NEWS FROM THE COURTS

Wallace v. Reno, First Circuit

This case dealt with the increasingly common questions of whether habeas corpus jurisdiction for people in detention pending deportation survived the 1996 immigration laws, and the retroactive effect of the elimination of the waiver of deportation.

The First Circuit authored the opinion in Goncalves v. Reno, one of the most important decisions finding habeas corpus jurisdiction remained after the 1996 laws.  In this case, the INS challenged that decision, arguing it was undermined by the Supreme Court’s decision in Arab-American Anti Discrimination Committee v. Reno.  The First Circuit rejected this argument, finding nothing in the Supreme Court’s narrow reading of the prohibition of judicial review of certain discretionary decisions of the Attorney General altered its holding in Goncalves. 

The court then addressed the reach of section 440(d) of the Anti-terrorism and Effective Death Penalty Act (AEDPA).  This section eliminated the discretionary relief of waiver of deportation for many people facing deportation who have been convicted of a crime.  The statute itself does not direct its retroactive application (that is, the application of the law to matters of fact occurring or cases pending before the law passed), leaving a great deal of confusion.  The First Circuit found there was no indication of congressional intent as to the application of the statute, and so employed traditional rules of statutory construction.  There is a general presumption against retroactive application of civil laws (retroactive criminal laws are prohibited by the Constitution, and deportation is considered a civil matter) that make substantive legal changes, as opposed to changes that are only procedural. 

The court found that while the waiver issue could be characterized as procedural, it was more properly viewed as a matter of substance on which people had relied in making legal decisions.  Therefore, the First Circuit ruled that the waiver of deportation as it existed prior to AEDPA should be available to people whose deportation proceedings were instituted prior to AEDPA’s enactment, whether or not the waiver had actually been sought.  The court noted that the question remained whether the waiver should be available when the criminal conduct occurred before AEDPA was enacted but the deportation proceeding did not begin until after. But it did find it unnecessary to answer the question to resolve this case since the petitioner was in proceedings when AEDPA was enacted.

Mardones-Rojas v. McElroy, Second Circuit

In this case the Second Circuit upheld the decision of the Board of Immigration Appeals to deport a husband and wife who have been in the US since 1982.

In 1982, the petitioners entered the US on nonimmigrant visas.  They overstayed their visas and in 1991 were placed in deportation proceedings.  At the hearing they indicated their intent to seek suspension of deportation or, in the alternative, voluntary departure.  The wife, a native of Guatemala, also indicated that she had sought asylum under the settlement of American Baptist Churches v. Thornburgh.  In 1993 they again appeared before an Immigration Judge, this time with the news that a petition for an immigrant visa had been submitted for the wife by her father, a US citizen, and had been approved.  She would be eligible for immigration as soon as  her priority date became current and a visa was available.  At this hearing the petitioners agreed to drop their requests for suspension of deportation and asylum in exchange for the government’s agreement to extend the period of voluntary departure for one year, during which time they hoped the priority date would become current.  The Immigration Judge warned them that if they failed to depart within that year, they would be deported and barred from the US for five years.

Six months after the period for voluntary departure ended, the priority date became current, and the petitioners sought to reopen their deportation proceedings so they could seek adjustment of status within the US.  At this point, however, the fact that they had not departed within the period allowed meant they could not adjust status without showing exceptional circumstances for the failure to depart that were beyond their control.  As exceptional circumstances the petitioners noted 1) the enactment of section 245(i) of the Immigration and Nationality Act that allowed people who had fallen out of legal status to adjust to permanent residence after paying a penalty fee and 2) their long time residence in the US.

The Immigration Judge found exceptional circumstances existed.  The INS appealed to the Board of Immigration Appeals, which overturned the decision of the Immigration Judge.  The Second Circuit could only overturn this decision, which rested on interpretations of INS regulations, if it found the Board abused its discretion.  Finding the Board’s interpretation of the regulations at issue was reasonable, the Second Circuit upheld its decision denying adjustment of status. 

Bowrin v. INS, Fourth Circuit

In this case the Fourth Circuit ruled that in cases governed by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), habeas corpus still exists as a method to test the legality of the detention. 

