US v. Hovsepian, Ninth Circuit

In this case, the court made a number of rulings that paved the way for the INS to deport two people.

In 1982, Viken Hovsepian and Viken Yacoubian were convicted of various federal offenses pertaining to explosives.  They had been involved in a conspiracy to blow up an airplane in order to bring attention to atrocities committed by the Turkish government against Armenians.  At the time, both were under 25 and they sought sentencing under the Federal Youth Corrections Act.  This was denied, but the trial judge did issue a Judicial Recommendation Against Deportation, prohibiting the INS from deporting them based on a crime of moral turpitude, which is what their convictions were considered.  In 1991, after Congress had amended immigration laws, making conviction of possession of a destructive device a deportable offense, the INS issued a detainer, a precursor to deportation on Yacoubian.  Yacoubian filed suit, arguing that the JRAD prevented the INS from deporting him.  He lost this case.  Then in 1997, the government sought to have various errors in the judgments and sentencing orders against Yacoubian and Hovsepian, clearly seeking to assist the INS in their deportation.  They sought other modifications to their sentences, which has been served long ago.  These changes were granted and the judge ordered that their conviction records could not be used for any purpose other than a lawful criminal investigation.  The judge also issued an injunction prohibiting the INS from deporting Hovsepian. 

While all this was going on, Hovsepian and Yacoubian filed applications for naturalization.  They were each interviewed, and declined to answer certain questions about their past.  An additional interview was scheduled.  Yacoubian declined to answer any of the additional questions, and Hovsepian did not attend his second interview.  Naturalization applications are authorized to file suit and seek a judicial order of naturalization if the INS takes more than 120 days after the interview to make a decision.  After 120 days, Hovsepian and Yacoubian filed suit.  A few weeks after they filed their complaint, the INS denied their naturalization applications.  Despite the decision, the judge retained jurisdiction over the case, and granted them citizenship.

The government appealed on numerous grounds.  First, it argued that the trial court did not have the authority to either change the sentences or to order the INS to refrain from deportation, and argument with which the Ninth Circuit agreed.  The government also argued that after the INS denied the naturalization applications that the court no longer had jurisdiction over the case.  The Ninth Circuit agreed with this position as well.

The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/9950041p.pdf.

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Osei v. INS, Tenth Circuit

In this case, the court found the denial of a motion to reopen based on ineffective assistance of counsel to be an abuse of discretion.

Nana Osei, a citizen of Ghana, applied for asylum after lawfully entering the US on a visitors visa, and before the expiration of his stay, claiming that he had suffered past persecution and would again face persecution in Ghana because of his membership in a political party and his close family relationship to the deposed and executed head of that Ghanian government.  While the application was pending, the INS placed him in deportation proceedings.  He conceded deportability, and requested a hearing on his asylum application.  At the hearing, the immigration judge denied the application, finding that Osei had not proved a relationship to the former head of the government, and that even if he had faced persecution in the past, he no longer had a well-founded fear of future persecution.  Osei then filed an appeal with the Board of Immigration Appeals, the first action he took without an attorney.  After Osei failed to file a brief in support of the appeal, the Board dismissed the case.  Osei then obtained an attorney who filed a motion to reopen the case with the Board.  This motion was denied, with the Board finding that any additional evidence Osei would have submitted was available and should have been submitted at the time he filed his appeal with the Board.  Osei then appealed to the Tenth Circuit.

A court of appeals can reverse a Board decision to dismiss a motion to reopen only if the dismissal constitutes an abuse of discretion.  In this case, the court found that the Board had abused its discretion.  People in deportation proceedings, while not guaranteed the right to an attorney, are guaranteed that the proceedings will meet minimum standards of fundamental fairness.  If a person can show that they did not receive effective assistance of counsel, they can sometimes show that the proceedings were not fair.  In past cases, the Board had allowed claims of ineffective assistance of counsel to be brought through a motion to reopen, but in this case, the INS argued that such claims must be presented to the Board on initial appeal.  The court noted that while administrative agencies can change many of their rules, they must provide a reasoned explanation for doing so.  In Osei’s case, all the Board did was provide a citation to a regulation, without providing an explanation as to why prior cases did not apply here.  This, the court found, was an abuse of discretion.  Therefore, the court granted Osei’s appeal are ordered the Board to rehear the motion to reopen and either grant it or provide a reason why his case should not be treated as previous cases have been.

The opinion is available online at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=case&no=019515.

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Topo v. Dhir, Southern District of New York

In this case, Pushpa Topo, the plaintiff in a suit seeking compensation for being the victim of trafficking, involuntary servitude and false imprisonment, sought to prevent the defendants from inquiring into her immigration status.  She argued that by doing so, they were seeking to intimidate her into not pursuing her case against them.  In order to obtain such protection, she must should good cause why the defendants should not be able to inquire into her immigration status.  The court found that Topo’s immigration status was not relevant to her case, and noted a long line of cases holding that such inquiries, when not relevant to the underlying case, can often intimidate a plaintiff into not pursuing their rights.  The court rejected the defendants’ argument that because the suit was brought under the Alien Tort Claims Act, an inquiry into Topo’s immigration status was essential, finding only that a showing that she is not a US citizen is required. 

The opinion is not available online.

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