NEWS FROM THE COURTS

Rusu v. INS, Fourth Circuit

In this case, the court affirmed the denial of asylum, finding that while faulty, the video conference procedure used to conduct the hearing did not violate due process.

Constantin Rusu, a citizen of Romania, left the country in 1989, allegedly because he feared persecution by the regime of Nicolai Ceausescu.  He was the organizer of a group designated by the government as subversive, and was, over the years before he left, detained and questioned by the secret police many times.  On one occasion, he was held for three days, during which he was tortured, having his teeth removed with pliers and a screwdriver.  After fleeing Romania, he sought asylum in Yugoslavia, but war broke out before a decision was made.  Rusu then went to Canada and applied for asylum, which was denied.  In 1999, he unlawfully entered the US and was eventually detained by the INS and placed in deportation proceedings.  Rusu applied for asylum.

His asylum hearing before the immigration judge was conducted by video conference, with Rusu remaining in INS detention.  The hearing, which lasted about three hours, was plagued with technical difficulties.  Also, because of the removal of his teeth, Rusu was difficult to understand.  He had difficulty understanding the questions of the immigration judge and his attorney, and the record reflects that everyone involved in the hearing had great difficulty understanding the others.  Nonetheless, the immigration judge decided she understood enough of what Rusu said to rule on his asylum application.  She found his claims of past persecution unpersuasive, and further, that even if they were believed, changed country conditions in Romania eliminated the possibility of a well-founded fear of future persecution.  The Board of Immigration Appeals affirmed, and Rusu appealed to the Fourth Circuit.

Before the Fourth Circuit, Rusu argued that the use of a video conference violated his due process rights by making it impossible for his to fully present his claim to asylum.  While noting that there are many problems in conducting legal proceedings by video conference, especially an asylum hearing in which the demeanor and credibility of the applicant is of crucial importance, the court found that those problems did not mean that video conferencing could not meet the requirements of due process.  In this case, the court found that it was clear the immigration judge made every effort to understand Rusu’s testimony, and that the use of the video conference did not negatively prejudice his claim, primarily because of the changed conditions in Romania. 

The opinion is available online at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=4th&navby=case&no=011776P.

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Agyeman v. INS, Ninth Circuit

In this case, the court ruled that the failure to tell the immigrant all the ways in which his bona fide marriage to a US citizen could be established violated due process.

Emmanuel Senyo Agyeman, a citizen of Ghana, entered the US in 1988 on a visitor’s visa.  He overstayed the visa, and in 1991, married a US citizen.  They filed for his green card, which was denied because the couple failed to attend the interview.  This failure was caused by the fact that Agyeman’s wife was in the hospital for treatment of bipolar disorder.  In 1997, the INS arrested Agyeman for overstaying his visa and placed him in deportation proceedings.  The immigration judge found him deportable, and denied his application for suspension of deportation.  The judge told him that unless his wife was present at the next hearing, where the application for adjustment of status would be decided, the application would be denied.  The application was subsequently denied for this reason.  The Board of Immigration Appeals affirmed and Agyeman appealed to the Ninth Circuit.

Before the Ninth Circuit, Agyeman argued that the proceedings against him violated his due process rights.  Specifically, he claimed that he was never told of how he could establish that he had a bona fide marriage to a US citizen.  While he was told his wife’s physical presence was a requirement, this is not, in fact, the only way a bona fide marriage can be shown.  The court found that requiring the presence of his wife was fundamentally unfair given the facts of her illness and that she lived across the country from where the deportation proceedings were being conducted.  Moreover, the immigration judge failed to tell Agyeman of the other evidence that can be used to show a bona fide marriage, such as evidence of a shared financial life.  Also, arrangements could have been made for his wife to participate in the hearing by telephone, or by deposition. 

Because of the failure to properly inform Agyeman of the ways in which he could prove the validity of his marriage, the court found the proceedings did not satisfy due process and remanded the case for a new hearing. 

The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/9970396p.pdf.

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