NEWS FROM THE COURTS

Abankawah v. INS, Second Circuit

In this case the Second Circuit ruled that female circumcision, also known as female genital mutilation (FGM) can be a basis for asylum.

Ms. Abankawah fled to the US from her native Ghana in 1997. At the time of her arrival she was detained for illegal entry and has been in INS custody since. She filed an application for asylum when she first arrived, claiming that if returned to Ghana she would be subjected to FGM as punishment for having engaged in premarital sex. Her claim was denied by both an Immigration Judge and the Board of Immigration Appeals.

Ms. Abankawah’s native tribe, the Nkumssa, condemns women who engage in premarital sex and uses FGM to punish those who are discovered. While in college, Ms. Abankawah converted to Christianity. She also met a man with whom she began a sexual relationship. Her mother, who held a traditional and important ceremonial role within the tribe, died. This position was to descend to Ms. Abankawah as the eldest daughter. As part of the position, the tribal elders were to place her in an arranged marriage where it would be discovered that she was no longer a virgin. The punishment for this would be FGM. Rather than face this, Ms. Abankawah fled to the US.

The IJ denied her asylum application, finding that while she was credible, she had not established either that she had an objectively reasonable fear of persecution or that she would be persecuted on the basis of a protected group characteristic. The BIA, on the other hand, found that if inflicted, FGM would be on the basis of a cognizable group characteristic, but that she failed to satisfy her burden of proving past persecution.

The Second Circuit reversed. It found that Ms. Abankawah was a credible witness, and that her fear of future persecution was objectively reasonable. Whereas the IJ and the BIA had dismissed her witnesses and the evidence she submitted as not based on personal knowledge, the Second Circuit found otherwise. First, it noted that INS regulations do not require credible testimony by an applicant to be corroborated by extrinsic evidence. Second, it found the IJ and the BIA had used too exacting a standard in scrutinizing her evidence, saying that "without discounting the importance of objective proof in asylum cases, it must be acknowledged that a genuine refugee does not flee her native country armed with affidavits, expert witnesses and extensive documentation."

In this case the Second Circuit reversed the summary judgment for plaintiffs, and remanded for trial on the issues at the district court.

In 1986 the Immigration Reform and Control Act created Seasonal Agricultural Worker status (SAW) as a stepping stone to temporary and them permanent residence. Four-hundred thirty seven people whose SAW applications were denied sued in district court.

In this case the Ninth Circuit reversed the determination of an Immigration Judge and the Board of Immigration Appeals that Ramos failed to establish grounds for withholding of deportation on the grounds of persecution on the basis of a protected characteristic.

Ramos, a native of Guatemala, joined the government run anti-guerilla Civil Patrol at age 18. One night the guerillas arrived at his home, threatening Ramos with death if he refused to join them. The next morning he fled his home, eventually arriving in the US. Days after he fled, the guerillas came to his home again, where they tied up Ramos’ father and told him they would kill Ramos if he came back to the town.

According to the IJ and the BIA, while this was sufficient to constitute persecution, it was not persecution on the basis of a protected characteristic, race, religion, nationality, membership in a particular social group, or political opinion. The Ninth Circuit disagreed, finding the basis for the persecution was Ramos’ political opinion. Ramos was a willing participant in government sponsored anti-guerilla patrols, a factor the Ninth Circuit saw as strong evidence of his political opinion. Merely because the guerillas attempted to recruit Ramos to serve with them did not mean they were not also targeting him on the basis of his political opinion.

Because Ramos established past persecution, he is entitled to a rebuttable presumption that he has a well-founded fear of future persecution. Because the reasonableness of his fear of future persecution was not addressed before the BIA, the case was remanded to the BIA for a determination of whether changed conditions in Guatemala will remove the presumption of a well-founded fear of future persecution.

A few months ago the Supreme Court vacated the Eleventh Circuit’s opinion in this case, and ordered the Eleventh Circuit to hear the case again, this time taking into consideration the Supreme Court’s recent pronouncements about the impact of provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) on federal court jurisdiction over claims related to deportation. On remand, the Eleventh Circuit changed very little of its reasoning and reached the same conclusion.

In the court’s first encounter with this case, it relied primarily on section 242(g) of the Immigration and Nationality Act (INA), as amended by IIRIRA, to support its position that Congress had intended to eliminate all avenues for review of claims relating to deportation except those specifically authorized in the INA. Section 242(g) provides that no court shall have jurisdiction to review decisions of the Attorney General "to commence proceedings, adjudicate cases, or execute removal orders." In Arab-American Anti-Discrimination Committee v. Reno, the Supreme Court ruled that this provision did not encompass all decisions that could be made in deportation proceedings, but rather referred only to the discrete decisions to commence, adjudicate and execute removal proceedings.

Because the Supreme Court eliminate section 242(g) as a source of the Eleventh Circuit’s limitation of federal court jurisdiction, the Eleventh Circuit turned to INA section 242(b)(9). This provision states that the only judicial review allowed of claims arising from removal proceedings shall be administrative review of final orders of removal. Richardson has been challenging his detention without bond or parole, without an individualized determination that he should not be released on bond. Therefore, he cannot bring this challenge until there is a final order of deportation entered against him.

In this case the Eleventh Circuit addressed the applications of the stop-time rule for determining eligibility for suspension of deportation. The court affirmed the interpretation of the Board of Immigration Appeals, that the time of physical presence in the US was to end when an alien was served with a notice to appear. The Eleventh Circuit thus dissolved the injunction issued by the District Court preventing anyone from being deported because they were ineligible for relief because lacking the required continuous physical presence.

