 NEWS FROM THE COURTS
Richardson v. Reno, Supreme Court
In a decision without a written opinion, the Supreme Court reversed an Eleventh Circuit decision which held a detainee awaiting deportation could not file a writ of habeas corpus to challenge the legality of his detention. The Eleventh Circuit will now have to hear the case again.
New York City v. United States, Second Circuit
In this case the Second Circuit affirmed the validity of two 1996 federal laws that invalidate state and local laws that prohibit government employees from providing information about undocumented immigrants to the INS.
In 1989 the Mayor of New York City, Ed Koch, issued an executive order prohibiting any city employee from transmitting information about a person’s immigration status to the INS. Following the enactment of the 1996 federal laws, New York City brought suit seeking to have them declared unconstitutional. The City’s primary argument against the laws was that they violated the Tenth Amendment, which prohibits the federal government from using the states as federal agencies to carry out federal law. This argument failed before the Second Circuit. The 1996 laws did not require the states to enforce immigration law, or even require any action from them. The only limit on the states under these laws was a prohibition on restricting information that could be given to the INS. This exchange of information was, the Second Circuit found, essential to the working of the federal system. Finally, even though the 1996 laws did require the state to disclose confidential information it gained in the course of official business, the purpose of the executive order was not, according to the Second Circuit, to protect confidentiality, in part because it kept information confidential only with respect to the INS.
Selgeka v. Carroll, Fourth Circuit
In this case the Fourth Circuit ruled that Selgeka, a stowaway who had received an asylum hearing before an Asylum Officer, was entitled to a hearing before an Immigration Judge.
Selgeka, an ethnic Albanian who lived in Kosovo, fled his home in early 1996, hiding on a ship bound for the US. He feared persecution on the basis of his ethnicity and conscription into the Serbian Army. According to the statement contained within his asylum application, “Serbs put the Albanians in the front lines, and the Albanians are not sure if they are killed by the Bosnians in the front or the Serbians behind them.” Both Selgeka’s brother and father, an Albanian advocate, had been killed. The atrocities perpetrated by the Serbian government throughout the Balkans have been well documented.
Selgeka’s asylum application was referred to an Asylum Officer, who conducted an informal interview and then denied the application, finding Selgeka was not able to present any particularized evidence, and making an adverse credibility determination. The BIA reversed the credibility determination, but noted that a government has the right to require military service, with only two exceptions. These are, first, if the acts of the military in question are condemned by the international community, and second, if refusal to serve results in harsher penalties than are usually levied for draft evasion. The BIA found Selgeka’s evidence of the treatment Albanians received for refusal to serve insufficient to establish eligibility for asylum.
Selkega then filed a writ of habeas corpus, claiming a Due Process violation because his claim was heard only by an Asylum Officer, not an Immigration Judge. The District Court affirmed the BIA, and then this appeal was filed. Before the Fourth Circuit the INS argued that the court was without jurisdiction to hear the case because of 8 U.S.C. § 1252(g), which eliminates federal court jurisdiction over claims related to the decision of the Attorney General to “commence proceedings, adjudicate cases, or execute removal orders.” The Fourth Circuit, based on the recent Supreme Court decision in Reno v. American-Arab Anti-Discrimination Committee, found this provision did not preclude federal court jurisdiction because Selkega was challenging the procedures by which his case was decided.
The Fourth Circuit then examined 8 U.S.C. § 1158(a), the statute ordering the Attorney General to “establish a procedure for an alien . . . to apply for asylum.” The court emphasized the fact that the statute called for “a procedure,” not for multiple procedures. However, multiple procedures do exist: stowaways, such as Selkega, are not entitled to a removal hearing, and thus do not have the opportunity other aliens do to present their asylum claims before an Immigration Judge. This creation of two procedures violates 8 U.S.C. § 1158(a). Giving a stowaway a hearing before an IJ is required not only by the statute, but also by Due Process concerns. Unlike Immigration Judges, who are independent of the INS, Asylum Officers are INS agents. Furthermore, a hearing before an IJ entitles the asylum applicant to more opportunities to present evidence, and to cross-examination, among other procedural protections not available during an interview with an Asylum Officer.
The case was remanded with orders to give Selkega a hearing before an IJ, with the court saying “an interview is hardly the forum to adjudicate human rights.”
US v. Lopez-Valdez, Fifth Circuit
Lopez-Valdez was convicted of alien smuggling and appealed, arguing the evidence against her should not have been admitted at trial because it was the result of a search that violated the Fourth Amendment. The Fifth Circuit agreed with her.
