 NEWS FROM THE COURTS
Cruz v. Farquharson, First Circuit
In this case, the court upheld the dismissal of a suit brought to force the INS to adjudicate applications for permanent residency.
Four couples filed suit against the Boston INS office over delays in its processing of immediate relative petitions. In each case, the petitioner was a US citizen filing for a foreign born spouse. The petitions were filed in 1997, and had not yet been acted on by August 18, 1999, when the couples filed suit. They sought an order forcing the Boston INS office to adjudicate their petitions. They also sought an order to end what they claimed were a number of discriminatory practices at the office, including making status decisions based on racially discriminatory basis. Within three months of filing suit, all of the petitions had been approved. Based on the approvals, the INS sought to have the suit dismissed. The district court judge granted the motion to dismiss.
The First Circuit upheld the ruling of the district court, finding that the approval of the plaintiffs’ petitions provided them with all the relief they sought through the lawsuit. Also, the approvals meant that there was no longer an active controversy between the INS and the plaintiffs, rendering the case moot. The plaintiffs argued that the suit fell within an exception to mootness rules that allow a case to proceed even without an active controversy when the underlying facts are capable of repetition yet avoiding review. The First Circuit found that this exception did not apply because these couples would never again have to file petitions for immediate relatives. Therefore, it affirmed the dismissal for lack of jurisdiction.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0621-Cruz.pdf.
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Hughes v. Ashcroft, Ninth Circuit
In this case, the court upheld a deportation order, finding the claim of US nationality was not accurate.
Leszek Hughes was adopted from Poland in 1960, when he was four years old. He became a permanent resident, but his parents never sought his naturalization. In 1985, Hughes was convicted of sexual abuse of a minor and sentenced to 24 years in prison. He was released in 1997 after serving 12 years of his sentence. Shortly after his release, he was placed in deportation proceedings. At the initial hearing, Hughes admitted deportability and his right to appeal. He later obtained a lawyer and filed a motion to reopen, claiming he was a US national and was therefore not deportable. His motion to reopen was denied and he appealed to the Ninth Circuit.
Hughes claimed that by virtue of his long residence in the US, his lack of ties to Poland, his allegiance to the US, and the fact that Poland no longer considered him a citizen, he was a national of the US. The Ninth Circuit had never firmly settled the meaning of the term US national, but had indicated that that status was gained primarily through birth. The court had also ruled that a person who entered the US without authorization could not obtain US national status. Reviewing the decisions of other courts, the Ninth Circuit ruled that to obtain US national status, the person must either be born in a US territory or have filed an application for US citizenship. Hughes met neither of these requirements.
The Ninth Circuit also examined whether Hughes had any claim under the Child Citizenship Act of 2000. The court found that it did not, ruling that the CCA’s grant of automatic citizenship applied only to children who were under 18 at the time of the law’s effective date of February 27, 2001. Therefore, the court upheld the deportation order.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0626-Hughes.pdf.
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In re Finnair Flight AY103, Board of Immigration Appeals
In this case, the Board upheld a fine against an airline for bringing a person to the US without a proper visa.
Finnair appealed to the Board of Immigration Appeals from a ruling finding it liable for a fine of ,250 for bringing a person with an expired visa to the US. The person, a Taiwanese national, had an expired F-1 visa and a single entry B-2 visa that he had already used to enter the US. The passenger obtained a waiver of the visa requirement, and the airline argued that because this waiver was granted, it should not be subject to the fine. It also argued that the regulation under which it was fined was void because it was not enacted in consultation with the State Department, as required by the law.
The Board found that the State Department had delegated authority in this area to the INS and was therefore not required to consult on the regulation. It also found that the fact that the nonimmigrant was granted a waiver of the visa requirement did not change the fact that the carrier remained liable for the find.
The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3452.pdf.
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