 NEWS FROM THE COURTS
US v. Encarnacion, First Circuit
In this case, the court upheld the sentence imposed by the trial court, and also upheld its denial of a motion by the defendant that the government had delayed excessively before charging him.
Ernesto Jose Encarnacion, a citizen of the Dominican Republic, was apprehended attempting to enter the US through the international airport in Puerto Rico. During an interview with an INS officer, Encarnacion admitted that he had been previously deported. The officer told him that the prior deportation order would likely be reinstated. Encarnacion was placed in detention in the meanwhile. During this time, the INS officer learned that Encarnacion had been deported for an aggravated felony, and because of this, rather than reinstatement of the prior deportation order, criminal charges were filed. After eight days in detention, Encarnacion was charged with unlawful reentry following deportation.
Encarnacion sought to have the charges dismissed, arguing that the eight days during which he was in detention was unreasonable delay prior to bringing the charges. His motion was dismissed, with the court finding that INS detention is civil, and is not subject to the restraints of the Federal Rules of Criminal Procedure. After this ruling, Encarnacion entered a guilty plea, believing that he would receive a lighter sentence than usual. He was sentenced to 46 months in prison. Encarnacion appealed.
On appeal, he sought to reverse both the ruling on the motion and the length of his sentence. The First Circuit agreed with the district court that his detention was civil, not criminal, and thus that the Federal Rules of Criminal Procedure did not apply. The statute under which he was detained creates a status offense – that is, it is an offense that only non-citizens can commit. Moreover, when Encarnacion was initially placed in detention, it was for the purpose of reinstating the deportation order, a purely civil matter. As soon as it was determined that criminal charges were appropriate, Encarnacion was brought before a magistrate as required by law.
The First Circuit declined to make any adjustment in the sentence. While both he and the prosecution had argued for a greater reduction than was given, sentencing is up to a judge to determine within the parameters of the Federal Sentencing Guidelines. Unless a judge clearly violates those parameters, an appellate court cannot disturb the sentence. The First Circuit found that the sentence imposed was well within the Guidelines, and therefore, that it could not alter it.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0219-Encarnacion.shtm.
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Naujalis v. INS, Seventh Circuit
In this case, the court affirmed the deportation order of a participant in Nazi persecution.
Jouzas Naujalis, a permanent resident of the US and citizen of Lithuania, was placed in deportation proceedings in 1995 on the grounds that he had participated in Nazi persecution, and that he had given assistance to an enemy of the US.
In 1941, the Nazis invaded Lithuania, which was then part of the Soviet Union. After taking over Lithuania, the Nazis subsumed the Lithuanian Army into its security services. Shortly before this takeover, Naujalis had joined the Lithuanian Army. After the takeover, Naujalis was transferred to a battalion whose job was to “exterminate Bolshevism.” Nazi doctrine stated that Bolsheviks were Communists and Jews. During the fall of 1941, the battalion of which Naujalis was a member was involved in the execution of more than 11,000 civilians. Naujalis claimed he did not participate in any of the killings because at the time he was guarding a railroad station against a possible Soviet attack. Two years later, Naujalis deserted, but was later caught and forced to perform slave labor in Nazi Germany.
After the war Naujalis applied for immigration to the US under the Displaced Persons Act. He obtained an immigrant visa and came to the US in 1949. He never sought US citizenship.
After the INS placed him in deportation proceedings, an Immigration Judge found that he had both engaged in persecution and had provided assistance to an enemy of the US. This rendered him inadmissible under the Displaced Persons Act and he was ordered deported. The Board of Immigration Appeals affirmed, noting that under the Holtzman Amendment, it was not necessary to find that a person had actually engaged in persecution if they were a member of a battalion that had. The Holtzman Amendment provides that anyone who “ordered, incited, assisted or otherwise participated” in Nazi persecution is deportable.
Before the Seventh Circuit, Naujalis did not dispute the actions of the battalion of which he was a member. He did argue that because he had not been proved to be a participant in the atrocities, he could not be ordered deported. He also argued that the Holtzman Amendment did not apply to him.
The court accepted Naujalis’ statement that he had been guarding the railway, but found that that constituted assistance of Nazi persecution. His work helped ensure that the atrocities the battalion was engaged in could continue, and his work as a guard meant that other soldiers would be free to commit those atrocities. Therefore, it affirmed the ruling of the Board, and ordered Naujalis deported.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0216-Naujalis.shtm.
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