Lopez-Valdez was stopped by a Texas police officer and a US Border Patrol agent on a road about 20 miles north of the US-Mexico border. The stop was based on three factors: the car had a cracked tail light, the proximity to the border, and the number of passengers in the car (6 to 8). Following the stop, Lopez-Valdez was arrested and signed a confession in which she admitted that she knew her passengers were undocumented and that she had been paid to drive them to a near-by town. Before the trial, she made a motion to have the confession suppressed as the result of an illegal search. The motion was denied and she was convicted.
The law surrounding stops near the border is well developed, and focuses on balancing the public interest in preventing illegal alien and drug smuggling with the interest of the individual in protecting his privacy. Among the factors to be weighed in determining whether the stop was reasonable are 1) proximity to the border; 2) the prior experience of the arresting officer; 3) known characteristics of the area; 4) the usual traffic patterns in the area; 5) recent illegal trafficking in the area; 6) the behavior of the driver; 7) the appearance of the vehicle; and 8) the number, appearance, and behavior of any passengers. Balancing these factors, the Fifth Circuit determined the stop of Lopez-Valdez was not reasonable or justified. Closeness to the border alone is not sufficient to create reasonable suspicion, nor is the number of passengers. The government’s best argument, that the stop was justified because of the cracked tail light, did not pass muster. It has been established Texas state law for many years that a cracked tail-light is not a traffic violation. Therefore, even though the officers may have in good faith believed it to be a violation, the stop was not justified as a traffic stop.
Mustata v. INS, Sixth Circuit
In this case the Sixth Circuit addressed section 242(g) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. This provision of law removes federal court jurisdiction to review decisions of the Attorney General to “commence proceedings, adjudicate cases, or execute removal orders.” The district court ruled that this provision eliminated habeas corpus jurisdiction over the petitioners’ claims. The Sixth Circuit, following the recent Supreme Court case Arab American Anti-Discrimination Committee v. Reno, found the provision applied only to the three discrete actions of commencing proceedings, adjudicating cases, and executing removal orders.
The Mustatas were a Romanian couple who filed an asylum application after arriving in the US in the early 1990s. The State Department issued an advisory opinion saying their asylum claim was without merit. Following this, at their attorney’s suggestion, they withdrew their asylum claim and requested voluntary departure. They later filed a request for a writ of habeas corpus, alleging that they had not received effective assistance of counsel during their asylum/deportation proceedings, in violation of their Fifth Amendment due process rights. The Sixth Circuit found this claim was not covered by section 242(g) and was thus cognizable on a writ of habeas corpus. Thus, the case was remanded to the district court for a consideration of the merits of the ineffective assistance of counsel claim.
Singh v. Reno, Seventh Circuit
In this case the Seventh Circuit revisited its decision in LaGuerre v. Reno, which held both that retroactive application of section 440(d) of the Antiterrorism and Effective Death Penalty Act (AEDPA) was not unconstitutional and that federal district courts lacked habeas corpus jurisdiction to review deportation orders. While affirming LaGuerre, the court did recognize an avenue for review of constitutional claims in the courts of appeals.
Singh, a lawful permanent resident since 1988, was convicted of second degree homicide following the attempted robbery of a store he owned. After serving less than one year in jail, the INS issued an Order to Show Cause why he should not be deported in 1992. For some reason, the INS was not prepared to go forward, and continually postponed the hearing, over Singh’s repeated requests that the matter be decided one way or another. It was not until 1996, after the enactment of the AEDPA, that Singh’s hearing before an Immigration Judge was finally scheduled. This hearing was cancelled, and one was not held until December 1997. The Immigration Judge ruled that Singh was statutorily ineligible for discretionary relief from deportation because he had been convicted of an aggravated felony. The Board of Immigration Appeals dismissed his appeal as untimely. Singh then filed a petition for a writ of habeas corpus in the district court, claiming violations of his right to equal protection and due process. The district court granted the petition, finding AEDPA section 440(d) violated the Equal Protection Clause by removing the possibility of discretionary relief for deportable aliens but not for excludable aliens.
