NEWS FROM THE COURTS

DeSousa v. Reno, Third Circuit

In DeSousa, the Third Circuit affirmed a prior ruling that the 1996 immigration laws do not remove the power of federal courts to issue writs of habeas corpus. The writ was not issued in this case, however, because the court did not find a violation of the plaintiff’s rights.

DeSousa, a citizen of Portugal and long-time permanent resident of the U.S., was placed in deportation proceedings in October 1996. He had a series of criminal convictions, including, in 1992, an aggravated assault conviction for which he served over four years. DeSousa sought a waiver of deportation under section 212(c) of the Immigration and Nationality Act. Although section 212(c) on its face applied only to those in exclusion proceedings, it had long been applied to people in deportation proceedings as well. The Immigration Judge found he was ineligible for such a waiver because of section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). This provision prevents deportable aliens convicted of an aggravated felony from seeking a waiver under 212(c). This decision was affirmed by the Board of Immigration Appeals.

DeSousa then sought a writ of habeas corpus from the district court, making two arguments. First, AEDPA section 440(d) should not apply to him because his convictions occurred before the section became effective. Second, section 440(d) violated Equal Protection by denying a waiver to those in deportation proceedings, but not to those in exclusion proceedings. The district court agreed with the Equal Protection argument, and issued the writ. The Third Circuit reversed.

Because Congress has almost unlimited control over immigration, laws classifying aliens for different treatment are examined using what as known as rational basis review, and the classifications will be upheld if there is any reasonable ground for it. According to the Third Circuit, there is a reasonable ground for distinguishing deportable and excludable aliens, namely to encourage criminal aliens to leave the U.S. voluntarily with hopes of a waiver when they seek reentry.

This issue will most likely not be given a final resolution by the Supreme Court. This is because now there is neither deportation nor exclusion, only a single proceeding called removal. What few ways there are to avoid removal are available to aliens whether they are in or out of the U.S.

Zadvydas v. INS, Fifth Circuit

Zadvydas was born shortly after World War Two in a displaced persons camp in Germany. While still a child, he and his parents moved to the U.S. In the late 1970s, based on a series of thefts, the INS began deportation proceedings against Zadvydas. While on release during the proceedings, Zadvydas fled and escaped the notice of immigration authorities for about 10 years. Then in 1987 he was arrested in Virginia for possession of cocaine with the intent to distribute. While on bail for this offense, he again fled. After a few years, however, he turned himself in to authorities in Texas. He was then, in 1992, tried and convicted in Virginia. In 1994 the INS took him into custody and began deportation proceedings again. This time he was not released while his case was pending.

Zadvydas was ordered deported. To this end, the INS contacted German government officials. German law, unlike U.S. law, does not automatically grant citizenship to all persons born there, so the INS had to establish Zadvydas’ German citizenship. The INS was not able to do this, and Germany refused to accept him. The INS then contacted Lithuanian authorities, as the record indicated his parents were from that area prior to the actions of Nazi Germany and Soviet Russia. Lithuanian officials said he was not a citizen, but could apply for citizenship if he could establish that both his parents were born in Lithuania before 1940.

After the German government refused to admit Zadvydas, he filed this writ of habeas corpus. The district court granted the writ, finding his detention was unconstitutional because Zadvydas was "stateless" and would be detained forever.

The Fifth Circuit reversed. Relying on recent INS memos creating a new plan for periodic review of cases of those in indefinite detention, the Fifth Circuit found Zadvydas’ detention would not be permanent. They also disagreed with the district court that there was no country to which he could be deported. The court then engaged in a theoretical and highly speculative discussion of German, Russian and Lithuanian citizenship law, reaching for various ways to force one of these countries to accept Zadvydas.

In short, the Fifth Circuit found that despite five years in detention and numerous failed efforts by the INS to establish citizenship for Zadvydas somewhere, there was not yet a definitive showing deportation would be impossible, so his detention can continue without violating the Constitution.

