NEWS FROM THE COURTS

Alvarado-Carillo v. INS, Second Circuit

In this case, the court reversed the Board of Immigration Appeals denial of an asylum application and remanded the case for further proceedings.

Cosme Alvarado-Carillo, a native of Guatemala, entered the US in 1993.  He was placed in deportation proceedings and applied for asylum, claiming to have been persecuted in Guatemala.  Shortly before the first hearing, he became unable to continue to pay his attorney and obtained new counsel from a non-profit organization.  His new lawyer realized that the application was a significant mistranslation of Alvarado-Carillo’s story, and supplemented the record with an affidavit that provided a more accurate version.

Alvarado-Carillo claimed to have been persecuted in Guatemala from 1984 until he left.  In 1984 he joined and helped lead a union.  He was detained by the government and placed under house arrest, fired from jobs and threatened.  Twice he was called to present himself at the Presidential Palace.  During the second of these interviews he was told he should leave the country because he would die of hunger there.  People who were called to the Presidential Palace for a third time were often killed or “disappeared.”  Shortly after his second visit, Alvarado-Carillo fled Guatemala.

During the hearing the INS attorney focused on the dates of events provided in Alvarado-Carillo’s affidavit.  It became clear to the Immigration Judge that the translator was not accurately translating Alvarado-Carillo’s responses and told the translator to be more accurate.  Despite this, after the hearing the IJ denied the application, finding that Alvarado-Carillo was not a credible witness, in part because he could not remember what had happened on certain dates.  The Board of Immigration Appeals rejected the adverse credibility determination, but affirmed the denial of asylum on the merits.  Alvarado-Carillo appealed.

The Second Circuit found there were three significant errors in the Board’s opinion.  First, the Board stated that Alvarado-Carillo claimed his persecution was the result of his union activities, and found that it was unreasonable to believe that he would be persecuted 10 years afterward for this activity.  However, Alvarado-Carillo provided two other reasons for his persecution – his employment by a university whose faculty and students had been targeted by the military, and his friendship with a guerrilla leader.

Second, the Board found three inconsistencies between Alvarado-Carillo’s testimony at the hearing and his affidavit dealing the dates of various events.  The Second Circuit found that the discrepancy was not as serious as the Board believed, and focused on the period of Alvarado-Carillo’s union activity, which the court already found the Board had improperly evaluated.

Third, the Board found Alvarado-Carillo’s testimony about his union activities to be vague, and that this vagueness, given the importance the Board attached to his union activities, undermined his claim.  The Second Circuit, examining Alvarado-Carillo’s testimony, found that the evidence did not support the Board’s claim of vagueness.

Finally, the Second Circuit also found that the Board improperly applied rules regarding corroboration of claims with documentary evidence.  It found that he failed to explain the lack of corroboration.  Alvarado-Carillo did provide much evidence on conditions in Guatemala, as well as newspaper articles on the murder of the guerrilla leader with whom he was friends and on the treatment of students and faculty at the university where he worked. 

Because courts generally defer to the Board, instead of granting asylum the Second Circuit remanded to the Board for another hearing, reminding “the BIA that the mere existence of inconsistencies in the record should not automatically be deemed fatal to an applicant’s claim.”

The opinion is available online at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=2nd&navby=case&no=984305.

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In re Patino, Board of Immigration Appeals

In this case, the Board ruled that Immigration Judges have jurisdiction over motions to reopen even when there has been a waiver of the right to appeal.

On October 19, 1998, the INS granted Juana Claudia Patino voluntary departure from the US, with an alternate order of deportation if she did not leave in the allowed time frame.  According to the record, both Patino and the INS agreed to not appeal the decision.  On November 18, 1999, Patino filed a motion to reopen her case, challenged the validity of her waiver of her right to appeal.  The motion was denied by the Immigration Judge on the ground that he lacked jurisdiction, and Patino appealed to the Board.  Before the Board she argued that her waiver of the right to appeal should not be accepted because she did not receive effective assistance of counsel during her deportation hearing.  The INS argued that the Board did not have jurisdiction.

The Board found that there were two ways in which a person can attack the validity of a waiver of the right to appeal, either by filing a motion to reopen with an Immigration Judge, or by filing an appeal directly with the Board.  While a valid waiver of the right to appeal does eliminate the Board’s jurisdiction, the Board found it retained jurisdiction to determine whether the waiver was valid.  However, because the Immigration Judge erroneously concluded that he did not have jurisdiction over the motion to reopen, the Board remanded the case with instructions to hear that motion.

