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NEWS FROM THE COURTS
United States v. Galvez-Falconi, Second Circuit
The Second Circuit held that a defendant’s consent to deportation could be a factor warranting a downward departure under the U.S. Sentencing Guidelines.
Galvez-Falconi had been deported in 1991 as an aggravated felon. In 1996, the INS discovered him in a New York State prison serving a sentence for assault. When the government learned he had previously been deported and had not obtained permission to reenter the U.S., he was charged with unlawfully entering the U.S. following deportation for an aggravated felony. Galvez-Falconi pled guilty and sought a downward departure in his sentence based on his consent to deportation. 
The Second Circuit held that when consent to deportation would save the government substantial expense, that is, when the defendant has a viable defense to deportation that would require litigation, consent to deportation is properly considered a basis upon which to lower a defendant’s sentence. The government does not have to support the downward departure for the sentencing court to have authority to depart.
Because the district court had not thought it had authority to do this, the Second Circuit remanded so it could reconsider Galvez-Falconi’s sentence.
 
Moosa v. INS, Fifth Circuit
In this case, the Fifth Circuit found a deferred adjudication under state law to be a "conviction" within section 322(a) of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. While not citing the recent decision of the Board of Immigration Appeals, In re Roldan, the Fifth Circuit’s reasoning and decision parallels the Board’s decision in Roldan.
The court based its decision on the language of section 322(a) and on a clear congressional intent to include within the definition of conviction deferred adjudications and other forms of action that make the consequences of a criminal conviction less serious. So long as the guilt of the immigrant is established, whether by a conviction by a jury, a guilty plea, or any admission of facts sufficient to establish guilt, the immigrant is considered to have a conviction under section 322(a) and is thus removable.
 
Parra v. Perryman, Seventh Circuit
In this case, the Seventh Circuit followed the path it set in LaGuerre v. Reno, decided in late 1998, and further narrowed the right of immigrants to review of the order removing them from the U.S.
Parra, a citizen of Mexico, was convicted in 1996 of aggravated criminal sexual assault. Following completion of his sentence, he was taken into federal custody pending a final removal order. Parra sought a writ of habeas corpus, alleging that the statute under which he was detained, section 236(c) of the Immigration and Nationality Act (INA), allowing for detention without bail, was an unconstitutional violation of Due Process. 
The INS invoked section 236(e) of the INA, which outlines the procedures for detaining immigrants prior to removal. This section provides that the Attorney General’s exercise of discretionary judgment in matters regarding detention shall not be subject to review, and forbids any court from setting aside a decision of the Attorney General relating to the granting, revocation or denial of bond or parole. The Seventh Circuit found that Parra’s challenge was not encompassed by this provision, because it was a challenge to the statute itself, not to any decision made under it. Therefore, the district court erred in finding it did not have jurisdiction; however, a remand was not necessary because section 236(c), allowing detention without the possibility of bail, is "plainly within the power of Congress." An alien in Parra’s position can end their detention by returning home, and he does not possess a strong interest in being able to remain in the U.S., when, as was Parra’s case, all elements necessary to removal are conceded. Thus, the Due Process analysis was found to support the government’s position. 
The Seventh Circuit held that in light of "the sweeping powers Congress possesses to prescribe the treatment of aliens, the constitutionality of the [provision denying bail] is ordained."
Xiong, v. INS, Seventh Circuit
Xiong came to the U.S. with his family in 1987, seeking refuge from persecution by the Laotian government. He eventually obtained lawful permanent resident status. In 1995, at age 18, he pled no contest to charges of statutory rape for having consensual sex with his 15 year-old girlfriend. He was sentenced to five years in prison, but was released on parole after one year. Shortly after his release on parole, on June 18, 1996, the INS issued him an Order to Show Cause why he should not be deported on the grounds that he had been convicted of an aggravated felony, specifically, a crime of violence. Both the IJ and BIA found him deportable, and a final order of deportation was issued on August 21, 1997.
The Seventh Circuit has been very restrictive in its interpretation of the jurisdiction stripping provisions of IIRIRA, but had maintained that it has "jurisdiction to determine whether it has jurisdiction," that is, whether the person the INS seeks to deport fits within one of the statutory bases for deportation. Therefore, the court was able to look behind the allegations of the INS and determine for itself whether Xiong had in fact been convicted of an aggravated felony. The court found that on the record before them, they could not say he had been.
