 NEWS FROM THE COURTS
Kamalthas v. INS, Ninth Circuit
In this case, the court found that the Board of Immigration Appeals improperly denied a motion to reopen so that the applicant could seek relief under the United Nations Convention Against Torture.
Navaratwam Kamalthas, a native of Sri Lanka, was denied asylum by the Board of Immigration Appeals. He filed a motion to reopen his case so that he could apply for relief under the United Nations Convention Against Torture (CAT). He claimed that as a member of the Tamil minority, he would likely be subject to torture if returned to Sri Lanka. The Board denied this motion, finding that he presented no new evidence to counter a previous adverse credibility determination, and he appealed to the Ninth Circuit.
In his asylum application, Kamalthas claimed to have been persecuted and beaten by both the government of Sri Lanka and the Tamil Tiger rebel group. An Immigration Judge found that he told conflicting stories and was not credible, and therefore denied asylum. He sought to reopen his case to apply under the CAT, but it was denied by the Board of Immigration Appeals because he presented no new evidence, and the Board found that he did not prove that it was likely than not that he would face torture in Sri Lanka.
A Board decision to deny a motion to reopen will not be reversed unless it was an abuse of discretion. Kamalthas argued that the Board abused its discretion in basing its decision on the motion to reopen on his failure to present any new evidence. The Ninth Circuit agreed.
A person can obtain relief under the CAT if they show that it is more likely than not that they will be tortured. Many factors can be used to show this, including the applicant’s past experiences and the general conditions in the country to which the government is attempting to deport the applicant. The Ninth Circuit found that the Board committed an error in relying solely on Kamalthas’ testimony in his asylum applicant and not taking into account the documented widespread torture of Tamil men in Sri Lanka. According to the Ninth Circuit, the Board treated claims under the CAT as a type of asylum claim, which it clearly is not. A CAT claim is based on torture, regardless of the reason for it, while an asylum claim requires only persecution, but it must be on account of a specified ground.
The court did not comment on whether Kamalthas would be eligible for relief under the CAT, but did reverse the Board’s denial of the motion to reopen.
The opinion is available online at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/.
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US v. Ramirez-Garcia, Western District of Texas
In this case, the court found that the defendant’s claim of US citizenship warranted allowing him to withdraw his plea of guilty to unlawfully reentering the US following deportation.
Raul Ramirez-Garcia pled guilty to one count of unlawfully entering the US following deportation. He later sought to withdraw this plea, claiming that he was a US citizen. He was born in Mexico in 1957 to a US citizen father and a Mexican mother. Shortly after his birth, his parents married. Ramirez spent most of his childhood in the US.
In 1999, Ramirez was placed in deportation proceedings, and was deported despite his claim of US citizenship. He later returned to the US, an act that formed the basis of this current prosecution. While he initially pled guilty, he then sought to withdraw that plea, arguing that since he was a US citizen, he could not be found guilty of being an alien unlawfully in the US. The government argued that he was simply attempting to reargue his deportation.
There is no right to withdraw a guilty plea, and to do so, a defendant must show a “fair and just reason” for doing so. One basis for withdrawing a plea is a claim of innocence, which Ramirez made. In a criminal prosecution, the government must prove each element of the crime beyond a reasonable doubt. The crime of which Ramirez was accused has four elements. First, the person must have been deported. Second, they must have reentered the US. Third, they must have made the reentry without the permission of the INS. Finally, they must be an alien. The court found it clear that a claim of citizenship was relevant to a prosecution for this offense.
The court found that Ramirez’ claim of citizenship was a fair and just reason for withdrawing his guilty plea. The court did not rule on whether the claim of citizenship was valid, but did find it was sufficiently strong to create reasonable doubt as to whether he was an alien. Therefore, it allowed him to withdraw the plea.
The opinion is not available online.
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