 NEWS FROM THE COURTS
Lin v. INS, Third Circuit
In this case, the court reversed the decision denying a Chinese student dissident asylum.
Li Wu Lin was a student demonstrator during the weeks leading up to the 1989 crackdown on pro-democracy rallies at Tiananmen Square. Fearing for his safety following the crackdown, he fled China and sought asylum in the US. While only 15 at the time of the protests, because he is unusually tall, he was given positions of prominence in the demonstrations. He did not participate in any of the rallies at Tiananmen Square, but after hearing reports of the Chinese government’s actions there, became concerned that the government would seek him out. He left home to stay with a relative, and less than a week later police officers came to his home demanding that he appear for questioning. Upon learning of this, he moved even farther away and over the next two and a half years he and his family worked to save the money to hire a smuggler to get Lin out of China. During this time the police came to Lin’s former home at least five times. Lin also learned that fellow students with whom he had demonstrated had been arrested and sentenced to forced labor.
In 1992, Lin had the money to contact a smuggler, who took him to Czechoslovakia. After eight months there, he came to the US. The Immigration Judge denied his application for asylum, and after a six and a half year delay, the Board of Immigration Appeals affirmed. They found that while Lin’s testimony was credible, the government was not persecuting him, but merely seeking to enforce trespass laws.
The Third Circuit found that simply because the Chinese government was pursuing Lin for legal action did not mean it could not be a basis for an asylum claim. It found that the record did not support the Board’s conclusion that the government was seeking to enforce trespass laws – indeed, the police had told Lin’s family that they were seeking him because of his political activities. Moreover, given what is known about the government crackdown on student activists in the wake of Tiananmen Square, it would be unreasonable to think that the Chinese government was interested in anything other than Lin’s political opinions.
The INS argued that because Lin stayed in China for almost three years following his demonstrations, he could not have seriously feared persecution. The court noted that at no point in the proceedings had Lin been questioned about his activities during this period, and that, at any rate, it is reasonable to assume that the Chinese government would not expend great effort to track a 15-year old dissident. Finally, the INS argued that a sentence of one year of forced labor did not constitute persecution. The court disagreed, finding that it was “a very long sentence for simply voicing opposition to the government.”
The court reversed and remanded to the Board with instructions to grant Lin asylum.
The opinion is available online at http://laws.findlaw.com/3rd/001849.html.
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US v. Thomas, Fifth Circuit
In this case, the court found that a guard at a private prison where INS detainees are held is subject to the same standards of conduct as a guard employed directly by the federal government.
Shannon Thomas was a guard at a private prison facility in Texas where INS detainees were housed. As part of the contract between the state of Texas and the private prison company, Corrections Corporation of America (CCA), all CCA employees were required to abide by the same standards as if the federal government had directly employed them. One of these standards prohibited guards from bringing contraband into the facility. Thomas violated this rule by bringing cigarettes to the facility and selling them to detainees. He was charged with bribery under a statute that prohibits “public officials” from accepting anything of value in exchange for violating the terms of their job. He was convicted and sentenced to five years probation.
Thomas appealed, arguing that he was not a “public official.” He based this argument on the fact that he was not responsible for developing or implementing public policy, but was merely an employee, and that he did not occupy a position of public trust.
The Fifth Circuit has never before addressed this issue, but other courts have. These cases have overwhelmingly found that people in Thomas’s position are public officials even if directly employed by a private business, and even though they do not develop public policy. Because Thomas was bound by a contract to perform all the duties a guard employed directly by the federal government and to abide by all rules covering federal employees, he was a “public official” for purposes of the bribery statute and was properly convicted.
The opinion is available online at http://www.ca5.uscourts.gov/opinions/pub/99/99-1044-cr0.htm.
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Castro-Cortez v. INS, Ninth Circuit
In this case, the court found that the provisions dealing with the reinstatement of deportation orders enacted in 1996 could not be applied to people who reentered the US before the new provisions went into effect.
This case involved five individuals, all of who had been ordered deported, left the US, and then reentered without authorization, against whom the INS reinstated the deportation orders. They claimed that the procedures by which the INS reinstated these orders violated their due process rights. They also claimed that the new reinstatement rule could not be applied to them because they reentered the US before the new rule went into effect.
First the court had to address the issue of jurisdiction. These cases arrived at the Ninth Circuit in two ways – some by direct appeal from the Board of Immigration Appeals and some through a petition for a writ of habeas corpus. The court found that it had jurisdiction over the cases on direct appeal as the jurisdiction-stripping provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 referred only to final orders of removal, and did not mention reinstatement orders. The court also found that it had jurisdiction over the cases on habeas corpus under a federal statute designed to cover the need to transfer cases from district courts to courts of appeals. The court found that all three requirements – that the appellate court could have heard the case when it was filed in district court, that the district court lacked jurisdiction, and that transfer is in the interest of justice – were met.
Before 1996, the reinstatement statute provided that before a deportation order could be reinstated, the alien was to be given a hearing before an Immigration Judge. Since then, however, reinstatement can be ordered by an Immigration Officer (an INS employee, unlike Immigration Judges, who are in a separate agency), and there is no requirement of a hearing. Aliens in the new reinstatement proceedings are not allowed to be represented by attorneys, nor is there any written record of the proceedings. The court noted that whether these procedures comply with due process requirements is an important question, but said, “nevertheless, while we have serious doubts as to the constitutionality of these procedures, we do not decide that question because we may rule in petitioners’ favor on a narrower ground.” This ground is that the new reinstatement statute did not apply to them because they reentered the US before it was enacted.
In determining whether a statute applies to events that occurred before its enactment, a court examines first whether Congress made clear the temporal application of the statute. If there is no congressional intent, the court is to examine the statute to determine if it has a retroactive effect.
The Ninth Circuit found that Congress clearly did not intend the 1996 reinstatement statute to be applied retroactively. First, language that would have made it retroactive was eliminated while the law was being written. Second, throughout the Illegal Immigration Reform and Immigrant Responsibility Act Congress specified which sections apply to events that occurred before it became effective, supporting the negative implication that in the absence of such an indication, the statute is not meant to apply retroactively.
Finding that the new reinstatement provision did not apply to the cases before it, the court ordered that the reinstatement of the deportation orders be vacated.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0124-Castro.shtm.
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