 NEWS FROM THE COURTS
US v. Rodriguez-Arreola, Eighth Circuit
In this case, the court ruled that questioning a person about their immigration status during a traffic stop did not violate the Constitution.
A highway patrol officer stopped a speeding car in South Dakota. The officer asked the driver of the car, a permanent resident, about the status of his passenger, Manuel Rodriguez-Arreola. After being told that Rodriguez was in the US unlawfully, the officer questioned him. The officer contacted the INS, which confirmed that Rodriguez was undocumented. The officer arrested Rodriguez and took him to jail, and the INS later picked him up. He was charged with being unlawfully in the US following deportation.
Before the trial, Rodriguez sought to have all the evidence gathered in the traffic stop suppressed as gained in an illegal search and seizure. This motion was granted and the government appealed. On appeal, the government argued that the officer had a reasonable basis to suspect that Rodriguez may have been undocumented, while Rodriguez argued that such questions were beyond the scope of a traffic stop.
The court found the evidence was admissible, comparing the questioning during a traffic stop to questioning that is permissible after police stop a person. In short, because of the informal nature of a traffic stop, the person is not in custody and therefore does not need to be given Miranda warnings. The court reversed the suppression ruling.
The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/8th/011034p.pdf.
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In re Martinez-Recinos, Board of Immigration Appeals
In this case, the Board ruled that perjury in California was an aggravated felony.
Cresencio Heriberto Martinez-Recinos, a native of El Salvador, became a permanent resident of the US in 1990. In 1998, he was convicted of perjury in California and sentenced to two years in prison. He was also placed in deportation proceedings, with the INS claiming that the perjury conviction was an aggravated felony.
The Immigration and Nationality Act defines aggravated felony to include offenses “relating to the obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year. The California statute under which Martinez was convicted provided that a willful falsehood, material to the legal proceedings, given under oath is perjury. Comparing this to the federal perjury statute, the Board found the two provisions practically identical, and therefore found Martinez’ perjury conviction was an aggravated felony and upheld the deportation order.
The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3456.pdf.
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In re G-Y-R, Board of Immigration Appeals
In this case, the Board ruled that when it is clear that a person has not received notice of deportation proceedings, and cannot therefore provide the INS with a current address, they cannot be ordered deported in absentia.
The respondent, a native of El Salvador, entered the US without inspection in 1982 and applied for asylum. In 1991, she updated her address with the INS. In 1997, the INS finally mailed her a notice for an asylum interview, to the 1991 address. There was no evidence she actually received this notice. After she did not appear for the asylum interview, the INS sent, by certified mail, to the same address, a notice that it was beginning deportation proceedings against her. This notice was not delivered, and was returned to the INS by the Postal Service. The respondent did not appear for the deportation proceedings, and the INS began efforts to deport her in absentia. The Immigration Judge terminated the proceeding, finding that there was no evidence the respondent was aware of the deportation effort.
The INS appealed, arguing that it properly mailed the notice to the last known address, and that the respondent had an affirmative duty to keep the INS notified of her current address.
The notice to appear that begins deportation proceedings does contain language obligating a person to keep the INS apprised of their address. However, before this obligation can go into effect, the person must be properly served with the notice to appear. If the person does not actually receive the notice, the proceedings can still take place and result in a deportation order in absentia, but only if the notice was mailed to an appropriate address. The question, therefore, was whether mailing the notice to the address provided in 1991 was sufficient.
The Board found that because the obligation regarding informing the INS of current addresses is contained within the notice to appear, the obligation does not go into effect until the notice is received. The Board noted that because of the harshness of a deportation order ordered in absentia, the relevant statutes are designed to ensure that a respondent receives actual notice that deportation proceedings have begun. While foreign national in the US do have a general obligation to keep the INS notified of their address, and the failure to do so can be penalized, deportation in absentia is not one of the penalties. Therefore, the Board upheld the termination of the proceedings.
The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3458.pdf.
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In re Moraga, Board of Immigration Appeals
In 1997, the INS denied a Petition for an Alien Relative filed by Adalberto Moraga on behalf of Juana Moraga, his daughter, who was born out of wedlock in 1966 in El Salvador. In denying the application, the INS determined that the child was not legitimate, that she had not been legitimated before turning 18, as required by statute and that there was no bona fide parent-child relationship between the two. However, noting a change in Salvadoran law, the INS certified its decision for review by the Board. In 1983, El Salvador eliminated the distinction between legitimate and illegitimate children.
The Board found that this change eliminated the requirement of a formal legitimation, at least for people who were not yet 18 at the time of the change. Under this interpretation, Juana Moraga was considered a legitimate child, and the Board ordered the visa petition be granted.
The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3459.pdf.
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