The court first ruled that this case was not barred by section 242(g) of the Immigration and Nationality Act that strips federal courts of jurisdiction to hear claims arising from decisions of the INS to commence proceedings, adjudicate cases, and execute removal orders.  This was because the challenge brought by Bowrin was to his final deportation order, not to one of the three discrete actions mentioned in section 242(g).  Therefore, the case is governed by the transitional rules of IIRAIRA.  The transitional rules state that “there shall be no appeal permitted in the case of an alien who is deportable” due to certain types of criminal convictions.  The Fourth Circuit ruled that this section was not applicable because the case before it was a writ of habeas corpus, which is an original action brought to test the legality of detention, not an appeal.  While Congress did, in 1996, express an intention to restrict review of executive immigration decisions, it did not expressly eliminate general habeas corpus jurisdiction.  Therefore, habeas corpus jurisdiction remains as a way to examine statutory and constitutional issues raised by immigration detainees.  The Fourth Circuit remanded so that a trial court could hear the merits of Bowrin’s claim.

Lewis v. INS, Fourth Circuit

In this case the Fourth Circuit ruled that a 1984 conviction for conspiracy to possess marijuana with the intent to distribute was an aggravated felony rendering a person removable. 

The court, which takes a very narrow view of the immigration cases it can review, heard Lewis’ claim that because his conviction occurred in 1984, before aggravated felonies were grounds for deportation, he was not subject to deportation, viewing the issue as one necessary to establish its jurisdiction.  The court heard and rejected the argument.  Noting that there was some statutory ambiguity, the court looked to rulings of the Board of Immigration Appeals (BIA).  According to the BIA, while the first statute adding aggravated felonies as a ground for deportation was limited to convictions obtained after its effective date, subsequent statutes have eliminated this temporal restriction.  The Fourth Circuit found this to be a reasonable interpretation of the statutes and so deferred to it. 

Singh v. INS, Fifth Circuit

The court vacated and remanded the decision of the Board of Immigration Appeals denying the petitioner asylum.  The petitioner is a native of the Punjab region of India and an adherent of the Sikh religion.  He came to the US in 1994 and applied for political asylum.  In his testimony before an Immigration Judge (IJ), he related incidents in which he was detained and beaten, being released only after paying a bribe.  The IJ denied asylum, finding the petitioner was not totally credible.  The BIA upheld this decision, finding that Singh had not established past persecution nor a well-founded fear of future persecution. 

The BIA’s decision was vacated on appeal because it did not “provide an adequate basis for review nor reflect that the Board gave meaningful consideration to all relevant evidence presented by the petitioner.”  It was unclear whether the BIA’s decision was based on an adverse credibility determination or on a failure to prove a well-founded fear of persecution.  Therefore, the Fifth Circuit remanded for the BIA to give full and proper consideration to the case before it. 

Zhislin v. Reno, Sixth Circuit

In this case the court concluded that habeas corpus jurisdiction exists to review the continuing detention of a person who cannot be deported because he has no country of nationality. 

In 1990, Zhislin was arrested for transporting marijuana, sentenced to five years in prison, and placed in deportation proceedings.  Zhislin was born in Ukraine while it was part of the Soviet Union, and the INS ordered him deported to either Ukraine or Israel.  Both countries refused to issue him a visa.  He attempted to enter the Dominican Republic on a tourist visa, but was denied entry.  After this, he filed this action for habeas corpus, asserting that his continued detention violates his due process rights and the constitutional prohibition against excessive bail. 

The district court dismissed the case, saying section 242(g) of the Immigration and Nationality Act deprived the court of jurisdiction.  Since that decision, the Supreme Court decision of Arab American Anti-Discrimination Committee was announced, which made clear that section 242(g) is to be read narrowly.  Characterizing Zhislin’s claim as asking whether the INS can detain him indefinitely even though the deportation order may never be executed, the Sixth Circuit found habeas jurisdiction still existed and remanded the case for a hearing on the merits of the constitutional claims. 

Gorbach v. Reno, Ninth Circuit

The Ninth Circuit has vacated the opinion issued by a three-judge panel of the court in June.  An 11 member panel of the Ninth Circuit will hear arguments in the case again, and issue another decision.  The original opinion affirmed the authority of immigration officials to revoke a grant of citizenship due to failure to disclose past criminal offenses or arrests on the naturalization form. <ぐ颵ᇏ芻ꨀ봀௎isMultiLine>

Until 1990, only a court could naturalize a person, and only a court could revoke a grant of naturalization.  In 1990 Congress gave the sole power to naturalize to the Attorney General and the INS.  In the June decision, the Ninth Circuit ruled this meant the INS could also denaturalize.  Hopefully the decision to rehear the case means the Ninth Circuit will reverse its earlier decision, which could result in the administrative denaturalization of 4,500 US citizens.

