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NEWS FROM THE COURTS
Chukwuezi v. Ashcroft, Third Circuit

Kingsley Chukwuezi, a citizen of Nigeria, became a permanent resident in May of 1997.  The next month, he was charged with two counts of possession of fraudulent immigration documents.  He pled guilty and was sentenced to 18 months in prison.  At the end of the sentence, the INS placed him in deportation proceedings, alleging that he was deportable by reason of having committed an aggravated felony.  An immigration judge found him deportable and ineligible for any form of relief.  Chukwuezi filed both an appeal to the Board of Immigration Appeals and a petition for a writ of habeas corpus with a federal district court.  The Board affirmed the deportation order, and the Third Circuit dismissed Chukwuezi’s appeal.  Then the district court denied the petition for habeas corpus, finding that Chukwuezi had committed an aggravated felony, and he appealed.  

On appeal, the court rejected Chukwuezi’s argument that retroactive application of the 1996 laws expanding the definition of aggravated felony violated his constitutional rights.  Chukweuzi also argued that he should be eligible for a waiver of deportation because at the time he pled guilty, he was still eligible for that relief.  The court found he was not eligible, because even if the court accepted his interpretation, he had not been in the US for long enough to qualify for the waiver.

The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2002,1007-chukwuezi.pdf.   

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In re M-B-A-, Board of Immigration Appeals

In this case, a 40-year-old citizen of Nigeria and permanent resident of the US was convicted in federal district court of importation of a controlled substance and possession of heroin with intent to distribute. The INS charged that she was removable as an alien convicted of an aggravated felony and a controlled substance violation. The Immigration Judge concluded that the respondent’s conviction and sentence precluded her from establishing eligibility for any relief other than deferral of removal under Article 3 of the United Nations Convention Against Torture (CAT).

In her application for protection under the Convention Against Torture, the respondent stated that if she is returned to Nigeria she would be imprisoned and tortured as a result of her drug conviction in the United States. The respondent submitted a detailed affidavit and a copy of a 1990 Nigerian federal military government decree, Decree No. 33, which criminalizes the conduct of Nigerians who are convicted of narcotic drug offenses in a foreign country and bring the name of Nigeria into disrepute. The respondent provided documentation and evidence to prove that she suffered from depression, a chronic ulcer, and asthma, and that she had no one to rely on to supply her with medicine if she were jailed in Nigeria.  The Immigration Judge rejected her claims, and ordered her deported, and she appealed to the Board.  

The Board dismissed the respondent’s appeal and affirmed the Immigration Court’s decision. The BIA held that in order to establish eligibility for protection under the CAT, the respondent must show that it is more likely than not that she will be subject to torture by a public official, or at the instigation or with the acquiescence of such official. The BIA found the respondent’s evidence insufficient to demonstrate that it is more likely than not that the respondent will be detained or imprisoned if she returned to Nigeria. The BIA also found that the respondent’s evidence concerning the manner of enforcement of Decree No. 33 did not go much beyond conjecture, and her reference to the circumstances that were related to her by her friend and her friend’s parents in 1995 “involved one individual some 7 years ago under a different regime in Nigeria.” The Board held that the respondent must provide some current evidence, or at least more meaningful historical evidence, regarding the manner of enforcement of the provisions of Decree No. 33 on individuals in positions such as her. 

The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3480.pdf. 

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In re Martin, Board of Immigration Appeals

In this case, the respondent, a citizen of Canada and permanent resident of the US since 1970, was convicted of the offense of third-degree assault in violation of Connecticut law, a class A misdemeanor. He was sentenced to one year in prison. The INS placed him in deportation proceedings as an alien convicted of a crime of violence for which a term of imprisonment of at least one year was imposed, which is an aggravated felony. The Immigration Judge agreed, finding that the respondent’s offense constituted a “crime of violence” and ordered Martin removed to Canada.

Martin appealed to the Board, arguing that the offense of third degree assault in violation of Connecticut law did not constitute a crime of violence under federal law, and would not be an aggravated felony under federal law. 

The Board found that while the offense of third degree assault is classified as a misdemeanor under Connecticut law, it is punishable by a maximum term of imprisonment of one year, and is therefore an aggravated felony.  The BIA therefore affirmed the Immigration Judge’s finding that the respondent is removable from the United States, and as the respondent had not requested any form of relief or protection from removal, his appeal was dismissed.  

The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3481.pdf. 
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