Mohammed v. Reno, Second Circuit

Haniff Mohammed, a citizen of Trinidad and permanent resident of the US, was found guilty of possession of stolen property in New York in September 1997. He was sentenced to two to four years. The INS placed him in proceedings, and an immigration judge found him removable, a finding the Board of Immigration Appeals affirmed. Mohammed filed a petition for a writ of habeas corpus, and while it was pending, the judge issued an order staying his removal from the US. Ultimately, the judge denied the petition but continued the stay.  Mohammed then appealed to the Second Circuit. The government also filed a motion seeking to have the stay lifted.

In support of this motion, the government argued that sections of the Immigration and Nationality Act prohibiting courts from enjoining the removal of people subject to a final order of removal also prohibited courts from issuing a stay.  Mohammed argued that if the law had been meant to refer to stays, which are simply a postponement, in addition to injunctions, which permanently prevent the enjoined action, it would have specified so. The court agreed with Mohammed, finding that in many other sections of the INA, Congress did refer to both injunctions and stays. 

However, despite ruling in his favor on the general issue of whether a stay could be issued, the court found that Mohammed did not meet the requirements for obtaining a stay, primarily because he could not show that he was likely to win the appeal on the merits.  Therefore, the court revoked the stay.

The opinion is available online at http://laws.findlaw.com/2nd/022443.html.

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In re Elgendi, Board of Immigration Appeals

Nabil Elgendi, a citizen of Egypt and permanent resident of the US, was twice convicted of marijuana possession. Both convictions were misdemeanors in New York. Based on these convictions, the INS placed Elgendi in deportation proceedings. According to the INS, the offenses were drug trafficking offenses and therefore aggravated felonies. An immigration judge agreed, and ordered Elgendi deported.  Elgendi appealed.

Earlier this year the Board ruled that whether a state drug offense would be considered an aggravated felony is to be determined by examining how the relevant federal court of appeals treats them.  In this case, the court is the Second Circuit, which has held that to be a drug trafficking offense, the crime must be punishable under the US Controlled Substances Act and be a felony. While marijuana possession is punishable under federal law, these convictions were not felonies, and thus cannot be used as the basis for deportation. Therefore, the Board remanded the case to the immigration judge for a new decision.

The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3482.pdf.