NEWS FROM THE COURTS

In re Andazola-Rivas, Board of Immigration Appeals

In this case, the Board ruled that the respondent was not eligible for cancellation of removal.

Martha Andazola-Rivas, a citizen of Mexico, unlawfully entered the US in 1985 while a teenager.  She remained in the US unlawfully, and in 1999 was placed in deportation proceedings.  She was granted cancellation of removal by the immigration judge, and the INS appealed, claiming that she did not demonstrate “exceptional and extremely unusual hardship” would result to a US citizen as required by the statute.

Andazola is a single mother of two US citizen children.  All of her family members live in the US, albeit without authorization.  The immigration judge found that requiring her to return to Mexico would create a hardship for her children.  After rendering this decision, the Board issued a decision detailing its requirements for the demonstration of the hardship required for cancellation of removal.  The Board concluded that the hardship must be substantially greater than that which would be normally be experienced because of a deportation.

Applying this standard to Andazola’s case, the Board found that while the family would suffer a decrease in financial stability, and while the children’s education opportunities would be decreased, there was no showing of “exceptional and extremely unusual hardship.”  The Board therefore revoked the grant of cancellation of removal, but did grant the opportunity for voluntary departure in lieu of deportation. 

The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3467.pdf

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In re Ramos, Board of Immigration Appeals

In this case, the Board found the offense of driving while intoxicated is not, in most cases, an aggravated felony.

Luis Manuel Ramos, a citizen of Portugal, became a permanent resident in 1969.  In March 2000, he was convicted in Massachusetts of driving while intoxicated.  Because it was his second such conviction, his punishment was enhanced and he was sentenced to two years in prison.  The INS placed him in deportation proceedings, claiming that the offense was a crime of violence for which he had been sentenced to more than one year, and was therefore an aggravated felony.  The immigration judge found Ramos deportable, and the Board affirmed.  Ramos filed a motion for reconsideration, seeking to have the Board reverse its decision.  It did, and terminated proceedings.  The INS then filed a motion for reconsideration, seeking to have the proceedings reopened and Ramos found deportable.

A crime of violence is defined as an offense that either has as an element the use, attempted use, or threatened use of physical force against a person or property, or an offense that, in its very commission, involves a substantial risk that physical force will be used.  In this case, all the parties agreed that if the DUI is a crime of violence, it is through the substantial risk provision.

In 1999, the Board ruled that a DUI offense in Texas was a crime of violence, and since then, six circuit courts of appeals have addressed the issue.  Two deferred to the Board, but the other four found that the Board’s conclusion was erroneous.  Generally, these courts have found that the risk of the use of physical force must be purposeful, and must be involved in the accomplishment of the offense and not a consequence of the criminal act. 

The development of case law since 1999 led the Board to, in this case, reevaluate its 1999 decision.  Because of the changes, the Board withdrew its 1999 decision, and announced that in cases arising in circuits where DUI offenses have been found to not be crimes of violence, that rule will be applied.  In other cases, for the offense to be considered a crime of violence, two elements must be present:  it must have been committed intentionally or recklessly, but not negligently, and the risk of the use of force must result for performing the actions that constitute the elements of the offense. 

The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3468.pdf

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