NEWS FROM THE COURTS

Kuhai v. INS, Seventh Circuit

In this case, the court remanded to the Board of Immigration Appeals, finding the Board had not provided a fair hearing in its affirmation of a deportation order.

The petitioner was born in the USSR in a town that is now in Ukraine.  At age 17, she went to Tashkent to assist survivors of an earthquake.  While there she married and settled in the city.  In 1991, following the fall of the USSR, Tashkent became the capitol of the new nation Uzbekistan.  The government favored Uzbek natives, and non-Muslim Slavs such as Kuhai were routinely fired from their jobs and often threatened with physical violence.  Kuhai herself was fired from her job, lost her home, and was prevented from attending Russian Orthodox church services.  In late 1993, Kuhai went to Russia, and then to the US on a tourist visa.

The INS placed Kuhai in deportation proceedings for overstaying the tourist visa, and Kuhai filed a claim for asylum, claiming she had suffered past persecution and feared future persecution is forced to return to Uzbekistan.  The Immigration Judge found that her treatment in Uzbekistan, while discriminatory, did not rise to the level of persecution.  He granted her request for voluntary departure, and designated Uzbekistan as the country of deportation is she did leave the US within the allowed time. 

Kuhai appealed to the Board of Immigration Appeals.  The Board affirmed the decision of the Immigration Judge, but changed the country of deportation from Uzbekistan to Ukraine, apparently on the basis of a State Department advisory opinion stating that Kuhai still had Ukrainian citizenship.  The Board declined to address whether Kuhai might face future persecution, finding that she could not be a refugee because she did not face persecution in the country of her citizenship.

Before the Seventh Circuit, Kuhai did not dispute the finding that her treatment in Uzbekistan did not constitute persecution.  Rather, the issue was whether she had Ukrainian citizenship and could be deported there.  The Seventh Circuit found that Kuhai had never had Ukrainian citizenship.  There was no Ukraine until 1991, at which time Kuhai lived in, and gained citizenship of, Uzbekistan.  Because the Board ruled that she was a Ukrainian citizen without allowing either her or the INS to brief the issue, her hearing before the Board was not fair.

Therefore, the case was remanded so that the issue of Kuhai’s Ukrainian citizenship could be addressed.  The court also ruled that the Board must address the issue of future persecution in Uzbekistan.

Vega-Zazueta v. INS, Ninth Circuit

In this case, the court returned the case to the Board of Immigration Appeals with orders to give the petitioner a hearing on whether she is eligible for a suspension of deportation. 

The petitioner, a long-time US resident with four US citizen children, was placed in deportation proceedings in 1992.  She failed to file an application for suspension of deportation within the allotted time and was ordered deported.  She filed an appeal with the BIA, and also submitted a well-documented application for suspension.  The BIA took the appeal as a motion to reopen, which it denied because the petitioner failed to sufficiently explain her failure to file a timely application for suspension. 

According to the Ninth Circuit, her failure to file a timely application was the result of medical needs of her children and the physical abuse she suffered at the hands of her husband.  Under circuit law, such “social and humane” considerations are properly considered in making the decision on whether to reopen a case. 

On remand the BIA will hear both the suspension of deportation claim as well as a claim for relief under the Violence Against Women Act, which has been pending before the Board for over two and a half years. 

Le v. INS, Eleventh Circuit

In this case the court upheld the rulings of an Immigration Judge and the Board of Immigration Appeals that the petitioner had been convicted of a crime of violence and an aggravated felony.  Le was convicted of driving under the influence and causing serious bodily injury.  A crime of violence for immigration purposes is defined in the US Code as an offense that involves the use, attempted use, or threatened use of force against the person or property of another.  The existence of serious bodily injury necessary for Le’s conviction made it a crime of violence.  The court did not address whether the offense fit the other definition of a crime of violence, that it by its nature involved a substantial risk that physical force might be used against the person or property of another.

Saavedra v. Albright, D.C. Circuit

Saavedra, a citizen of Bolivia, challenged the decisions of two American consulates, one denying him an L-1 visa, the other revoking his tourist visa.  The D.C. Circuit Court upheld the district court decision dismissing his case.

Saavedra came to the US in 1993 on an F-1 student visa.  He also possessed a tourist visa valid until 2002.  While in the US he founded a music production company.  The company petitioned to have Saavedra classified as an L-1 manager.  This petition was granted and Saavedra was given an L-1 visa valid for one year.  A petition to extend the L-1 visa was filed and granted.  Saavedra then traveled to Panama to have the visa renewed.  The consular official in Panama saw Saavedra’s name on a list of suspected drug traffickers and denied the visa extension.  Saavedra returned to the US, and after a brief detention at the border was given an immigration hearing.  At this hearing an immigration officer told him to return to Bolivia to straighten things out with the US Embassy there.  Saavedra’s attorney presented evidence to the Embassy to counter the allegations of drug trafficking, but the consular officials remained unconvinced and revoked his tourist visa.  At this point Saavedra brought suit.

