United States of America v. Jose Bahena-Guifarro
United States Court of Appeals for the Seventh Circuit
Jose Bahena-Guifarrrro appealed the district court’s refusal to group, under Sentencing Guidelines § 3D1.2, two counts of illegal reentry after being removed from the United States for an aggravated felony. When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan, the counts should be grouped together. Whether two separate acts of illegal reentry into the United States should be grouped under the Sentencing Guidelines was an issue of first impression. The court held that the offenses should not be grouped together.
In 1979, Bahena, a Mexican citizen, entered the United States as an infant and lived in Illinois most of his life. In 1989, he became a lawful permanent resident. In 1998, an Immigration Judge ordered him removed to Mexico for his 1996 convictions of burglary, robbery and aggravated battery. He illegally reentered in 1999. Within a few months, he was convicted of burglary. In 2000, an IJ ordered him removed to Mexico. He again reentered illegally. In 2001, he was convicted of driving under the influence. After being transferred to the Immigration and Naturalization Service’s custody he was charged with two counts of illegal reentry of a foreign national who has previously been removed from the United States subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b). Bahena plead guilty.
Bahena argued that although his illegal reentries were separate in time, both crimes involved identical harm to societal interests and a common criminal objective, which was to be close to his family in the United States. The probation officer recommended that the two counts be grouped because they met the requirements of U.S.S.G. § 3D1.2(b). The government objected to the grouping recommendation, arguing that two separate acts after two separate deportations should be counted as two units. The government reasoned that these same crimes were committed over a year apart with intervening government action. The district court rejected Bahena’s argument that he had returned to the United States for the same purpose each time.
In holding that Bahena’s two illegal reentries should not be grouped together for sentencing, this court likened the two crimes to two counts of escape from prison that may not be grouped. See United States v. Bradford, 277 F.3d 1311, 1316 (11th Cir. 2002), cert. denied, 123 S. Ct. 304 (2002). The court further noted that each time Bahena reentered the United States, he committed a crime in addition to the illegal reentry. In addition to the separate instances of harm incurred in the cost of processing and deporting Bahena each time, the community was subjected to separate instances of risk of harm from Bahena’s continued criminal activities. The court stated that Bahena did not offer any evidence that his illegal entries had a common criminal objective and the burden was on him to do so.
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Sahar Ouda v. Immigration and Naturalization Service
United States Court of Appeals for the Sixth Circuit
Sahar Ouda, a stateless Palestinian born in Kuwait, sought judicial review of a decision denying her application for asylum from Kuwait. She asserted that her life and liberty would be in danger if she went back to Kuwait. The court held that the Board of Immigration Appeals erred by ruling as a matter of law that Ouda cannot request asylum from Kuwait because she cannot by deported there.
After Kuwait was liberated, Ouda’s father was not allowed to return to work because he was a Palestinian who was perceived as supporting Iraq when he continued teaching during the war. They were unable to earn a livelihood or travel safely in public. Because of this widespread violence against Palestinians, Ouda was not permitted to leave her home. Kuwaitis tortured her 15 year old brother when he tried to get a haircut. The Oudas were forced to sell their belongings to buy food and eventually were expelled from Kuwait with only a percentage of Mr. Ouda’s pension. Ouda came to the United States by way of Bulgaria, where the Bulgarian mafia persecuted them because of Ouda’s father being a storeowner.
The Immigration Judge issued a written opinion denying Ouda’s application for asylum and withholding of deportation and ordered her deported to Bulgaria or any other country that will accept her. The IJ determined that Bulgaria was her country of last habitual residence and focused her asylum claim on Bulgaria. After finding her testimony credible, the IJ concluded that Ouda had not demonstrated either past persecution or a well-founded fear of future persecution in Bulgaria.
Ouda appealed the denial of her asylum application to the BIA, arguing that the IJ had erred in finding that Bulgaria was her country of last habitual residence, and contended that she had established eligibility for asylum in relation to Kuwait. The BIA ruled that a stateless foreigner, who has no nationality, may seek asylum in relation to the country where she last habitually resided if he or she may be deported there. 8 C.F.R. § 240.49(c)(2). The BIA reasoned that even if INS could get travel papers from Kuwait for Ouda, the BIA would find that she has not established past persecution in Kuwait. They furthered reasoned that the only negative thing that happened to her in Kuwait was that she was unable to continue her higher education. Accordingly, the BIA dismissed Ouda’s appeal holding that she did not meet her burden of establishing an asylum claim in relation to Kuwait.
This court noted that they can not find support for the proposition that an asylum applicant is precluded from seeking asylum in the United States should it prove to be the case that the country from which she seeks asylum will not take her back if the INS tries to deport her. The court explained that asylum applicants have argued that a country’s refusal to accept them is further evidence of persecution. See, e.g., Al Najjar v. Ashcroft, 257 F.3d 1262 (11the Cir. 2001). The court reasoned that 8 C.F.R. § 240.49(c) does not apply to Ouda, who sought asylum as a Kuwaiti refugee while lawfully within this country, well before her visa expired and the INS commenced deportation proceedings against her. The issue of Ouda’s deportability is another matter apart from qualifying as a refugee and establishing an asylum claim.
The court further held that Ouda had established past persecution in Kuwait based on her testimony that was credited by the IJ. The case was remanded to the BIA in order to properly shift the burden to the INS of establishing by a preponderance of evidence that Ouda does not have a well-founded fear of persecution should she be returned to Kuwait.
