NEWS FROM THE COURTS

US v. Urias-Escobar, Fifth Circuit

In this case, the court ruled that a state misdemeanor could be an aggravated felony.

Jose Urias-Escobar, a citizen of El Salvador, was deported in 1995 and again in 1998 based on a 1994 guilty plea to misdemeanor assault charges for which he was sentenced to one year on probation.  In 2000 he was arrested and charged with illegally reentering the US following deportation.  The government charged that his assault conviction was an aggravated felony and that the sentenced imposed should be increased.  The judge agreed and imposed a 70-month sentence.  Without the increase, the sentenced would have been 9 to 15 months. 

On appeal, Urias-Escobar argued that the assault conviction, because it was a state misdemeanor, could not be considered an aggravated felony under federal law.  Federal law provides that an offense is an aggravated felony if it is a crime of violence punishable by at least one year in prison.  The Fifth Circuit, noting that five other circuit courts have ruled on the issue, found that the federal law was clear and that whether an offense is an aggravated felony depends not on how the state classifies it, but on whether the offense was a violent crime and whether it was punishable by at least one year in prison.

The opinion is available online at http://www.ca5.uscourts.gov/opinions/pub/01/01-50553-cr0.htm.

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Lukowski v. INS, Eighth Circuit

In this case, the court refused to hear new evidence regarding reclassification of an offense from a felony to a misdemeanor and upheld a deportation order.

Wieslaw Lukowski, a Police citizen, became a permanent resident of the US as a child.  In September 1996 he pled guilty to aiding and abetting auto theft, and in April 1997 he pled guilty to felony auto theft.  The INS shortly thereafter began deportation proceedings.  The immigration judge found Lukowski deportable and ineligible for any form of relief. Lukowski appealed to the Board of Immigration Appeals, which affirmed. Lukowski then appealed to the Eighth Circuit.

In his appellate brief, Lukowski conceded his deportability, but shortly before oral argument in the case was heard, he attempted to supplement the record with evidence that the state court in which he was convicted of felony auto theft had amended the charge to be only a misdemeanor. Lukowski argued that the Eighth Circuit should consider the impact of this action on his deportability.  The court refused, saying that such evidence was not part of the administrative record, to which its review was limited.  It found that this was the case even though the only way Lukowski could present the evidence to the Board of Immigration Appeals, though a motion to reopen, would be denied as untimely filed. 

Lukowski also argued that he should be eligible for a waiver of inadmissibility, and that the law forbidding permanent residents from applying for this waiver while allowing others to apply violated his constitutional rights.  The Eighth Circuit rejected this argument, saying that Congress can make any distinction between groups of noncitizens so long as there is a rational basis for the classification.  The court found that such a distinction in this case further Congress’s goal of quickly removing permanent residents who had been convicted of crimes.  Therefore, it upheld the deportation order.

The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/8th/011858p.pdf.

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US v. Feng, Ninth Circuit

In this case, the court upheld the sentences imposed on three men convicted of human smuggling.

In 1998, the Coast Guard discovered a fishing boat in the waters about 100 miles from San Diego.  There were 174 undocumented Chinese immigrants on board.  Many told officials that they had paid up to ,000 to be smuggled to the US.  Three men, Li Xaing Feng, Chen Biao, and Hui Lin, were indicted, and later convicted of one count of conspiracy to bring undocumented immigrants into the US and six count of attempted smuggling for financial gain, and appealed to the Ninth Circuit. 

On appeal the defendants claimed that by issuing letters recommending that asylum be granted to the undocumented immigrants who testified against them, the federal government violated a statute that forbids the offering of a benefit in exchange for testimony.  According to the government, asylum was recommended because of the genuine threat that the witnesses could face persecution in China because of their testimony. 

The court noted that past opinions had allowed the government to offer certain benefits, such as a grant of immunity or a promise of leniency in sentencing, to witnesses who agreed to testify.  The issue, the court found, was whether immigration benefits should be treated different than offers of criminal leniency.  The Ninth Circuit found, as the First Circuit had earlier, that there is no reason why the two should be treated differently, and that the testimony was, therefore, not improperly obtained. 

Based also on a finding that the venue in which the trial was held, the court upheld the convictions.

The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/0050063p.pdf.

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Montiel-Barraza v. INS, Ninth Circuit

In this case, the court ruled that a conviction for driving under the influence was not an aggravated felony and could not be used as grounds for deportation.

Ramon Montiel-Barraza was ordered deported because of a driving under the influence conviction in 1998.  Because he had four prior DUI convictions, the offense was deemed a felony and he was sentenced to 16 months in prison.  Montiel-Barraza appealed, arguing that the DUI conviction was not an aggravated felony.

Before the Ninth Circuit, the INS argued that Montiel-Barraza’s case was different than a previous Ninth Circuit case finding that a DUI conviction was not an aggravated felony because of the enhancement due to previous convictions.  The court disagreed, finding that despite the enhancement, the elements of the offense remained the same.

The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/0070784p.pdf.