U.S. v. Benitez-Villafuente, Fifth Circuit

In this case the Fifth Circuit reversed the ruling of a district court that a prior expedited removal could not be introduced in a subsequent prosecution for illegal reentry.

In 1997 Benitez was convicted of theft in a Texas state court. Shortly thereafter, the INS took him into custody and began expedited removal proceedings. Expedited removal is a form of deportation that is done entirely by the INS, without any hearing. For the INS to use this procedure, the deportee must sign a waiver of rights, including the right to a hearing before being deported, and the right to appeal the decision. INS agents presented Benitez with such a waiver, which he signed. He was then deported to Mexico.

In 1998, Benitez reentered the U.S. After being arrested on an unknown charge, his immigration status was investigated, and his illegal reentry was revealed. The U.S. then initiated prosecution against him for illegally reentering after deportation.

Before the District Court, Benitez argued that the waiver he signed for the expedited removal was not obtained in a way that comported with procedural due process, and should therefore not be admitted in his trial. The judge agreed with him, finding that because the waiver was not signed before a neutral magistrate, it could not be confirmed that the waiver was knowing and voluntary.

The Fifth Circuit reversed. It found that the expedited removal process did not violate due process, that Benitez was apprised of the grounds for deportation, that he knew his rights, and that there was no evidence his waiver was not voluntary. The court did note that in some circumstances a prior deportation order may be challenged during a trial for illegal reentry. However, these circumstances are almost impossible to prove. First, the deportation proceeding must have been fundamentally unfair. Second, the opportunity for judicial review must have been denied. And third, the alien must have suffered actual prejudice because of these errors. Someone in Benitez’ position will never meet this standard, because a theft conviction makes one deportable as an aggravated felon, and aggravated felons do not have the opportunity to seek discretionary relief from deportation. So because Benitez was deportable, no improper procedures during expedited removal will provide a basis for challenging admission of the prior deportation.

Turkhan v. Perryman, Seventh Circuit

Turkhan, a citizen of Iraq, became a lawful permanent resident in 1979. In 1990, he pled guilty to conspiracy to distribute cocaine. The INS began deportation proceedings against him, claiming his crime was both an aggravated felony and a controlled substance violation, each of which is an independent basis for deportation. In his hearing in 1994, Turkhan conceded deportability, and sought discretionary relief from deportation under section 212(c) of the Immigration and Nationality Act. The Immigration Judge found he was qualified for relief, but after weighing various factors decided a waiver of deportation was not proper

Turkhan appealed to the Board of Immigration Appeals, claiming he had not received effective assistance of counsel during the deportation hearing. The BIA affirmed the IJ. Turkhan then appealed to the Seventh Circuit and made a motion before the BIA to reopen his case. The BIA denied the motion to reopen, finding Turkhan was now statutorily ineligible for a waiver of deportation under section 212(c) because of section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996.

Turkhan appealed this decision to the Seventh Circuit, which combined it with the appeal he had already filed. In this decision, issued in 1997, the Seventh Circuit ruled it did not have jurisdiction to hear the case because of AEDPA section 440(a), which eliminated appeals in certain cases where deportation is based on a criminal offense. In so ruling, the Seventh Circuit noted that Turkhan could bring a habeas corpus action in the district court.

Turkhan did bring a habeas corpus action. The district court found it had jurisdiction to hear the case, but decided the claimed constitutional violation was not serious enough to warrant relief. Turkhan’s appeal of this decision was the basis for the current opinion. The Seventh Circuit, relying on a recent opinion, LaGuerre v. Reno, held that the district courts lack jurisdiction over habeas corpus actions. Ordinarily, this would mean that the Seventh Circuit would dismiss the appeal for lack of jurisdiction. However, because the Seventh Circuit had essentially told Turkhan to seek habeas corpus, the court decided that in this one case, the district court properly heard the case, and that it could properly hear the appeal.