Saavedra brought sued under the Administrative Procedures Act (APA), which, subject to some limitations, provides a cause of action to a person who has been harmed by agency action.  There are three limits on the APA’s general grant of judicial review.  First is if a statute specifically precludes judicial review.  Second is if the action complained of is committed to agency discretion.  Third is a general provision clarifying that the general pattern of judicial review established by the APA does not alter certain fundamental jurisdictional rules applied to all cases brought in federal court.  One of these rules is known as the political question doctrine, under which the courts will not hear cases arising from purely political actions of the political branches of government.  Because of the intensely political aspects of the admission of foreign nationals into the US, courts have generally declined to hear claims that a person was improperly denied a visa or improperly refused entry.  Therefore, Saavedra’s claim could not be heard.

The D.C. Circuit went farther than relying on the political question doctrine, and also found that a statute specifically precluded judicial review.  The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 amended the provision giving general jurisdiction to federal courts, restricting the federal courts to hearing only cases brought by the US.

Lacey v. United States, District of Columbia

This case is a claim under the Privacy Act that the INS used improper methods to obtain information. 

The plaintiffs, a husband and wife, were investigated for welfare fraud by the Clinton County, New York Department of Social Services (DSS).  According to the plaintiffs, the DSS investigator got his wife, who worked for the US Customs Service, to contact the INS to aid in the investigation.  Mr. Lacey, a Canadian, was a permanent resident of the US since 1960, and Mrs. Lacey was a dual national who had US citizenship since 1956.  The INS began gathering information on the Laceys, in part from INS records and in part through contacts with the Royal Canadian Mounted Police (RCMP). 

The Lacey’s were indicted for welfare fraud and following their release pending trial, moved to Canada.  In Canada, they filed a request with the Office of the Privacy Commissioner of Canada (OPCC) to find out whether any Canadian governmental body had disclosed information about them to DSS.  They also filed a complaint with the INS by mail and by phone.  The INS agent with whom they spoke told them not to sue because they did not have enough evidence and that the INS would be issuing a report on their complaint in the near future. 

The OPCC told the Lacey’s that the DSS investigator had used the INS to get information on the Lacey’s from the Canadian government.  The Lacey’s told the INS agent of this, and were again told a report was forthcoming.  A few months later the INS agent told them the agency had committed some of the violations alleged and was planning corrective action. 

In this opinion, the issue was whether the suit was filed in time, or whether their claim was barred by the two-year statute of limitations on Privacy Act claims.  Ordinarily, the news from the OPCC would be a sufficient basis on which the Lacey’s could have sued.  To counter this, the Lacey’s pointed to their conversations with the INS agent, who repeatedly told them not to sue, but to wait for the INS report.  The court found that these actions constituted a willful misrepresentation that prevented the statute of limitations from running.  Therefore, the case was allowed to go forward. 

In re G-D-, Board of Immigration Appeals

The respondent, a Lithuanian Jew whose request for asylum was denied in early 1996, filed a motion with the Board asking them to reconsider their decision denying asylum, arguing that a subsequent decision made substantial changes in the Board’s asylum law that he would now be granted asylum.  The Board declined to do so.

The statute of limitations on a motion to reconsider, which must be heard, had passed, so the respondent was required to request the Board to reconsider the case on its own motion.  The Board has the discretionary power to make such reconsiderations, but found one was not warranted in this case.  According to the Board, the decision on which the respondent relied did not make any fundamental change to the law, but was only a small development of the sort that is always occurring.  Moreover, the needs of administrative efficiency outweighed the slight possibility that the outcome of the decision in the respondent’s case would be different.  Therefore, the Board refused to reconsider its decision denying asylum.

In re Saleem Hassan Masri, Board of Immigration Appeals

In this case, the Board addressed the issues of its jurisdiction over proceedings to rescind grants of adjustment of status and the confidentiality provisions of statutes providing for the adjustment of status of seasonal agricultural workers (SAW).  The Board found that it did have jurisdiction and that the INS cannot rely on information covered by the confidentiality provisions to rescind a grant of adjustment.

Section 246(a) of the Immigration and Nationality Act (INA) authorizes the Attorney General to rescind an adjustment within five years after it was granted, if it is shown that the immigrant was not in fact eligible.  The regulations implementing this statute provide for a hearing on rescission before an Immigration Judge, and because the Board has jurisdiction over decisions of Immigration Judges, it therefore has jurisdiction over rescission proceedings.

