NEWS FROM THE COURTS Omagah v. Ashcroft, Fifth Circuit
In this case, the court ruled that a conviction for conspiring to possess fraudulent immigration documents precluded a finding of good moral character.
Ferdinand Omagah, a citizen of Nigeria, was ordered deported and his application for suspension of deportation was denied on the basis that he failed to demonstrate good moral character. Omagah appealed to the Fifth Circuit. Omagah was an applicant for permanent residence though the 1986 amnesty program. In 1995, while his application was still pending, the INS placed him in deportation proceedings. There were two grounds: his unlawful presence in the US, and a conviction for conspiring to obtain and use fraudulent immigration documents. The immigration judge found Omagah deportable, and that the conspiracy conviction meant that, as a matter of law, Omagah could not demonstrate good moral character. The Board of Immigration Appeals affirmed.
To be eligible for suspension of deportation, the applicant must have resided in the US for at least ten years and be a person of good moral character, whose deportation would result in exceptional hardship to a US citizen of permanent resident spouse, parent or child. The Fifth Circuit found that the conclusion that Omagah could not prove good moral character because of the conspiracy conviction was reasonable. The Board has long considered conspiring to obtain fraudulent immigration documents a crime of moral turpitude, and that crimes of moral turpitude preclude a showing of good moral character. The court found that was a reasonable position, and so upheld the order of deportation and the denial of suspension of deportation.
The opinion is available online at http://laws.lp.findlaw.com/5th/0160373cv0.htm.
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U.S. v. Hernandez-Castellanos, Ninth Circuit
In this case, the court ruled that a conviction for felony endangerment in Arizona was not automatically an aggravated felony.
Manuel Hernandez-Castellanos, a citizen of Mexico, was arrested in Arizona and charged with illegally reentering the US following deportation. He pled guilty, and was sentenced to 46 months in prison. His sentence was enhanced on the basis that the crime for which he was deported, a conviction in Arizona for felony endangerment, was an aggravated felony. Hernandez-Castellanos appealed, arguing that his conviction was not of an aggravated felony.
The felony endangerment conviction arose out of an incident in which Hernandez-Castellanos pled guilty to driving under the influence with four children in the car.
If the offense is an aggravated felony, it is because it, by its nature, involves a substantial risk that physical force will be used. In applying this standard, courts examine the statute alleged to describe an aggravated felony. If the statute includes actions that clearly would not be an aggravated felony, the offense cannot be used to enhance a criminal sentence unless the conviction record includes facts that make it clear the offense was an aggravated felony. The Arizona reckless endangerment statute requires that the defendant act with a culpable state of mind and create a substantial risk of causing imminent death to another.
The court found that thus defined, endangerment in Arizona was not in all cases an aggravated felony. According to the court, the Arizona statute was meant to cover a variety of situations, including those in which the risk of death was created in the absence of physical force. Therefore, the court reversed the decision of the sentencing judge that all endangerment convictions are aggravated felonies. Because the court lacked sufficient detail regarding the conviction, it remanded the case for a specific determination as to whether Hernandez-Castellanos’s conviction was an aggravated felony.
The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/0110301p.pdf.
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Ramirez-Castro v. INS, Ninth Circuit
In this case, the court ruled that a state court expungement of a misdemeanor conviction did not preclude deportation on the basis of that conviction.
Jose Roberto Ramirez-Castro, a citizen of Honduras and permanent resident of the US, was convicted in California of unlawfully carrying a concealed weapon. He was sentenced to 65 days in prison. The INS placed him in deportation proceedings, and he conceded deportability. While his appeal to the Board of Immigration Appeals was pending, the California court ordered the conviction expunged, and Castro filed a motion to reopen. The Board denied the motion, and on further appeal, in 1995, the Ninth Circuit remanded the case for reconsideration. On reconsideration, the Board again found that despite the expungement, the offense remained a conviction for immigration purposes, and Castro again appealed to the Ninth Circuit.
The Immigration and Nationality Act provides that even if a conviction is expunged, it remains a conviction for immigration purposes. The Ninth Circuit has created an exception to this rule, dealing with simple drug possession, finding that if the conviction would have been expunged under a federal law dealing with the issue, it cannot be used as the basis for deportation. Castro argued that because his conviction was for a misdemeanor, a similar exception should be created.
The court rejected this argument for a number of reasons. First, the INA provision dealing with convictions makes no distinction between felonies and misdemeanors. Second, there is no federal statute under which Castro’s firearms conviction would have been expunged. Therefore, it affirmed the ruling of the Board, paving the way for Castro’s deportation.
The opinion is available online at http://caselaw.lp.findlaw.com/data2/circumstances/9th/0071589p.pdf.
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Vargas-Garcia v. INS, Ninth Circuit
In this case, the court found that the Board of Immigration Appeals improperly dismissed an appeal because it had failed to explain with sufficient specificity what information needs to be provided in an appeal. Mauro Vargas-Garcia, a citizen of Mexico, was placed in deportation proceedings for being unlawfully present in the US. He sought suspension of deportation, saying that his deportation to Mexico would result in extreme hardship to his US citizen daughter. An immigration judge denied the application, and Vargas appealed to the Board of Immigration Appeals. Two years after filing the appeal, the Board summarily dismissed it, saying that Vargas did not allege any error with sufficient specificity. Vargas then appealed to the Ninth Circuit. On appeal, Vargas claimed that the combination of the INS’s defective Notice of Appeal form and the Board’s summary dismissal of his appeal denied him due process. The court agreed. For more than ten years, the Ninth Circuit has been critical of the form used by the INS for appeals. The form does not indicate that much specificity is required, but the Board does in fact require a very specific statement regarding the reasons suspension should be granted. In short, the Ninth Circuit found that the appeal form completely fails to provide, especially to an alien representing themselves, an adequate notion of the facts that will be required by the Board. Therefore, the court granted Vargas’ appeal.
The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/0071019p.pdf.
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