Halaim v. INS

No. 02-72311, 02-72312

Ninth Circuit Court of Appeals

The Petitioners, members of the Pentecostal Christian faith from the Ukraine, claimed that since their asylum claim would be covered by the Lautenberg Amendment if they were physically outside the United States, they should be entitled to a presumption that they established past persecution based on a pattern or practice of persecution and were entitled to a lower burden for proving a well-founded fear of future persecution. 

The Lautenberg Amendment lowers the burden of proving refugee status for certain categories of individuals, including those from the former Soviet Union who are Jews or Evangelical Christians.  Section 207(b)(1)(A) states: “…Evangelical Christians shall be deemed a category of alien established under paragraph (1)(A).”  Therefore, the petitioners would be included in the groups protected under the Act.

The Court ruled that individuals applying for asylum within the United States might not invoke the Lautenberg Amendment even though they could invoke it if they were applying for refugee status from outside the United States.  The Court rejected the petitioners’ claims because the Amendment limits its application to refugee applicants under INA § 207 and does not include asylum applicants under INA § 208.  The equal protection claim was found inapplicable because the Amendment was rationally related to Congress’ desire to respond to the INS’ failure to properly adjudicate refugee applications overseas.

In addition, refugee applicants were still required to demonstrate a well-founded fear of persecution under the Amendment.  A lower standard of proof is not the same as a conclusive presumption.  The Court determined that the Amendment is not a declaration by Congress that all Ukrainian Pentecostals have been persecuted.  Therefore, the applicants must still meet the necessary burden of proof, which was not met in this case. 

The petitioners were denied asylum because the IJ’s denial of their claim of past persecution or a well-founded of future persecution was supported by substantial evidence.

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The People v. Saeid Kangarlou

2004 Cal. App. Unpub. LEXIS 962

The Appellant Saeid Kangarlou appealed from an order denying his petition for writ of error coram nobis.  The Appellant, a citizen of Iran, plead no contest to unlawfully taking or driving a vehicle in February 1999.  As a result, he was detained and ordered deported by the Immigration and Naturalization Service. 

The Appellant brought two petitions for write of error coram nobis in the superior court, alleging that when he plead no contest, he reasonably believed that he was a United States citizen.  The trial court denied the petitions, and the Court of Appeal of California reversed the denial and remanded the case for a new hearing.

A petition for writ of error coram nobis is a motion to vacate the judgment.  In order for the court to grant the motion, the petitioner must establish that some fact existed which, without his fault or negligence was not represented to the court at the trial and would have prevented the adverse judgment; the new evidence does not go to the merits of the any issue of fact determined at trial; and the petitioner did not know and could not have reasonably known or discovered the facts before the time he petitioned for the writ. 

In this case, the trial judge did not appoint counsel when Kangarlou could not afford an attorney.  The Court of Appeal found that Kangarlou had the right to counsel, and that counsel should have been appointed for him.  On these grounds, the court remanded the case to back to the Immigration Judge to appoint counsel for the Petitioner and rehear the petition.