue was that because the conviction was vacated for the sole purpose of avoiding deportation, it should not be given effect. The Board disagreed, refusing to go behind the ruling of the state court, and instead gave the state court decision full faith and credit, as required to do by US law.
Because the respondent was no longer convicted, he was no longer deportable, so the Board terminated removal proceedings.
The text of the opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3436.pdf. < 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. |