However, because the Seventh Circuit agrees with the Attorney General that AEDPA section 440(d) is retroactive, it denied Turkhan relief. The Seventh Circuit did note that on occasion retroactive application of section 440(d) would be impermissible, if, for example, one conceded deportability as a strategic decision prior to seeking a section 212(c) waiver. However, for this exception to apply, the person must have a colorable defense to deportation, which the Seventh Circuit said Turkhan did not have.

Yakimchuck v. INS, Seventh Circuit

In 1992, Yakimchuck’s mother and sister applied for and were granted admission into the U.S. as refugees. The basis for this was the fact that they, like Yakimchuck and the rest of the family, are Baptists, and subject to persecution in their home of Ukraine. In 1993 Yakimchuck followed his mother and sister to the U.S. on a tourist visa. Following an overstay, the INS began deportation proceedings. Yakimchuck then applied for asylum. Both the Immigration Judge and the Board of Immigration Appeals held Yakimchuck was ineligible for asylum because he neither suffered past persecution nor had a well-founded fear of persecution if made to return to Ukraine.

Yakimchuck’s mother and sister were admitted to the U.S. under the Lautenberg Amendment, which lowered the burden of proof for certain types of refugees, including Evangelical Christians in former Soviet republics. The Lautenberg Amendment applies only to refugees seeking admission to the U.S., and not to those already in the U.S. who are seeking asylum. Because of this, both the Immigration Judge and the Board of Immigration Appeals completely ignored the concerns that motivated the Amendment. They also found relied heavily on a 1995 State Department conditions report on Ukraine.

The Seventh Circuit vacated the Board’s decision, and remanded the case for the Board to consider whether the legislative history of the Lautenberg amendment could be of help in deciding the case. The Court also faulted the IJ and the BIA for relying on the State Department report. First, "there is perennial concern that the Department soft-pedals human rights violations by countries that the United States wants to have good relations with." Second, Congress had reenacted the Lautenberg Amendment every year since 1995, indicating Congress does not share the State Department’s view of religious persecution in the former Soviet Union.

Leyva-Licea v. INS, Ninth Circuit

Leyva-Licea was convicted by an Arizona state court of solicitation to possess marijuana for sale. He was sentenced to six months in prison and three years on probation. The INS initiated deportation proceedings, claiming Leyva-Licea had been convicted of a crime relating to a controlled substance and an aggravated felony.

Before the Immigration Judge Leyva-Licea argued that Arizona’s general solicitation statute was not an offense relating to a controlled substance. The IJ disagreed, and found him deportable for a controlled substance violation. This decision was affirmed by the Board of Immigration Appeals. Neither addressed the aggravated felony charge.

The Ninth Circuit held the general solicitation statute was not an offense relating to a controlled substance. The court then examined whether Leyva-Licea had been convicted of an aggravated felony. In the Immigration and Nationality Act, aggravated felony is defined to include any "drug trafficking crime," which is elsewhere defined in the U.S. Code. The definition of drug trafficking crime does not include solicitation; therefore, the solicitation offense Leyva-Licea was convicted of was not an aggravated felony, and he cannot be deported.

Soueiti v. INS, Ninth Circuit

In this case, the Ninth Circuit ruled that it lacked jurisdiction to review the merits of the case, essentially affirming the ruling of the Board of Immigration Appeals that Soueiti is deportable as an aggravated felon.

Soueiti, a citizen of Lebanon and lawful permanent resident since 1990, pled guilty to one count of bank fraud in January 1997. The guilty plea came after he was charged with many counts of fraud: in the plea agreement he admitted to fraudulently obtaining between $ 500,000 and $ 800,000 from various banks. On appeal, Soueiti argued that he had not been convicted of an aggravated felony and was thus not deportable.

The Immigration and Nationality Act includes as an aggravated felony cases that "involve" fraud in which the victim loses at least $ 10,000. The BIA had interpreted "involve" to mean only that there was a loss of over $ 10,000, and not that the conviction be for fraud concerning at least $ 10,000. The Ninth Circuit agreed with this interpretation, and found that even though the count to which Soueiti pled guilty involved only $ 2,605, it was still an aggravated felony because the underlying offenses had involved more than $ 10,000.

