NEWS FROM THE COURTS

Sui v. INS, Second Circuit

In this case, the court reversed the deportation order, finding that the underlying conviction was not clearly an aggravated felony.

Ming Lam Sui, a citizen of China, became a US permanent resident in 1990, when he was 15 years old.  In 1997, he was convicted of possession of fake traveler’s checks totaling about ,000.  Sui was sentenced to 16 months in prison.  Based on this conviction, the INS placed him in deportation proceedings as an aggravated felon.  However, the INS did not identify which of 21 types of aggravated felonies Sui’s conviction was.  The Immigration Judge found that the conviction did not fit under either of two provisions dealing with securities, but continued the case to give the INS an opportunity to amend its case.  The INS issued a new charging document, alleging that Sui had been convicted of an offense involving fraud in which the loss to the victims was more than ,000 and that he had been convicted of an attempt to commit fraud with losses of more than ,000.  While Sui was found with more than ,000 in fraudulent traveler’s checks, he had only spent about ,000 of them.  The IJ found that even though the losses were less than ,000, Sui had attempted to commit an offense in which the loss would be more than ,000, and ordered him deported.  The Board of Immigration Appeals affirmed this decision.

Before the Second Circuit, Sui argued that he was not convicted of an attempt offense, and that the INS’s failure to properly indicate which aggravated felony provision applied to him violated his constitutional rights. 

There were two issues for the court to address.  First, did the Board correctly interpret the aggravated felony provision dealing with attempts?  And second, did Sui’s conviction properly fell within this provision.  Sui argued that the attempt provision dealt only with convictions for attempt, which his conviction did not.  The INS argued that there did not have to be a formal attempt conviction.  The Second Circuit agreed with the INS, so long as the underlying conviction contained elements sufficient that a federal attempt conviction could have been obtained.  This requires a finding of intent and a substantial step taken to commit the act attempted. 

Sui admitted that he had the intent to defraud in excess of ,000, so the issue became whether his possession of the traveler’s checks was a substantial step.  The INS argued that any possession of fraudulent securities was automatically an attempt to defraud.  The court declined to adopt such a bright line rule.  The court found that while Sui could have most likely been convicted of an attempt, he was not and that it was not the proper role of a reviewing court to examine the facts of the underlying conviction.  Therefore, it reversed the deportation order.

The opinion is available online at http://caselaw.lp.findlaw.com/cgi-moses/getcase.pl?court=2nd&navby=case&no=004061.

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In re Rojas, Board of Immigration Appeals

In this case, the Board found that an immigrant is subject to mandatory detention even if not taken into INS custody immediately upon their release from prison.

Victor Leonardo Rojas, a citizen of the Dominican Republic, became a permanent resident of the US in 1992.  In 1998 he was convicted of drug possession with intent to sell and was sentenced to a minimum of two and a half years.  The INS issued a notice that it would place him in deportation proceedings, and two days after he was released from prison in 2000, the INS took him into custody.  The INS argued that Rojas was subject to mandatory detention because he was convicted of an aggravated felony.  Rojas argued that he was not because he was not taken into custody when he was released from prison, but was free in the community before being taken into INS custody.  The Immigration Judge reviewing the detention found Rojas was subject to mandatory detention. 

The mandatory detention provisions in the Immigration and Nationality Act provide that the INS is to detain people convicted of certain crimes “when the alien is released.”  The issue before the Board is whether this section could apply to Rojas, who was not taken into detention until two days after his release. 

The Board found that it was not clear from the statute itself whether the alien had to be taken into INS detention immediately upon release from prison, and so the Board had to examine the structure of all the detention provisions, as well as the goals Congress sought to accomplish in creating them.  First, based on a prior case, the Board found that the “when released” language was descriptive of the categories of people that the INS was to detain, and did not refer to when the detention should occur.  It noted that nowhere else in the detention provisions was the timing of the detention an issue.  Moreover, Congress’s goal in creating the detention provisions was to ensure the deportation of immigrants convicted of certain serious offenses.  Therefore, the Board ruled that Rojas was subject to mandatory detention.

The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3451.pdf.