 NEWS FROM THE COURTS
Hernandez v. Reno, First Circuit
In this case, the court ruled against an ineffective assistance of counsel claim and affirmed the deportation order.
Carlos Hernandez, a native of the Dominican Republic, entered the US as a permanent resident in 1982. In 1989 he was convicted of distributing cocaine. The INS moved to deport him. Hernandez conceded deportability, and applied for a waiver of deportation. The Immigration Judge denied the waiver, finding that, on balance, the equities weighed against him. Hernandez’ lawyer filed an appeal with the Board of Immigration Appeals, but failed to supply the required brief. Because of the, in 1993 the Board dismissed the appeal. In 1997 the INS notified Hernandez that he was to appear for deportation. Hernandez hired a new attorney, who filed a petition for a writ of habeas corpus in district court and a motion to reopen the deportation case with the Board.
The district court stayed his deportation so that it could hear the merits of the case. The court did not, however, hear the merits of the case. Instead, basing its ruling on the Supreme Court case of Reno v. American-Arab Anti-Discrimination Committee, it found that it lacked jurisdiction to hear the case and dismissed it. Hernandez appealed to the First Circuit.
Before the First Circuit, the INS argued that Hernandez had failed to exhaust his administrative remedies. The court found that because of the problem with the appeal to the Board, the issue of exhaustion was essentially a merits question. A large part of Hernandez’ case rested on his claim that his first lawyer was ineffective, ineffectiveness which caused his failure to exhaust his avenues of relief before the Board.
The court said that while in ordinary cases, ineffective counsel claims should be brought before the Board through a motion to reopen, such as that filed by Hernandez, given that his deportation was imminent, and that the motion had been before the Board for three years, the court decided to address the merits of his ineffective assistance of counsel claim.
The heart of Hernandez’ claim was that his initial attorney mishandled his application for a waiver of deportation. The court found that, even assuming that the attorney was somehow negligent, Hernandez would still not qualify for a discretionary waiver of deportation. He was convicted of a quite serious offense, did not attempt to rehabilitate himself until his deportation became imminent. Moreover, the court found it “hard to stomach the idea that Hernandez could sit on his hands for almost five years and then say that he was unconstitutionally denied an opportunity to pursue an appeal from the denial of waiver. Knowing that he had been denied a waiver and was subject to deportation, it would seem that Hernandez had some duty – as a condition of a successful due process claim – to monitor his lawyer’s actions and assure that his appeal was being pursued.”
Therefore, the district court was upheld and the stay of the deportation order lifted.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0130-Hernandez.shtm.
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Rosales-Garcia v. Holland, Sixth Circuit
In this case, the court ruled that the indefinite detention of a Mariel Cuban was unconstitutional.
Mario Rosales-Garcia, a citizen of Cuba, came to the US in 1980 during the Mariel boatlift. Following his parole into the US, he was arrested numerous times, including several theft offenses and drug possession charges. In 1986 the INS revoked his parole and he was placed in INS detention. A separate asylum application was denied, and he was ordered deported. However, because Cuba refused to take him back, he remained in the US. In 1988, following a custody review, he was released into the custody of an uncle. In 1993 he was again convicted, this time of conspiracy to distribute cocaine. He was sentenced to five years and three months in prison. While in prison, the INS again revoked his parole, and upon his release from prison in 1997, he was taken into INS custody. Since then, the possibility of his release has been reviewed several times under the Cuban Review Plan, and each time it has been denied. In 1998, Rosales filed a petition for a writ of habeas corpus, arguing that his due process rights were denied because he was not allowed to be represented by an attorney at the custody review hearings, and other aspects of the review proceedings.
This district court denied the application, finding that all aspects of Rosales’ detention comported with the law, and that he failed to state a constitutional claim, because immigration detention is not a criminal proceeding or punishment. It also found that due process did not require the appointment of counsel or protection of other rights in detention review hearings. Rosales appealed to the Sixth Circuit.
Following the Mariel boatlift, the US and Cuban government reached an agreement in 1984 under which Cuba would take back 100 people a month. The Cuban government suspended the agreement in 1985, but agreed to reinstate it in 1987. By 1999, about 1,400 people had been returned to Cuba. Talks have continued off and on, but deportations do not regularly occur. The US government maintains that Cuba is obliged to accept deportees. However, because the Cuban government refuses in most cases, there are currently more than 1,700 Mariel Cubans in INS detention. Because of this large number, special review procedures have been developed to determine when and if they should be released.
Before the Sixth Circuit, the INS argued that the court lacked jurisdiction to hear Rosales’ appeal. The court disagreed, noting that INS challenges to appellate court jurisdiction had by and large been rejected. The INS also argued that because it had recently determined that Rosales should be released, there was no longer an active case for the court to decide. The court disagreed, in part because Rosales had not yet been released from custody, and in part because the case fell under a well-known exception to the mootness doctrine, capable of repetition yet evading review.
Moving to the merits of the case, the court noted that this was the first case in which it was directly confronted with the constitutionality of indefinite detention. The statute under which Rosales was detained provided that a foreign national cannot be released until it is determined that their release will not pose a danger to society. It contains no provision limiting the length of detention, not does it address situations where a person cannot be deported because their home country refuses to accept them. Finding that the statute authorized indefinite detention, the court found the constitutionality of indefinite detention squarely before it.
The court found that two fundamental principles were at odds in this case – Congress’s plenary power over immigration and a person’s right to be free from detention in the absence of criminal charges. Rosales did not challenge Congress’s power over immigration, but challenged the authority to detain him indefinitely in the absence of a criminal conviction.
