NEWS FROM THE COURTS

Francois v. INS, Eighth Circuit

In this case, the court

Sihin Hadera Francois, a citizen of Eritrea, entered the US in 1987 on a student visa.  In 1988, she was placed in deportation proceedings for failing to comply with the terms of the visa.  When her hearing was finally held in 1993, she conceded deportability, but sought to apply for asylum.  The application was denied, and on appeal the Board of Immigration Appeals affirmed the denial.  Francois appealed to the Eighth Circuit.

On appeal, Francois argued that she had been subject to past persecution in Eritrea, and that she would face persecution again because of her religion and political opinions.  While in school in Eritrea, she was active in a group that opposed the current regime.  The government sent her to the Soviet Union to study Marxist ideology, and when she returned she was interrogated daily for nearly two months in an effort to convince her to embrace communism.  She was told that if she did not, her father would be killed.  She was accepted by a school in England, but could not attend because the government refused to issue her an exit visa.  She obtained a visa to study in the US and left Eritrea.

While she was in the US, Eritrea gained its independence from Ethiopia.  The new government is attempting democratic and civil reforms.  Francois acknowledged this, but maintained that the government was unable to protect its citizens from Ethiopian terrorists.

The court found that the changed country conditions made Francois’ claim to fear persecution objectively unreasonable.  The evidence she presented, both about her personal experiences and the experiences of her family members, dated from the 1980’s, before Eritrea gained independence and a new government.  Therefore, the court upheld the denial of asylum.

The opinion is available online at

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Rodriguez-Lariz v. INS, Ninth Circuit

In this case, the court

The petitioners, a couple from Mexico with two US citizen children, sought to reopen their deportation proceedings so that they could apply for suspension of deportation.  They had entered the US in 1988 and remained here since then.  With the assistance of an “immigration specialist” they filed an application for asylum.  In 1996, the asylum application was denied and they were placed in deportation proceedings.  The “immigration specialist” secured an attorney for the hearing.  The attorney conceded deportability, and asked leave to apply for suspension of deportation.  The Immigration Judge assented, requiring the suspension application be filed by February 15, 1997.  The application was not filed until February 21. 

At the next hearing, in March 1997, the petitioners learned that the application had not been timely filed, and that they had no choice but to accept voluntary departure.  They were told by the specialist and the attorney that the application had been properly filed, and that the immigration judge had lost it, and that they could file an appeal.  The appeal was filed, and was dismissed by the Board of Immigration Appeals because there was no evidence that the suspension application was timely filed nor any reason given for the late filing.  The petitioners filed a motion for reconsideration, which was denied because it did not allege any error in the previous decision.  They retained a new attorney, and filed a second motion for reconsideration, alleging that ineffective assistance of counsel caused the untimely filing of the suspension application.  The Board denied the motion, and they appealed to the Ninth Circuit.

INS regulations prohibit the filing of more than one motion for reconsideration unless there is a compelling, equitable reason more than one should be allowed.  Ineffective assistance of counsel is one of these reasons.  The Board had ruled that there was not ineffective assistance of counsel because the respondents should have realized that something was amiss.  The Ninth Circuit found that this position was unnecessarily narrow.  The court then addressed the claim that the ineffective assistance of counsel deprived the petitioners of due process.  The court found that this was unquestionably the case, and therefore ordered that the Board grant the motion to reopen.