United States v. Graham, Third Circuit

In this case, the Third Circuit held that an offense classified as a misdemeanor under state law can nonetheless be an aggravated felony for immigration purposes.

Graham appealed the sentence he received upon conviction for illegal reentry following deportation, 72 months. Graham had been convicted by state courts on three occasions: for unlawful marijuana possession, attempted unlawful marijuana possession, and petit larceny, all state law misdemeanors. The last conviction carried a sentence of up to one year. The district court found the attempted possession and petit larceny convictions were convictions of aggravated felonies.

The Third Circuit found the district court erred in it treatment of the attempted possession conviction, but that the increased sentence it imposed on the basis of the aggravated felony determination was justified on the basis of the petit larceny conviction. It based this decision on the language of the Illegal Immigration Reform and Immigrant Responsibility Act that defined "aggravated felonies" to include all theft offenses punishable by one year in prison. This, the court found, is the standard, regardless of the minimum possible sentence.

Despite the historical importance of the one year prison sentence as a primary distinction between felonies and misdemeanors, the court found Congress intended to include all theft offenses punishable by at least one year, whether technically classified as felonies or misdemeanors.

Borja v. INS, Ninth Circuit

The Ninth Circuit reversed the BIA’s finding that economic extortion motivated by political disagreement was not persecution on the basis of political opinion.

Teresita Moral Borja fled her native Philippines following threats by the New People’s Army (NPA), a violent opposition group. In September 1992, members of the NPA approached her and asked her to join their organization. She refused, and offered to pay them money so they would not kill her. Following this, the NPA made monthly demands for payment. In February 1993 they doubled the amount demanded, and when Borja said she did not have that much money, they beat her at gunpoint and cut her with a knife. After this she went into hiding and then fled to the U.S.

Finding that persecution need not be solely on the basis of political opinion does not mean there is not persecution on that basis. Merely because the persecution took the form of economic extortion does not mean it was not also motivated by the NPA’s anger at Borja’s political refusal to join them. The Ninth Circuit found that were it not for Borja’s willingness to pay, she would likely have been killed during her first encounter with the NPA because of her disagreement with their political aims and methods, and that her inability to pay a few months later would have resulted in her death had she not gone into hiding. Thus Borja demonstrated past persecution, and the Ninth Circuit found, based on the State Department Country Conditions Report on the Philippines, that the NPA is still active and represents a threat to Borja if she is returned.

The Ninth Circuit found Borja entitled to nonrefoulment, or mandatory withholding of deportation, finding she had established a clear probability that she would be subject to persecution on the basis of political opinion were she forced to return to the Philippines.

Mayers v. Reno, Eleventh Circuit

In this case the Eleventh Circuit, while not officially overturning the case of Richardson v. Reno, severely limited its effect. This was this first deportation habeas corpus case this court of appeals had heard since the Supreme Court issued its opinion in Reno v. American-Arab Anti-Discrimination Committee.

In light of the Supreme Court’s determination that section 242(g) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), suspending judicial review, applied only to "decisions or actions to commence proceedings, adjudicate cases, or execute removal orders" the Eleventh Circuit found that the final order of deportation at issue in this case was not governed by IIRAIRA. Thus the issue became whether habeas corpus jurisdiction survived the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA). That statute did affirmatively repeal the grant of habeas corpus jurisdiction in the Immigration and Nationality Act, but did not address the general grant of habeas corpus jurisdiction found at 28 U.S.C. § 2241.

The Eleventh Circuit agreed with the First Circuit case Goncalves v. Reno, where the court held that Congress could not repeal the general grant of habeas corpus jurisdiction by implication. The Eleventh Circuit’s ruling means that aliens who fall within the transitional rules of IIRIRA and are seeking judicial review of a final order of deportation may in some cases obtain that review by a petition for habeas corpus. Qualifying cases would effect substantial rights and would be of the nature traditionally enforced by courts.

In the present case, the claim was that retroactive application of § 440(d) of AEDPA, making certain criminal aliens ineligible to apply for suspension of deportation. An opinion of the Attorney General, in the Matter of Soriano, held that the section was to be retroactively applied. There is a general presumption against retroactivity, and a statute should not be applied retroactively unless there is a clear intent on the part of Congress that it be so applied. While many of the provisions of the AEDPA do contain affirmative statements that they are to be applied retroactively, § 440(d) does not. This implies a congressional intent that § 440(d) not be applied retroactively.

