 NEWS FROM THE COURTS
Yatskin v. INS, First Circuit
In this case, the court upheld the denial of asylum, despite misgivings about the handling of the case by the Immigration Judge and the Board of Immigration Appeals.
Yury Yatskin, a Russian national, was working as a seaman when he jumped ship in Providence, Rhode Island. He applied for asylum, claiming that he would be subject to persecution in Russia because of anti-communist beliefs. During the 1970s and 1980s, he experienced many problems with Communist officials and KGB agents. He argued that despite the change in government, the Communists continue to control much of the government of Russia, and would persecute him. Taking note of the democratically held election of Boris Yeltsin, in 1996, an Immigration Judge denied Yatskin’s asylum application. Yatskin appealed to the Board of Immigration Appeals, which affirmed the denial.
The First Circuit agreed with the Immigration Judge and the Board that changed conditions in Russia eliminated any basis for asylum that Yatskin would have had, but nonetheless found fault with the administrative process. Neither the Judge nor the Board fully explained their decisions, simply stating that Yatskin had not been persecuted in the past, and would not be persecuted in the future. The First Circuit got around the lack of depth in the administrative levels by taking all Yatskin’s testimony as true, and finding that nothing in it would indicate that he would face persecution by the new government. In concluding its opinion, the court stated “It may be tempting to summarily dismiss claims of political persecution brought by anti-Communists since the dismantling of the Soviet Union. That being said, this does not absolve an immigration judge’s or the BIA’s responsibility for offering precise, fact-specific justifications for denying an asylum application. A failure to do so will only result in unduly complicated review and needless remands for further determinations.”
The opinion is available online at
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Guerrero-Perez v. INS, Seventh Circuit
In this case, the court refused to reconsider its decision upholding a deportation order.
Jose Guerrero-Perez was convicted of sexual abuse of a minor, a misdemeanor. Earlier this year, the Seventh Circuit ruled that this convicted was an aggravated felony. After that decision, however, the Board of Immigration Appeals found that a similar conviction was not an aggravated felony. Guerrero then petitioned for a rehearing before the Seventh Circuit.
While the Board of Immigration Appeals decision at issue was severely split, 11 of the 20 Board members ruled that to be considered convicted of an aggravated felony, the conviction must be a felony offense. This ruling contradicted the Seventh Circuit’s previous ruling that any offense could be an aggravated felony, even if it was technically a misdemeanor. Despite this contradiction, the Seventh Circuit found that the fragmented Board opinion, and the lack of agreement on the basis of that decision, did not warrant a reconsideration of its original decision.
The opinion is available online at <http://www.ilw.com/lawyers/immigdaily/cases/2001,0706-Guerrero.shtm>.
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Lal v. INS, Ninth Circuit
In this case, the court found that the Board of Immigration Appeals had incorrectly interpreted asylum regulations and wrongly denied asylum.
Jaswant Lal, an ethnic Indian and native of Fiji, sought asylum in the US. In 1994 his application was approved by an Immigration Judge, but the INS appealed and the decision was reversed by the Board of Immigration Appeals. Lal then appealed to the Ninth Circuit.
Beginning in the late 1980s, Lal began to suffer persecution because of his political activities. He was a member of the Fijian Labor Party, and worked extensively in the 1987 campaign. The Fijian Labor Party won a parliamentary majority in those elections. However, the Fijian military, which was controlled by ethnic Fijians, staged a coup and began a campaign of terror against those who had worked for the Labor Party. Shortly after the coup, Lal was detained by the army, beaten and tortured. After his release, soldiers showed up at his home and raped his wife, forcing him to watch. Over the next four years, Lal was detained at least three times, his house was set fire to twice, and the Hindu temple where he worshipped was vandalized. In 1987, 1988 and 1990 the Lal’s attempted to flee Fiji, but each time were stopped at the airport. In 1991, they were finally able to leave.
An Immigration Judge found Lal a credible witness and found that he had suffered persecution on the basis of his political opinion and religious beliefs, and granted asylum. The Board of Immigration Appeals, relying on the State Department Country Condition Report on Fiji for 1994, found that circumstances there had so changes that Lal could no longer have a well-founded fear of persecution in Fiji. The Board found that Lal was not eligible for asylum based on past persecution because he did not suffer a permanent disability. Therefore, it reversed the grant of asylum. Lal then appealed to the Ninth Circuit, which reversed the Board.
The first issue the Ninth Circuit addressed was whether the Board erred in finding that Lal did not deserve asylum based on his past persecution. In its ruling, the Board found that because Lal did not claim that he suffered any permanent emotional or physical disability because of his treatment, he could not qualify for asylum based on past persecution. Before the Ninth Circuit, the INS argued that the Board’s ruling should be deferred to, because it was interpreting asylum regulations. The regulation provides that asylum may be granted to a person if they have “compelling reasons for being unwilling to return to his or her country . . . arising out of the severity of the past persecution.” The court found that in requiring a permanent disability, the Board had imposed requirements not found in the regulations.
The Ninth Circuit found that not only had the Board’s interpretation violated the plain language of the regulations, it also had contravened the intent behind the regulation. The regulation was adopted in response to a Board case in which it found the severe persecution suffered by the applicant as providing, on its own, a basis for asylum. Noting that even if conditions in a country improve, for some, return is impossible, the Board granted asylum for humanitarian reasons. The focus was on the harm suffered in the past, not on the continued impact of the persecution. Indeed, the Board had never before required a permanent disability as a prerequisite for humanitarian asylum. In creating a new requirement, the Ninth Circuit found that the Board had acted in an arbitrary and capricious manner.
Therefore, the court reversed the Board and remanded the case with instructions to grant Lal asylum.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0705-Lal.pdf.
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In re Olivares-Martinez, Board of Immigration Appeals
In this case, the Board ruled that a felony DWI conviction in Texas is not a crime of violence and therefore not an aggravated felony for deportation proceedings.
Juan Olivares-Martinez, a native of Mexico and permanent resident of the US, was convicted by a Texas state court in 1996 of felony driving while intoxicated. In 1998, the INS placed him in deportation proceedings, claiming that the DWI conviction was an aggravated felony. An Immigration Judge agreed, and Olivares was ordered deported. After this, the Board issued a decision in which it found that a Texas felony DWI conviction was an aggravated felony. Then, however, the Fifth Circuit ruled a felony DWI conviction in Texas was not a crime of violence for purposes of sentence enhancement. In Olivares’ case, the Board was faced with the question of what impact this ruling would have on immigration proceedings.
Based on a ruling by the Fifth Circuit that a federal definition should be applied the same even if it is being used in different contexts, the Board found that the Fifth Circuit would have ruled that the Texas felony DWI conviction was not an aggravated felony for immigration purposes. Therefore, the Board ordered the deportation proceedings terminated.
The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3453.pdf
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