NEWS FROM THE COURTS

Ngo v. INS, Third Circuit

Here the Third Circuit became the latest court to address indefinite detention of people who cannot be deported because their country of origin refuses to accept them.  The court concluded that with meaningful periodic review of the detainee’s case to determine whether he qualifies for release, indefinite detention meets constitutional standards.  

The petitioner in this application for habeas corpus was a native of Vietnam who was paroled into the US as a refugee in 1982.  Following arrests for possession of a firearm, attempted robbery and jumping bail, he was sentenced to two to four years.  While in state custody he was placed in exclusion proceedings, and a final order of deportation was entered.  After his release from state custody in 1995, he was taken into INS custody.  Since then his continued detention has been reviewed four times by INS District Directors.  None of these reviews examined evidence the petitioner submitted about his rehabilitation, but rather relied on his conviction for bail jumping as evidence that he was a flight risk and should not be released. 

The first issue the Third Circuit addressed was what impact, if any, the 1996 amendments to the Immigration and Nationality Act had on this case, which became final in 1995.  The court found that the decision was unnecessary because the laws before 1996 and after 1996 both gave the INS authority to detain people pending deportation and both gave the INS authority to release people from detention.

Reaching the detention issue, the court found that the INS may detain people who are not removable so long as there is meaningful periodic review to determine whether the detainee is qualified for release.  The court noted that “it is simply unrealistic to believe that these INS detainees are not actually being ‘punished’ in some sense for their past conduct,” but found that the power of the government to detain a person pending deportation is well-established and undisputed.  However, because “the stakes are high and we emphasize that grudging and perfunctory review is not enough to satisfy the due process right to liberty, even for aliens.”

The court found that this petitioner had never received any meaningful review of his continued detention, and therefore issued a writ of habeas corpus ordering his release unless the INS, within 30 days, initiates serious review of his detention, taking into consideration evidence of the petitioner’s rehabilitation.

Camacho-Marroquin v. INS, Fifth Circuit

In this case the Fifth Circuit ruled that the Texas state law felony of driving while intoxicated is a crime of violence and an aggravated felony, and is therefore a deportable offense.

According to the US Code, a crime of violence is a felony that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  This determination is to be made by examining the generic elements of the crime rather than the circumstances of the individual conviction at hand.  According to the Fifth Circuit, the number of annual fatalities and property damage caused by people driving under the influence makes it a crime of violence.  It is therefore an aggravated felony and a deportable offense.

Requena-Rodriguez v. Pasquarell, Fifth Circuit

In this case, the Fifth Circuit addressed a question which has confronted nearly every Court of Appeals and many District Courts:  whether habeas corpus jurisdiction survives the enactment of the Anti-terrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), both passed in 1996.  The Fifth Circuit held that under the transitional rules established by IIRAIRA, federal courts still have habeas corpus jurisdiction to hear claims of constitutional and serious statutory violations.  However, the court rejected Rodriguez’ retroactivity and equal protection arguments on the merits.

Following a state conviction for indecency with a child, the INS began deportation proceedings against Rodriguez, in February 1996.  Rodriguez did not contest his deportability, but sought a waiver of deportation under section 212(c) of the Immigration and Nationality Act (INA).  By the time his case was heard by an Immigration Judge (IJ), AEDPA had been enacted.  AEDPA section 440(d) eliminated section 212(c) relief for deportable aggravated felons; AEDPA also made his offense an aggravated felony.  The IJ found Rodriguez was statutorily ineligible for 212(c) relief, a decision that was affirmed by the Board of Immigration Appeals.  Rodriguez direct appeal to the Fifth Circuit was dismissed, and he then filed for a writ of habeas corpus in the district court.  His argument for relief, that AEDPA section 440(d) violated equal protection by distinguishing between deportable and excludable aliens, was rejected by the district court, and this appeal followed.

The Fifth Circuit found that Rodriguez’ case was governed by the transitional rules of IIRAIRA, rather than the permanent rules it established, with the exception of one permanent rule, INA section 242(g), which eliminates all federal court jurisdiction, both by direct review and habeas corpus, over certain types of claims.  In light of the Supreme Court decision in Arab- American Anti-Discrimination Committee v. Reno, released last summer, the Fifth Circuit found section 242(g) was inapplicable in Rodriguez’ case, because he was not challenging one of the three discrete actions the Supreme Court held 242(g) covered, namely decisions to commence proceedings, adjudicate cases and execute removal orders.  Thus the Fifth Circuit had to address whether IIRAIRA’s transitional rules alone eliminated habeas corpus jurisdiction when section 242(g) does not apply.

