 NEWS FROM THE COURTS
Foster v. Townsley, Fifth Circuit
Baldwin Foster, a native of Jamaica, was placed in deportation proceedings in November 1996. He failed to appear for his hearing and in June 1997, was ordered deported in absentia. In September 1997, Foster filed a motion to reopen the case. An Immigration Judge denied it and Foster appealed to the Board of Immigration Appeals. This had the effect of staying his deportation. Until the Board ruled, he could not be deported. He also filed a writ of mandamus in federal district court seeking an order to compel the Board to rule. Foster was also unsuccessful in this move. In December 1998, Foster was deported while his appeal with the BIA was still pending. In February 1999, the BIA finally ruled and granted the motion to reopen. Foster then was granted permission to reenter the US.
Upon his reentry to the US, Foster filed suit against the government, seeking five million dollars for his wrongful deportation. The district court found that it lacked jurisdiction over the case because of section 242(g) of the Immigration and Nationality Act. This section provides that “no court shall have jurisdiction to hear any cause or 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 against any alien.” Foster appealed to the Fifth Circuit.
Before the Fifth Circuit, Foster argued that this section did not bar the district court from hearing his case because the stay that was imposed as a result of his appeal to the BIA was a non-discretionary order, and that the section only covered discretionary decisions by the Attorney General. The court agreed that the stay order was non-discretionary and then went on to address the scope of section 242(g).
The court found that the statute applied to all decisions of the Attorney General, not only discretionary decisions. While the Supreme Court, in 1999, noted that the section clearly was designed to protect the ability of the Attorney General to make discretionary decisions, the Fifth Circuit found that there was nothing in the opinion to indicate that it provided no protections for non-discretionary actions. Because the provision itself similarly does not distinguish between discretionary and non-discretionary actions, the court found Foster’s claim without merit and dismissed the case.
The opinion is available online at http://laws.findlaw.com/5th/0030467cv0.html.
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Lara-Ruiz v. INS, Seventh Circuit
In this case, the court upheld a deportation order and the denial of any relief from deportation.
Ricardo Lara-Ruiz, a Mexican national and permanent resident of the US, was ordered deported on the basis of an aggravated felony. In 1994 he was convicted of the sexual assault of a four-year-old girl. He was found deportable and ineligible for any form of relief. He appealed to the Board of Immigration Appeals, arguing that he had not been convicted of an aggravated felony. The BIA dismissed his appeal, and Lara-Ruiz appealed to the Seventh Circuit.
The INS argued that the court did not have jurisdiction to hear Lara-Ruiz’ claim because he had committed an aggravated felony. The court agreed, but found that it did retain jurisdiction to determine whether Lara-Ruiz had in fact been convicted of an aggravated felony. It also found that in order to prevent miscarriages of justice, it had jurisdiction to hear any substantial constitutional claims Lara-Ruiz raised.
The federal offense of sexual abuse of a minor is classified as an aggravated felony under the Immigration and Nationality Act. Federal sexual abuse of a minor is defined as knowingly engaging in a sex act with a person at least 12 but not yet 16, who is at least four years younger than the offender. Lara-Ruiz argued that because his victim was not within this age bracket, he was not guilty of sexual abuse of a minor.
The court did not find this argument persuasive. The INA section making sexual abuse of a minor an aggravated felony does not define sexual abuse of a minor, nor does it refer to the federal definition. Because immigration proceedings are federal, federal criminal law is often used as a guideline. The BIA did look at federal law in upholding Lara-Ruiz’ deportation order, but not the section on which he based his argument. Instead, the Board found that the more appropriate section dealt with aggravated sexual assault, making it an offense to have sexual contact with any person under 12. The Seventh Circuit upheld the finding that Lara-Ruiz had been convicted of an aggravated felony.
Lara-Ruiz also argued that because he was convicted in 1994, even though he was placed in deportation proceedings in 1998, the 1996 changes in immigration law eliminating relief from deportation for those convicted of aggravated felonies could not be applied to him. Sexual abuse of a minor was not an aggravated felony in 1994, but was after 1996. The court found that it was clear that Congress had intended the 1996 changes to apply to offense committed before they were enacted. However, the court found that this application was not retroactive because it did not change the effect of the criminal offense.
Lara-Ruiz’ final argument was that he should be allowed to apply for a waiver of inadmissibility. After 1996, these waivers were no longer available to permanent residents. Lara-Ruiz argued that this scheme violated equal protection by treating similarly situated people differently. The court rejected this argument, noting that in immigration matters it owes extreme deference to Congress, and that there is a good reason for treating permanent residents differently – even with the ties to the US created by permanent residence, they still broke the law.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0307-Lara.shtm.
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Al-Harbi v. INS, Ninth Circuit
In this case, the court granted asylum despite finding that the petitioner was not a credible witness because of extensive documentary evidence supporting the application.
Naseem Salman Al-Harbi, a native of Iraq, filed an application for asylum after being brought to Guam as part of a US airlift of people thought to face danger in Iraq following the Gulf War. In 1988 he had been drafted into the Iraqi army, but in 1990, before the Iraqi invasion of Kuwait, he had deserted. In 1992, Saddam Hussein declared an amnesty for deserters, and Al-Harbi rejoined the army. He and others who had deserted were taken for interrogation, during which time they were handcuffed and beaten. He was made to sign a document acknowledging that if he again deserted or in any way opposed the Hussein government, he would be executed. During the 1995 presidential election, in which Hussein was the only candidate, Al-Harbi and some others distributed flyers protesting what they called a sham election. The Iraqi secret service discovered the activity and arrested two of those involved. Al-Harbi fled to a town in northern Iraq, where he joined a group that seeks to removed Hussein and install a democratic government in Iraq. In 1996, Hussein invaded this town.
