 NEWS FROM THE COURTS
Ali v. Reno, Sixth Circuit
In this case, the court upheld the ruling of the Board of Immigration Appeals finding the applicant ineligible for either asylum or protection under the United Nations Convention Against Torture.
Zainab Ali, a citizen of Iraq, applied for asylum and protection under the United Nations Convention Against Torture (CAT) after the INS sought to deport her for attempting to enter the US without proper documentation in August of 1997. Ali is a Shiite Muslim whose father was a member of the Iraqi opposition party in the 1970s. During this period, her father was often forced into hiding because of his political activities. In 1980, the family fled to Syria. In 1990 the family returned to Iraq because Ali’s grandmother was ill. They stayed there for two months, until the government discovered them, after which they returned to Syria. The family was shortly thereafter given refugee status by Danish authorities, and moved to Denmark. Ali, who by this time was married, returned to Iraq to visit her grandmother, and obtained a US visa. She came to the US to visit her husband, who was attending school. She overstayed her visa, and during this six years she was in the US, had two US citizen children.
Ali was told that her father was seriously ill, and she returned to Denmark. Upon arrival her Danish passport was confiscated, and she was told that her status as a refugee had been terminated. Danish authorities rejected her application for asylum. She also discovered that her father was not ill, and that her family had told her the story to force her separation from her husband. During her stay with her family she was beaten on several occasions. While the Danish police arrested them, she told them she did not want her family punished. She went to live with a sister, but while there was threatened at gunpoint by a brother, after which she obtained a false Danish passport and attempted to reenter the US.
An Immigration Judge denied her application for asylum and protection under the CAT. The Board of Immigration Appeals remanded because the record was deficient. On rehearing, the Immigration Judge found that Ali was ineligible for asylum because she had firmly resettled in Denmark. The Board affirmed, and Ali appealed to the Sixth Circuit.
The concept of firm resettlement plays an important role in US asylum law. When an applicant for asylum is found to have firmly resettled in a third country, they are ineligible for asylum in the US. To be firmly resettled, the person must no longer face persecution, and must be entitled to work freely in the country of resettlement. The court found that under this standard, Ali was firmly resettled in Denmark. While she stayed there for only six months before going to Iraq, the facts that she was offered status as a permanent resident in Denmark and that her family had lived there for ten years indicated firm resettlement. The fact that Danish authorities had revoked Ali’s refugee status was not a factor, because the law examines a person’s relationship to the third country before their entry to the US.
The US Senate did not approve the CAT until 1994. It then took an additional six years for the INS to create implementing regulations. Under the CAT, a person cannot be deported to a country where it is more likely than not that they will be tortured. Under the treaty, the torture must come either at the hands of the government of with the government’s “consent or acquiescence.” INS regulations interpret this as requiring that the government be aware of and fail to act to prevent incidents of torture.
The court found that the Board’s conclusion that the Danish authorities did not acquiesce in the treatment Ali experienced at the hands of her father and brothers was not without basis in law and fact. While the Danish police did nothing about the incident, this was because Ali requested it. The court noted that had Ali not stopped the government from taking action, the results of her application could well have been different.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,111-Ali.shtm.
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Bartoszewska-Zajac v. INS, Sixth Circuit
In this case, the court upheld the application of the stop-time rule.
Teresa Bartoszewska-Zajac, a native of Poland, entered the US as a visitor in 1989. In 1994, the government moved to deport her for overstaying her visa. At the time, she could not apply for suspension of deportation because she had not been in the US for the seven years required to be eligible. However, under the law as it then existed she could continue to accrue the required physical presence even after being placed in proceedings. She was ordered deported. In 1996, after she had obtained the required period of physical presence, she moved to reopen her case so that she could seek suspension of deportation. Before the hearing on her motion, a new law was passed that changed the requirements for seeking suspension. One of these changes, which applied to Bartoszewska-Zajac, was that a person could no longer accrue physical presence after being placed in deportation proceedings. In 1997, responding to pressure from many groups, Congress amended this rule, known as the stop-time rule, to apply the previous version of the law to nationals of certain countries. Nationals of Poland would qualify under the new law if they had filed an application for asylum on or before December 31, 1991. Bartoszewska-Zajac had never filed an asylum application.
The Board of Immigration Appeals found Bartoszewska-Zajac ineligible for suspension of deportation. She appealed to the Sixth Circuit, arguing that the retroactive application of the stop time rule was unconstitutional. The court found that while the stop time rule was retroactive, Congress had clearly intended to be, making it apply to deportation proceedings initiated “before, on or after” its effective date.
Bartoszewska-Zajac also argued that the stop time rule violated equal protection by treating nationals of the same country differently. She argued that if she had filed an asylum application, which she admitted would have been frivolous, she would have been eligible for suspension, but because she did not file she was not eligible. The court found that while there was disparate treatment of people from the same country, the reasons for the different treatment survived the low level at which such laws are scrutinized. Therefore, it upheld the decision that she was ineligible for suspension of deportation.
The opinion is available online at http://laws.findlaw.com/6th/01a0015p.html.
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Barahona-Gomez v. Reno, Ninth Circuit
In this case, the court affirmed its decision of two years ago that a federal district court had properly issued an injunction against two directives from the Chief Immigration Judge and the Board of Immigration Appeals.
