 NEWS FROM THE COURTS
Saakian v. INS, First Circuit
In this case, the court found that the Board of Immigration Appeals had violated due process standards in refusing to grant a motion to reopen based on a claim of ineffective assistance of counsel.
Mark Saakian, a citizen of Armenia, entered the US in 1993 as a tourist with his mother and father. Before their authorized period of stay expired, they filed an application for asylum. No evidence regarding the disposition of this application was available in the current case. In 1996, Saakian filed an asylum application in his own name. The application was denied, and he was placed in deportation proceedings for overstaying his tourist visa. He retained as counsel a person who was not an attorney, but was authorized to represent people in immigration proceedings. This person filed a motion to change the venue of the proceedings because Saakian was moving, and told him he did not need to appear for a scheduled hearing because of this motion. Saakian did not attend the hearing and was ordered deported in absentia.
Nearly a year later, Saakian filed a motion to reopen his case, saying he believed he did not need to attend the hearing because of the motion to change venue. He did not specifically state that he had received ineffective assistance of counsel, but did state facts to that effect. His motion was denied by an Immigration Judge, a ruling that was upheld by the Board of Immigration Appeals. Saakian then appealed to the First Circuit.
On appeal, he argued that the IJ and BIA erred in not allowing him to fully present an ineffective assistance of counsel claim. In deportation proceedings, ineffective assistance exists when the proceedings was “fundamentally unfair.” In most cases, the immigrant must show that the ineffective assistance created prejudice against his case, but this requirement is waived in cases of deportation in absentia. The BIA requires three elements be presented in an ineffective assistance claim. First, evidence regarding the agreement between counsel and the immigrant must be presented. Second, there must be evidence that the immigrant has made a complaint to counsel regarding the claim of ineffective assistance. Finally, the immigrant either needs to file a formal complaint with disciplinary authorities, or else explain why no such complaint has been made.
Saakian did not present all this evidence in his initial motion to reopen, but did on appeal to the BIA. The IJ denied his motion, rather than give him an opportunity to supplement the motion. Then the BIA affirmed this denial. The First Circuit found that this “elevat[ed] form over substance,” and denied Saakian an opportunity to have his claim heard, despite his continuing efforts to do so.
The First Circuit found that in Saakian’s case, the BIA disregarded many of its previous rulings on ineffective assistance, in which it had allowed the record to be supplemented before the BIA. Because of this, the court found that the BIA violated Saakian’s due process rights and reversed the denial of the motion to reopen.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0608-Saakian.pdf.
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Nehme v. INS, Fifth Circuit
In this case, the court upheld the deportation order, finding that the immigrant was not, as he had claimed, a US citizen.
Ernest Nehme immigrated to the US from Lebanon with his parents at age seven. When he was 16, his father became a naturalized US citizen. However, at the time, his parents were separated. Because of their religious beliefs, they were never divorced. A few years later, when Nehme was 23, his mother became a citizen.
In 1999, the INS placed Nehme in deportation proceedings, claiming he had been convicted of an aggravated felony, namely, a conviction for cocaine distribution. Nehme claimed he became a US citizen when his father was naturalized and was thus not deportable. He based this argument on the idea that his citizenship status should be determined by application of federal law, and not state family law. The INS argued that because his parents were not legally separated, Nehme could only obtain derivative naturalization if both his parents became citizens before he was 18. Based on Pennsylvania law (where Nehme lived at the time) the Immigration Judge and Board of Immigration Appeals found that his parents were not legally separated and that Nehme had not become a citizen when his father was naturalized. He was therefore ordered deported. Nehme appealed to the Fifth Circuit.
Before the Fifth Circuit Nehme argued that using state family law violated the constitutional requirement that Congress establish a “uniform Rule of Naturalization.” Laws dealing with separation and divorce are a state matter. In some states, there must be a final decree of divorce for a child to be eligible for derivative naturalization, while in others, a separation order is sufficient. He also argued that the Child Citizenship Act of 2000, which only became effective last February, should be retroactively applied to him.
The Fifth Circuit found that citizenship and naturalization laws should be and are governed by a uniform federal standard, the federal standard is in turn informed by state law. The court then examined various state laws on the subject, and found that despite differences in terminology, what was meant by the term “legal separation” as used in the Immigration and Nationality Act was that a husband and wife were living apart and had obtained a judicial order to that effect.
The issue then became whether this sort of a scheme violated the requirement of a uniform law of naturalization. While there is little case law on uniformity in naturalization, there is a good deal of law on the requirement that bankruptcy laws be uniform. In this context, it has repeatedly been held that the uniformity required is uniformity in application, not outcome. For example, each state has different exemptions that apply in bankruptcy proceedings, however, these are not found to upset the uniformity of federal bankruptcy laws. Analogizing from this, the Fifth Circuit found that it was acceptable for derivative naturalization to rest, in part, on state family law, so long as the federal law was applied in the same way in each state.
On the Child Citizenship Act issue, the court found that it did not apply retroactively. Congress made clear that the law applies only to children who meet its requirements on or after its effective date of February 27, 2001. One of these requirements is that the child is under age 18. At that time, Nehme was 37, and clearly ineligible for benefits under the Child Citizenship Act.
Therefore, the court found that Nehme was not a citizen of the US and was thus properly ordered deported.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0607-Nehme.shtm.
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