 NEWS FROM THE COURTS
US v. Matsumaru, Ninth Circuit
In this case, the court upheld convictions for visa fraud in a case related to treaty investor visas.
Sho Jay Matsumaru, a citizen of Japan and lawful permanent resident of the US since 1984, practiced law in Hawaii. In promoting his services, he said that he had a nearly 100 percent success rate in obtaining US visas for Japanese nationals. These advertisements drew the attention of government investigators, who concluded that the program he ran, which set up businesses for treaty investor visas, was fraudulent and that he was defrauding both the government and his clients. He was tried and convicted of visa fraud and wire fraud and was sentenced to 41 months in prison. Matsumaru appealed.
His first basis for appeal was that in the indictment, the requirements for treaty investor visas were misstated. The indictment indicated that the visa holder must be coming to the US to “develop and direct” a business. Matsumaru argued that simply holding majority ownership in a business was sufficient. The court disagreed. It noted that State Department regulations require the visa holder to have managerial control of the business, and that to issue visas simply on the basis of majority ownership would be contrary to the purpose of the visa, which is to allow the foreign national to enter the US to run the business.
Matsumaru also appealed the finding that he had established a business for the purpose of evading immigration laws. The government had argued that his law practice was established for this purpose. The Ninth Circuit found that this conclusion was erroneous, and reversed the conviction on this count.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0404-Matsumaru.shtm.
*********
Rodas-Mendoza v. INS, Ninth Circuit
In this case, the court upheld the denial of asylum.
Maria Rodas-Mendoza, a native of El Salvador, fled to the US in 1991 after government forces began searching for her because of her support of the Farabundo Marti National Liberation Front (FMLN). After her arrival, she applied for asylum, saying that she would be persecuted for her political activities. The Board of Immigration Appeals found that she had suffered past persecution, but denied asylum because it found she did not have a reasonable fear of future persecution because conditions in the country had changed. Rodas-Mendoza appealed.
In an extremely short opinion, the Ninth Circuit upheld the Board’s ruling. Without discussing the conditions in El Salvador, or noting how they have changed since 1991, finding only that the Board’s finding of changed conditions was “supported by substantial evidence,” the decision of the Board was affirmed.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0419-Rodas.pdf.
*********
Kowalczyk v. INS, Tenth Circuit
In this case, the court reversed the denial of an asylum application.
Ryszard Kowalczyk, a native of Poland, applied for asylum in 1989. He had entered the US to join the crew of a fishing vessel owned by the government of Poland. He claimed that he had repeatedly been beaten by the secret police because of his membership in Solidarity. An Immigration Judge denied his application in 1990, and Kowalczyk appealed to the Board of Immigration Appeals. Nine years later, the Board finally issued a decision denying the asylum application in large part because of changed country conditions. Kowalczyk appealed to the Tenth Circuit.
On appeal Kowalczyk argued that by taking administrative notice of the changed conditions in Poland, the Board violated his right to due process. The court agreed. Kowalczyk had never been given an opportunity to respond to the facts of which administrative notice was taken. This, plus the nine years that it took for the Board to reach a decision, according to the court, clearly violated Kowalczyk’s due process rights. It therefore reversed the Board’s order and remanded the case for a new hearing.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0411-Kowalczyk.shtm.
| 
