 NEWS FROM THE COURTS
Vieira-Garcia v. INS, First Circuit
In this case, the court upheld the determination that a juvenile who was convicted as an adult is deportable.
Antonio Vieira-Garcia, a citizen of Cape Verde, entered the US as a permanent resident in 1987 at the age of nine. In March 1996, he committed a criminal offense. He was initially charged as a juvenile, but the case was dismissed and he was then charged as an adult. This case was eventually dropped. Then, in August 1996, four days before his 18th birthday, he attempted to steal the hubcaps off a car. Because of the prior court case, he was charged as an adult. He pled guilty and was sentenced to ten years, two in prison and eight on probation. The INS placed him in proceedings, saying he was deportable based on the commission of a theft offense for which the possible sentence was at least one year.
Before the Immigration Judge, Vieira-Garcia argued that federal law should be used to determine if he was deportable. Because he was under 18 at the time of the offense, under federal law he would have been treated as a juvenile. The Immigration Judge disagreed, and found him deportable. Vieira-Garcia appealed to the Board of Immigration Appeals, which affirmed, noting that in 1996 when Congress amended the definition of conviction for immigration purposes, it did not exclude juvenile offenses. Vieira-Garcia then appealed to the First Circuit, arguing, as he did before the Immigration Judge, that federal law should be applied to him. He also argued that the fact that he was treated differently than other juveniles convicted of offense violated his right to equal protection.
The First Circuit found that his conviction clearly fell within the 1996 definition of conviction, and also agreed with the Immigration Judge that there was no need to apply federal law to his conviction. The state made the decision to convict him as an adult, and that decision is outside the jurisdiction of the immigration courts and the federal courts.
Examining Vieira-Garcia’s equal protection claim, the court found that under the relaxed standard of review applicable in the case, there was no equal protection violation. It is up to the states to enforce their criminal and juvenile laws, and once it makes that decision, the federal government is bound by the Full Faith and Credit clause of the Constitution to respect it. The need for uniformity in federal immigration law does not trump the right of the states to define their own laws. Therefore, the court upheld the deportation order.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0223-Vieira.shtm.
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Chowdhury v. Ashcroft, Seventh Circuit
In this case, the court ruled that the Board of Immigration Appeals must be reasonable in interpreting its regulations.
Ifthekar Chowdhury, a native of Bangladesh, fled to the US after being jailed and beaten for his participation in student protests in 1994. Upon his arrival, he filed an application for asylum. In 1996 it was denied, and he was placed in deportation proceedings. His attorney failed to appear for the hearing, and a deportation order was entered in absentia. A month later, the attorney filed a motion to rescind the deportation order, saying that it was her fault Chowdhury did not appear, and that while he was in the courthouse that day, he was not able to find the correct room because he did not speak English. The Immigration Judge denied the motion, and Chowdhury appealed to the Board of Immigration Appeals.
After filing the appeal, Chowdhury married a US citizen who filed an immigrant visa petition on his behalf. The petition was approved, but the visa could not be issued until the Board approved his adjustment of status. Therefore, his new lawyer filed a motion with the Board for the case to be reopened and remanded to the Immigration Judge to allow Chowdhury to apply for adjustment of status. The attorney failed to attach the actual motion, and because of this defect, it was denied. The Board also ruled on the initial motion, denying it as well. However, the attorney who represented him in this motion did not tell him that the deportation order had been affirmed, and Chowdhury did not know he was to be deported until he got a letter from the INS telling him to report for deportation. At this point, he hired a new lawyer who filed a motion to reopen based on ineffective assistance of counsel. The Board denied this motion because applicants are allowed only one motion to reopen.
Chowdhury then filed an application for a writ of habeas corpus with the district court, requesting it to order the INS to not enforce the deportation order because he had received ineffective assistance of counsel. The district court dismissed it, and Chowdhury appealed to the Seventh Circuit.
The Seventh Circuit found that Chowdhury’s application for a writ of habeas corpus was barred by the provision of the Immigration and Nationality Act that states “No court shall have jurisdiction to hear and cause of claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders.” The Seventh Circuit had previously ruled that this law applied retroactively, so it barred Chowdhury’s application, which asked the court to prevent the INS from executing the deportation order, an action squarely within the statute.
However, the court did have problems with the way the Board handled Chowdhury’s motions to reopen. While INS regulations provide the opportunity for filing only one such motion, the court found that in this case, the Board too strictly applied that rule. First, the regulations provide that while the Board need not accept a second motion, it is under no obligation to dismiss all second motions. This occurs when one of the motions was not strictly a motion to reopen, which are filed when the proceedings are final, but when it is a motion to remand an ongoing case. While the Board has discretion in how it characterizes motions filed with it, it initially characterized Chowdhury’s first motion as a motion to remand, not a motion to reopen. The court found the INS attempts to now characterize that first motion as a motion to reopen unreasonable.
Moreover, people in deportation proceedings are entitled to due process. Allowing the Board to characterize Chowdhury’s first motion as one to remand and then as one to reopen would deny him due process. Also, while the INS is to follow its regulations, they “should not be so strictly interpreted as to provide unreasonable, unfair and absurd results.” The court found that this sort of result was what the INS was trying to accomplish in this case, especially given that Chowdhury had an approved immigrant visa petition. According to the court, a reasonable reading of the INS regulations would allow Chowdhury to have a hearing on the merits of the second motions. Therefore, it remanded the case to the Board.
The opinion is available online at http://www.ca7.uscourts.gov/fox/foxweb.exe/Op3?submit1=showop&caseno=99-4256.
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Guadalupe-Cruz v. INS, Ninth Circuit
In this case, the court ruled that the stop-time rule passed in 1996 could not be applied in cases that were brought before the rule became effective.
Maria Guadalupe-Cruz and her two daughters entered the US without authorization in December 1989. In October 1996, they were placed in deportation proceedings. They conceded deportability, but sought relief in the form of suspension of deportation. The hearing on this application was held on March 28, 1997. This was four days before the Illegal Immigration Reform and Immigrant Responsibility Act went into effect. Despite the fact that the law was not yet effective, the immigration judge applied one of its new provisions known as the stop-time rule. Under this rule, once a person is placed in deportation proceedings, they can no longer accrue the physical presence necessary for suspension of deportation. Before it, a person’s period of physical presence continued even during deportation proceedings. Because of the IJ’s application of the stop-time rule, he found the petitioners were not eligible for suspension.
The petitioners appealed to the Board of Immigration Appeals, arguing that the IJ should not have relied on the stop-time rule because their hearing was held before it became effective. The BIA dismissed the appeal, like the IJ, relying on the stop-time rule. The petitioners then appealed to the Ninth Circuit.
Before the stop-time rule even became effective, the Ninth Circuit had ruled that it could not be applied to cases begun before its effective date. Despite this, the IJ found the court’s prior holding to be only dicta – that is, non-binding language that was not part of the holding of the case. The INS argued that even if the IJ did misapply the rule, it was only harmless error because it would have appealed a decision granting the petitioners suspension, and that the deportation order would have become final after the stop-time rule did go into effect.
The court found that while this was true, it did not mean that the petitioners were left without a remedy. Because the law must be applied as it existed at the time of the initial hearing, the IJ erred in applying the stop-time rule, and the court remanded to allow the petitioners to continue to pursue their suspension of deportation applications.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0228-Guadalupe.shtm.
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