Jurado-Gutierrez v. Greene, Tenth Circuit

In this case, the Tenth Circuit addressed whether recent immigration laws repealed habeas corpus jurisdiction over certain deportation orders, whether section 440(d) of the Antiterrorism and Effective Death Penalty Act (AEDPA) should be applied retroactively, and whether that same section of law violates Equal Protection.

Four cases were consolidated for this opinion. Each of the petitioners is a lawful permanent resident who conceded deportability and sought a discretionary waiver of deportation under section 212(c) of the Immigration and Nationality Act (INA). Both the Immigration Judges and the Board of Immigration Appeals found they were ineligible for section 212(c) relief because AEDPA section 440(d) eliminated that form of relief for certain offenses.

Each petitioner then sought a writ of habeas corpus in the district court. The district courts found section 440(d) properly applied to the petitioners, but also found it violated Equal Protection by eliminating section 212(c) relief for deportable aliens but keeping it for excludable aliens. The government appealed these rulings to the Tenth Circuit.

First, the Tenth Circuit addressed whether the district courts had jurisdiction over the habeas corpus petitions. The government argued that INA section 242(g), added in 1996, removed federal court jurisdiction over such cases. The Tenth Circuit, relying on the recent Supreme Court decision Reno v. American Arab Anti-Discrimination Committee, found this section was not applicable. This section, according to the Supreme Court, removes federal court jurisdiction over only three types of action: commencement of proceedings, adjudication of cases and execution of removal orders. Nor did any other 1996 provision eliminate habeas corpus jurisdiction, so the district courts properly heard the cases.

The court then examined retroactive application of section 440(d). The petitioners argued that it should not apply to any conviction that became final prior to its effective date, April 24, 1996. Unlike many courts that have addressed the same issue, the Tenth Circuit did not give deference to the INS’ interpretation of the temporal reach of the statute, finding such an inquiry was not related to any area of agency expertise.

In analyzing the reach of the statute, the court decided Congress did not express any intent as to whether it should apply retroactively. The issue then became whether it had an impermissible retroactive effect. The court found that while the statute did have a retroactive effect, it was not impermissible. Because discretionary relief is not a substantive right, eliminating it was like merely changing procedures, which has long been accepted. Therefore, retroactive application of section 440(d) is proper.

The Tenth Circuit then examined the Equal Protection argument. Section 440(d) eliminates discretionary relief for deportable aliens, but not those who are excludable. The district courts found this scheme violated Equal Protection by treating similarly situated people differently. The Tenth Circuit disagreed, finding Congress had legitimate reasons to treat the groups differently. Excludable aliens are those who have not yet entered the U.S.; and presumably do not pose the same danger. Also, elimination of section 212(c) relief for those in the U.S. creates an incentive for deportable people to seek voluntary departure, for which they, not the government pays.

Thus, because there are legitimate reasons for the difference in treatment, Equal Protection is not violated. One problem with this analysis, however, is that because of what is known as the "entry fiction" doctrine, many excludable people are physically admitted into the U.S. and would pose the same "danger" in the U.S.

Pottinger v. Reno, District Court for the Eastern District of New York

In this case the court concluded that section 440(d) of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) cannot be applied retroactively to a person who committed the offense for which they are rendered deportable before it was enacted, regardless of when the person is placed in deportation proceedings.

Mr. Pottinger, a citizen of Great Britain and lawful permanent resident of the U.S., has lived in this country since age three. In 1995, at age 16, he pled guilty to the attempted sale of a controlled substance, for which he was sentenced to six months in prison. At the time he entered his guilty plea, long-term permanent residents like him were eligible for discretionary relief from deportation, known as section 212(c) relief. AEDPA section 440(d), passed in April 1996, eliminated section 212(c) relief for those convicted of a variety of offenses, including controlled substance violations. In February 1997, the Attorney General issued an opinion in which she found that section 440(d) should be applied retroactively to all deportation proceedings pending when AEDPA was enacted. This opinion, Matter of Soriano, has been widely criticized and has been rejected by numerous federal courts.