The court remanded to the district court with instructions to grant the petitioner’s request for habeas corpus.

Mercado-Amador v. Reno, District of Oregon

In this case the district court found it retained habeas corpus jurisdiction despite the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act and the Antiterrorism and Effective Death Penalty Act.

Mercado was issued an order to show cause before the IIRAIRA was passed; therefore his case fell under that laws transitional provisions. He appealed his final order of deportation to the district court by a petition for habeas corpus, which the court granted. In ruling, the district court found that retroactive application of AEDPA § 440(d), denying withholding of deportation from certain criminal aliens, violated Mercado’s due process rights.

Unlike many courts that have ruled on this issue, this court continued on to address Mercado’s claim that § 440(d) also violated his right to equal protection of the laws, a claim the court agreed with.

Haddam v. Reno, Eastern District of Virginia

In this case the district court ruled that habeas corpus was available to review the indefinite detention of the petitioner.

Haddam, an Algerian national, was politically active and in 1991 was elected to the Algerian parliament. In 1992 a military coup ended the democratically elected government, and Haddam fled to the U.S. In 1993 he applied for political asylum and withholding of deportation (he had overstayed his visitor’s visa). While his application was pending he received advance parole numerous times, allowing him to travel abroad and continue his political work. In October 1996 the INS denied Haddam’s asylum application and on December 5 his parole status was revoked and he was placed in detention. Haddam has been in custody since then.

The district court found that habeas corpus review of certain cases was not barred by the transitional rules of the IIRIRA. Haddam alleged two violations of his constitutional rights: his indefinite detention, and the use of secret evidence to deny his asylum application.

The court ruled that questions about the use of secret evidence were within its jurisdiction, but that at this stage of the litigation, the question was premature. The issue of indefinite detention, the court found, was also within its jurisdiction, but again the record did not provide sufficient basis for review. Because the INS never stated a reason for Haddam’s continued detention, there was no way for the court to review its decision. Therefore, the district court remanded for a hearing at which the INS is to articulate its reasons for the continued detention.

In re Reyes-Torres, Board of Immigration Appeals

In this case the Board of Immigration Appeals, of its own initiative, without an appeal having yet been filed, reversed a prior decision in which it found a conviction for driving while intoxicated was a crime involving moral turpitude.

Reyes-Torres, a Mexican national and legal permanent resident of the U.S., was placed in deportation proceedings following a second conviction of driving while intoxicated. The Immigration Judge (IJ) ruled that because the conviction was part of an overall regulatory scheme and did not require the state to prove any mental state, it was not a crime involving moral turpitude. The Board reversed the IJ, and then reversed itself.

The Board’s earlier holding focused on the known dangers of driving while intoxicated; it’s second holding focused on the fact that the state, in obtaining the convictions was never required to proved that Reyes-Torres had a bad state of mind. The elements of the crime that the state had to prove were strictly regulatory – that a person drove a vehicle on public roads while intoxicated. The key element defining a crime of moral turpitude is the defendant’s intent, and because the state never proved the defendant’s intent in this case, the convictions could not be for crimes of moral turpitude.

In re Nolasco-Tofino, Board of Immigration Appeals

In this case the BIA addressed the issue of when the period of continuous physical presence necessary to eligibility for suspension of deportation is terminated. They determined that the period ends when the Order to Show Cause is issued, regardless of the nature of the proceeding.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) created the current scheme, with its "stop time" rule. Prior to 1996, the period of continuous physical presence did not end until an application for relief was made. Like so many other provisions of IIRIRA, the "stop time" rule was made retroactive, applying to notices issued before, on or after IIRIRA’s effective date. In the present case, the respondent entered the U.S. on May 17, 1989. The INS issued an Order to Show Cause why he should not be deported on March 26, 1996 (before IIRIRA’s effective date). He applied for suspension of deportation on October 9, 1996. Nolasco-Tofino’s application for relief was more than 7 years after his entry into the U.S., but the Order to Show Cause was issued before the 7-year period was attained. Thus, for Nolasco-Tofino, the issue of the "stop time" rule was crucial.