 NEWS FROM THE COURTS
Emile v. INS, First Circuit
In this case, the court found that a state conviction for indecent assault and battery on a child under 14 constituted “sexual abuse of a minor” and was an aggravated felony that could support a deportation order.
Edwin Emile, a native of Haiti, came to the US as a permanent resident in 1971. In 1990, based on a 1988 conviction for possession of a controlled substance, the INS placed him in deportation proceedings. The proceedings were terminated after the conviction was vacated. In 1997, deportation proceedings were again brought, this time based on a 1996 conviction for assault and battery. After a deportation order was entered, the trial court reduced the sentenced to 11 months, which meant that Emile was no longer deportable. The Board of Immigration Appeals ordered an Immigration Judge to rehear the case.
On rehearing, the INS changed the basis on which it said Emile was deported to a 1990 conviction for indecent assault and battery on a child under 14. After the 1996 changes in immigration law, “rape or sexual abuse of a minor” became a deportable offense regardless of the sentence imposed. The Immigration Judge found that Emile’s conviction qualified as a conviction for “sexual abuse of a minor,” and affirmed the deportation order. The IJ also ruled that Emile was not eligible for any discretionary relief. Emile appealed, arguing both that his conviction was not for the “sexual abuse of a minor” and that he should be allowed to apply for discretionary relief.
The INS argued that its interpretation of what constitutes “sexual abuse of a minor” should be deferred to even though it was a definition of a criminal offense. The court agreed because the statute, while defining a crime, did not deal with criminal punishment. While the Board of Immigration Appeals has not provided a complete definition of “sexual abuse of a minor,” it has made clear that it considers offenses that would fall under federal sexual abuse statutes to be covered. The First Circuit found that this was reasonable.
However, the state statute under which Emile was convicted, while it could cover actions covered by the federal statute, also covered other actions. A police report indicated that Emile’s actions could have been prosecuted under the federal law, but its admissibility was in dispute. The First Circuit found that the state statute, as construed by the state court, was roughly parallel to the federal statute, and that a conviction under it will, in most cases, be a basis for deportation. It found that Emile’s conviction qualified as a reason for deportation.
The court also found that because Emile was placed in deportation proceedings after the 1996 changes went into effect, it did not have jurisdiction to address whether he was entitled to discretionary relief, a claim it said could be brought through a petition for a writ of habeas corpus.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0403-Emile.pdf.
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In re Northwest Airlines Flight NW1821, Board of Immigration Appeals
In this case, the Board found that the airline had failed to comply with INS regulations and upheld a fine.
To facilitate international travel, air carriers agree to be responsible for passengers who are in the US only for purposes of transferring to another flight out of the US. These passengers are said to be in transit without visa. As part of the agreement, the airline is to submit a document for each such passenger. In 1998, Northwest Airlines was fined for failing to provide such a document. Northwest challenged the fine, saying that the INS did not have the authority to levy the fine.
The fine was imposed under section 231 of the Immigration and Nationality Act. Section 231 requires airlines and other carriers to maintain a list of passengers that it is transporting outside the US, and provides that the list is to be maintained in compliance with regulations. The regulation implementing this section requires that the information be placed on the Form I-94 Arrival and Departure Record. Northwest did not submit an I-94 in this case, the Board found, in clear violation of the regulation. Moreover, the agreement carriers sign requires them to submit any documents that may be required by the Immigration and Nationality Act. It therefore upheld the fine.
The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3444.pdf.
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