 NEWS FROM THE COURTS
Steele v. Blackman, Third Circuit
In this case, the court reversed the ruling of the district court that the petitioner had been convicted of an aggravated felony and was ineligible to seek relief from deportation.
INS inspectors stopped Gary Steele, a permanent resident since 1981 and a native of Grenada, upon his return to the US following a trip to Grenada for his mother’s funeral. He was asked if he was a Rastafarian and whether he used marijuana. He denied currently using the drug, but did admit to three prior arrests for misdemeanors related to marijuana. The INS took him into custody and began proceedings to remove him from the US as an inadmissible alien. An Immigration Judge ordered him removed, and ruled that because he had been convicted of an aggravated felony, he was not eligible for any form of relief. Steele appealed to the Board of Immigration Appeals, arguing that he had not in fact been convicted of an aggravated felony. The Board upheld the ruling of the IJ. Steele, who was still in INS custody, filed a petition for a writ of habeas corpus with a federal district court. The court dismissed the petition, and Steele appealed to the Third Circuit.
Before the court heard the case, Steele was deported to Grenada, requiring the court to decide whether it still had jurisdiction. Habeas corpus actions require the petitioner to be in custody, or if released before a final decision on the petition, to face serious collateral consequences. The court found that Steele did face serious consequences, including a permanent bar against returning to the US, where most of his family, including two US citizen children, resides.
The Immigration and Nationality Act defines aggravated felony to include and “illicit trafficking in a controlled substance, including a drug trafficking crime.” This is treated as creating two separate provisions. The first requires the offense to be a felony under the law of conviction. Because Steele was convicted of misdemeanors, he could not be considered an aggravated felon under this provision. The second provision allows an offense to be considered a felony if it would have been prosecuted as such by federal authorities, regardless of whether the convicting court considered it a felony or a misdemeanor.
One of the statutes under which Steele was convicted allowed for prison time up to two years in cases where the defendant had been previously convicted of a drug offense. On this basis, the district court found that Steele had been convicted of an aggravated felony. The Third Circuit disagreed, finding that at no point during the criminal proceedings against him had Steele been treated as a repeat offender. Therefore, it was not possible to treat his misdemeanor convictions as convictions of an aggravated felony. The court reversed the district court ruling and remanded with orders to allow Steele to seek cancellation of removal.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0104-Steele.shtm.
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Huicochea-Gomez v. INS, Sixth Circuit
In this case, the court upheld the decision of the Board of Immigration Appeals denying the petitioners’ claim that the deportation order against them was the result of ineffective assistance of counsel.
Carlos Huicochea-Gomez and his wife, Mexican nationals, had been residing in the US since 1988 without INS permission when they sought to legalize their status in 1997. They hired an attorney who told them that because they had resided in the US for more than seven years, they were eligible for a form of relief known as suspension of deportation. The attorney arranged for the Huicocheas to be put in deportation proceedings, as one must be in proceedings to seek suspension. In September 1997, the INS issued them a Notice to Appear. What the attorney did not know was that as of April 1, 1997, suspension of deportation as a form of relief was eliminated and replaced with cancellation of removal. To be eligible for cancellation, the applicant must have ten years of continuous physical presence in the US at the time he or she is placed in deportation proceedings. Because Huicochea and his wife had not been in the US for the requisite ten years, they were found ineligible for cancellation and ordered deported. Huicochea appealed to the Board of Immigration Appeals, claiming that they had received ineffective assistance of counsel in proceedings.
Huicochea requested additional time from the Board in which to file a brief on the case, as they were in the process of retaining a new lawyer. The request was denied, as was a brief that was submitted after the deadline because neither the request nor the brief was served on attorneys for the INS, as is required by regulations. The Board dismissed the appeal, finding that even if the attorney had been negligent, it did not negatively impact their case, as they were not eligible for cancellation of removal. Also, the Board found that while a person in deportation proceedings does have the right to counsel, the Huicocheas did not submit evidence required to prove ineffective assistance of counsel. While it could be argued that if they had been properly informed of the law, they would not have sought suspension of deportation and thus would not be facing a final order of deportation, the court found that such a claim was far too speculative to support a finding of ineffective assistance of counsel, especially in light of the fact that the Huicocheas were residing in the US without authorization. Therefore, the court upheld the ruling of the Board.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0103-Huicochea.shtm.
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US v. Medina, Ninth Circuit
In this case, the court affirmed the conviction for being unlawfully present in the US following deportation.
Rogelio Medina was convicted of being unlawfully in the US following deportation. On appeal, he argued that the conviction should be reversed because the audiotape submitted by the government in his deportation proceeding was blank. Because of this, he said, the government could not prove that he had been deported, and that without the tape he could not attack the fundamental fairness of his deportation.
While the government does have the burden of proving all the elements of a crime, including a prior deportation, whether the deportation was properly executed is not an issue in a trial for being unlawfully in the US following deportation, the only issue is whether the deportation occurred. Therefore, the lack of a tape was not sufficient to reverse the conviction.
A defendant can also avoid conviction by attacking the fairness of the underlying deportation. The court rejected Medina’s argument that the lack of a tape itself rendered the deportation unfair. The court found that while the lack of a tape can render a deportation unfair on direct review of the deportation proceeding, there are other available means of proving what occurred in the deportation proceedings, such as testimony from people present during the proceedings. Moreover, Medina did not argue that he was prejudiced during the deportation proceeding, only that if he had access to the tape he could find some error in the proceedings. Because of this, the court ruled that the lack of a tape did not require the dismissal of the conviction.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0104-Medina.shtm.
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