 NEWS FROM THE COURTS
Griffiths v. INS, First Circuit
In this case, the court remanded for clarification of the sentence imposed.
Alwyn Griffiths, a citizen of Jamaica and resident of the US since 1985, was convicted in 1991 of carrying a firearm without a license. He was sentenced to six months in prison and one year on probation. The INS placed him in deportation proceedings, and at the first hearing in 1992 Griffiths conceded his deportability, but said that he wanted to avoid deportation by applying for adjustment of status and a waiver of inadmissibility based on hardship to US citizen family members. In 1993, with his deportation case still pending, the trial court granted his motion for a new trial on the firearms offense because there was some question about whether Griffiths had received the required immigration warnings. He was convicted again, but of a lesser offense.
Griffiths then sought to terminate the deportation proceedings, saying that he was no longer convicted of the offense for which the INS sought to deport him. He also argued that the new conviction was not yet final enough to be the basis for deportation. The Immigration Judge disagreed, and denying Griffiths’ requests for relief, ordered him deported. Griffiths appealed to the Board of Immigration Appeals. While the appeal was pending, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which, among other things, provided a definition of conviction. The Board found that under this definition, Griffiths’ second conviction was clearly final and could be used to deport him. It upheld the denial of relief, and ordered him deported. Griffiths then appealed to the First Circuit.
The First Circuit first addressed the conviction issue. Under the definition created by the IIRAIRA, there may be either a formal and final finding of guilt, or there may be a finding of guilt, although it may be later vacated upon completion of punishment. The court concluded that the Board found that Griffiths had been convicted under the second provision. The court found that this was proper.
However, the court noted that there was a question as to whether Griffiths had been sentenced to a form of punishment. The INS argued that the probation he served for the first conviction, which was in essence the same as the second conviction. The court concluded that there was sufficient evidence in the record to determine whether any punishment had been imposed on Griffiths. It therefore remanded the case to the Board for an examination of this issue.
The First Circuit also addressed Griffiths’ request for relief from deportation. It found that the form of relief that the Immigration Judge and the BIA had denied him was not in fact the type of relief he sought. Nonetheless, because Griffiths had not been in the US for long enough to be eligible for the relief he sought, the court found that he was ineligible for it and did not remand the issue.
The opinion is available online at http://laws.lp.findlaw.com/1st/001694.html.
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Abdille v. Ashcroft, Third Circuit
In this case, the court addressed issues of firm resettlement in the asylum context.
Mohamed Abdille, a citizen of Somalia, entered the US in 1999 and filed an application for asylum. He had been orphaned shortly after his birth, and for this reason did not know to which clan in Somalia he belonged. The clan structure is very important in Somalia, and those, like Abdille, who cannot show to which clan they belong are often believed to be hiding something and are assumed to be members of a rival clan. These problems became even worse after 1991, when the government of Somalia collapsed. After 1991, militias organized on clan lines came to control the country, and Abdille lost his job and was repeatedly detained and assaulted because of his lack of clan membership. In 199,8 he fled Somalia for South Africa.
In June 1998 he was granted asylum in South Africa. This status was valid for only two years, after which he would have to have his status reauthorized. He was given a South African passport. In South Africa, Abdille worked as a street vendor. During the year he was there, he was twice assaulted and beaten. The police did little to apprehend the guilty parties. Abdille decided to leave South Africa and in April 1999 arrived in the US.
His application for asylum was rejected on two grounds. First, he could no longer seek asylum from Somalia because he had firmly resettled in South Africa. Second, he was not eligible for asylum from South Africa because he had shown neither past persecution nor a well-founded fear of future persecution. The Board of Immigration Appeals upheld this decision and Abdille appealed to the Third Circuit.
Since 1996, the firm resettlement of an asylum seeker in a third country has been a bar to a grant of asylum in the US. Under INS regulations, “firm resettlement” exists if “prior to arrival in the US, he or she entered into another nation with, or while the nation received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement.” Firm resettlement will not be found if the applicant establishes that they were in the third country only to arrange travel and that no substantial ties with the country were created, or that their residence in the country was so restricted that they could not be said to be resettled.