Keeping in mind that it has been a long-standing rule that for Congress to repeal habeas corpus jurisdiction it must do so explicitly, a rule that was reaffirmed after AEDPA was passed but before IIRAIRA was passed, the Fifth Circuit found there was no explicit repeal in the transitional rules.  The transitional rules limit only “review” of cases, which is direct appellate consideration, not habeas corpus, which is a collateral attack on a decision brought via a new lawsuit.  Thus, habeas corpus jurisdiction exists under IIRAIRA’s transitional rules when section 242(g) does not apply. 

The Court then addressed Rodriguez’ claims on the merits, first a claim that AEDPA section 440(d) should not apply to convictions that predated its effective date, and second, that section 440(d) violated equal protection by eliminating INA section 212(c) relief for deportable people but not those who are excludable.  The court rejected both arguments.

In addressing the first argument, that section 440(d) should not be applied retroactively, the Fifth Circuit began by asking the first question in the Supreme Court’s retroactivity jurisprudence, whether Congress expressed a clear intent with regard to the temporal reach of the statute.  Section 440(d) itself contains no provision addressing its reach, and because many provisions in AEDPA specifically apply retrospectively and many apply prospectively only, the court declined to find any indication of congressional intent in the absence of such language in section 440(d).  The next question in retroactivity analysis is whether the disputed law attaches new consequences to acts already completed.  According to the Fifth Circuit, section 440(d) does not.  Rodriguez’ conviction rendered him deportable before the enactment of AEDPA, all section 440(d) was limit the class of people who were eligible for section 212(c) relief.

The Fifth Circuit also found there was no equal protection violation in the separate classification of deportable and excludable aliens.  By its terms, section 212(c) only applied to excludable aliens, but many years ago courts came to the conclusion that there was no rational basis for the distinction.  Like many courts recently, the Fifth Circuit rejected this position, finding there is, in fact, a rational basis for the distinction, namely that Congress could have intended only excludable aliens to have 212(c) relief in hopes of inducing deportable aliens to leave the US voluntarily, knowing that if they sought reentry they would be placed in exclusion proceedings, during which they could seek a 212(c) waiver. 

Pak v. Reno, Sixth Circuit

In this case the Sixth Circuit became the latest court to declare that federal district court habeas corpus jurisdiction survived the enactment of the Anti-terrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA).  The court also concluded that Congress did not intend section 440(d) of the AEDPA, which makes immigrants convicted of certain crimes ineligible for a waiver of deportation under section 212(c) of the Immigration and Nationality Act (INA), to be applied retroactively.

In 1994 Pak, a permanent resident of the US since 1976, was convicted in state court on several drug charges.  Shortly thereafter, the INS began deportation proceedings.  An Immigration Judge found Pak deportable.  Later he sought a waiver of deportation under section 212(c).  Both an Immigration Judge and the Board of Immigration Appeals found he was statutorily ineligible for a waiver because the Attorney General’s decision in Matter of Soriano finding that AEDPA section 440(d) applied retroactively to cases pending when it was passed. 

Pak then filed this petition for a writ of habeas corpus with a federal district court, claiming that section 440(d) should not be applied retroactively, and that it violated Equal Protection.  The district court found that section 440(d) could not be applied retroactively.  The government then brought this appeal.

The government made three arguments against the district court’s exercise of jurisdiction, each of which was rejected by the Sixth Circuit.  First the government argued that section 242(g) of the INA, enacted by IIRAIRA, eliminated review of deportation orders.  This argument was rejected on the basis of the Supreme Court’s decision in Arab-American Anti-Discrimination Committee, which read this provision narrowly and found in precluded review only of decisions to commence proceedings, adjudicate cases, and execute removal orders.  The government’s next argument was that one of the transitional provisions of IIRAIRA, section 309(c)(4)(G), eliminated all review of deportation orders of aliens convicted of certain offenses.  The court agreed that the provision did eliminate review, but found it did not eliminate habeas corpus, which is a separate lawsuit, not an appeal, brought to test the legality of detention.  The government’s final argument was that AEDPA section 401(e), which eliminated habeas corpus jurisdiction under INA section 106(a)(10), also eliminated habeas corpus jurisdiction under 28 U.S.C. section 2241.  This argument was rejected because of the rule of statutory construction that habeas corpus cannot be repealed by implication.  Only section 106(a)(10) was expressly repealed, not section 2241.

