Fuchslocher v. INS:

The Supreme Court has denied the request of Chilean immigrant for a stay of deportation. Oscar Fuchslocher has lived in Arizona for eight years and has been married to an American woman for three and one-half years. Fuchslocher is a six-time winner of the Arizona state judo championships, and was twice national champion in Chile.

Fuchslocher first came to the U.S. as an exchange student for one year and then applied for asylum with his family. His asylum application was denied in 1995, and he was given one year to leave the country. During that time, he married. According to his current attorney, his former attorney did not file the paperwork in time, and after missing a hearing, Fuchslocher was listed as a fugitive.

The INS did not challenge the validity of the marriage, but maintain he should be deported for failing to notify the INS within the appropriate time. This position has been affirmed by the Supreme Court, despite Fuchslocher's currently pending claim that his former attorney acted incompetently. This ruling upholds a 1996 law that prohibits judges from overturning decisions of the INS.

While the incompetence of counsel claim is still under consideration, it may become moot because the INS is only awaiting completion of paperwork before it deports Fuchslocher.

Melendez-Flores v. INS:

The Ninth Circuit has granted the petition for withholding of deportation filed by Guadalupe Melendez-Flores, a native of El Salvador, on the basis of her well-founded fear of persecution. The court also ordered the Board of Immigration Appeals (BIA) to reverse its denial of her asylum claim.

Melendez-Flores claimed persecution on the basis of political opinion. To support this she presented evidence that guerrilla troops came to her house and threatened her because of her husband's position in the official military, and that when she reported guerrilla movements to the local military, she received death threats prior to leaving the country.

The BIA denied her claim, relying on a State Department document noting improvements in the conditions in El Salvador following the peace agreements of 1992. According to the Ninth Circuit, it was error to rely on only a single portion of the State Department report without examining the whole document as is normally done is asylum cases.

Applying the appropriate standard, the Ninth Circuit found that Melendez-Flores had established a well-founded fear of persecution on account of political opinion that was not rebutted by any evidence the INS presented.

Puig v. McElroy:

Puig, a Cuban national and lawful permanent resident in the U.S. was convicted by the State of New York for sale of drugs in both 1982 and 1991. He served a total of 12 years in prison. In 1992, the INS informed Puig he was deportable. In 1996, an immigration judge ruled he was ineligible for any relief and ordered him deported. A few months later, however, the judge ordered Puig released on bond of $40,000. Puig was not able to raise the money, and did not appeal the determination.

In 1997, Puig requested discretionary release, which was denied by the INS District Director. Puig challenged this decision as both an abuse of discretion and as an unconstitutional violation of due process by filing this habeas corpus petition.

The INS argument that a court could not rule on the case because Puig failed to exhaust all of his administrative remedies was rejected by the District Court because Puig was challenging only the discretionary release decision, not any of the bond hearings, and there is no administrative process available for that type of challenge.

On the merits of Puig's claim, that the absence of an impartial decision maker violated his right to a fair hearing, the District Court agreed. The court ordered that Puig be given a bond determination before an impartial, non-INS decision maker.

Thompson v. Perryman

A District Court in Illinois has denied the motion of the INS to amend the court's previous order staying on order of deportation. The court noted that the reconsideration of an opinion is not routine, and should be done only when the court has "patently misunderstood a party" or when the facts of the case fundamentally change following the initial decision.

The INS argued that the court did not consider whether Thompson was deportable and ineligible for a waiver of inadmissibility under the 1996 Antiterrorism and Effective Death Penalty Act. The District Court responded that if the INS wanted the court to consider this issue, they should have raised it in their initial argument. Finding that the INS failed to raise this argument during the original proceeding, the court ruled it was not a proper basis upon which to reconsider its opinion.

In re B-B-:

The BIA denied a motion to reopen a case after the expiration of the period for voluntary departure. The respondents' claimed they received ineffective assistance of counsel. The BIA found they had chosen the strategy of seeking voluntary departure, and that without evidence that the attorney's conduct was so poor as to have denied them a fair hearing, they are bound by their decision. The BIA found the attorney's performance reasonable, and noted that he had secured benefits for the respondents' that would not have otherwise been available.

In re H-M-V-:

The BIA denied the request for withholding from deportation filed by an Iranian

national who was convicted of drug possession with intent to distribute in 1990. After serving his six year sentence, he filed the request under Article 3 of the United Nations Convention Against Torture. In denying the request the BIA noted that as part of the U.S. Senate's ratification of the Torture Convention, they made clear that the Convention was not self executing, and that no implementing legislation has been passed. The BIA also ruled that the Protocol Relating to the Status of Refugees does not require an individualized determination that the subject of the deportation order represents a "danger to the community."

In re Punu:

When a lawful permanent resident pled no contest to charges of attempted murder, the judge deferred adjudication and placed the man on probation. Meanwhile, the INS charged him with deportability, alleging that the outcome of the criminal matter was a conviction under the applicable laws. He appealed, challenging the constitutionality of the definition of conviction as applied to his case. The BIA found that Congress expressly meant to include deferred adjudications within the definition of conviction. The BIA further noted that it is not allowed to consider constitutional challenges to the statutes it administers.