The Third Circuit found that by the terms of this regulation, the essential point in the firm resettlement inquiry is whether the applicant has been offered permanent residence in a third country. While the INS argued that the inquiry should look at all of the circumstances, the court found that under the regulation, other factors do not enter into the inquiry unless there is a debate about the offer of resettlement.
The South African government did grant Abdille asylum for two years, after which period he could pursue extension of that status or otherwise seek legal status in South Africa. The BIA interpreted this as an offer of permanent resettlement because even though his status as an asylee was limited to two years, he could thereafter continue to legally reside in South Africa.
The court disagreed with this interpretation, finding that there was no evidence of an offer of permanent resettlement, and that, if anything, the two-year limit on the grant of asylum indicated that the offer was for only temporary residence. However, the court also acknowledged that it was by no means an expert on South African immigration law. Because the record did not contain the necessary information to determine the effect of the two-year grant, the Third Circuit remanded the case so that more information about it and the legal status of Abdille in South Africa could be determined.
To avoid having to hear the case again, the court also outlined the procedure by which the inquiry into South African law would be conducted. It is a general principle that the party seeking to rely on foreign law has the burden of proving it. According to the court, the INS has this burden as part of its burden of producing evidence that the firm resettlement bar applies. Once the government produces evidence that there may have been firm resettlement, the burden shifts to the applicant to prove that he or she was not firmly resettled. At this point, the court noted, the applicant may also have to prove foreign law.
Abdille had also sought asylum from South Africa. The court found that while he had been harassed in South Africa, the BIA was correct in ruling that it did not rise to the level of persecution. The groups that harassed him were not connected to the government, and there was no evidence that the government refused to attempt to control them. The court also found that Abdille failed to show that the attacks were because of a protected ground and not simply generalized violence.
On the issue of whether Abdille had a well-founded fear of future persecution, the Third Circuit agreed with the BIA that while he genuinely did fear being returned to South Africa, this fear was not reasonable. There was no evidence that he would face problems everywhere in South Africa. Therefore, the court upheld the denial of asylum from South Africa.
The case was remanded for a determination of the firm resettlement issue.
The opinion is available online at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=3rd&navby=case&no=001659.
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US v. Herrera-Ochoa, Fifth Circuit
In this case, the court reversed the conviction of being unlawfully present in the US.
Tomas Herrera-Ochoa was arrested in a high crime area of El Paso, Texas, after trying to avoid a policeman. During the arrest, the police officer was told by a dispatcher that Herrera was possibly in the country illegally following deportation for an aggravated felony. Herrera was indicted for this offense, and was convicted on the basis of an INS file that showed he had been deported in 1997.
On appeal, Herrera argued that his arrest was unconstitutional and that because of this, his INS file should have not been admitted into evidence, and that the government had failed to prove that he had been found in the US, as required by the statute under which he was convicted. The Fifth Circuit found that the INS file was properly introduced. On the other issue, the government argued that since Herrera appeared for his trial, his presence in the US at the time of the arrest could be assumed.
The indictment charged Herrera with being unlawfully in the US on a specific date, the date of his arrest. Herrera did not admit to being in the US on this date, and the only evidence to prove that he was in the US on the date in question was a notation in the record noting the date of his arrest. Being unlawfully in the US on the particular date is an essential element of the offense, and one the government must prove beyond a reasonable doubt. In the absence of any testimony that Herrera was in the US on the date in question, the government argued that the Fifth Circuit should take judicial notice of the notation in the record. The court found that such a thing was not proper for judicial notice because it was an element of the crime, and taking notice of it eliminated Herrera’s right to have each element of the alleged crime proven beyond a reasonable doubt. Therefore, it reversed the conviction.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0321-Herrera.shtm.
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