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NEWS FROM THE COURTS
In re S-S, Board of Immigration Appeals
In this case the BIA determined that the presumption it had previously employed, that any conviction of an aggravated felony for which the defendant received a sentence of at least five years is a conviction of a "particularly serious crime" no longer exists. 
The respondent, a Laotian refugee, was convicted for first-degree robbery and sentenced to 55 months. The judgment of conviction described the crime as one that involved the use or threat of force and physical injury. Respondent attempted to avoid deportation by seeking asylum, but the IJ held he was ineligible for asylum because of the robbery conviction, and denied his request for withholding of removal. The BIA agreed he was not eligible for asylum, but felt they must also address whether he was ineligible for withholding of removal under section 241(b)(3)(B) of the INA, which provides a basis for withholding on grounds similar to those for asylum, but does not cover individuals convicted of "particularly serious crimes."
Section 241(b)(3)(B) provides that withholding of removal is not available to those convicted of a crime that was punished by five or more years in prison, but also provides that regardless of the sentence imposed, the Attorney General shall have discretion to decide whether the alien committed a "particularly serious crime." In 1990, Congress amended the INA to classify all aggravated felonies as "particularly serious crimes."
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In re Ruiz-Romero, Board of Immigration Appeals
In this case the BIA determined that all convictions under INA sections 274(a)(1)(A) and (2) are convictions of aggravated felonies relating to alien smuggling, regardless of the circumstances behind the conviction.
On July 31, 1996 Ruiz-Romero was convicted of transporting an illegal alien, in violations of section 274(a)(1)(A)(ii) of the INA. On the basis of this conviction, the INS issued him an Order to Show Cause why he should not be deported as an alien convicted of an aggravated felony under INA section 241(a)(2)(A)(iii). The Immigration Judge found him deportable and denied his request for a waiver of inadmissibility.
On appeal, Ruiz-Romero argued that his conviction for transporting an illegal alien was not related to alien smuggling and was therefore not an aggravated felony. The BIA rejected this argument, based on parenthetical language in the statutory definition of "aggravated felony." Convictions under section "(1)(A) and (2) of section 274(a) (relating to alien smuggling)" are considered aggravated felonies. INA § 101a)(43)(N). Ruiz-Romero argued this language referred only to convictions under those sections that were done for the purpose of alien smuggling, and should not include a conviction that was based on acts not committed for financial gain. The BIA rejected this argument, interpreting the parenthetical language "relating to alien smuggling" as being a general description of crimes under that section, not a limit on the convictions under that section that should be considered aggravated felonies.
The BIA therefore upheld the Immigration Judge's order of deportation.
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In re A-P-, Board of Immigration Appeals
In this case the BIA outlined the content it will require in oral decisions and summary opinions by Immigration Judges. 
A Laotian refugee who had gained legal permanent resident status was convicted of two counts of assault, with concurrent 16-month terms. He was ordered to show cause why he should not be deported. After a hearing at which the respondent was not represented by an attorney, the Immigration Judge found first that he was statutorily ineligible for asylum because of his conviction of an aggravated felony, and second that he was ineligible for withholding of removal. 
The only written document issued by the Immigration Judge was a boilerplate order of removal.
The BIA determined that these findings and orders were insufficient under the regulations governing the contents of decisions of Immigration Judges. These regulations allow the decision to be written or oral, but must include specific findings as to deportability or inadmissibility, and contain the reasons for granting or denying the request. The regulations also allow summary decisions, but only when the immigrant admits to the factual allegations of the crime and to the charges of deportability. And if the immigrant admits to the factual allegations, he must also admit deportability for the Immigration Judge to have authority to issue a summary decision. In the present case, the respondent had only admitted to the factual allegations, not to the charges of deportability; therefore the Immigration Judge's use of a summary decision was improper. 
Furthermore, according to the BIA the form of the summary decision used by the Immigration Judge in this case did not meet regulatory requirements. The summary decision should give a specific legal reason for finding deportability, as well as one for why relief was denied. The decision may be brief, but because one of its functions is to provide notice to the immigrant of what possible grounds for appeal exist, as well as to assist the BIA in reviewing the decision, the decision must identify the specific legal grounds for the decision.
The BIA also determined that when an Immigration Judge issues an oral opinion, the opinion should be distinctively identifiable as such, rather than consisting of a scattering of findings throughout the transcript of the proceedings.
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Machado v. INS, U.S. District Court, Massachusetts
The District Court granted Machado's habeas corpus petition under 28 U.S.C. § 2241. In 1995 Machado was convicted of distributing cocaine. The Immigration Judge and Board of Immigration Appeals had both denied Machado's request for withholding of removal under INA section 212(c), concluding that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) completely precluded Machado from even applying for such relief, even though Machado had been ordered to show cause why he should not be deported in December of 1995, before AEDPA was enacted. By the time Machado's hearing was held, however, Congress had passed AEDPA, which eliminated discretionary relief from deportation for people in Machado's position.