The government appealed this ruling, arguing the district court lacked habeas corpus jurisdiction. The Seventh Circuit agreed, affirming LaGuerre, but also held that Singh was entitled to direct review of his constitutional claims in the court of appeals. On the merits of Singh’s claims, the court found no equal protection violation in allowing excludable aliens to seek discretionary relief but disallowing the same relief to deportable aliens. The Seventh Circuit did, however, find a potential due process violation in the delay, attributable solely to the INS, in bringing Singh’s case before an Immigration Judge. Because the record on this issue was undeveloped, the Seventh Circuit remanded to the Immigration Court, noting that if the claim were denied, review of the denial would be available before the Seventh Circuit.
Gorbach v. Reno, Ninth Circuit
In this case the Ninth Circuit addressed issues arising from the denaturalization provisions of the Immigration Act of 1990.
Prior to 1990, only a court could naturalize a person, and only a court could denaturalize a person. There were two ways of denaturalization: the court could reopen its naturalization decision on its own, or it could set aside the order upon presentation of an affidavit by a US Attorney that naturalization was procured by fraud or misrepresentation. In 1990, the naturalization process was substantially changed, when Congress gave the Attorney General the sole power to naturalize. This authority was delegated to the INS. Because of inconsistencies in the statutory language, it was unclear whether the Attorney General had the authority to revoke naturalization. The Ninth Circuit determined the Attorney General, and thus the INS, did have such authority. The essence of the court’s ruling was that because the Attorney General now has sole power to naturalize, she must have the power to reopen and revoke her decision to naturalize.
Ortiz v. Meissner, Ninth Circuit
In this case the court addressed the issue of employment authorization for undocumented immigrants who had applied for amnesty under the Immigration Reform and Control Act of 1986 (IRCA).
IRCA created two amnesty programs, one for seasonal agricultural workers, the other for those who had lived in the US since 1982. Each of the programs entitled amnesty applicants to receive employment authorization pending a final determination of their application. At issue in this case was the duration of this employment authorization. The plaintiffs argued that employment was authorized until a court passed judgment on a final deportation order, and did not, as the government contended, terminate when the INS denied their amnesty application. An initial issue for the court was whether it had jurisdiction to hear the case. The court rejected the government’s position that the only review plaintiffs’ could obtain was review of a final order of deportation, saying that position would amount to a complete denial of all review. The court did, however, agree with the government that employment authorization was to last only until the INS made a final determination on amnesty. Once amnesty was denied, the interim employment authorization created by IRCA is no longer available.
Guinac v. INS, Ninth Circuit
In this case the Ninth Circuit found that Guinac had established eligibility for asylum and withholding of deportation, reversing the BIA’s determination that only discrimination, not persecution, had been established.
Guinac is a citizen of Guatemala and a member of an indigenous ethnic group, the Quiche. Native groups in Guatemala are often referred to as “Indians,” a term that carries derogatory meaning in Spanish. Following his conscription into the Guatemalan army, he and five other members of the Quiche tribe received regular beatings which were accompanied by statements that because they were natives, they were traitors. After ten months of such treatment, Guinac complained to a superior, who told him that if he caused trouble or tried to desert, he would be killed. He did desert and went into hiding. During this time military authorities repeatedly questioned his wife, telling her they were going to kill Guinac when they found him, and when they could not find him, threatened her with death. Guinac and his wife then fled to the US.
The IJ and the BIA found the threats Guinac suffered were racially motivated discrimination, not persecution. The Ninth Circuit reversed, finding the record clearly established persecution on the basis of race. Persecution, under Ninth Circuit precedent, includes physical harm inflicted because of race, religion, nationality, political opinion, or membership in a particular social group. Guinac, the Ninth Circuit found, suffered just this kind of treatment. This result was further supported by the State Department Report on Country Conditions for Guatemala, which notes that indigenous people suffer particularly from governmental abuses.
The Ninth Circuit remanded the case with instructions that Guinac be granted asylum and withholding of deportation.
Andriasian v. INS, Ninth Circuit
In this case the Ninth Circuit reversed the Board of Immigration Appeals denial of asylum, and ordered that asylum be granted.
The petitioners, a family of Armenian descent, had lived in Azerbaijan. In 1988 conflict broke out between Armenia and Azerbaijan. Because they were ethnic Armenians, the family suffered attacks in Azerbaijan, and sought refuge in Armenia. Here, however, conditions were no better.
Because of their religion, accents, and former residence in Azerbaijan, the family was attacked in Armenia. For almost four years the family moved between Russia, Ukraine and Armenia, seeking safety, until they fled to the US.