The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3448.pdf.

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In re Torres-Varela, Board of Immigration Appeals

In this case, the Board ruled that an aggravated DUI conviction based on the past commission of similar offenses was not a crime involving moral turpitude.

In February 2000, an Immigration Judge found Fernando Alfonso Torres-Varela to be removable from the US because of an aggravated felony conviction, but granted his application for a waiver of deportation and for adjustment of status.  The INS appealed. 

Torres was placed in deportation proceedings because of a number of DUI convictions in the Arizona courts, including one aggravated DUI.  The INS alleged that the aggravated DUI was a crime of violence and thus an aggravated felony.  It also argued that the offense was a crime involving moral turpitude.  The Immigration Judge did find that it was an aggravated felony, but that it was not a crime involving moral turpitude.  On appeal, the aggravated felony issue was not raised because at issue was Torres’ adjustment of status.  While an aggravated felony renders one removable from the US, it is not a ground of inadmissibility.  Crimes involving moral turpitude are grounds of inadmissibility. 

The INS based its position on a 1999 Board of Immigration Appeals decision in which it found that an Arizona aggravated DUI conviction was a crime involving moral turpitude.  The provision of law in that case made it an aggravated DUI to drive under the influence with a revoked or suspended license.  The aggravated DUI provision under which Torres was convicted dealt with repeat offenses.  The INS argued that despite this difference, Torres’ aggravated DUI was also a crime involving moral turpitude.  Torres argued that because his aggravated DUI conviction was based on it being a repeat offense, it remained a “simple” DUI and not a crime involving moral turpitude. 

Although the concept is widely used, there is no definition for a crime involving moral turpitude.  Past cases demonstrate that while an evil intent will often make an offense a crime involving moral turpitude, it is not necessary to such a finding.  Whether an offense is a crime involving moral turpitude is determined by closely examining the criminal statute at issue.  The conduct described by the statute, not the conduct that resulted in the conviction determines whether the offense is a crime involving moral turpitude

The Board addressed the case on which the INS relied in arguing that Torres’ offense was a crime involving moral turpitude, and found that it was easily distinguished because it required the defendant to drive under the influence knowing that they were not authorized to drive at all.  In that case, the Board also specifically noted that a simple DUI was not a crime involving moral turpitude. 

The Board found that all of Torres’ convictions were for simple DUIs, with the aggravated DUI being the result of multiple convictions.  It further found that simply aggregating DUI offenses could not convert a simple DUI that was not a crime involving moral turpitude into a crime involving moral turpitude.  It therefore upheld the ruling of the Immigration Judge. 

The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3449.pdf.

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In re Artigas, Board of Immigration Appeals

In this case, the Board upheld the authority of Immigration Judges to grant adjustment of status under the Cuban Adjustment Act to arriving aliens in deportation proceedings.

Ada Rosa Artigas, a Cuban citizen, was placed in deportation proceedings after her entry to the US in 1998.  She admitted that she was deportable, but sought adjustment of status under the Cuban Adjustment Act (CAA), which the Immigration Judge granted.  The INS appealed, arguing that an IJ does not have the authority to grant adjustment of status under the CAA.

Whether the IJ has such authority depends on regulations that were passed in 1997.  The regulations generally give IJs authority to grant applications for adjustment of status to people in deportation proceedings.  The regulations also specifically refer to adjustment of status under the CAA.  The INS argued that despite this, IJs do not have the authority to grant adjustment of status to “arriving aliens,” those who are placed in deportation proceedings immediately upon their arrival in the US.  It pointed to another regulation dealing with applications for adjustment of status that provided that “after an alien, other than an arriving alien, is in deportation or removal proceedings, his or her application for adjustment of status [under the CAA] shall be made an considered only in those proceedings.  An arriving alien, other than an alien in removal proceedings, shall apply to the district director having jurisdiction over his or her place of arrival.”

The INS argued that because the regulations did not specifically say that arriving aliens in deportation proceedings can apply for adjustment of status before an IJ, they can apply only directly to the INS.  The Board disagreed.  It found no basis for the INS’s position in the regulations, and noted that its position was contrary to the favorable treatment Cubans receive under US immigration law.  Therefore, it upheld the IJ’s decision.

The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3450.pdf