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NEWS FROM THE COURTS
LaGuerre v. Reno, Seventh Circuit
In this case the Seventh Circuit joined the Eleventh Circuit in deciding that section 440(a) of the Antiterrorism and Effective Death Penalty Act (AEDPA), which amended the INA to eliminate discretionary review of deportation orders for certain drug offenses, removed habeas corpus review of detention from the power of the district courts. While there is limited habeas corpus review, it lies with the courts of appeals, not the district courts, and may be used only to challenge the validity of the detention order, not to request discretionary relief. Because the petitioner brought his case in the district court, requesting discretionary relief, it was not within the power of the district court to hear.
 
Hodgers-Durin v. INS, Ninth Circuit
In this case the Ninth Circuit reversed the decision of the District Court of Arizona denying the plaintiffs' request for class certification and granting summary judgment in favor of the defendants. The plaintiffs claim the U.S. Border Patrol routinely stops Arizona motorists without reasonable suspicion, thus violating their Fourth Amendment rights. 
The individual plaintiffs, U.S. citizens of Hispanic descent and other Hispanic immigrants legally in the U.S., allege that the Border Patrol makes investigative stops of motorists based on the Hispanic appearance of the driver. The Ninth Circuit found that based on the extensive evidence of a practice within the Border Patrol of stopping people based solely on appearance, plaintiffs faced a credible threat of being pulled over again, and therefore have a sufficient injury upon which to base their claim. 
The Ninth Circuit also held the District Court abused its discretion in failing to certify the class. The District Court found the potential class lacked the necessary requirements of commonality and typicality. The Court of Appeals reversed this finding, determining that the facial differences in the stops by the Border Patrol, relied on by the District Court, were not material to the injury. All the relevant facts of the stops were the same. Additionally, the court held that when the plaintiff establishes an illegal pattern of activity, as the plaintiffs here had, they have also established the common element required for a class action.
 
Leiva-Morales v. INS, Ninth Circuit
The court reversed the denial of Brenda Levia-Morales request for asylum, holding the Immigration Judge erred in finding she had not established a well-founded fear of persecution. Ms. Levia-Morales, a native of Guatemala, came to the U.S. in 1992 after being kidnapped, along with her father, by guerilla forces in Guatemala. Her older bother, who served in the Guatemalan military, was threatened by these people with death if he did not leave military service. When he did not leave, they murdered him, but not without killing his and the petitioner's older brother first. 
While the petitioner demonstrated no personally held anti-Communist views, the Ninth Circuit held it was clear she was persecuted because of the political opinions the persecutors imputed to her. The extensive record of past persecution on the basis of political opinion established by the petitioner compelled a finding of a well-founded fear of persecution.
 
Campos-Sanchez v. INS, Ninth Circuit
The 9th Circuit reversed the BIA decision denying Leonardo Campos-Sanchez withholding of deportation. Campos-Sanchez entered the U.S. in 1991 on a tourist visa and applied for asylum. He had been a member of the Colombian Judicial Police, the arm of the government that deals with drug trafficking and other unlawful activities. Subversive groups have killed some of his co-workers. He was denied asylum on the ground that he had not established a well-founded fear of persecution, or that the persecution was because of his own political opinion. On appeal to the BIA, the merits of his claim were not addressed. The BIA based its denial of withholding of deportation on its perception of inconsistencies between his sworn affidavit and his testimony at the asylum hearing. 
In reversing the BIA, the 9th Circuit noted that because the proceeding before the BIA did not give Campos-Sanchez an opportunity to present evidence explaining the inconsistencies, his due process right under the Fifth Amendment to a "full and fair hearing" was violated. The court said that whenever the BIA decides a case of the basis of a credibility determination that is contrary to that reached by the Immigration Judge, the petitioner must be given an opportunity to explain any alleged inconsistencies pointed out by the BIA.
 
Hyseni v. INS, Ninth Circuit
The Ninth Circuit granted petitioner's request for a review of the BIA determination that he was not eligible for asylum. The BIA found that the imprisonment and past persecution suffered by Hyseni, a national of Albania, was just part of the repressive Communist regime. In finding this decision not supported by substantial evidence, the BIA relied on evidence that the petitioner and his entire family were sent to an internment camp because of his father's anti-Communist activities, and that Hyseni himself was arrested for participating in an anti-Communist demonstration, for which he served seven months in prison and where he received beatings daily. The Ninth Circuit, unlike the BIA, felt that imprisonment for security reasons and imprisonment on the basis of political opinion are not mutually exclusive. The case was remanded to the BIA for a determination of whether Hyseni's established past persecution warrants a grant of asylum.
 
Calderon v. INS, Ninth Circuit
In this decision the Ninth Circuit granted the petitioner's request to reopen his deportation proceedings, finding the BIA had abused its discretion in denying the petition. In his petition to reopen, Calderon, a native of Guatemala, presented evidence of certain material changes in that country that had occurred since the original denial of his petition for asylum. In failing to consider these changed grounds, the Ninth Circuit held the BIA abused its discretion by not considering all relevant evidence.
 