Following Pottinger’s release from prison, he was taken into INS custody. He applied for section 212(c) relief. The Immigration Judge found him ineligible because the application was filed after that form of relief was eliminated by AEDPA. The Board of Immigration Appeals affirmed the decision. Pottinger then filed this petition for a writ of habeas corpus.

After determining that it had jurisdiction to issue the writ, the District Court went on to analyze the issue of whether section 440(d) should be applied retroactively. The US Supreme Court has established a two-step method of analyzing retroactivity. First the court must determine whether Congress stated its intent that the law be applied retroactively. If it has, then the law must be applied retroactively. If Congress has not expressed such an intent, the court must examine whether the law would have a retroactive effect. If the law does operate retroactively, it cannot be enforced absent clear evidence Congress intended the retroactive effect.

Using this framework, the District Court first noted that Congress did not include any language in section 440(d) about whether it would be retroactive. The fact that many sections of AEDPA do contain language providing for retroactive application is strong evidence Congress did not intend section 440(d) to be applied retroactively. This conclusion has been reached by many courts, but with almost as many end results. For example, some courts do not consider 440(d) to be retroactive when applied to someone who was placed in proceedings after it was enacted, even if the conduct occurred before.

This court found that use of section 440(d) to bar someone from relief was impermissible whenever the deportable offence occurred before AEDPA was enacted. According to the court, distinguishing between people on the basis of when the INS began proceedings against them is not proper: the important feature in each case is when the offense occurred.

Edwards v. Blackman, District Court for the Middle District of Pennslyvania

In this case the District Court denied the petitioner’s request for reconsideration of his previously denied petition for a writ of habeas corpus. The basis for the denial was the District Court’s belief that it lacked jurisdiction over Edward’s claim that he was not subject to mandatory detention under section 236(c) of the Immigration and Nationality Act.

Relying on section 242(g) of the Immigration and Nationality Act and the Supreme Court decision of Reno v. Arab American Anti-Discrimination Committee, the District Court found that it did not have the authority to review the detention decision. This provision forbids judicial review of decisions to commence proceedings, adjudicate cases, or execute removal orders. According to this court, the decision to keep a person in mandatory detention without offering a bond determination falls within this class of cases that cannot be reviewed by a federal court.

While this court found its conclusion to be a "straightforward application" of the Arab American case, a close reading of that case indicates that the District Court is arguably mistaken. In its opinion the Supreme Court stressed that section 242(g) did not apply to all decisions made in a removal proceeding, but only to the discrete actions of commencement, adjudication and execution, not to decisions about mandatory detention or bond hearings.

Gete v. INS, District Court for the Western District of Washington

In this case the District Court found the procedures used by the INS in executing vehicle forfeitures denied the people whose vehicles were seized due process.

Since 1989 the Border Patrol has seized almost 1300 cars in Washington State, where the incident giving rise to this case occurred. In this case, the District Court certified for a class action lawsuit the class of people who had their cars seized by the Border Patrol in the INS’ Western Region.

The District Court also issued an order requiring the INS to comply with certain procedures when it seizes vehicles. The court found that prior INS procedures violated the due process rights of people whose cars had been seized. Under these practices, which are still followed in areas outside the Western Region, the INS merely sent a copy of the entire forfeiture statute to the person without indicating which provision was being used in their case. The INS also would not allow the person access to the evidence against them and did not reveal the basis for the final decision.

The District Court’s order requires the INS to provide notice to the owner of a seized vehicle of the law under which the vehicle is to be forfeited, and the acts the INS believes form the basis for the legal violation leading to the forfeiture. The INS must also provide at least a summary of the evidence against the owner before the forfeiture hearing, and following the hearing, must provide a written decision stating the reasons for the decision.

In re A-N and R-M-N-, Board of Immigration Appeals

In this case the board determined the standard required to reopen proceedings to make an asylum application based on changed country conditions following a failure to appear at the initial deportation hearing.