Al-Harbi fled to Kurdish areas in northern Iraq, where, after 15 days, he and others were evacuated by the Red Cross to a location near the Iraqi-Turkish border. From there, they were transported by the US government to Guam. Upon arrival in Guam, Al-Harbi was interviewed and filed an application for asylum, saying that he had been active in groups opposed to Hussein from 1988 to 1992 and again from 1993 to 1996. He also claimed that he had been involved in the assassination of two Iraqi security officers.
His application was referred to an Immigration Judge after an INS Asylum Officer found him ineligible for asylum because he had been involved in the persecution of others. At the hearing he said that he had not been politically active between 1988 and 1992, and that he had not been involved in the assassination. He said that the person preparing the asylum application had not understood him, and that he had made no statements regarding this time period. Government officials testified that Al-Harbi had not appeared to have any difficulty with the translation, had that he had clearly made the statements reflected in the asylum application.
At this point, Al-Harbi submitted a declaration to the Immigration Judge recanting his earlier testimony and saying that he made up the story about the assassination because he had been told by another Iraqi on Guam that the only way he would receive asylum was to claim that he had killed a member of Hussein’s government. Al-Harbi also presented substantial documentary evidence regarding the persecution of opponents of the Hussein regime.
The Immigration Judge found Al-Harbi ineligible for asylum, finding that he was not credible because of the changes he made during the hearing, nor that he had been politically active or would face persecution if returned to Iraq. Al-Harbi was also found to have failed to prove that he had not engaged in the persecution of others. The Board of Immigration Appeals affirmed, but did not address the issue of Al-Harbi’s persecution of others. Al-Harbi then appealed to the Ninth Circuit.
To be granted asylum, the applicant must demonstrate that they have a well-founded fear of persecution because of their race, religion, nationality, membership in a particular social group or political opinion. This fear must be both genuine and reasonable. Al-Harbi claimed that he had been persecuted twice in the past, once during the interrogation after he rejoined the army, and again during the 1996 invasion of the town where he lived. Al-Harbi had not mentioned the interrogation in his original asylum application, which, given the adverse credibility determination made by the Immigration Judge, plus there was no evidence that the episode was because of his political opinion, meant it was not grounds for asylum. In short, it appeared to be simply punishment imposed because of his desertion. The claim of persecution based on the 1996 invasion also failed because it was based on his testimony, which was found to be not credible.
However, a showing of past persecution is not essential to a successful asylum application. A well-founded fear of persecution in the future will suffice, and the Ninth Circuit found Al-Harbi’s claim that if he was returned to Iraq he would be persecuted because of his involvement in the US airlift was the only reasonable conclusion.
While this satisfied the reasonableness requirement, Al-Harbi still had to show that his fear of future persecution was subjectively genuine. Because his testimony had been found to lack credibility, some other basis had to be found. The court noted that all of the 600 people evacuated to Guam clearly had a subjective fear of persecution in Iraq. They all opposed the Hussein regime. Also, given the likelihood of Al-Harbi’s persecution and indeed execution if returned to Iraq, the court found that he possessed a subjectively genuine fear of future persecution. Because Al-Harbi was part of an airlift of Hussein’s political opponents, it was likely that, regardless of his true political opinions, the Hussein regime would impute to him an opinion opposed to the regime, which would lead to Al-Harbi’s persecution. The INS did not present any evidence to counter the claim that members of the Guam airlift would be persecuted if returned to Iraq except for the claim that any harm he would face would be because he left the country without permission. The court found this insufficient.
Therefore, the court reversed the decision and remanded with instructions to grant asylum.
The opinion is available online at http://laws.findlaw.com/9th/9870828.html.
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Aguilera v. Kirkpatrick, Tenth Circuit
In this case, the court dismissed the case because the plaintiffs failed to state a claim for which the court could provide relief.
In 1995, Mario Aguilera, a citizen of Chile, applied for asylum. His application was denied, and the deportation order against him became final on October 12, 1995. On October 25, 1995 he marred a US citizen. In 1997, she filed an application for Aguilera’s immigration, which was approved in 1998. He sought to reopen his deportation proceedings so that he could apply for adjustment of status, but the motion was denied because the INS refused to join it, a requirement for filing a late motion to reopen. The Aguileras and two other couples in the same situation filed habeas corpus petitions seeking a stay of deportation. The cases were dismissed for lack of jurisdiction.
On appeal, the couples argued that the INS refusal to join in the motions to reopen violated the due process right of the US citizen spouses to marry. They also argued that the rule requiring the INS to join in late motions was unconstitutional. The Tenth Circuit found that the district court did have jurisdiction, but that it was nonetheless correct to dismiss the cases. The foreign nationals had received full and fair deportation hearings, and the ability to file a motion to reopen is not a right but a matter of INS discretion. Therefore, it created no constitutional right. The claims of the citizen spouses were rejected on the basis that because they were not in the custody of the government they did not have standing to sue.
The opinion is available online at http://laws.findlaw.com/10th/004008.html.
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