 NEWS FROM THE COURTS
Zhao v. INS, Second Circuit
In this case, the court reversed the Board of Immigration Appeals and ordered a reconsideration of an application for asylum based on China’s one child policy.
In 1992, Ke Zhen Zhao, a Chinese national, attempted to enter the US. Upon his entry, he was questioned by an immigration inspector, and admitted that he was using a fraudulent passport, and told the inspector that he was seeking to enter the US for employment. He was placed in exclusion proceedings. A few months later, he applied for asylum, claiming that he had been persecuted through China’s “one child” policy. He said that following the birth of his second child, the government fined him an amount he could not pay, and on several occasions tried to arrest him. He eventually went into hiding for three years and then left the country. He claimed that if returned to China he would be considered guilty of both opposing official government policy and of leaving the country without permission, and would be sentenced to a labor camp and forced sterilization.
The immigration judge found Zhao was not a credible witness. Based on the State Department country report on China, the judge determined that enforcement of the one child policy was not common in the region where he lived. The judge also found that Zhao’s failure to mention the fact that his wife had been ordered to undergo tubal ligation in the application, and then mentioning it in the hearing, undermined his credibility. This decision was affirmed by the Board of Immigration Appeals. Zhao filed a motion to reopen so that he could present proof of his wife’s sterilization, but the Board denied it. Zhao the appealed to the Second Circuit.
In 1989 the Board of Immigration Appeals ruled that China’s one child policy could not be a basis for asylum. In reaction, in 1996, before the Board heard Zhao’s case, Congress specified that it was to be considered a basis for asylum. In 1997, the Board ruled that this law could be used to extend asylum to someone whose spouse underwent forced sterilization. It also made this decision retroactive.
The immigration judge did not make a finding of fact that Zhao’s wife had been sterilized. The Board’s opinion, however, was not clear on this issue. It was clear that the Board believed that Zhao waited an unreasonable amount of time to obtain tests proving his wife’s sterilization, but, the Second Circuit noted, there was no reason for him to know that he would be required to have such evidence until the Board denied his case. The Second Circuit found the Board’s opinion to be so cursory and so at odds with the position it presented on appeal that it was unable to reach a decision in the case, and so reversed the decision denying the motion to reopen and remanded the case for further proceedings.
The opinion is available online at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=2nd&navby=case&no=004022.
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Carballo v. Luttrell, Sixth Circuit
In this case, the court ruled that the indefinite detention of excludable immigrants does not violate the Constitution.
Reynero Arteaga Carballo, a Cuban national, entered the US during the Mariel boatlift of 1980. He was, like the others, found to be excludable from the US. Although allowed to physically enter the country, they were not formally admitted to the US. A number of the Mariel Cubans were found to have criminal records that warranted their detention by the INS. Regulations were developed to provide for periodic review of these cases. Carballo had a minor criminal record (primarily relating to political offenses) when he arrived in the US, and he was released into the community. Almost immediately thereafter, he developed a criminal record in the US. By 1983 he had been arrested 16 times, and was convicted of attempted murder. His immigration parole was revoked and when he was released from state custody the INS detained him. He was placed in exclusion proceedings, and in 1994 he was ordered excluded. Because Cuba does not accept many Mariel Cubans, Carballo has been in INS detention since then. His case has been reviewed annually under the regulations dealing with detention of Mariel Cubans, and each time release has been denied. Carballo filed a petition for a writ of habeas corpus seeking his release. This petition was denied by the district court, and Carballo appealed.
The Sixth Circuit found that there were a number of grounds for upholding the district court’s ruling. First, Carballo had filed a habeas corpus application in 1990 that was denied. Carballo did not appeal this decision. In 1996, Congress passed a law severely limiting the ability to file multiple applications for habeas corpus. As a general rule, only new laws that have been made retroactive or newly discovered evidence can be the basis for a second habeas corpus petition. Carballo argued that the law has changed since his first habeas corpus petition was denied, based on a Sixth Circuit ruling finding indefinite detention unconstitutional.
The court noted that since a 1954 Supreme Court decision, courts have generally upheld laws providing for the indefinite detention of excludable immigrants, including Mariel Cubans. However, earlier this year, the Sixth Circuit had reversed the denial of a habeas corpus petition filed by a Mariel Cuban, finding the Supreme Court case inapplicable, and noting that since then courts had expanded the constitutional rights enjoyed by noncitizens. After this case was decided, the Supreme Court ruled in a similar case, Zadvydas v. Davis, finding that indefinite detention of noncitizens under a final order of deportation but who could not be deported was unconstitutional. In that case, the Court distinguished, however, between people who had been formally admitted to the US and those who, while in the US, were considered excludable. The Sixth Circuit found that this case overruled its decision from earlier this year, and that it did not make new law, but instead reiterated the principles of the Supreme Court’s 1954 case.
Finding that there was no new law upon which Carballo could base his habeas corpus petition, the court affirmed the district court’s dismissal of the petition.
The opinion is available online at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=6th&navby=case&no=01a0363p.
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In re Crammond, Board of Immigration Appeals
Last May, the Board heard an appeal from Robin Juraine Crammond and ordered that the case be reopened and reconsidered by an immigration judge. The INS then presented evidence that Crammond had been deported from the US, and was no longer present in the country. Under INS regulations, the departure of a person from the US while a motion to reopen is pending is considered a withdrawal of that motion. Therefore, the Board withdrew its order from earlier this year.
The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3457.pdf.
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