Section 210 of the INA provides for the adjustment of status of SAWs.  The section also contains a confidentiality provision prohibiting the INS from using information submitted by the SAW for any purpose other than a determination on adjustment.  According to the Board, once this determination on adjustment is made, this information can no longer be used.  The INS is free to rescind the adjustment based on other information, but it cannot use the information submitted by the SAW.  In this case, the only information the INS had that the respondent had committed fraud was protected by the confidentiality provisions.  Therefore, the rescission proceeding was properly terminated.

In re Ydalia Cruz-Garcia, Board of Immigration Appeals

In this case, the Board ruled that there are no statutory or regulatory limits on the time within which a motion to reopen deportation proceedings conducted in absentia under INA section 242(b) must be filed.  It also ruled that the standard to be applied in deciding whether to reopen is whether the alien had a reasonable cause for failing to appear at the deportation hearing. 

In 1990, Cruz-Garcia entered the US without authorization, and later that year was personally served with an Order to Show Cause.  She failed to appear for the deportation hearing, and the Immigration Judge issued an order for her deportation.  In 1997 She filed a motion to reopen the proceeding so she could adjust status based on an approved immigrant visa petition filed by her US citizen husband.  The Immigration Judge denied the motion, finding it was not filed in a timely manner and that the respondent did not show exceptional circumstances for her failure to appear at the deportation hearing. 

Motions to reopen most deportation orders must be filed within 90 days of the order.  Deportations conducted in absentia under section 242B may be filed within 180 days if the alien shows exceptional circumstances causing their absence, and if the alien can show they were in state or federal custody, or did not receive notice of the hearing, there is no time limit on a motion to reopen.  However, neither section 242(b), under which Cruz-Garcia was deported, nor its accompanying regulations, provides any time limit on a motion to reopen.  Therefore, Cruz-Garcia’s motion could be considered.

The Board also ruled that the standard to be applied in deciding to reopen was whether there was a reasonable cause for the alien’s failure to appear for the hearing.  Cruz-Garcia argued that the reason for her failure to appear was the ineffectiveness of her attorney at the time.  According to the Board, because she had received personal notice of the hearing, and because she failed to establish the elements necessary for an ineffective assistance of counsel claim, her failure to appear at the hearing was not due to a reasonable cause.  Therefore, her motion to reopen was denied.

In re K-V-D-, Board of Immigration Appeals

In this case, the Board addressed the statutory provisions defining “aggravated felony”, particularly those outlining under what circumstances “drug trafficking crimes” should be considered an aggravated felony. 

The respondent, a native of Vietnam and permanent resident since 1987, pled guilty in Texas state court to simple possession of less than 28 grams of cocaine.  He was placed on probation, and an entry of guilt was deferred pending successful completion of probation.  A failure to report to his probation officer resulted in a five-year prison sentence and an official entry of guilt.  The crime of simple possession is a felony under Texas law.

The INS placed the respondent in deportation proceedings, charging him with deportability as an alien convicted of a controlled substance offense and as an aggravated felon.  The Immigration Judge ruled that the respondent was convicted of an aggravated felony because the crime was a felony under state law.  The respondent was therefore ineligible for any form of relief from deportation, which he would have been if he were found deportable only because of the controlled substance offense.

On appeal, the respondent argued that the Immigration Judge’s decision was erroneous because it was contrary to a prior decision of the BIA that held that regardless of the state classification of a drug offense, it must be punishable as a felony under federal law to be an aggravated felony for immigration purposes.  The INS argued that a decision from the Fifth Circuit Court of Appeals altered the BIA’s prior decision and was binding on them in this case because it arose in Texas, which is covered by the Fifth Circuit.

The section of the Immigration and Nationality Act that makes drug trafficking crimes aggravated felonies provides the definition of drug trafficking by cross-referencing another section of the US Code.  This section defines a drug trafficking crime as “any felony punishable under the Controlled Substances Act.”  The Fifth Circuit case the INS relied on held that a state felony drug conviction was a felony for purposes of federal criminal sentencing enhancements, even if the offense could not be punished as a felony under federal law. 

The BIA declined to follow the Fifth Circuit case for a number of reasons.  First, the case was not about deportation, but rather a sentence enhancement for the offense of illegal reentry.  The BIA found that the interpretation of aggravated felony for purposes of sentence enhancements is not necessarily the same as for immigration purposes.  Moreover, the BIA has taken the position that a drug offense is not an aggravated felony unless punishable as a felony under federal law since the term “aggravated felony” was added to the INA.  To change this interpretation would result in widely varied immigration consequences for the same offense, depending on the criminal law of the state of conviction.  Therefore, to be an aggravated felony for immigration purposes, the offense must be a felony under federal law.  The case was remanded with instructions that the respondent was eligible to seek relief from deportation.

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