The BIA denied their claim for asylum, based solely on the fact that they had lived in Armenia before coming to the US. The Ninth Circuit found this ruling in error. The family did not “resettle” in Armenia, rather they were there only temporarily and periodically, and were subject to persecution on protected grounds while there. Therefore, deportation to Armenia was not allowed. Because this was the sole basis upon which asylum had been denied, the decision was reversed with orders to grant asylum.
Mejia-Rodriguez v. Reno, Eleventh Circuit
In this case the Eleventh Circuit affirmed the Board of Immigration Appeals’ order of deportation against the petitioner, and also affirmed the district courts’ denial of the petitioner’s writ of habeas corpus.
In 1986 Mejia was charged with cocaine trafficking. The court withheld final adjudication, sentencing him to one year in a youth offender program and two years in a “community control provision.” The sentencing court told him there would be no adverse immigration consequences, and that his criminal record would be sealed after he completed probation.
In 1990 the INS instituted deportation proceedings, with two grounds: entering without inspection and conviction of a crime involving a controlled substance. Shortly afterward, the INS amended the show-cause order and substituted for the two stated grounds of deportation that of overstaying a nonimmigrant visa. His request for suspension of deportation was denied, because the Immigration Judge admitted the sealed records of his conviction and found that because of the conviction, Mejia could not establish good moral character. The BIA affirmed this ruling.
Mejia petitioned the state to vacate his conviction, alleging he did not receive effective assistance of counsel. The state did vacate the conviction, and did not reprosecute. Mejia then petitioned to reopen his deportation proceedings. This petition was denied because it was not filed on time. Mejia also filed a petition for a writ of habeas corpus, alleging a constitutional violation in the use of the state conviction. The district court denied the writ, finding it was not timely filed under the Immigration and Nationality Act. Mejia refiled the petition, clarifying that he sought review under 28 U.S.C. § 2241, the general habeas corpus statute and not part of the INA. The district court again denied the petition.
The Eleventh Circuit, rather than decide whether the district court properly denied the habeas corpus petition, decided the merits of that petition for itself, and dismissed the petition as no longer presenting an active case. The Eleventh Circuit characterized the case as a claim that but for the ineffective assistance of counsel Mejia received during his criminal trial, he would have been able to establish good moral character and thus eligibility for suspension of deportation. While those in deportation proceedings have a constitutional due process right to effective assistance of counsel, there is no right to the discretionary relief of suspension of deportation. Because the relief is purely discretionary, it creates no interest protected by due process, and therefore, an attorney’s performance cannot be said to have been the reason the relief was denied.
Danh v. Demore, Northern District of California
This case involved section 236(c) of the Immigration and Nationality Act, the provision requiring mandatory detention of all criminal aliens in deportation proceedings. The District Judge ruled that in this case, the law violated the petitioners’ substantive and procedural Due Process rights. Therefore, the petitioners’ writ of habeas corpus was granted with orders that an Immigration Judge hold an individualized determination of whether these petitioners would constitute a flight risk or danger to society if released.
The petitioners, a husband and wife who arrived in the US as refugees from Vietnam, became lawful permanent residents in 1983. They have seven children, four of whom are US citizens. In December 1998 the petitioners pled no contest to fraudulently obtaining welfare benefits. The INS then instituted removal proceedings and arrested and detained the petitioners as removable aggravated felons. The petitioners’ conviction was then changed to one count of simple perjury, which is arguably not an aggravated felony. The IJ denied their motion to terminate proceedings, finding the perjury charge was also an aggravated felony. The IJ also denied their motion for a bond hearing, finding that as aggravated felons, they were statutorily ineligible for such a hearing. The petitioners then filed this challenge to the legality of their detention.
Before the District Court, the INS argued that the petitioners had received an individualized bond determination when the IJ found them statutorily ineligible. The District Court disagreed, finding that what the IJ determined was that he was not able to make such an individualized determination. The District Court then addressed the petitioners’ challenge to the constitutionality of section 236(c).
First the court addressed the substantive Due Process argument. The court found that the petitioners enjoyed the right to be free from arbitrary confinement. The issue then became the standard of review that should be used in determining whether section 236(c), by requiring their mandatory detention, subjected the petitioners to arbitrary governmental action. The court found that the proper standard of review was strict scrutiny, under which the question was whether the governmental action was excessive in relation to its goal. While Congress has plenary power over substantive immigration laws, they are limited by the requirements of Due Process in implementing and enforcing those laws. Section 236(c) is not a substantive law, rather it details procedures by which substantive immigration law is to be implemented and is thus subject to Due Process review.