Farquharson v. INS, U.S. District Court, New Jersey
The District Court granted petitioner's habeas corpus petition.
Petitioner, a native of Jamaica, and a legal permanent resident for twenty-seven years and father of four U.S. citizens, was arrested in 1990 on charges of possession of a controlled substance with intent to distribute within 1000 feet of a school. He was sentenced to up to five years in prison. After the INS issued an order to show cause why he should not be deported, he filed a request for a waiver of deportability. This was in 1995, before the enactment of either the Antiterrorism and Effective Death Penalty Act (AEDPA) or the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), in April and September of 1996, respectively.
At the time petitioner's original waiver of deportation request was filed, INA § 212(c) gave the Attorney General discretion to waive deportation in certain cases. His request was still pending when AEDPA was enacted. One of the effects of AEDPA was to make aliens subject to deportation because of criminal convictions ineligible for waiver. After a decision of the BIA to the contrary, the Attorney General ruled this provision of AEDPA applied retroactively to all pending waiver requests. Because of this ruling, the Immigration Judge denied his request for waiver and ordered petitioner deported. He then filed this appeal, protesting the retroactive application of AEDPA to his case.
Before reaching the merits of the claim, the District Court first addressed the contention of the INS that AEDPA and IIRIRA removed habeas corpus jurisdiction from the district courts. The INS asserted that the new § 401(g) of the INA removed all habeas corpus jurisdiction except in limited circumstances, "notwithstanding any other provision of law." The District Court disagreed.
This provision cannot, the court held, suspend the general habeas corpus provision found in 28 U.S.C. § 2241. The court cited recent a Supreme Court decision, Felker v. Turpin, addressing AEDPA, in which the Court held that for Congress to suspend the general writ of habeas corpus, such an intention must be made explicit. Explicit language to this effect, the District Court found, was lacking in IIRIRA. 
The District Court also rejected the INS' argument that AEDPA eliminated habeas corpus review in immigration cases. The pertinent provision, AEDPA § 401(e), expressly repealed former INA 106(a)(10), the immigration specific habeas corpus provision. However, as the District Court pointed out, prior to the enactment of that provision in 1961, habeas corpus review in immigration cases was conducted pursuant to the general habeas corpus statute, 28 U.S.C. § 2241. The District Court noted that to "read the 1996 amendments as repealing § 2241 review for criminal aliens . . . could - and probably would - raise serious constitution concerns." The District Court asserted habeas corpus jurisdiction over petitioner's case under § 2241 and also held that his complaint about the retroactive application of AEDPA to his case was within that jurisdiction.
On the merits of the claim, the District Court held that despite the Attorney General's opinion, denial of discretionary relief from deportation could not be withdrawn from aliens who's petitions were filed prior to it's enactment. This interpretation better comports with the intentions of Congress in enacting the 1996 legislation.
Mr. Farquharson is, therefore, eligible for consideration for a waiver from the order of deportation.
 
In re Abriam, Board of Immigration Appeals
The BIA reversed the decision of an Immigration Judge that a Filipino family did not merit discretionary relief from deportation. The family entered the U.S. as tourists in 1985, and during their vacation was in an automobile accident and suffered serious injuries. They were not able to leave upon the expiration of their tourist visas. The father worked while his family recuperated and demonstrated an impressive work ethic that was rewarded by promotions. The two children, 13 and 9 when they arrived in the U.S. have assimilated into American society. The family consistently filed income taxes. 
According to the BIA, it would work "significant hardship at least to the . . . children on a social and psychological level. Such hardship would be over and above the normal disruption of social and community ties involved with deportation." For this reason, the BIA found the family should be granted suspension from deportation.
 
In re Tijam, Board of Immigration Appeals
This case marks a significant change in the way the BIA will treat fraud by aliens in proceedings for suspension of deportation. The petitioner, a woman from the Philippines, came to the U.S. as a legal permanent resident in 1987 as the unmarried child of a U.S. citizen. In 1989 she was married in the Philippines. In 1992 she applied for naturalization, and listed the 1989 marriage as her only one. She listed four children, two born in the U.S. and two born in the Philippines prior to her gaining legal permanent resident status. At her naturalization interview, she told the examiner the reason she did not disclose the Philippine-born children on her original immigrant petition because they were born out of wedlock. The examiner then confronted her with a copy of a marriage contract issued in 1982, and copies of birth certificates for the Philippine-born children showing they were indeed legitimate. According to the examiner, she was not able to explain these discrepancies.
In 1994 the INS issued her an order to show cause why she should not be deported. At the deportation hearing she presented evidence of strong ties to the U.S., including two U.S. citizen children and an ailing U.S. citizen mother. She demonstrated an impressive work history as a registered nurse and contentiously filed tax returns. She explained the 1982 marriage contract as an arrangement to avoid losing her job with a Saudi Arabian employer if she was found pregnant out of wedlock, and maintains she never intended the marriage to be recorded. On appeal, the Immigration Judge explicitly found she had lied during her naturalization interview, but did not explicitly state whether she lied during the deportation hearing. The BIA remanded the case for the Immigration Judge to make a specific determination of whether she gave false testimony.
In an effort to provide the Immigration Judge with "guidance" on remand, the BIA addressed the issue of what role the underlying fraud that is the basis for deportation should have in making the determination of a request for a waiver of deportation. A case from 1969, Matter of Alonzo, instructed that the underlying fraud was to be disregarded in the waiver determination. In the present case, this rule was rejected. The BIA held that in light of the 1996 Supreme Court decision INS v. Yueh-Shaio Yang, there are no limits on the factors that may be considered in the waiver determination. Responding to the caution in Yueh-Shaio Yang that a sudden, irrational change from past policy may be an abuse of discretion, the BIA ruled that it had never been bound by the decision in Alonzo because it was a decision of the INS Commissioner, not the BIA.
Two Board members concurred, agreeing with the basic holding but disputing the conclusory tone of the majority opinion that the petitioner was indeed guilty of fraud in the deportation hearing.