The INS claimed he had been convicted of a violent felony; the Seventh Circuit found that statutory rape was not always a violent crime, and held that without specific facts indicating the offense was violent, a strict liability crime such as statutory rape was not a violent felony. The INS also argued on appeal that Xiong was deportable as a person convicted of sexually abusing a minor, a ground for deportation added by IRRIRA on September 30, 1996. The Seventh Circuit found that while this provision may be applied retroactively to crimes committed before its effective date, to do so in Xiong’s case would violate his Fifth Amendment right to due process. Among the rights secured by due process is the right of a person to know the charges against them. Xiong was charged with deportability only as a violent felon; not until the case was appealed did the INS charge this ground of deportability. Because Xiong was not given a chance to defend against this charge, the court remanded for further proceedings before an IJ in which both grounds for deportation could be fully heard and defended.
United States v. Lombera-Camorlinga, Ninth Circuit
Jose Lombera-Camorlinga, a citizen of Mexico, was arrested at the U.S. border in California when a search of his car by customs officials revealed almost 40 kilograms of marijuana. Lombera-Camorlinga was read his Miranda rights, but was not informed of his right to consular assistance guaranteed under the Vienna Convention. He then made incriminating statements when the officers questioned him. His pre-trial motion to suppress the incriminating statements was rejected, and Lombera-Camorlinga entered a conditional guilty plea (reserving the right to appeal the suppression ruling). 
Article 36 of the Vienna Convention creates two guarantees, first, that if a country’s consular representative requests, he must be notified whenever a national of his country is arrested or detained for trial, and second, that the arrested person be told of his right to contact his consular representative. Before the Ninth Circuit the government argued that the treaty created right belongs only to the consular official, and not to the arrested person. The court rejected this argument, finding that arrested "foreign nationals are more than incidental beneficiaries" of the treaty. The individual rights created by the Vienna Convention are part of U.S. law and must be enforced.
The court felt the proper remedy for this violation was to remand to the trial court to allow Lombera-Camorlinga to show he was prejudiced because of the government’s failure to inform him of his rights. If he is able to make this showing, the burden will shift to the government to rebut the showing of prejudice. 
The court noted with dismay the continuing failure of U.S. law enforcement to inform foreign nationals of their rights under the Vienna Convention, a failure that has drawn criticism from other nations subscribing to the treaty. 
Diaz v. Reno, Northern District of Illinois
In this case the District Court dismissed Gregorio Diaz’s claim for damages resulting from his wrongful deportation, but did grant his request to order the INS to return his identification documents.
Diaz, a U.S. citizen, was detained by the INS when he landed at O’Hare International Airport in Chicago. Despite the proof he submitted of his citizenship, he was placed in expedited removal proceedings and deported to Mexico. Diaz sought  million in damages. The District Court dismissed his claim, finding his failure to exhaust administrative remedies barred him from seeking a judgment against the government in a court. The court did, however, grant his request that the INS be ordered to return his identification documents.
Louisiana Philharmonic Orchestra v. INS, Eastern District of Louisiana
The Orchestra had applied for an H-1B visa for a violinist. The H-1B visa is for specialty occupations; generally the INS requires a bachelor’s degree or higher, but since such a degree is not a requirement for a musician, the INS made a request for additional evidence to show the potential beneficiary had skills the performance of which would require knowledge equivalent to a bachelor’s degree.
The Orchestra submitted evidence that most orchestral musicians do have a bachelor’s degree, but the INS denied the application on the basis that orchestral members are often chosen at blind auditions. The Orchestra appealed this decision, alleging that it was an abuse of discretion for the INS to not give any reason for denying this application when it had previously approved three others.
The District Court agreed with the Orchestra. While inconsistent grants and denials of visa applications is not in and of itself an abuse of discretion, the failure to explain inconsistent rulings is an abuse of discretion. On remand the agency must either explain why it denied this application or grant it.
Naidoo v. INS, Western District of Louisiana
The court in this case has gone as far as any court in the U.S. to find all forms of judicial review of deportation orders withdrawn from the federal courts.
Naidoo, a South African national, became a lawful permanent resident in 1978. In 1988 he was convicted of possession of cocaine with intent to distribute and was sentenced to fifteen years in prison. In 1995, while Naidoo was still in prison, the INS issued an Order to Show Cause why he should not be deported. Following his release from prison on March 8, 1996 he was taken before an Immigration Judge (IJ). The IJ found him deportable and ineligible for all forms of discretionary relief. The BIA affirmed, and the Fifth Circuit dismissed his appeal for lack of jurisdiction. Naidoo then filed this habeas corpus petition under 28 U.S.C. § 2241 in the District Court. 
