 NEWS FROM THE COURTS
Escudero-Corona v. INS, Eighth Circuit
In this case, the court found that the stop-time rule enacted in 1996 was constitutional.
Claudia Escudero-Corona, a citizen of Mexico, entered with US without inspection in 1980. She said that for the next nine years she did not go to school, see a doctor, or otherwise become involved in the community, and that there were no records of her presence in the US. Beginning in 1990, there were records of her presence in the US. In 1994, the INS began deportation proceedings. Escudero-Corona applied for suspension of deportation, a form of relief available to residents with good moral character who have been in the US for seven continuous years. Because of the lack of evidence of her presence before 1990, the Immigration Judge denied the application and ordered her deported.
Escudero-Corona filed a motion to reopen to present new evidence. The Board denied the motion, finding that the new evidence was not sufficient. She also argued that she should be granted suspension because by this time she did meet the seven-year continuous physical presence requirement, even assuming she did not enter the US until 1990. This argument was rejected. Escudero-Corona then appealed to the Eighth Circuit.
The Eighth Circuit found no error in the Board’s finding that the new evidence Escudero-Corona wanted to submit was not sufficient. The court also found that the stop-time rule enacted in 1996, which provided that continuous physical presence was terminated at the moment the INS initiated deportation proceedings, was properly applied to Escudero-Corona. Prior to the enactment of this rule, a person could apply for suspension even if the required period of time was acquired while the person was in deportation proceedings. Congress enacted the rule in an effort to eliminate the problem of people delayed the proceedings until they had accrued enough time to be eligible for suspension.
The court found that the rule was constitutional and constitutional as applied to Escudero-Corona, and therefore upheld the deportation order.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0323-Escudero.pdf.
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Park v. INS, Ninth Circuit
In this case, the court found that a conviction for involuntary manslaughter was a conviction of an aggravated felony and thus a deportable offense.
Eun Kyung Park, a citizen of South Korea, entered the US in 1983 as a student. She studied theology and eventually became an ordained minister. In May of 1996 she pled guilty to and was convicted in California of one count of involuntary manslaughter for her involvement in the beating death of a woman during a religious ceremony designed to exorcise demons. Park was sentenced to three years in prison. While she was in custody, the INS placed her in deportation proceedings, claiming that she was deportable because of an aggravated felony conviction. Because of various delays, the hearing was not held until April of 1997. Park failed to make any application for relief, and the Immigration Judge ordered her deported.
Park filed a petition for a writ of habeas corpus. She claimed that the Immigration Judge had engaged in judicial misconduct, that the involuntary manslaughter conviction interfered with her First Amendment rights, and that the involuntary manslaughter conviction was not an aggravated felony. She also appealed to the Board of Immigration Appeals. The district court denied the petition, and the Board affirmed the deportation order. Park then appealed to the Ninth Circuit.
Under the rules established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, a court does not have jurisdiction to review deportation orders based on aggravated felonies; it does, however, have jurisdiction to determine whether the offense that led to the deportation order is in fact an aggravated felony. One type of aggravated felony is a crime of violence for which the sentence is at least one year. A crime of violence is defined as an offense that has as an element, or by its very nature will involve, the use or attempted use of physical force against a person or property.
The California statute under which Park was convicted as a killing without malice committed during an offense that is not a felony or during the commission of a lawful act in an unlawful manner or without due caution. The court found that this statute clearly referred to crimes of violence, particularly as it always involves the death of a person. Therefore, it affirmed the deportation order.
The opinion is available online at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9771373.
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US v. Herrera-Rojas, Ninth Circuit
In this case, the court vacated the sentence imposed for immigrant smuggling.
Antonio Herrera-Rojas pled guilty to smuggling immigrants into the US for commercial gain, and appealed the sentence imposed because it was enhanced after the trial court found that he had created a substantial risk of death or injury to those he was smuggling.
In November 1998, Border Patrol agents apprehended a group of six migrants, including Herrera. Herrera gave a statement in which he admitted that he was leading the group, and that one person had been left behind because he was too weak to continue. Herrera led officials to where the person was left. This person was dead from exposure. Herrera was indicted and pled guilty. He contested the presentence report, which included a substantial increase because of the death of the migrant. The report recommended a 78-month sentence. Herrera was sentenced to 46 months. The court did not address any of Herrera’s objections.
On appeal, the government argued that none of Herrera’s objections controverted the statements made in the presentence report and therefore did not need to be addressed by the trial judge. The court disagreed. Herrera’s primary objection was to the statement that he had recklessly endangered the group. Because this goes to a factual dispute, the trial court was required to make a finding of fact. It failed to do so, so the Ninth Circuit vacated the sentence and remanded for resentencing.
The opinion is available online at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9950688.
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In re Crammond, Board of Immigration Appeals
In this case, the Board ruled that an actual felony conviction was required for an offense involving sexual abuse of a minor to be an aggravated felony.
Robin Crammond, a citizen of Belize, entered the US as a permanent resident in 1988. In 1999 he was convicted of burglary and unlawful sexual intercourse. He was ordered deported, and the Board upheld the order. Crammond filed a motion to reopen with the Board, arguing that the conviction of unlawful sexual intercourse was not an aggravated felony because the court that convicted him had reduced the charge to a misdemeanor.
Section 101 of the Immigration and Nationality Act defines the types of offenses that are considered aggravated felonies. Among the offenses is “sexual abuse of a minor.” The Board framed the issue as whether this definition required the conviction to be a felony, or whether a conviction that was a misdemeanor could be considered an aggravated felony under the statute.
The Board found that the answer was not clear from the text of the statute, and so examined the legislative history to determine whether it could discover the intent of Congress. When the concept of aggravated felonies was first introduced in immigration law, it applied only to serious offenses, but since then it has been expanded numerous times. The Board found that whether the section was meant to apply only to felony convictions was not clear from the legislative history.
In the absence of any such indication, the Board relied on the long-standing rule of statutory construction in immigration cases, that any ambiguities are to be resolved in favor of the immigrant. Using this guide, the Board found that to be an aggravated felony, a conviction for the sexual abuse of a minor must be a felony conviction.
The Board then examined whether Crammond’s was a felony conviction. In immigration cases, when the conviction occurs in state court, as Crammond’s did, the conviction is measured against federal standards to determine what type of conviction it would be under federal law. After Crammond’s offense was reduced to a misdemeanor, the greatest possible sentence was under one year. To be a felony under federal law, the offense must be punishable by at least one year in prison. Therefore, the offense was not a felony.
Therefore, the Board granted Crammond’s motion to reopen and remanded the case to an Immigration Judge for further proceedings.
The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3443.pdf.
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