After deciding that habeas corpus jurisdiction survived AEDPA and IIRAIRA, the court moved on to the retroactive application of AEDPA section 440(d).  The government’s argument that because Congress’ intent with regard to retroactive application of the section was unclear, the decision of the Attorney General in Soriano should be given deference was rejected.  The Sixth Circuit found Congress’ intent in this regard to be clear – that section 440(d) is not to be applied retroactively to applications for relief that were pending when it was enacted.  The court reached this conclusion based on the fact that many provisions of AEDPA were specifically retroactive.  Moreover, at one point, section 440(d) did include language making it retroactive, language that was removed before the section was enacted.

Therefore, the Sixth Circuit affirmed the district court’s decision and Pak will be able to seek a waiver of deportation under INA section 212(c).

Reyes-Guerrero v. INS, Ninth Circuit

The Ninth Circuit reversed the Board of Immigration Appeals (BIA) denial of asylum to the petitioners, and remanded with instructions to withhold deportation and grant asylum.

The petitioner and his wife were both attorneys in Colombia.  Reyes-Guerrero worked in the Ministry of Justice.  In Colombia, there are two primary political parties, the Liberal and Conservative Parties.  Within the Ministry of Justice, judges and attorneys are selected in even numbers from each party.  Reyes-Guerrero was a member of the Conservative Party.  In 1980 he was assigned to the investigation and prosecution of the “White Collar Scandal,” a scheme by the Liberal Party to embezzle government funds.  In 1984 Reyes-Guerrero began receiving death threats and was offered many bribes to stop the prosecution, which he refused.  He asked for and received government protection.  Throughout the prosecution, and even after 18 defendants were found guilty, Reyes-Guerrero continued to receive death threats.  These threats continued until he and his wife fled to the US. 

An Immigration Judge granted the request for asylum, however, the BIA reversed, finding the threats were not motivated by Reyes-Guerrero’s political opinion, but by a desire to disrupt the prosecution.  This Ninth Circuit disagreed with this characterization.  Within Colombia, politics and justice are deeply intertwined, and certainly the investigation into allegations of corruption by one political party by an attorney who is a member of a different party is a political event.  Indeed, according the a US State Department Country Profile for Colombia notes that it is almost impossible to distinguish political from non-political murders. 

The prior death threats suffered by Reyes-Guerrero constituted past persecution on account of political opinion, and this past persecution creates a rebuttable presumption of a well-founded fear of future persecution, a presumption the INS was not able to rebut.  Therefore, the Ninth Circuit ordered that asylum be granted. 

Li v. INS, Ninth Circuit

In this case the Ninth Circuit found the petitioner was eligible for asylum, reversing decisions from both an Immigration Judge and the Board of Immigration Appeals (BIA). 

The BIA found that while Li had a subjectively genuine fear of persecution, his fear was not objectively reasonable.  The Ninth Circuit disagreed, finding that the record compelled a finding that his fear of persecution was objectively reasonable.  Li was a participant in the 1989 Tiananmen Square demonstrations, and since his arrival in the US was been an advocate for democratic and human rights reforms in China.  According to the BIA, Li’s activities in this respect were limited, and not of such a nature that the Chinese government would be a threat to him were he to return to China.

The Ninth Circuit found evidence that his political activities both in China and the US were likely known to the Chinese government, and that there is every reason to believe that government continues to persecute low level dissidents such as Li.  Thus his fear of persecution if forced to return to China is objectively reasonable and warrants a grant of asylum. 

Pichardo v. INS, Ninth Circuit

A long time resident of the US, Pichardo was detained at the border following a trip to Mexico.  He was placed into removal proceedings by the INS on two grounds.  First, an immigration officer at the border reasonably suspected him of being a drug trafficke.  Second, the INS believes he made a false claim of US citizenship.  The Ninth Circuit found there was no reasonable basis for considering him a drug trafficker, and remanded for clarification of the citizenship issue.

Pichardo and his family, along with several other people, one of whom was called Carlos, traveled from Los Angeles to Mexico for a day vacation.  The trip was taken in Carlos’ van.  While in Mexico, Carlos told Pichardo that he met some family there and wanted to return to Los Angeles with them, and asked Pichardo to drive the van back.  While at the border, inspectors found 126 pounds of marijuana hidden in the panels of the van.  Pichardo claimed to have no knowledge that the drugs were there, but was arrested on drug charges that were later dropped. 

He was placed into removal proceedings as an alien reasonably suspected of being a drug trafficker.  Following a continuation, the INS added the additional ground of removability of making a false claim to US citizenship.  This ground was added following Pichardo’s guilty plea to that offense, based on his use of a false birth certificate to enter the US on the day of the border incident.  An Immigration Judge found him removable, and the Board of Immigration Appeals affirmed.