Because Naidoo received a 15 year sentence, he was ineligible for relief under INA § 212(c) as it existed in 1995. However, he could have obtained judicial review in a court of appeals. The District Court found that INA § 242(g), enacted in 1996 by the IIRIRA, precluded judicial review of all deportation orders, regardless of when deportation proceedings were begun. The question remained whether habeas corpus review under § 2241 still remained; the District Court found it did not, saying "any statutory habeas jurisdiction which federal courts may have previous had over immigration matters under 28 U.S.C. § 2241 had been repealed." The court also found that without a specific statutory grant no habeas corpus jurisdiction exists directly under the Suspension Clause of the U.S. Constitution. 
In reaching its conclusion the District Court progressed along a line of reasoning that has been rejected by the Supreme Court, finding habeas corpus jurisdiction repealed by implication.
Velasquez v. Reno, District of New Jersey
In this case the court concluded that section 236(c) of the Immigration and Nationality Act, creating mandatory detention without the possibility of bond, was unconstitutional as applied to Velasquez, and granted his petition for habeas corpus.
Velasquez has been a lawful permanent resident since he finished high school in the U.S. in 1960. He then married a U.S.; they now have three adult children, all U.S. citizens. For many years Velasquez operated his own restaurant business. In late 1998 he went to Panama to visit his mother, who was about to have hip replacement surgery. Upon his return to the U.S., at the airport, he was taken into INS custody and served with a Notice to Appear for removal proceedings. The ground for removal was a conviction, in 1980, of selling cocaine. Velasquez was a middleman in the deal, and received no profit. He pled guilty and successfully served probation. By all accounts, his life both before and after this incident has been exemplary. Indeed, for almost two decades, the INS made no effort to deport Velasquez.
Velasquez appealed his mandatory detention on two bases. First, he claimed that section 236(c) should not be applied retroactively to him because he was released from custody before the law became effective. Second, he claimed that the mandatory detention provision was an unconstitutional violation of the Fifth and Eighth Amendments. The INS maintained that the District Court lacked jurisdiction to hear that case, and that the detention law is constitutional. 
Velasquez brought his claim under 28 U.S.C. § 2241. Under the Third Circuit case of Sandoval v. Reno, habeas corpus review under section 2241 has survived for claims against deportation by certain criminal aliens. While the statute in Sandoval was INA section 242(g), the reasoning of that case, the District Court found, applied equally to section 236(e), which purports to remove judicial review of decisions relating to bond. In the absence of a clear statement of congressional intent to remove habeas corpus jurisdiction under section 2241, such jurisdiction is retained by the district courts. The court was also concerned with the constitutional implications that would be raised were all forms of judicial review to be suspended. 
Reaching the merits of Velasquez’ case, the court found the provision could not be applied retroactively to him. The INS maintained that the statute could be applied to any alien, regardless of when they were convicted or released from custody. The District Court did not respond favorably to this contention, observing that "somewhat scarily, the INS also believes that the mandatory detention provision permits them to do a ‘sweep’ and serve notices of removal on those persons who have at any time over the years been convicted of drug offenses, mandatorily detaining them without a bond hearing throughout the concededly lengthy course of removal proceedings." Because the language of the statute provides for the detention of people "when released from custody" it cannot be applied retroactively to Velasquez, who finished his probation over 13 years ago.
Because the court rested its decision on statutory grounds, it declined to reach Velasquez’ constitutional claims. It did, however, note that there was every reason to believe such a decision would be required in the near future.
Homayun v. Cravener, Southern District of Texas
In this case the court concluded that retroactive application of section 440(d) of the Anti-terrorism and Effective Death Penalty Act of 1996, which denies withholding of deportation to immigrants convicted of certain criminal offenses, would have an impermissible effect if applied retroactively in this case. The court therefore granted Homayun’s request for habeas corpus and remanded to the BIA for it to determine whether Homayun was eligible for relief under the laws as they existed before 1996.
In 1985 Homayun became a lawful permanent resident. Between 1990 and 1992 he was convicted of theft several times. In 1992 the INS initiated deportation proceedings against Homayun, based on these convictions. He was found deportable, but the IJ granted him a section 212(c) waiver of deportation. The case was appealed, but was not heard by the BIA until March 1997. During the summer of 1996, Congress passed section 440(d) of the AEDPA, removing the availability of the 212(c) waiver to immigrants convicted of certain criminal offenses. 