The applicants, natives of Afghanistan, failed to appear at a 1990 deportation hearing. The Immigration Judge issued an order for their deportation. The issue before the Board was whether the applicants had to show a "reasonable cause" for their failure appear at the 1990 hearing. The Board found the reason they gave, reliance on their lawyer to change the location of the hearing, did not establish "reasonable cause" but also found they were not required to make such a showing.

The applicants sought to reopen so they could make an asylum claim based on changed country conditions. In cases such as this, the BIA ruled it will grant the motion to reopen if the applicant shows conditions in their home country have materially changed, and demonstrates a reasonable likelihood of success on the asylum claim.

The Board granted the motion to reopen, finding the evidence presented was likely to result in a grant of asylum. Both applicants, while citizens of Afghanistan, are now long-term residents of the US and have adopted many aspects of American culture. Both are Islamic, but do not practice their religion in accordance with the rules issued by the Taliban, the fundamentalist Islamic group currently in control of Afghanistan. According to reports from both Amnesty International and the US Department of State, conditions in Afghanistan for those who do not practice Islam as the Taliban directs are dangerous. Therefore, the motion to reopen was granted for consideration of the asylum applications.

In re Kanagasundram, Board of Immigration Appeals

In this case the Board was faced with the application of expedited removal procedures to someone who entered under the Visa Waiver Pilot Program (VWPP).

The respondent sought admission to the U.S. with a passport from the Netherlands. He eventually acknowledged that it was not his passport, and then sought asylum. The INS gave him an interview to determine whether he had a credible fear of persecution. They then issued him a Notice to Appear, charging him with inadmissibility.

The INS sought to proceed under expedited removal provisions. However, the expedited removal provisions do not apply to those who enter under the VWPP. The same goal may be accomplished – removal – but it must be done with different forms. The INS argued the way they had proceeded was sufficient because Kanagasundram was not eligible under the VWPP. This argument was rejected by the BIA because regulations make it clear that all rules pertaining to the VWPP apply regardless of whether the person seeking admission is actually admissible under the program.

Ironically, the INS was thwarted because it used the wrong form. The agency usually fails to be so understanding when an immigrant makes a similar error.

In re Cordova, Board of Immigration Appeals

In this case, the Board revisited the subject of a recent opinion regarding the concept of voluntary departure. In particular, this case dealt with when the person seeking voluntary departure must establish good moral character.

Cordova was placed in removal proceedings in March 1998. He conceded removability, and sought both cancellation of removal and voluntary departure. It was quickly established that he was not eligible for cancellation because of a criminal conviction. Immediately after this, the Immigration Judge decided Cordova was not eligible for voluntary departure, because he could not establish good moral character. On appeal, Cordova argued that a showing of good moral character was not necessary for the type of voluntary departure he sought.

Cordova sought voluntary departure under section 240B(a) of the Immigration and Nationality Act. Section 240B(a) allows for voluntary departure without a showing of good moral character if the request is made at or before the "master calendar hearing" at which the case is scheduled for a hearing on the merits. Another requirement is that the alien withdraw all other requests for relief.

According to the BIA, Cordova meets both of these requirements. First, the hearing at which he made his request for voluntary departure was his first hearing. Therefore, the request was made before the case was scheduled for a hearing on the merits. Second, the IJ erred in considering Cordova’s request for cancellation; according to the BIA, Cordova clearly abandoned this request. The BIA returned the case to the IJ for an order of voluntary departure to be issued.

In re L-V-K, Board of Immigration Appeals

The respondent, a citizen of Bulgaria, came to the U.S. in 1991 on a tourist visa. Shortly thereafter she sought asylum and withholding of deportation. The INS denied both applications and ordered her to appear for a deportation hearing. At this hearing she withdrew her requests for asylum and withholding, and gave up the right to appeal, so that she could obtain voluntary departure. About one year later, she filed a motion to reopen her case before the immigration judge, claiming changed circumstances in Bulgaria now supported her asylum claim.