One of the many changes the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 made in immigration law was the creation of a stop-time rule in determining eligibility for suspension of deportation. Prior to IIRIRA, one of the requirements for suspension was that the alien had been physically present in the US for at least 10 years since becoming deportable, or at least seven years after applying for suspension. Continuous physical presence could continue to accrue even after the alien was placed in deportation proceedings. IIRIRA replaced suspension of deportation with cancellation of removal, made eligibility for cancellation on seven years continuous physical presence following admission in any status, and created the stop-time provision that made the period of continuous physical presence terminate when the alien is served with a notice to appear for removal proceedings.

Shortly after the enactment of IIRIRA, the Board of Immigration Appeals ruled that the stop-time provision applied to people who had been placed in proceedings prior to the enactment of IIRIRA. In response, this class action lawsuit was filed, claiming the BIA’s ruling was arbitrary and capricious and in violation of due process and equal protection. The district court issued a preliminary injunction preventing the INS from deporting members of the class.

While the case was being appealed, Congress enacted the Nicaraguan Adjustment and Central American Relief Act (NACARA). The Eleventh Circuit found NACARA important for two reasons. First, NACARA amended IIRIRA to say that the stop time rule would apply to orders to show case – this, according to the Eleventh Circuit, was indicative of Congress’s intent that the stop-time rule be applied to all people in removal or deportation proceeding, whether the proceedings were begun before or after IIRIRA was enacted. Second, the substantive relief provided by NACARA benefited the majority of the named plaintiffs, most of whom have now gained permanent residence through NACARA.

Finding that two of the plaintiffs still had claims, the court went on to reach the merits of the claim for a preliminary injunction. The equal protection challenge failed because Congress acted rationally in creating the stop time provision and in applying it retroactively. The purpose of the provision is to eliminate the incentive to prolong deportation proceedings while the continuous physical presence accrues. The due process claim also failed. Because both suspension of deportation and cancellation of removal are both discretionary forms of relief, they cannot create a property or liberty interest protected by the Constitution. Thus, the injunction was vacated and the case remanded for the district court to dismiss it.

The District Court denied Haddam’s petition for habeas corpus, thus enabling his continued detention pending eventual deportation.

Haddam, a former member of the Algerian parliament, entered the US in 1992 on a tourist visa and in 1993 sought asylum. Three years later the INS revoked his parole status, placed him in removal proceedings, and detained him. In the initial asylum claim, he was found to have a well-founded fear of persecution, but also had been a persecutor of others and thus statutorily ineligible for asylum. On appeal to the Board of Immigration Appeals, the position that Haddam had been a persecutor of others was rejected, and the BIA remanded with instructions that the Immigration Judge consider certain secret evidence. The decision in this rehearing has yet to be announced.

This case is Haddam’s second attempt to obtain release while his asylum case is determined. The court upheld the INS district director’s determination that Haddam should not be released. Among the reasons given by the district director for not releasing him was that he presented a flight risk. He had financial means to travel, and had on a prior occasion traveled to countries not listed on his request for advance parole. Furthermore, the INS learned from INTERPOL, an international police agency, that there were three international warrants for Haddam’s arrest. Also, Algerian courts convicted Haddam in absentia of gun-running and sentenced him to death.

Because each of these reasons was facially legitimate, and was supported by a proper factual basis, Haddam’s petition for habeas corpus was denied.

In an unpublished, unsigned decision, the BIA restricted the reach of a prior decision, In re Roldan, in which the Board held that sentence modifications should not be considered in determining whether the alien was an aggravated felon.

In the present case, the respondent was convicted in state court of assault with a deadly weapon and sentenced to 220 days in prison and 3 years on probation. He was then resentenced to 365 days in prison and 3 years probation. He was then placed in deportation proceedings as an aggravated felon, having been convicted of a crime of violence with a sentence of at least one year.

On appeal the respondent presented evidence that his sentence had been modified to 220 days in prison. The INS argued that the BIA’s decision in Roldan prevented consideration of the sentence modification. Despite the obvious pertinence of that decision, the BIA distinguished it by saying it applied only to the definition of conviction and did not reach the issue of sentence modifications.

While unpublished, this decision does reaffirm the vitality of a 1982 decision, Matter of Martin, that in determining whether the alien has been sentenced to confinement for one year or more, if the alien has been resentenced, the new sentence should be the basis of the determination.

In this case the BIA affirmed the ruling of an Immigration Judge that the respondent was deportable on the basis of conviction of a crime of moral turpitude, specifically aggavated stalking as defined by Michigan law.

The BIA noted that the definition of a crime involving moral turpitude was vague at best. Such crimes are usually considered to be those that are wrong in and of themselves, not simply because the act is against the law. One of the most common ways of determining whether a crime involves moral turpitude is to examine the state of mind and motive of the defendant. The inquiry is also guided by the statute that creates the crime. Some statutes cover only crimes involving moral turpitude, while others can cover both crimes involving moral turpitude and some that do not.

The statute under which respondent had been convicted was of the second type; therefore the BIA examined the conditions surrounding the conviction. Because the crime was aggravated, the state was required to prove that there was a credible threat of violence toward the victim of the stalking. The respondent’s actions in threatening the stalking victim were, according to the BIA, "evidence of a vicious motive or a corrupt mind," and thus evidence of a crime involving moral turpitude.

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