NEWS FROM THE COURTS

Gerbier v. Holmes, Third Circuit

In this case, the court broke with a number of other courts of appeals in determining how a state drug conviction should be treated for deportation purposes.

David Gerbier, a citizen of Haiti, became a permanent resident of the US in 1984.  In 1996 he was arrested in Delaware on charges of possession of marijuana and in 1997, pled guilty, receiving a sentence of three years probation.  Later in 1997 he was arrested on charges of trafficking cocaine.  He pled guilty and received a sentence of six months in a boot camp and at least two and one half years probation.  While he was still in state custody, in 1999, the INS began deportation proceedings against him, charging that the trafficking offense was an aggravated felony, and that the marijuana possession conviction, while not an aggravated felony, was a basis for deportation. 

At his hearing before an immigration judge, the judge determined Gerbier had not committed an aggravated felony, but was deportable for the convictions involving controlled substances.  However, the judge granted Gerbier’s application for cancellation of removal.  The INS appealed the decision to the Board of Immigration Appeals.  The Board found that, because under federal law, the trafficking conviction would have been a felony, and that because of the prior marijuana conviction he would have been sentenced to more than one year in prison and was thus an aggravated felon and ineligible for cancellation of removal.  In February 2000, Gerbier was deported to Haiti where he still remains at a detention facility.  Gerbier filed a petition for a writ of habeas corpus with the federal district court, which upheld the decision of the BIA.  Gerbier then appealed to the Third Circuit. 

Under the Immigration and Nationality Act, offenses that are treated as felonies under the federal Controlled Substances Act are aggravated felonies.  Because state convictions can give rise to deportation, it must be determined whether the state offense would be an aggravated felony under federal law.  The Third Circuit found that there were two possible ways of examining this issue.  One is to examine the state offense as if it were a “hypothetical federal felony,” that is, to look at the circumstances of the offense and the state statute under which the conviction was obtained, and determine if it would be treated as a felony by a federal court.  The second is too look to the federal Sentencing Guidelines.  Under this approach, any offense, whether treated as a felony or a misdemeanor by the jurisdiction of conviction, and even if punishable only as a misdemeanor under the Controlled Substances Act, would be an aggravated felony.  The Third Circuit rejected this approach, finding that to be an aggravated felony, the offense must be treated as a felony under federal law.

The court then applied this rule to Gerbier’s case.  While his 1997 conviction was obtained under a statute labeled “trafficking in cocaine,” the statute also covered simple possession of cocaine.  In making his plea, Gerbier pled guilty only to possession of cocaine.  Because the offense did not involve trafficking, it must be punishable as a felony under federal law.  The court found that the proper federal statute under which to analyze Gerbier’s conviction was the simple possession statute.  Under this statute, a sentence of not greater than one year can be imposed.  The INS relied on the previous marijuana conviction to say that a federal court would have enhanced the sentence for cocaine possession, but the court rejected this, noting that there were insufficient procedural safeguards in the state’s use of this conviction in the second conviction, and certainly fewer than Gerbier would have received in a federal prosecution. 

Therefore, the court found that Gerbier would only have been convicted of a misdemeanor under federal law and ordered that he be allowed to submit another application for cancellation of removal.

The opinion is available online at http://www.ca3.uscourts.gov/opinions/002335.txt.

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US v. Cervantes-Navas, Fifth Circuit

In this case, the court ruled that a law providing a shorter residency requirement for parents of illegitimate children to pass citizenship than for parents of legitimate children was not unconstitutional.

Roberto Cervantes-Nava was found guilty of illegally reentering the US following deportation.  He attempted to avoid sentencing and a second deportation by asserting a claim to US citizenship.  His mother was born in the US in 1923 and lived here until she was 11 years old, when she moved to Mexico.  In 1952, she began working in the US, living here during the week and returning to Mexico on weekends.  In 1957, Cervantes-Navas was born.  In 1965, his mother filed an application for a certificate of citizenship for him, which was denied because she did not have the required physical presence in the US (at least five years after age 14).

Cervantes-Navas agreed that his mother did not meet the physical presence requirement to pass citizenship to him, but argued that because, if he had been illegitimate, he would have been eligible for citizenship, the law was unconstitutional.

The court ruled that even if the law was unconstitutional, Cervantes-Navas was still deportable.  According to the court, a finding of unconstitutionality would have resulted either in the entire Immigration and Nationality Act being struck down, or in the striking down of the more lenient residency requirements for mothers of illegitimate children, neither of which would have resulting in Cervantes-Navas being granted citizenship. 

Therefore, the court upheld the sentence.

The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2002,0206-Cervantes.shtm.

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Gui v. INS, Ninth Circuit

In this case, the court found that the immigration judge had improperly concluded that an asylum applicant’s testimony was not credible.

Alexandru Gui, a citizen of Romania, applied for asylum in the US in 1992.  In his asylum application, he said he came from a family with a long history of opposing the communist government of Romania that had long been persecuted by the government.  To avoid persecution, Gui joined the Communist Party, but withdrew his membership after the dictatorship of Nicolae Ceausescu was overthrown in 1989.  While believing that the new government, run by a Communist Party functionary, was still antidemocratic and essentially communist, Gui became a political activist.  His activities brought him to the attention of the police, and he was repeatedly questioned, and his telephone was tapped, his mail read, and his home searched.  On two separate occasions, he was the victim of hit and run accidents, a common method of the secret police of trying to kill those who opposed the government.  Believing that his life was in danger, he fled the country.  After he left, family members were harassed.  In addition to his personal story, Gui presented substantial evidence showing that Communists retained control of the government of Romania.

The immigration judge denied the asylum application, finding that Gui was not a credible witness.  The judge disbelieved his statements about his phone being tapped and his stories about the hit and run accidents, and found that he would not face danger if returned to Romania, arguing that if the government had wanted to kill him, it had opportunity to do so in the past and did not.  The Board of Immigration Appeals concurred in the credibility determination, and affirmed the denial of asylum.  Gui appealed to the Ninth Circuit.

For an appellate court to uphold an adverse credibility determination, it must be supported by substantial evidence and specific findings.  The court found the immigration judge’s doubts about the telephone tapping to be unwarranted.  According to the judge, if a person knew their phone was tapped, they would not discuss sensitive issues.  The Ninth Circuit found that there was no evidence Gui had discussed sensitive issues, only that what he heard while being questioned by police led him to believe that his phone was being tapped.

Regarding the hit and run accidents, the immigration judge had focused on the fact that Gui had not been able to provide authorities with enough evidence to allow them to compete a thorough investigation, ignoring the factors that led Gui to conclude that they were intentional and in themselves acts of persecution.  The court found that instead of providing a specific reason to disbelieve Gui’s testimony regarding the accidents, the judge had substituted his own opinions on how a government would silence a dissident. 

The court found the immigration judge’s finding that if the government of Romania had wanted to persecute Gui, he would not be alive to pursue asylum in the US defied logic, noting that there are measures short of murder to silence people.  Therefore, the court reversed the adverse credibility determination.

Moving on to the asylum claim, the Ninth Circuit found that Gui had established past persecution, giving rise to a rebuttable presumption that he would face persecution if returned to Romania.  Before the immigration judge, the only evidence presented by the government was a 1995 State Department country report on Romania, which the court found insufficient to rebut the presumption of persecution.  The court therefore found that Gui was eligible for asylum, and remanded the case for the Attorney General to exercise discretion in determining whether to grant it. 

The opinion is available online at http://caselaw.1p.findlaw.com/data2/circumstances/9th/0070287p.pdf