Sebastian-Sebastian v. INS, Ninth Circuit

In this case the Ninth Circuit produced a three-way split decision, but affirmed the Board of Immigration Appeals decision to deny asylum. 

Sebastian, a citizen of Guatemala, came to the US in 1994.  He came after being repeatedly beaten and threatened with death by guerrilla forces that were attempting to recruit him.  According to Sebastian, after his brother was conscripted into the Guatemalan army, the guerrillas also imputed to him a political opinion that supported the army.  The Immigration Judge (IJ) and Board of Immigration Appeals (BIA) ruled that because the guerrillas were attempting to make Sebastian join their ranks, they could not have imputed an adverse political opinion to him.  However, a specific adverse credibility determination was not made.

Of the three judges from the Ninth Circuit who heard this case, one found there was no persecution on the basis of Sebastian’s political opinion, and one believed Sebastian had presented a valid claim for political asylum.  The deciding opinion was very sympathetic to Sebastian’s claims, and disagreed with the BIA’s position that because the guerrillas tried to recruit him they could not have imputed an adverse political opinion to him.  This judge denied asylum, however, based on the position that the opinions of the IJ and the BIA did amount to an adverse credibility determination.  According to this deciding opinion, when the IJ and BIA ruled that the guerrillas attempt to recruit Sebastian indicated that the guerrillas did not impute a political opinion to him, they were essentially making an adverse credibility determination. 

What makes this opinion worthy of note is the finding of an implied credibility determination.  Neither the IJ nor the BIA made an express credibility finding, and the INS on appeal did not challenge Sebastian’s credibility.  The standard in reviewing such cases has generally been that in the absence of an explicit adverse credibility determination, testimony is to be believed.  This is because it is felt that the IJ, who sees and hears the applicant, is in the best position to rule on his credibility.  By breaking with this standard, the Ninth Circuit has created the very problem it was attempting to avoid – second-guessing IJs.

Akinmade v. INS, Ninth Circuit

In this case the Ninth Circuit reversed the decisions of an Immigration Judge and the Board of Immigration Appeals finding the petitioner’s testimony was not credible and denying asylum.

Akinmade was a student in Nigeria in 1994 when he joined the National Association of Nigerian Students.  At this time Nigeria was undergoing tremendous upheavals as the military government of General Abacha cracked down on dissidents.  In March of 1995, Akinmade participated in a demonstration in Lagos.  Police confronted the demonstrators, opening fire and killing 15 and arresting 25 others, including Akinmade.  During his detention Akinmade was tortured and beaten.  As he was being moved from one facility to another, he overheard the police saying he would be taken to a place where no one would find him.  After hearing this, he fled.  He hid in Lagos for two days before fleeing the country.

According to Akinmade, he fled first to South Korea because they do not require visas of Nigerian visitors.  There he met a sympathetic Canadian who helped him obtain a fraudulent Canadian passport.  After about two months, he arrived in the US.  The INS confronted him with the false passport, which he admitted. He then told the INS of his intent to seek asylum.  An Immigration Judge and the Board of Immigration Appeals denied his asylum request.  Akinmade appealed to a district court, which held the Board had relied on improper grounds in making its determination, and remanded for reconsideration.  On remand, the Board again came to the same conclusion.  It based its decision on these factors:  Akinmade would not account for the fraudulent passport, he attempted to enter the US in a fraudulent manner, he made inconsistent statements about his role in the Nigerian student group and about his treatment by the police, and he could not corroborate his account.

On appeal, the Ninth Circuit found each of these grounds was improperly relied on.  Prior decisions have made clear that false statements and documents used to enter the US are not sufficient grounds on which to base an adverse credibility determination.  Such statements and documents are to be distinguished from false statements and documents presented during an asylum hearing, which may be the basis for an adverse credibility determination.  According to the Ninth Circuit, most of the inconsistencies in Akinmade’s testimony were due to translation problems, and that any discrepancies that did exist were only minor and not a basis for an adverse credibility determination.  Finally, corroboration is not required in these circumstances. Moreover, corroboration is provided by US State Department reports on Nigeria and by publications by groups such as Amnesty International.  Therefore, the court remanded for the Board to grant asylum.  <ぐ颵ᇏ芻ꨀ봀௎isMultiLine>

Sok v. INS, Eastern District of California

In this case involving a detained Cambodian national, the court ruled that the continuing detention of a person who was not presently deportable was illegal.  Unlike many decisions on the same subject, this decision did not rest on a finding that the practice of indefinite detention violated the Constitution, but rather violated the very statute authorizing the detention.