Basing its decision on the First Circuit Court of Appeals' decision in Goncalves v. Reno, the District Court concluded AEDPA could not retroactively limit Machado's ability to qualify for suspension of deportation. The Court saw no meaningful difference in the fact that Goncalves had already filed a request for suspension, whereas Machado had only been ordered to show cause why he should not be deported. Therefore Machado, and others like him who had entered the deportation process prior to the enactment of AEDPA, must be given the opportunity to apply for relief under INA section 212(c) that was available before the enactment of AEDPA.
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Sandoval v. Reno, Third Circuit Court of Appeals
In this case the Third Circuit joined a growing number of courts of appeals addressing the question whether the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), both enacted by Congress in 1996, had the effect of stripping the District Courts of the United States of their habeas corpus jurisdiction over deportation proceedings. This inquiry is of constitutional dimensions, as it involves the Suspension Clause of the U.S. Constitution, which provides that except in times of war, the writ of habeas corpus shall not be suspended. The Third Circuit joined the First, Second, and Ninth Circuits in deciding that the right to habeas review survived the 1996 laws. The Seventh and Eleventh Circuits disagree. 
The facts of the case are as follows: Sandoval, a Mexican national, entered the U.S. without inspection 1986, was granted temporary resident status in 1987 under the Immigration Reform and Control Act of 1986, and in 1990, gained legal permanent resident status. In 1993 he was convicted of marijuana possession, for which he was subject to deportation. The hearing was held in June of 1994, and Sandoval requested a four-month stay so that he could attain the seven years residency required for discretionary relief under INA section 212(c). The Immigration Judge denied the request and held Sandoval did not meet the seven-year requirement for discretionary relief ordered him deported. While Sandoval's appeal was pending, Congress passed AEDPA and IIRAIRA. Under the new rules, discretionary relief was no longer available to aliens convicted of drug offences. The BIA dismissed the appeal on the basis of the Attorney General's determination that AEDPA's amendment of section 212(c) should be applied retroactively. See Matter of Soriano, Interim Decision 3289 (A.G. Feb. 21, 1997). Sandoval filed a motion to reopen, which the BIA denied, and Sandoval the filed a petition for a writ of habeas corpus in the federal district court in Pennsylvania, arguing that the Attorney General's decision on retroactivity was in error. The District Court found that it had jurisdiction under 28 U.S.C. § 2241, jurisdiction that was not removed by AEDPA or IIRAIRA.
The Third Circuit reviewed the statutory history of review of deportation orders. Prior to the enactment of AEDPA, judicial review of deportation orders lay in the courts of appeals. There was also the option of habeas corpus review under INA section 106(a)(10). AEDPA section 440(a) amended this provision by providing that there will be no review by any court of a deportation order based on the immigrant's commission of a criminal offense. IIRAIRA further changed the availability of review of deportation orders by providing that there "shall be no appeal permitted" of deportation orders based on criminal offenses (this is under IIRAIRA's transitional rules, which apply in this case because Sandoval was in deportation proceedings prior to April 1, 1997). Furthermore, IIRAIRA amends INA section 242(g) to create a sweeping removal of review of decisions of the Attorney General: "[Except as otherwise provided] no court shall have jurisdiction to hear any cause or claim by . . . any alien arising from . . . removal orders against any alien under this Act." IIRAIRA § 306(a). The Third Circuit agreed with the INS that each of these new statutory provisions apply to Sandoval's case.
The Third Circuit then determined, based on Supreme Court precedents, that if Congress intends to remove a statutory grant of jurisdiction, it must express its intent to do so with a clear statement. Guided by this proposition, the court went on to examine whether the required clear statement of intent is present in the 1996 laws, and found it lacking. After a thorough review of the history of habeas corpus review of deportation cases, the court determined that two forms of judicial review of deportation orders existed. First, there was review under the Administrative Procedure Act (APA), which provides for judicial review of certain agency action, including immigration cases. This type of review could be obtained solely in courts of appeals. Second, there was habeas corpus review under 28 U.S.C. § 2241, which could be had in both district courts and courts of appeal. 
Because the AEDPA provision providing that there shall be no "review" by any court of a deportation order based on a drug related conviction did not express any intent to repeal the habeas corpus jurisdiction, the presumption against such removal was not rebutted. The other provisions likewise do not contain an express intent to repeal habeas corpus jurisdiction, but only to eliminate judicial review under the APA.
After determining that the courts retain habeas corpus jurisdiction based on 28 U.S.C. § 2241, the Third Circuit proceeded to address the scope of review available, whether the court could hear only constitutional claims, or whether review extended to statutory claims, deciding that habeas corpus review extends to both constitutional and statutory claims. 
The court then decided whether Sandoval was still eligible for discretionary relief, or whether Congress successfully removed the availability of discretionary relief for those being deported on the basis of drug convictions. Determining that the Attorney General's decision that the AEDPA provision in question applied retroactively did not need to be given deference because the question of the effective date of a statute of one typically reserved to the courts. Because Congress made an express statement of intent that certain parts of AEDPA be applied retroactively, the lack of such a statement in the provision in question means Congress did not intend retroactive application.
The Third Circuit affirmed the order of the district court directing the BIA to consider whether Sandoval qualifies for discretionary relief.