On this ground, the BIA overturned the decision of the IJ and ordered Homayun deported. Homayun appealed this decision to the Fifth Circuit, which dismissed for lackk of jurisdiction under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. Homayun filed a petition for a writ of habeas corpus, claiming the retroactive application of section 440(d) violated his constitutional rights to equal protection and due process.
The District Court rejected the INS’s position that it lacked jurisdiction to hear the petition because it had not be timely filed. The INS relied on IIRIRA section 309(c)(4)(C), which requires motions to review deportation orders to be filed within 30 days after the order is issued. According to the District Court, that section was inapplicable because it applied only to direct review of orders, not to collateral attacks such as the one being made by Homayun. While noting that some courts had found this 30-day rule to apply to habeas corpus petitions, this court declined to embrace that view. The AEDPA did impose a statute of limitation on some forms of habeas corpus relief, but Homayun sought habeas corpus under 28 U.S.C. § 2241, which does not include a statute of limitations. 
The District Court then addressed the issue of whether, despite any specific references to section 2241, the IIRIRA nonetheless had the effect of abolishing that basis for habeas corpus review. After reviewing the many different views taken of this issue, the District Court did not express any view on this question, but did find that even if that basis for review was eliminated, because Homayun alleged serious constitutional violations, the court had power to review his claims directly under the Suspension Clause of the Constitution. 
Finally the court was in a position to address the merits of Homayun’s claim that retroactive application of section 440(d) of AEDPA violated his rights to equal protection and due process. The Attorney General, in Matter of Soriano, held that section 440(d) should be given retroactive effect. Because a decision of the Attorney General is not binding on a federal court, the District Court was free to conduct its on review of relevant Supreme Court cases. In light of the general disfavoring of retroactive statutes, the need to interpret deportation statutes narrowly, and the fact that Homayun had already been granted a waiver of deportation when AEDPA was enacted, the District Court concluded that section 440(d) should not be applied to him. The court remanded to the BIA for it to determine whether, under pre-1996 law, the IJ’s grant of section 212(c) relief should stand.
In re Rosas-Ramirez, Board of Immigration Appeals
In this case the BIA found that an immigrant could be deportable on the basis of a crime committed after the person had gained lawful permanent residence. 
Prior to 1996, an immigrant was deportable on the basis of certain crimes committed in the U.S. after the alien’s entry. The Illegal Immigration Reform and Immigrant Responsibility Act of that year changed the language from "after entry" to "any time after admission." The BIA held that adjustment to lawful permanent resident status, even if done while the immigrant is within the U.S., constitutes an admission. Therefore, a crime committed after adjustment to lawful permanent resident status is a crime committed after admission and one that renders the immigrant deportable.
In re L-V-C-, Board of Immigration Appeals
In this case the BIA reversed Matter of Goldeshtein, a decision from 1991 that found that crimes involving the structuring of and failure to report currency transactions do not necessarily involve moral turpitude.
The applicant, a Mexican national, sought admission to the U.S. as a nonimmigrant visitor. The INS deemed him inadmissible because of a prior conviction in the U.S. for causing a financial institution to file reports of currency transactions and of structuring these transactions so as to avoid reporting requirements. This conviction occurred in 1992. An IJ ordered him admitted and the Service appealed. 
At the time the applicant was originally convicted, the federal courts were split on whether one must know the illegality of the actions to be guilty of the crime of failing to report. The court that convicted L-V-C- found the crime could be committed with only the intent to evade the reporting requirements – no specific knowledge of illegality was required. In 1994 the Supreme Court resolved the split by determining that to violate the law one must act with knowledge one is engaging in unlawful behavior. Congress quickly overruled this decision by adding a separate sentencing provision to the statute, providing for the punishment of those who merely fail to file reports. Although the Supreme Court’s decision was overruled by Congress, the Court’s analysis does provide insight into the question of whether a conviction under the statute was a crime involving moral turpitude. The Court did not view the failure to file reports as an action that, in and of itself was so nefarious, that one should be guilty without intending to deprive the government of information. 
Because the government is deprived only of information when the reporting requirements are not met, there is no fraud upon the government when reports are not made. Nor is the failure to file reports an inherently base, vile, immoral or depraved act. Because crimes involving moral turpitude must be malum in se, that is, per se morally reprehensible in the absence of a law forbidding the action, a crime involving reporting requirements, a regulatory crime, cannot be considered a crime involving moral turpitude.