Section 241(a)(6) of the Immigration and Nationality Act provides that a person who is under a final order of deportation “may be detained beyond the removal period.”  The INS argued that this section meant that the Attorney General had discretion to detain people pending deportation without any regard to time limits.  The court disagreed, finding such an interpretation would create serious constitutional questions.  The court examined the legislative history of section 241(a)(6) and found that it contemplated continuing detention of only those people whose deportation was delayed, not those who could never be deported.  Because of the lack of diplomatic relations between the US and Cambodia, it is unlikely that Sok will ever be deported; therefore Sok’s continued detention is a statutory violation. 

Rogowski v. Reno, District of Connecticut

In this case the court addressed two subjects:  first, the availability of a waiver of deportation when a criminal convictions occurred prior to the enactment of the Anti-terrorism and Effective Death Penalty Act (AEDPA) but deportation proceedings were not instituted until afterwards, and second, the applicability of section 236(c) of the Immigration and Nationality Act, which calls for mandatory detention of aliens convicted of certain crimes pending their deportation hearing.

The petitioner entered in 1984 as a refugee from Poland and went on to attain lawful permanent resident status. He pled guilty in 1995 and 1996 to 17 minor felonies.  In late 1996, the INS instituted deportation proceedings against him.  He attempted to apply for a waiver of deportation, which the Immigration Judge denied, saying that section 440(d) of the AEDPA, passed earlier in 1996, eliminated that form of relief for people such as Rogowski.  The Board of Immigration Appeals affirmed.  On appeal, he argued that section 440(d) should not apply to him because his criminal conduct occurred before it was enacted.  The District Court agreed.

The court next addressed the detention issue.  Rogowski claimed the mandatory detention provisions violated both his substantive and procedural due process rights.  The court noted that while Congress has plenary control over immigration, it could not implement laws in a way that violates the Constitution.  A Supreme Court decision dealing with mandatory detention in an area unrelated to immigration allowed the practice if two factors are met.  First, the statute authorizing detention must be regulatory, not punitive. Second, the detention cannot be excessive in relation to its stated purpose.  The court found the purpose of the mandatory detention statute was regulatory, but found that, as applied to Rogowski, it was excessive.  The government’s argument that the presence of the criminal convictions indicated that Rogowski was a flight risk were rejected and the court found Rogowski’s substantive due process rights were violated without affording him a bond hearing.

In re Rodriguez-Carrillo, Board of Immigration Appeals

In this case, the Board of Immigration Appeals (BIA) ruled that despite a recent decision requiring Immigration Judges to render a full written opinion in cases where deportability is denied, the lack of a written opinion in this case did not deny the respondent a fair hearing.  Noting that the respondent had notice of the factual and legal bases for the decision, and the opportunity to appeal the decision, the BIA found the respondent received a full hearing.

In re H-N, Board of Immigration Appeals

In this case, the Board determined that, despite INS arguments to the contrary, Immigration Judges (IJs) share with the INS the power to adjudicate applications by refugees for waivers of inadmissibility and adjustment of status. 

Section 209 of the Immigration and Nationality Act allows refugees admitted into the US to adjust their status to lawful permanent residence.  The same provision of law gives the Attorney General the authority to waive certain grounds of inadmissibility.  The INS argued that this authority was vested solely in the immigration officials, because there is no appeal from a decision denying a waiver.  According to the BIA, the INS was improperly relying on section 207 of the Immigration and Nationality Act.  That section provides an opportunity for a waiver to people outside of the US who are seeking refugee status.  From this decision, there is no appeal.  However, section 209 provides a separate opportunity to seek a waiver, and the section 209 waiver decision can be appealed.  Moreover, the section dealing directly with all applications for adjustment of status creates the authority in IJs to hear all necessary requests for a waiver of inadmissibility.

In re N-B-J-, Board of Immigration Appeals

In this case, the Board dealt with questions created by the enactment of the continuous physical presence provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). 