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Hall v. INS, Fourth Circuit
The Fourth Circuit Court of Appeals dismissed Hall's request for judicial review of a final order of deportation, holding that after IIRAIRA they lacked jurisdiction to reach the merits of his claim.
Hall immigrated to the U.S. from Jamaica in 1974. In January 1991 he was indicted and convicted for making and conspiring to make a false statement to a federally licensed firearms dealer, for which he was fined 0 and ordered to perform community service. Hall himself did not try to purchase a gun, he had lied for a friend. In April of 1995 the INS ordered him to show cause why he should not be deported. The hearing was held and the Immigration Judge found him deportable under INA section 241 (a)(2)(C), making convictions under "any law" relating to the purchase, distribution, possession, ownership, etc. of firearms. The BIA affirmed the finding of deportability, and Hall petitioned the Fourth Circuit for review of the decision.
The Fourth Circuit determined that IIRAIRA section 309(c)(4)(G) removed the right to judicial review of determinations of the INS deporting someone based on certain criminal offenses. According to the court, the only jurisdiction they had over the case was to determine whether they must dismiss it, that is, whether Hall is an alien, and whether the statute removing judicial review covers his conviction. There was no dispute Hall was an alien, and the Fourth Circuit determined his conviction was for a covered offense. The statute providing for deportation based on firearms offenses is "exceedingly broad" and "comprehensive," and includes offenses committed by others than the ultimate purchaser of a gun. The court did not feel it could, in light of the provisions of IIRAIRA removing judicial review, consider anything other than whether the person was properly subject to the statute providing for deportation.
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Qaumi v. INS, Ninth Circuit
The court upheld the BIA's dismissal of Qaumi's request for asylum and withholding of deportation. Qaumi, a native of Afghanistan, had fled to the U.S in 1989. Many of his family members had been targeted by the Soviet backed government, including many murders. By the time Qaumi was given an asylum hearing, in 1992, the Soviet backed government had fallen, replaced by the Mujahadeen opposition; there was, however, no central government, and the country was torn by in-fighting within the Mujahadeen. The Immigration Judge denied Qaumi's request for asylum, finding that he has never demonstrated any particular political beliefs, and that he would not suffer any more than any ordinary citizen in Afghanistan would. In 1997 Qaumi motioned to reopen, offering evidence relating to the ascendancy of the Taliban regime in Afghanistan. The BIA did not feel these changed conditions altered Qaumi's claim, as they had already determined he had never expressed a political opinion. Quami's claim that in Afghanistan under the Taliban regime, neutrality will be a dangerous position did not succeed because Qaumi presented no evidence of any past expressions of affirmative neutrality. In short, because the threat Qaumi faces from the Taliban is no greater than that faced by any other person in the country, there is no basis for asylum.
 
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Barahona-Gomez v. Reno, Ninth Circuit
In this case the Ninth Circuit upheld a district court's injunction of the enforcement of the annual limit of 4,000 suspensions of deportation imposed by section 309(c)(7) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
The two changes instituted by IIRAIRA at issue in this case are the 4,000 annual limit on suspensions of deportation and adjustments of status, and the requirement that the seven years of continuous physical presence be attained prior to receipt of an Order to Show Cause. These provisions were to become effective on April 1, 1997. On February 11, 1997, concerned by the fact that 3,900 suspensions had already been granted for the fiscal year beginning October 1, 1996, the Chair of the BIA and the Chief Immigration Judge issued orders to all immigration judges and members of the BIA to not grant any further suspensions. The Attorney General was to have issued regulations implementing IIRAIRA by March 1, 1997 but failed to do so. Plaintiffs in the present suit then sought an injunction against further deferral of their cases. The District Court granted the preliminary injunction.
On appeal the INS argued that after April 1, 1997, when IIRAIRA became effective, the District Court lost jurisdiction over the case because of the new INA section 242(g), which purports to remove all jurisdiction from all courts over any claim by an alien arising from a decision of the Attorney General concerning deportation. The Ninth Circuit found this provision inapplicable because what the plaintiffs were challenging was not an agency decision concerning their immigration status but the allegedly unconstitutional procedures by which the agency handled their cases.
After determining that the District Court had jurisdiction to issue the injunction, the Ninth Circuit then reviewed the propriety of the injunction. The Ninth Circuit found five bases upon which the injunction was properly ordered. First, the order to stop issuing suspensions may have been an agency rule that was passed without the notice and comment period required by the Administrative Procedure Act. Second, adherence to the order may have violated plaintiffs' Due Process rights by interfering with the independent judgment of the BIA. Third, it may have simply been beyond the power of either the Chief Immigration Judge or the Chair of the BIA to issue such an order. Fourth, the court found the plaintiffs made a reasonable argument that the 4,000 limit applies not to all suspensions of deportation, but only those that are followed by adjustment of status to permanent residency. Finally, there was a serious question that the effect of the order was to impose the new limit prior to its effective date of April 1, 1997.
After affirming the injunction, the Ninth Circuit remanded to the District Court for a trial on the merits of plaintiffs' claims.