The government advanced four purposes section 236(c) was said to advance: first to prevent flight, second to protect the public from dangerous criminal aliens, third to correct prior bond procedures under which as many as 20% of criminal aliens failed appear for their hearings, and fourth to repair damage to the US immigration caused by the government’s prior failures to detain and remove criminal aliens. According to the District Court, the detention of the petitioners was excessive in relation to each of these goals. They are not likely to flee because of their children, four of whom are US citizens. There was no evidence they would be a threat to public safety, and the final two reasons the government advanced to support the practice of mandatory detention, repairing the past system, do not in any way touch on the petitioners’ right to be free from arbitrary detention.
After finding the petitioners’ substantive Due Process rights were violated by section 236(c), the District Court then addressed their procedural Due Process rights. The court found that because section 236(c) did not survive substantive Due Process analysis, there was no need by a procedural analysis, but included one nonetheless, in case section 236(c) is later found to survive substantive Due Process analysis. Procedural Due Process analysis involves balancing four factors, first, the private interest at risk, second, the government’s interest, third, the risk of erroneous deprivation of that interest, and fourth, the value of additional procedural safeguards in reducing the risk of erroneous deprivation. Under this analysis, the District Court concluded that “a statute such as section 236(c) that denies even the possibility of bond can scarcely claim constitutional sanction.” Because the petitioners’ continued detention did not advance any substantive reason given by the government for the statute, the risk of erroneous deprivation was almost certain. The burden to the government of holding a bond determination is almost negligible, given the fact that deportation proceedings often take years.
Therefore, the court remanded to the IJ for an individualized bond determination.
Mathews v. Reno, District of Massachusetts
In this case the federal district court of Massachusetts became the latest court to weigh in on the issue of whether section 440(d) of the Antiterrorism and Effective Death Penalty Act (AEDPA) applies retroactively to bar certain people in deportation proceedings from seeking relief under section 212(c) of the Immigration and Nationality Act.
The court first found that it had the power to review the habeas corpus petitions in this case despite Congress’ attempt to do away with such federal court jurisdiction in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The court then moved on to the merits of the issue before it whether 212(c) relief was available to the petitioners.
The court relied on Goncalves v. Reno, a case from the First Circuit (where the Massachusetts district court sits), which held that Congress did not eliminate 212(c) relief for those whose petitions for such relief were pending when AEDPA was enacted in 1996. The court then expanded on the holding of Goncalves, finding a “presumption against retroactivity for those aliens who were in deportation proceedings on the effective date of the AEDPA.” The district court found that each of the petitioners in the case before it was entitled to a determination of whether they qualified for 212(c) relief. These petitioners’ cases were in several positions when AEDPA was passed. In two cases the application for 212(c) relief came after AEDPA because the petitioners were relying on the filing deadline told them by the Immigration Judge. In another case, prior to the enactment of AEDPA the IJ ruled the application abandoned, and the petitioner filed a motion for reconsideration, also before AEDPA became effective. The final case involved a petitioner who was put in deportation proceedings in 1994, but did not have a hearing before an IJ until after AEDPA was passed.
Thus, each of these cases was remanded to the Board of Immigration Appeals for a determination of the petitioners’ eligibility for 212(c) relief.
In re Luis-Rodriguez, Board of Immigration Appeals
In this case the BIA reversed the decision of an Immigration Judge that the respondent was not deportable and remanded with instructions that the IJ order his deportation.
The respondent, a citizen of Cuba, entered the US as the beneficiary of a fiance immigrant visa petition and in 1983 became a lawful permanent resident of the US. In 1996, the INS issued an Order to Show Cause and Notice of Hearing, charging the respondent with deportability as an alien engaged in activities that violate US laws relating to espionage. The specific violation was failure to register with the Attorney General as one involved with espionage.
The respondent is a member of the Cuban Intelligence Service (CUIS) whose activities were discovered by a joint task force between the FBI and the INS investigating foreign counterintelligence in South Florida. At the time the respondent was apprehended, he had in his possession several items commonly used in espionage. He admitted his involvement with the CUIS but defended against deportation claiming his activities were directed against the Partido de Unidad Nacional Democratico (PUND), an anti-Castro paramilitary organization operating in South Florida.