The Immigration Judge denied the motion to reopen, and the respondent appealed to the Board. She also filed a motion to remand to the Immigration Judge because she was now the beneficiary of an employment-based immigrant petition. The Board dismissed the appeal and denied the motion to remand because she had failed to submit an application for adjustment of status with the motion to remand, as is required by INS regulations. The respondent then filed this appeal of the denial of the motion to remand.

On appeal the Board ruled that it lacked jurisdiction to even deny the motion to remand, because it was essentially a motion to reopen, which must be filed within 90 days of the final administrative decision. In this case, the order became final when she accepted voluntary departure; therefore, the Board was without the authority to hear the motion to remand.

In re (name withheld), Board of Immigration Appeals

In this unpublished decision, the Board reversed the holding of an Immigration Judge that someone sentenced to two three-year terms in prison was ineligible for withholding of deportation. The respondent was convicted and sentenced to two terms in prison, each of three years, to run at the same time. The Immigration Judge found this to be evidence that the respondent had committed a "particularly serious crime," since he was sentenced to a total of more than five years in prison. The Board reversed, finding that sentences meant to run concurrently could not be stacked to create a term of five or more years. Therefore, the case was remanded for the IJ to decide whether the conviction was of a particularly serious crime by examining the circumstances of the offense.

In re Correa de la Cruz, Board of Immigration Appeals

In another unpublished opinion, the Board found a conviction by a California state court of burglary with a sentence of four years was not a burglary or theft offence within the meaning of the Immigration and Naturalization Act. The statute under which Correa was convicted is divisible, that is, it covers crimes that are deportable offenses as well as those that are not. During the deportation proceedings, the INS never presented evidence related to the offense, but just relied on the conviction. Because Correa was not convicted of an aggravated felony, he is not deportable, and the Board ordered the deportation proceedings to be terminated.

Andrade v. Alaska, Superior Court for the State of Alaska

In this case the court ruled that an Alaska law excluding immigrants from receiving state permanent fund dividends was unconstitutional.

Permanent fund dividends are given to residents of Alaska who intend to make the state their permanent home. The money comes from the state’s revenues from oil and gas production. The law at issue in this case prevented many immigrants from receiving such funds on the grounds that their immigrant status made it impossible for them to have the requisite intent to remain in Alaska permanently. The Superior Court found the law violated the US Constitution in two ways.

First, only the federal government can determine whether a particular class of immigrants can remain in the US indefinitely. Because of the Supremacy Clause of the Constitution, which makes federal law controlling and state laws that conflict with federal laws unenforceable, a state cannot make the decision whether an immigrant intends to remain in the US.

Second, the Alaska law violates the Equal Protection Clause. While Congress has near unlimited power in dealing with immigration and immigrants, state laws that classify people based on their immigration status are subject to strict scrutiny. Under this standard of review, the state must present a compelling reason for the law, and must show that the law is necessary to accomplish the purpose behind the law. The Superior Court found the state could not advance a compelling reason for the law, rendering it unconstitutional as a violation of equal protection.

Felix v. Wyoming, Supreme Court of Wyoming

In this case the Supreme Court of Wyoming ruled that an immigrant working without authorization was not an "employee" and could not qualify for workers’ compensation benefits.

Felix was hired in 1997 to operate a potato "seed cutter." Shortly after beginning work, his arm was injured while operating the cutter. He and his employer filed a claim with the workers’ compensation board. The board denied the request for compensation, finding Felix was not an employee as required by Wyoming workers’ compensation law.

The Wyoming Supreme Court examined the definition of "employee" found in the state’s workers’ compensation law, and found Felix was not an employee. The definition of employee found in Wyoming law includes "aliens authorized to work by the . . . INS." The law lists some classes of persons who cannot be employees, but this list does not include immigrants who work without employment authorization. The Wyoming Supreme Court found that to read the definition of employee to cover Felix would render the language specifically including aliens with employment authorization meaningless.

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