The respondent, a citizen of Nicaragua, entered the US in 1987.  In 1993, the INS placed her in deportation proceedings by issuing an Order to Show Cause.  Although he found she had obtained the necessary seven years of continuous physical presence necessary to make a claim for suspension of deportation, the Immigration Judge denied her claim that she would suffer extreme hardship if returned to Nicaragua and ordered her deported.  The case was appealed to the BIA, and the IJ was affirmed.  Two years after the appeal, IIRAIRA was passed.  Among other things, IIRAIRA changed the requirements of the continuous physical presence rules.  Previously, one could reach the necessary period while in deportation proceedings. Under IIRAIRA, as soon as the INS issues an Order to Show Cause, the period of continuous physical presence is terminated.

The IIRAIRA transitional rules make the new law with regard to continuous physical presence apply to cases pending when the law was passed.  The rule dealing with physical presence recites that it “shall apply to notices to appear issued before, on, or after the date of enactment of this Act.”  Finding that a notice to appear is the same as an Order to Show Cause, and that the respondent was still in proceedings on IIRAIRA’s enactment date, the BIA ruled that she had not attained the necessary seven years of continuous physical presence for suspension of deportation before the issuance of the Order to Show Cause. 

In re Truong, Board of Immigration Appeals

In this case, the BIA adhered to the ruling of the Attorney General in Matter of Soriano, despite the widespread renunciation of the decision by most federal courts that have heard the issue.

Truong, originally a refugee from Vietnam, became a lawful permanent resident of the US in 1981.  In 1987, he was convicted of second-degree robbery and sentenced to six years in prison.  In 1993, after his return to the US following a trip to abroad, Truong was placed in deportation proceedings.  The basis was the charge that he committed a crime of moral turpitude with a sentence of greater than one year within 5 years of entry.  Following years of continuances and delay, the INS added the ground of deportability for committing an aggravated felon.  The IJ found him deportable both as an aggravated felon and as a person convicted of a crime of moral turpitude.  

The heart of the appeal was the argument that because the robbery conviction was not considered an aggravated felony at the time of conviction, it should not be used as a basis for deportation.  There was no aggravated felony ground for deportation until 1988, and robbery did not become an aggravated felony and basis for deportation in 1996.  Truong argued that this meant that his conviction was not within the definition of an aggravated felony.  The BIA rejected this argument ruling that IIRAIRA eliminated temporal restrictions on aggravated felonies, making any crime that is now an aggravated felony a deportable offense regardless of when it was committed. 

In re Adeniji, Board of Immigration Appeals

In this case, the BIA ruled that a person is not subject to mandatory detention if released from prison prior to the expiration of the Transitional Period Custody Rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). 

In 1997, the INS placed Adeniji in removal proceedings, based on his conviction of conspiracy to commit bank fraud.  He was found removable but granted withholding of removal.  The Immigration Judge then conducted a bond hearing and ordered Adeniji released on his own recognizance.  The INS appealed both decisions.  While the appeal was pending, the INS changed its position on mandatory detention and now reads the statute to mandate detention only of people who are released from criminal custody after October 8, 1998, the last day of the IIRAIRA transitional rules.  Therefore, the only issues before the BIA were the cost of the bond and the factors to be considered in deciding whether to release someone.

One of the temporary provisions of IIRAIRA allowed the Attorney General to defer the effective date of section 236(c), which requires mandatory detention of many aliens while their removal cases are being processed.  The Attorney General did defer, making the Transition Period Custody Rules effective, and delaying the effective date of the IIRAIRA detention rules.  On October 8, 1998 the Transition Period Custody Rules expired, leaving issues of which rules to apply to people in INS custody.  The Board found the statutes, both transitional and permanent, were not a model of clarity, and provided little if any indication of congressional intent.  In light of this uncertainty and the INS’s change in position, the BIA ruled that mandatory detention under section 236(c) of the Immigration and Nationality Act applied only to people released from criminal custody after October 8, 1998.

Because Adeniji was not subject to mandatory detention, the Board next addressed the standards that should control whether he should be granted bond.  Section 236(a) provides the law dealing with bond.  This provision says a person shall be released unless they are a flight risk or pose a threat to national security.  However, the regulations implementing this section include consideration of whether release would endanger persons or property.  Therefore, it is a proper consideration in making a bond determination. 

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