The IJ terminated deportation proceedings, finding the respondent’s actions did not amount to espionage because the objects of his investigations did not relate to the national security or defense of the US. By the time the case made it to the BIA, the respondent, under agreement with the INS, had returned to Cuba. Before the BIA the respondent argued that this fact rendered his case moot, leaving no issue for the BIA to rule on. The BIA disagreed with this contention, finding the mootness doctrine (which prevents adjudication of cases when the parties are no longer in adversarial positions) applied only to federal courts, and did not prevent them from reaching the merits of the case even though the respondent had voluntarily departed the US. Reaching the merits of the case, the BIA ruled that a conviction of espionage was not necessary to deportation, nor indeed was even engaging in espionage. Under the BIA’s interpretation of the statute, all that is required to render one deportable is knowledge of “spy tactics” and a failure to register with the Attorney General. The respondent’s familiarity with the tactics of the CUIS was a sufficient basis upon which to order his deportation.
In re United Airlines Flight UA802, Board of Immigration Appeals
In this case United Airlines appealed the decision of an INS director to fine the air carrier 00 for bringing an alien into the US without a proper visa, a decision the BIA upheld.
The passenger in question was a citizen of Mongolia, in possession of a Mongolian Diplomatic Passport and a visitor visa allowing one entry into Canada. Upon landing in the US, he applied for admission as a passenger in transit. The INS found him ineligible for this treatment and paroled him into the US for departure to Canada. Shortly after this, the Service announced its intent to fine United. United protested, claiming the passenger was in fact eligible for classification as a passenger in transit and a visa waiver. The difference is crucial to a carrier such as United: the cost of classification as a passenger in transit is only . United alleged that the INS made a practice of denying visa waivers and paroling such passengers so that they could fine airlines.
The BIA ruled that it did not have the authority to review a decision by the INS to parole an alien, and therefore could not address the issue of the Service’s motives for such parole. Thus, the 00 fine was upheld.
In re Ponce-Hernadez, Board of Immigration Appeals
In this case the BIA reversed the decision of an IJ to terminate deportation proceedings against the respondent, a native of El Salvador who entered the US without inspection in 1995.
The INS served the respondent with an Order to Show Cause, but the respondent failed to appear at the hearing, which was held in his absence. The evidence presented by the INS to support their charge of deportability was a Form I-213, Record of Deportable Alien. This form detailed personal characteristics of the respondent, and contained personal information about the respondent’s life in El Salvador. The IJ ruled the Form inadmissible. According to the BIA there was nothing in the Form I-213 that put in issue whether it described respondent. Form I-213 also, in the determination of the BIA, was probative evidence the admission of which was not fundamentally unfair to the respondent. Thus, its admission was proper, and upon that evidence alone, deportation of the respondent could properly be ordered.
In re Joseph, Board of Immigration Appeals
In this opinion the BIA clarified its opinion, issued a few months ago, in a case dealing with the same respondent. Specifically, the opinion addresses issues of whether an individualized bond hearing is required in this case.
The respondent, a native of Haiti, became a lawful permanent resident of the US in 1989. In 1998 he was convicted by a Maryland state court of obstructing a police officer following a vehicle chase. The INS then charged him with deportability as an aggravated felon. The IJ terminated the proceedings on the ground that the conviction did not amount to an aggravated felony. The IJ then ordered the respondent released on his own recognizance. It is this order that is under review by the BIA. The INS appealed, arguing that the IJ’s determination that the respondent was not an aggravated felon was not an appropriate basis upon which to base a bond determination.
Certain immigrants, including those convicted of aggravated felonies, are subject to mandatory detention under Immigration and Nationality Act § 236(c), and under the INA there is generally no jurisdiction in the IJ, the BIA, or the federal courts to order a bond hearing. Nonetheless, the BIA ruled, an IJ has jurisdiction to determine whether the immigrant in question falls within one of the categories of aliens subject to mandatory detention.
Among the factors the IJ may consider in making this determination is whether the INS is substantially unlikely to succeed in the underlying deportation proceedings.
In the instant case, the IJ made the bond determination after ruling on the merits and finding that the INS had not proved the respondent deportable. The IJ was thus able to take into consideration the INS’s doubtful success in deciding whether the respondent should be afforded bond. However, if the bond determination comes before a ruling on the merits, the IJ must have substantial grounds upon which to override the presumptive correctness of detention.
In re Arguelles-Campos, Board of Immigration Appeals
In this case the BIA affirmed the discretionary decision of the Immigration Judge to deny the respondent voluntary departure (VR). It took this opportunity to make broad statements about the current state of the law on VR.