The Fifth Amendment provides that the government cannot restrict a person’s life, liberty or property without due process of the law. It is well settled that foreign nationals present in the US, regardless of how they got here, are entitled to some due process protection. The government argued that Rosales, because he was an excludable alien, did not have a liberty interest in being free from detention that was recognized by the Constitution. It based this argument on a Supreme Court case from 1953 in which the Court held that an excludable alien could be indefinitely detained without a hearing. The Sixth Circuit found that this case was not applicable to the facts at hand because it was decided during the Korean War and at the height of the fear of Communist infiltration.
Rosales argued that his detention violated his right to both substantive due process and procedural due process. Under substantive due process, the deprivation of liberty is constitutional only if it is narrowly tailored to serve a compelling government objective. Because deportation and immigration detention and not criminal punishment, the issue is whether Rosales’ indefinite detention is excessive in relation to its purpose. The government’s purpose in detaining Rosales is to protect the community, an interest that must be weighed against Rosales’ liberty interest. The court found that there was a rational reason for the government to seek to detain him, and went on to ask whether, despite this, the fact that the detention was indefinite made it excessive.
While Rosales has an extensive criminal history, he was never convicted of a crime of violence. Also, he has completed the punishment for all of his convictions. If convicted of another crime after release, he could again be punished. Detention prior to deportation has long been accepted, but the propriety of the detention must be judged in light of the likelihood that the deportation will occur.
The government argued that whether Cuba would accept Rosales had no impact on the legality of his detention, a position with which the court disagreed. The court also found that the fact that Rosales received periodic review of his detention was not dispositive. There is no guarantee that he would be released, and given the broad power the INS has to decide who will be released, the court found that release would be unlikely. Weighing the need to protect the community against the slim chance that Rosales would ever be deported, the court found that his detention was excessive. Given that the government will likely never be able to deport him, the court found that the case was no longer within the plenary power aspect of immigration law – that in fact, Rosales’ detention was no longer a prelude to deportation, but was punishment without a conviction. The court remanded the case with orders that Rosales be released within 30 days.
The opinion is available online at http://laws.findlaw.com/6th/01a0033p.html.
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Tapia-Garcia v. INS, Tenth Circuit
In this case, the court ruled that it lacked jurisdiction to hear the appeal of a deportation order.
Jose Tapia-Garcia, a citizen of Mexico and permanent resident of the US was convicted in 1998 of driving under the influence in an Idaho state court. He was sentenced to five years, but only spent two months in prison. In 1999, the INS began deportation proceedings. The Immigration Judge found that his DUI was a crime of violence punishable by more than one year – an aggravated felony – and thus a deportable offense. The Board of Immigration Appeals dismissed his appeal and Tapia-Garcia was deported to Mexico, where he currently resides.
While deportation does not eliminate the possibility of judicial review, there is still a question of whether, after deportation, there is an active case or controversy for a federal court to hear. Because the deportation has occurred, the issue is whether there are collateral consequences to the deportation. Here that consequence is that Tapia-Garcia is permanently inadmissible to the US. This, the court found, was sufficient to give it jurisdiction over the appeal.
There still remained, however, questions of whether the Immigration and Nationality Act removed federal court jurisdiction. In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress enacted numerous provisions that stripped federal courts of their jurisdiction to hear immigration appeals. The provision at issue in this case was the permanent provision reading, “Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense.” The Tenth Circuit had previously ruled that a similar, transitional, provision eliminated all federal court jurisdiction.
In this case, however, the Tenth Circuit found that the permanent provision was not as restrictive as the transitional provision, and allowed federal court jurisdiction to the extent that it could review the case to determine whether the person under the deportation order was in fact an alien and had in fact committed a qualifying offense.
Tapia-Garcia did not dispute that he was an alien, but did argue that his DUI was not an aggravated felony. Under the INA, a crime of violence is an aggravated felony. A crime of violence is defined as one that involves a substantial risk that physical force will be used against a person or property during the commission of the offense. Tapia-Garcia argued that the Idaho DUI statute encompassed both violent and non-violent offenses. The Idaho statute defined a felony DUI as being in actual physical control of a vehicle while under the influence when the person had been twice convicted of DUIs within the previous five years. The Tenth Circuit found that this statute was clear, and did not require them to examine the individual circumstances of Tapia-Garcia’s offense.
Finding that Tapia-Garcia was convicted of a crime of violence and an aggravated felony, the court ruled that it did not have jurisdiction over his appeal and dismissed the case.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0124-Tapia.shtm.
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In re Goolcharan, Board of Immigration Appeals
In this case, the Board denied the motion to reopen as not timely filed.
The respondents, a mother and son, were granted voluntary departure on April 30, 1997. They were given until December 31, 1997 to leave the US. They did not leave, and in November 1997 the mother married a US citizen. The US citizen filed applications for immigrant visas on their behalf, which were approved in early 1998. The respondents filed a request for an extension of the voluntary departure period. On March 2, 1998, the request was denied, but the respondents were given until April 20, 1998 to leave the US. At that point, the respondents filed a motion to reopen so that they could apply for adjustment of status. The Immigration Judge denied the motion as not timely filed.
Motions to reopen must be filed within 90 days of the final administrative decision. The issue before the Board was whether this date was the date on which voluntary departure was granted or the expiration of the voluntary departure period. If the former, then the motion was untimely, if the latter, then it was timely filed. The Board found that INS regulations clearly provide that the date of an administrative order is the date on which it is issued, not the date it is to take effect.
Therefore, because the motion was not timely filed, it was denied.
The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3442.pdf.
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