The Ninth Circuit first addressed the drug trafficking ground for removability.  Under established case law, drug trafficking requires and element of intent, therefore, for the immigration officer must have had a reasonable belief that Pichardo knew there were drugs in the van he was driving.  The court found that there was no evidence Pichardo knew he was transporting drugs, he had no record of involvement with drugs, and the charges based on the border incident were dropped.  Considering this evidence, the court found there were no reasonable grounds for the immigration officer to believe Pichardo was a drug trafficker. 

The second ground for removability, concerning citizenship, was remanded for clarification because the record did not reveal whether he was charged with removability for misrepresenting his citizenship or for making a false claim of citizenship.

Vo v. Greene, District of Colorado

In this consolidated case involving two petitioners, both who whom are legal permanent residents convicted of aggravated felonies, the issue was whether the INS may indefinitely detain someone pending their deportation.  One of the petitioners was Vietnamese, the other Laotian.  These countries are among those that refuse to issue travel documents to people the US seeks to deport.  Thus, because the 1996 immigration act requires that aggravated felons be detained until they are deported, the petitioners face detention for an indeterminate amount of time. 

The first issue the court addressed was what level of constitutional protection is given a person against whom a final order of deportation has been entered.  Some courts have recently taken the position that once the deportation order becomes final, the person is essentially excludable, which means they have no constitutional rights.  This court disagreed, finding that the constitutional protections afforded a permanent resident of the US do not simply vanish once a deportation order becomes final. 

The court then addressed the government’s primary argument – that the level of control over immigration that has been given to the political branches of government means the judiciary has only a limited and deferential role.  From this position the government argued that the court should use only rational review, and uphold the government’s action if any reasonable basis existed to support it.  The court disagreed with this proposition.  This case, as the court saw it, was not about interpretation or implementation of a regulation, which would be reviewed for rationality, but rather was about the deprivation of liberty.  Whenever deprivation of liberty is at issue, courts use strict scrutiny, which requires that the infringement on liberty be narrowly tailored to further a compelling government interest. 

After establishing the appropriate standard of review, the court then examined the petitioners’ constitutional claim, that their indefinite detention violated both their substantive and procedural due process rights. 

The first step in the substantive due process inquiry is to ask whether the detention is merely punishment or if it is imposed in an attempt to accomplish a legitimate governmental purpose.  Finding INS detention is not meant to be punishment, the court examined whether there was another legitimate purpose for it and whether the detention was excessive in relation to that purpose.  There are many rational reasons for detaining people pending deportation.  According to the court, detention for these reasons, such as preventing flight, is generally acceptable and is not excessive.  However, when the deportation will never occur, the issue becomes more problematic.  The court balanced the interest of the government in being able to affect the deportation with the petitioners’ liberty interest, the threat they posed to the community, and the flight risk they posed if released, and ruled that their continued detention violates their substantive due process rights. 

The court then addressed the procedural due process claim.  For guidance the court looked to a Supreme Court decision upholding the Bail Reform Act, which allowed for pretrial detention of people charged with certain crimes.  Under the Bail Reform Act, a pretrial detainee has numerous rights, including the right to counsel, the chance for review of the initial decision, and the government must persuade a neutral decision maker by clear, cogent and convincing evidence that the person should be detained.  For those who are being detained pending deportation, the situation is reversed: there is no right to counsel, and the alien has the burden of proving they should be released.  Moreover, there is no neutral review of cases of detention pending deportation.  While the INS has recently issued internal memos outlining procedures for review in similar cases, the government admitted they were not followed in these cases. 

The court ordered the petitioners released, and ordered a bond hearing to determine the conditions of their release.

In re Aldabesheh, Board of Immigration Appeals

Aldabesheh, a lawful permanent resident of the U.S. since 1993, was convicted in state court in New York of first degree criminal contempt and second degree forgery.  For each offense, he was sentenced to one to three years, with the sentences to run concurrently.  The INS issued a Notice to Appear, charging Aldabesheh with removability based on the two convictions, claiming the contempt charge was a crime of violence punishable by more than one year in prison and therefore an aggravated felony, and that the forgery charge was also an aggravated felony.

The Immigration Judge (IJ) found that the contempt conviction was an aggravated felony, but that the forgery conviction was not.  Because of the aggravated felony, the IJ found Aldabesheh was ineligible for a waiver of inadmissibility, cancellation of removal, voluntary departure and asylum.  Furthermore, the IJ found that Aldabesheh had been sentenced to an aggregate of six years imprisonment, and was therefore ineligible for withholding of removal.

