Garcia-Lopez v. Ashcroft

Garcia-Lopez, a native and citizen of Guatemala, appeals a final order of deportation by the Board of Immigration Appeals (BIA).  The 9^th Circuit Court of Appeals reversed the order and held that the state court’s declaration that Garcia-Lopez’s offense was a misdemeanor is binding on Garcia-Lopez’s subsequent immigration hearings.

Garcia-Lopez pled guilty to grand theft in 1992 for stealing a purse.  The state court judge suspended the proceedings and ordered probation for a period of three years, the first 180 days of which were to be spent in the county jail.  He was later released to a halfway house and placed on probation.  However, while on probation, Garcia-Lopez moved to Seattle for employment.  When he returned to California in 1996, the same state court judge issued an order reinstating Garcia-Lopez’s probation, designating the grand theft offense to which Garcia-Lopez had pleaded a misdemeanor, and dismissing the charges.

While Garcia-Lopez was in Seattle, he was detained by immigration authorities, who in turn initiated deportation proceedings.  In 1995, he conceded deportability, but applied for a suspension of deportation, which was granted.  The immigration judge determined that despite the conviction, the fact that it was classified as a misdemeanor required that he be allowed a suspension.  Also, he met the remaining requirement for suspension, including finding that the deportation would be an extreme hardship on either Garcia-Lopez or a close member of his family.  The INS appealed, and the BIA sustained the appeal, determining that Garcia-Lopez did not meet the requirements of the petty offense exception.

Since the statute in question is part of the California Penal Code, the 9^th Circuit did not have to give any deference to the BIA’s interpretation of the statute.  The statute that Garcia-Lopez was convicted under is considered a “wobbler” statute because the offense can result in a wide range of punishments that can provide for either a misdemeanor or felony convictions.

The Court held that applying United States v. Qualls, 172 F.3d 1136, 1137 (9^th Cir.1999), and United States v. Robinson, 967 F.2d 287, 293 (9^th Cir. 1992), Garcia-Lopez was never subject to a judgment imposing punishment, therefore Section 17(b)(1) of the California Penal Code is inapplicable to his case.  This section states that any sentence other than imprisonment in the state prison automatically converts a felony to a misdemeanor.  Since Garcia-Lopez was issued probation, the Court ruled that he did not fall under this category.

Then, Garcia-Lopez asserted that his conviction did fall under Section 17(b)(3) of the California Penal Code.  This section states that a wobbler offense “is a misdemeanor for all purposes…when the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application…thereafter, the court declares the offense to be a misdemeanor.”  The Court compared Lafarga v. United States, 170 F.3d 1213, 1215 (9^th Cir. 1999), where the Court held that a misdemeanor conviction fell within the petty offense exception in a nearly identical fact pattern.  Therefore, in light of Lafarga, the Court held that Garcia-Lopez’s conviction clearly falls within the bounds of the petty offense exception under 8 U.S.C. 1182(a)(2)(A)(ii)(II).  The Court relied on precedent to determine that a state court’s designation of a criminal offense is binding on the BIA for purposes of determining whether there has been a conviction under the INA.  The Court determined that because the offense that he was convicted was a misdemeanor, Garcia-Lopez’s maximum possible penalty under California law was less than six months.  Therefore, Garcia-Lopez qualified for the petty offense exception under 8 U.S.C. 1182(a)(2)(A)(ii)(II).

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Zheng v. Ashcroft

Li Chen Zheng, a Chinese native and citizen, appealed a Board of Immigration Appeals (BIA) regarding an interpretation of acquiescence as used in 8 CFR 208.18.  The BIA held that acquiescence requires that government officials “are willfully accepting” of torture.  The 9^th Circuit Court of Appeals concluded that the BIA misinterpreted congressional intent, which required only “awareness,” and not to require “actual knowledge” or “willfully acceptance” in the definition of acquiescence. 

8 CFR 208.18 (a)(1) states: “acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene and prevent such activity.”  Zheng claimed relief under Article 3 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which states that the United States will not “expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.”  Zheng argued that he needed protection in the U.S. because he testified against the smugglers who took him to Guam and because his family had a low place in society because they chose not to use birth control.  He stated that the Chinese government would not protect him from these smugglers.

The Court held that the BIA’s interpretation of the term acquiescence to require that Zheng must prove that the government is “willfully accepting of” torture, instead of proving that public officials are aware of the torture, impermissibly narrows Congress’ clear intent in implementing relief under the Convention Against Torture.

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Toia v. Fasano

The Court of Appeals for the Ninth Circuit decided on June 30 the issue of whether the provision of the Immigration Act of 1990 that bars aggravated felons from applying for relief under Section 212(c) of the Immigration and Nationality Act applies to aliens who pled guilty prior to the enactment of the Act. The court held that it did not.

Section 212(c) granted the Attorney General the power to grant discretionary waivers of relief from deportation for lawful permanent resident aliens who had accrue seven consecutive years of lawful unrelinquished domicile in the United States.

The petitioner in this case came to the United States as a child and obtained permanent residency. In 1989, Toia entered a guilty plea for conspiracy to possess a controlled substance with the intent to distribute. The INS and BIA denied Toia’s application for relief under Section 212(c). Toia appealed to the 9^th Circuit Court of Appeals.

The court held that pursuant to St. Cyr, “’considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly’ so that ‘settled expectations’ are not ‘disrupted.’” “Extinguishing the availability of Section 212(c) relief for aliens who pleaded guilty with the expectation that they would be eligible for such relief upsets ‘familiar considerations of fair notice, reasonable reliance, and settled expectations.’” St. Cyr, 533 U.S. at 316.

Permanent resident aliens who pled guilty prior to the 1990 Act and who otherwise would have been eligible for the Section 212(c) relief but for the aggravated felon bar may still apply for Section 212(c) relief.

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Kankamalage v. INS

In 1988, Jayantha Kankamalage pleaded guilty to robbery.  At the time, conviction for this offense did not disqualify him from consideration for asylum.  In 1990, a new regulation made him ineligible for asylum.  Referring to INS v. St. Cyr, 533 U.S. 289 (2001), the Court held that the 1990 regulation could not be applied to Kankamalage.

Sri Lankan citizen Kankamalage entered the U.S. in 1982.  Six years later, he pleaded guilty to robbery and was sentenced to two years in prison.  He was released after a year and turned over to INS.  In 1989, INS began deportation proceedings against him, declaring that he had overstayed his nonimmigrant visitor visa.  Kankamalage filed an application for asylum and withholding of deportation.  In a 1991 hearing, Kankamalage admitted that he had overstayed his visa.  The judge denied withholding deportation, ruling that Kankamalage had not proven that he would be persecuted if he returned to Sri Lanka.  The judge did find that Kankamalage was eligible for asylum because he had shown a “well-founded fear of future persecution.”  However, the judge denied asylum, citing Kankamalage’s conviction and prior drug use.

Kankamalage appealed the decision to the Board of Immigration Appeals (BIA), but the BIA dismissed the appeal in 1996.  In 1999, Kankamalage petitioned the Ninth Circuit to review the BIA’s decision.  INS agreed that the BIA applied incorrect legal standards in its decision and in the case was remanded to the BIA in 2000.  The BIA recognized its error, but dismissed the appeal again on the grounds that Kankamalage had committed a “particularly serious crime” and was ineligible for asylum.

The Ninth Circuit decided to remand the case to the BIA, stating that although the BIA is not prohibited from considering the robbery conviction when it decides whether or not to grant asylum to Mr. Kankamalage, the conviction does not automatically disqualify Kankamalage from consideration for asylum.