The Ninth Circuit originally ruled in this case in 1999. At that time it upheld the injunction ordered by a district court, preventing the implementation of directives from the Chairman of the Board of Immigration Appeals and the Chief Immigration Judge. The court decided to revisit the issue in light of the Supreme Court’s decision in American-Arab Anti-Discrimination Committee v. Reno, which was issued shortly after the Ninth Circuit reached its decision.
The directives in question instructed immigration judges and the Board of Immigration Appeals to stop issuing suspensions of deportation in the months before the implementation of rules passed in 1996 that limited the number of suspensions available each year to 4,000. A number of people who would otherwise have been granted suspensions filed a lawsuit challenging the directives. A district court concluded that the directive should not be enforced and entered an injunction preventing its application. The Ninth Circuit upheld this decision.
On review in light of the Supreme Court’s decision, the Ninth Circuit affirmed its original decision, finding that the Supreme Court supported its reasoning. In American-Arab, at issue was a 1996 provision of the Immigration and Nationality Act that restricted federal court jurisdiction over a “decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders.” The Supreme Court found that this provision could not be read broadly to apply to all aspects of a deportation proceeding, but instead focused only on the three stages mentioned. These are points at which the INS has the discretion to terminate or continue proceedings, and one of the primary purposes of many of the 1996 changes in the law was to protect the INS’s prosecutorial discretion from judicial review. The Ninth Circuit found that the issue before the district court when it issued the injunction was not within the three actions cited in the law, and that the district court had jurisdiction to issue the injunction.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/dases/2001,0111-Barahona.shtm.
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Hoffman Plastic Compounds v. National Labor Relations Board, D.C. Court of Appeals
In this case, the court upheld the ruling of the National Labor Relations Board that an undocumented worker who was wrongfully fired must be provided with backpay.
In May of 1988, Jose Castro began working at Hoffman Plastic Compounds. An undocumented immigrant, he obtained this work by producing a birth certificate that was not his, that showed he was born in the US. Castro, along with a number of other employees, became involved in efforts to unionize the plant. Hoffman fired him and the other employees involved. The employees filed a complaint with the National Labor Relations Board (NLRB). The NLRB found that Hoffman had engaged in unfair labor practices and ordered Hoffman to reinstate the workers and provide backpay. During the hearing on the computation of backpay, Castro revealed that he was undocumented. Hoffman argued that it should not be ordered to either reinstate him or provide him with backpay. The NLRB agreed that reinstatement would be improper, but ruled that Castro must be given backpay for the period between his wrongful firing and when his undocumented status was discovered. Hoffman appealed, and the D.C. Court of Appeals ruled in favor of the NLRB. A discussion of this case is available at http://www.visalaw.com/00mar4/12mar400.html. Thereafter, the court granted Hoffman’s request for a rehearing, and issued this decision.
The issues in the case revolved around three things: the National Labor Relations Act (NLRA), which forbids firing workers for engaging in union activities, the Immigration Reform and Control Act (IRCA), which prevent employers from hiring undocumented workers, and a Supreme Court case dealing with the treatment of undocumented workers under the NLRA. This case, Sure-Tan v. NLRB, was decided in 1984, two years before IRCA was passed. In it the Supreme Court stated “In computing backpay, the employees must be deemed unavailable for work (and the accrual of backpay therefore tolled) during any period when they were not lawfully entitled to be present and employed in the US.”
Hoffman argued that Sure-Tan and IRCA prohibited backpay to undocumented workers who were wrongfully fired. The appeals court disagreed. According to it, when read in context, the sentence did not prevent backpay for undocumented workers. First, the sentence was not part of the Supreme Court’s holding, nor was it essential to its conclusion. In Sure-Tan, the employer violated labor laws when it called the INS to report that several workers who were engaged in union activities were undocumented. All of the workers left the US that day. Because of this, they were not eligible for any backpay. To remedy this perceived inequity, the Seventh Circuit ordered that they be given backpay for a six-month period. The Supreme Court found this to be in error because backpay awards must be based on a record and must address actual consequences of an unlawful firing. Read in this context, the court found that the sentence did not prohibit backpay, rather, it was addressing the fact that the workers in question were no longer present in the US.
Hoffman also argued that the IRCA prohibited backpay to undocumented workers. The court disagreed. Nothing in IRCA specifically prohibits an award of backpay to an undocumented worker, IRCA does not amend or alter the NLRA, and in adopting IRCA Congress made clear its intent that it in no way was intended to limit already existing protections in labor law. Indeed, Congress emphasized the need for labor laws to cover undocumented workers, because any other situation would defeat the IRCA purpose of discouraging the employment of undocumented workers.
Hoffman argued that even if IRCA did not amend the NLRA, the NLRB failed to take into consideration the goal of limiting hiring of undocumented workers. In interpreting the NLRA, the NLRB must take into consideration other federal laws. The NLRB has done this since the enactment of IRCA, and has come to the conclusion that unless it imposes sanctions for unlawful firing, employers would be tempted to pay the penalty under IRCA and still employ undocumented workers, who are generally much less likely to be involved in union activities. Moreover, denying backpay to undocumented workers would undercut the rights of legal workers to pursue union activities.
For these reasons, the court found that the NLRB had properly ordered backpay for Castro, and ordered Hoffman to comply with that order.
The case is available online at http://caselaw.lp.findlaw.com/cgi-moses/getcase.pl?court=DC&navby=case&no=981570B.
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