The respondent, a citizen of Mexico, had previously been granted VR five times. He was involved in a long-term relationship with a woman who lived in California, with whom he had two US citizen children. According to the BIA, the respondent clearly viewed VR as a means to enter and leave the US at will without facing the consequences of deportation.
The BIA began its analysis of VR by noting that it may be sought at two stages of removal proceedings, or in place of removal proceedings. If sought in place of removal proceedings, under section 240B(a) the immigrant affirmatively applies for VR with the INS to avoid being placed in section 240 removal proceedings. Once removal proceedings have been initiated, VR may be sought at two points. If sought before the proceedings are concluded, the request must be made prior to the initial master calendar hearing at which the merits of the case will be heard. If sought at the conclusion of proceedings conducted under section 240B(b), application may be made after the initial merits hearing. Thus, depending on when VR is sought, there are different eligibility requirements.
240B(a) VR is discretionary, and may be granted conditionally to ensure timely departure from the US. These conditions may include posting a bond, detention pending departure, and accompanied departure. This type of relief may be sought from the INS even after removal proceedings have been initiated. If the Service agrees, proceedings are terminated. If VR is refused, the decision is unreviewable, but does not prevent VR from being sought at a later stage.
VR may be sought from the IJ at two stages during proceedings. If sought before the conclusion of proceedings, any request for additional relief must be withdrawn. The VR granted may be conditioned like VR granted in lieu of proceedings, and if the immigrant does not depart, VR is withdrawn and the removal order reinstituted. Eligibility for this type of VR requires a showing that the alien merit a favorable exercise of discretion, but does not require a specific showing of good moral character.
VR sought at the conclusion of proceedings has different requirements and conditions. The applicant must establish physical presence in the US for at least 1 year immediately preceding the date of the Notice to Appear.
Second, the applicant must show they have been of good moral character for at least 5 years before the application for VR. The applicant cannot have been convicted of an aggravated felony or be removable on national security grounds, and must show he merits a favorable exercise of discretion. Further, the applicant must prove they have the financial means to leave, and must post a departure bond of at least 0. Finally, unlike other forms of VR, for which the applicant has 120 days to leave, the period here is 60 days.
In re Ruiz-Massieu, Board of Immigration Appeals
In this case, the BIA found the respondent deportable, reversing the determination of the IJ that the INS had not proved deportability.
The respondent is a member of one of Mexico’s leading political families. During 1993 and 1994 he served as the Deputy Attorney General of Mexico. During this time, his brother, who was an outspoken critic of Mexico’s only established political party, the PRI, was murdered. The respondent began an investigation, and uncovered many promising leads which he was prevented from pursuing by the PRI. The respondent then announced his resignation from both his office and the PRI, citing the PRI’s unwillingness to allow investigation into his brother’s murder. Ruiz-Massieu claimed that at this time he and his family began to receive death threats. In early 1995 he and his family entered the US on tourist visas. After staying at a house they owned in Houston for one night, they boarded a plane for Newark, New Jersey to make a connecting flight to Spain. Upon landing in Newark, he was arrested by the US Customs Service for failing to declare ,000 in currency. These charges were soon dropped, but before the respondent was released from custody, the Mexican government charged him with embezzlement and obstruction of justice and issued a warrant for his arrest. Extradition proceedings were initiated; four separate attempts at extradition failed because the US government failed to prove there was probable cause to believe the charges against him were true. The respondent was then charged with deportability on the basis of a letter from the US Secretary of State, Warren Christopher, which claimed the presence of the respondent in the US would have serious adverse foreign policy consequences. This letter was the only evidence the INS presented at the deportation hearing, and the IJ found this was not sufficient to prove deportability by clear, unequivocal and convincing evidence. Furthermore, according to the IJ, the US should not be allowed to accomplish by deportation what it could not do by extradition.
The BIA found Ruiz-Massieu deportable on the basis of the letter from the Secretary of State alone. Furthermore, the respondent was not entitled to voluntary departure, which he sought, because by entering the US, he subjected himself to our immigration laws, and there is no right to voluntary departure. The BIA found its role in this case to be purely “ministerial.” Section 241(a)(4)(C)(i) of the Immigration and Nationality Act creates a ground for deportation based on a reasonable determination by the Secretary of State that the presence of the person in the US will have serious adverse foreign policy consequences. According to the BIA, once the Secretary of State makes this determination, the Attorney General cannot reexamine it, or demand additional proof of deportability. Allowing such examination would, the BIA said, involve entanglement of Immigration Courts and the BIA in foreign policy, an area reserved exclusively to the President and the Secretary of State.