The Board of Immigration Appeals (BIA) agreed with the IJ that the contempt conviction was conviction of a crime of violence and therefore an aggravated felony, but also found the forgery conviction to be an aggravated felony.  As an aggravated felon, the only form of relief Aldabesheh was eligible for is withholding of removal.  Withholding of removal is granted when the alien demonstrates that his life would be in danger in the country to which he is removed.  This form of relief is not available to those who have committed a “particularly serious crime.”  Under IIRAIRA, when the punishment is an aggregate term of at least five years in prison, the offense is automatically a particularly serious crime.  A particularly serious crime may also be found when the person was sentenced to less than five years, depending on the circumstances of the offense.

Unlike the IJ, the BIA did not take the position that Aldabesheh’s two three-year sentences could be combined into one six-year sentence, thus rendering him ineligible for withholding of removal.  In 1972, the BIA had occasion to address this same issue, finding the key was time actually spent in prison, which, because the sentences ran concurrently, was only three years.  Furthermore, the U.S. Sentencing Guidelines, which are used in sentencing federal offenders, provides that in determining a person’s criminal history, the longest of concurrent sentences imposed should be the reference.  Therefore, the BIA found that Aldabesheh’s aggregate term of imprisonment was only three years.

While Aldabesheh was not automatically ineligible for withholding of removal, because his sentence was less than five years, the BIA remanded so that the IJ could determine whether, considering the circumstances of his offenses, he was nonetheless guilty of a particularly serious crime.

In re Rodriguez-Rodriguez, Board of Immigration Appeals

In this case the Board of Immigration Appeals (BIA) ruled that the Texas state crime of indecency with a child constitutes sexual abuse of a minor under the Immigration and Nationality Act (INA), an aggravated felony.  Rodriguez was convicted of indecent exposure, an offense that did not involve any physical contact.

In 1996, the definition of aggravated felony was greatly expanded to include, among other things, “sexual abuse of a minor.”  Unlike many of the other new aggravated felonies, Congress did not define what actions would constitute “sexual abuse of a minor,” leaving the BIA to define the term. 

The opinion begins by noting certain truisms of statutory construction, namely that if the statute clearly expresses Congress’ intent, that intent must be given effect, and that in examining certain language in a statute, the examination must be guided by the intent of the entire statutory scheme.  The BIA found that a large purpose of Congress’ revision of the aggravated felony provision of the INA was to provide more severe consequences for those who committed crimes against children.  With this in mind, the BIA proceeded to develop a definition of “sexual abuse of a minor.”  The Board first looked to federal criminal law, where “sexual abuse of a minor” is defined in four different statutes.  Three of these statutes required intentional sexual contact with a child, while the fourth covered any act that could be considered sexual exploitation of a child.  The BIA found the Texas offense fit within this definition, rendering Rodriguez an aggravated felon.

The BIA noted that it was not specifically adopting the federal statute as the definition of “sexual abuse of a minor,” but rather was using it as a guideline to identify the types of offenses that would fall under the INA provision making the offense an aggravated felony.

In re Puente-Salazar, Board of Immigration Appeals

In this case the Board of Immigration Appeals (BIA) ruled that a conviction of driving while intoxicated (DWI) under Texas state law was a crime of violence and therefore an aggravated felony rendering one subject to deportation.

The respondent was convicted of DWI in 1997.  Because he had two prior DWI convictions, the latest was considered a state law felony and he was sentenced to five years in prison.  The INS instituted removal proceedings against him, claiming he had been convicted of an aggravated felony.  The Immigration Judge agreed and ordered him removed.  This appeal followed. 

One of the long list of aggravated felonies contained in the Immigration and Nationality Act is “crimes of violence” as defined elsewhere in the US Code.  This definition has two parts, one covering crimes that have as an element the use of force, the other pertaining to crimes that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  The INS agreed that Puentes’ offense did not fit the first part of the definition, so the BIA examined whether it fit the second. 

In deciding this issue, the BIA looked to the elements of the offense of DWI as defined by Texas law, not to the individual circumstances of the case.  Texas defines DWI as “operating a motor vehicle while intoxicated.”  The BIA found that there was no requirement that the defendant intend to use force during the offense, and that the mere fact of operating a car while intoxicated created a “substantial risk” that physical force would be used.”

In similar news, in a recent unpublished case the BIA ruled that a conviction for driving under the influence by Arizona state courts was a crime of moral turpitude.  Conviction of a crime of moral turpitude is a basis for deportation separate from convicted of an aggravated felony.

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