Because a letter from the Secretary of State asserting the presence of a foreign national in the US would have adverse foreign policy consequences is by itself is clear, unequivocal and convincing evidence grounds for deportation, the fact that it was clearly ordered because attempts at extradition failed was no bar to deportation. The BIA noted that on remand the respondent would be able to name a country to which he wanted to be deported, but also noted the Attorney General’s power to disregard this choice, leaving open the possibility that Ruiz-Massieu could be returned to Mexico. Ruiz-Massieu may also be eligible for asylum.
In re R-S-J-, Board of Immigration Appeals
In this case the BIA found that false oral statements made under oath before an Asylum Office constitute false testimony given to obtain a benefit under the Immigration and Nationality Act, which, under section 101(f)(6) of the Act, are a complete bar to a finding of good moral character. The Ninth Circuit, which has jurisdiction over the Immigration Court in which the case was brought, has established that to constitute false testimony, the statements must be given before a tribunal. Thus, the issue before the BIA was whether statements to an Asylum Officer constitute testimony before a tribunal.
The BIA found the essential attributes of a tribunal to be its power to hear and decide cases and its power to render judgments in those cases. The Asylum Office, under this standard, is clearly a tribunal. This conclusion is further supported by the power of Asylum Officers to administer oaths, take evidence, make a written record of the proceedings, call witnesses and especially to make adjudicative determinations.
The BIA next addressed whether the respondent’s statements constituted testimony. There was no evidence in the record that the respondent had been administered an oath, therefore, the case was remanded for consideration of this issue. The BIA did, however, make some statements about what it would consider testimony. Statements need not be transcribed to be testimony, whether a statement is testimony depends on whether it was given by a competent witness under oath.
In re Espinoza-Gonzales, Board of Immigration Appeals
In this case the BIA determined that misprison of a felony does not constitute a crime involving obstruction of justice under section 101(a)(43)(S) of the Immigration and Nationality Act.
The respondent was convicted of misprison of a felony, specifically conspiracy to possess marijuana with intent to distribute, a federal offense for which he was sentenced to prison for a year and a day. The US Code defines misprison of a felony as action to conceal a felony one knows has been committed. In analyzing whether this crime was obstruction of justice the BIA noted that there was no definition of “obstruction of justice,” but rather a list of offenses, which did not include misprison of a felony. The offenses that constitute obstruction of justice involved either active interference with judicial action, or threats against those who would cooperate with the judicial process. Because misprison of a felony lacked this intentional element, it is not obstruction of justice.
In re R-A, Board of Immigration Appeals
In this case the BIA decided that victims of repeated spousal abuse do not constitute a “particular social group” eligible for asylum.
The respondent is a native of Guatemala who married at 16 years old. From the beginning she was the victim of physical and sexual abuse. She was raped almost daily and threatened with death. Whenever she ran away, her husband found her. Her pleas to the police did not help, and judges told her they would not get involved with domestic disputes. Finally, she was able to flee to the US.
The BIA did not discredit the horror of the respondent’s experiences, but stressed that they were deciding an asylum claim. Asylum must be based on persecution inflicted on a person because they are a member of a particular social group. The BIA agreed that what the respondent suffered was persecution, and that the government of Guatemala was unwilling or unable to protect her. Thus the issue was whether the persecution was inflicted on the basis of a protected ground.
The Immigration Judge ruled that the respondent was persecuted on the basis of a protected ground, namely, membership in the particular social group of Guatemalan women who live with Guatemalan men who believe that women are to live under male domination. The IJ further found that the persecution was inflicted on the basis of the political opinion imputed to respondent by her husband, that women should not be dominated by men. The BIA disagreed with both of the findings.
As to political opinion, the BIA found the respondent’s husband abused her for any reason and for no reason, but that it was not influenced by his perception of her opinions.
The social group identified by the IJ did not satisfy the BIA, both because it lacked a “voluntary associational relationship” and because the members of the group at issue did not identify as a group and because the persecutors of the members did not view it as a distinct group. In short, “the mere existence of shared descriptive characteristics is insufficient to qualify those possessing the common characteristics as members of a particular social group.” There was nothing in the abuse the respondent suffered that would indicate it was inflicted because of any group characteristic, indeed, it was likely any woman who had the misfortune to be this man’s wife would have suffered the same abuse.
The BIA did stress that this was only an asylum decision, and that respondent still remained eligible for discretionary relief on humanitarian grounds.
|
