Cardenas v. INS, Ninth Circuit
In this case, the court reversed the decision that the applicants were not eligible for asylum because they could possibly relocate to a safe area within their home country.
The Cardenases, a husband and wife and three children, who are natives of Peru, applied for asylum in the US, claiming that they faced persecution from the Shining Path, a violent revolutionary organization. Mr. Cardenas was employed by a shipping company, and facing threats from Shining Path, he supplied them with the supplies and medicines. Later, he was asked to transport explosives for the group. While he agreed to, he did not, instead leaving Peru for the US for two months. When he returned, he received several death threats, and his family left Lima. After six months, they returned to Lima where they again received death threats. They then fled to the US. An Immigration Judge denied the asylum application, finding that the family could move to places within Peru where they would not be targeted by the Shining Path, and the Board of Immigration Appeals affirmed. They then appealed to the Ninth Circuit.
The Ninth Circuit found that there was not evidence to support the conclusion that the family would not face persecution outside of Lima. In one of the threats, the Shining Path said they would get to him regardless of where he lived. This, combined with the other threats, the court found, mandated a finding of a reasonable fear of persecution. The court also rejected reliance on the State Department Country Condition Report on Peru, which the INS argued showed that the family could safely relocate in Peru. According to the court, the report indicated only that it was possible for some people to find temporary safety through relocation.
Finding that a well-founded fear of persecution had been established, the court remanded the case for asylum to be granted.
The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/0170557p.pdf.
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In re Santos-Lopez, Board of Immigration Appeals
In this case, the Board ruled that if a drug offense is considered a misdemeanor by the state of conviction, it cannot be an aggravated felony for deportation purposes.
Walter Antonio Santos-Lopez, a citizen of El Salvador and permanent resident of the US, was placed in deportation proceedings on the basis of two state court convictions for marijuana possession. An Immigration Judge ruled that these convictions were drug trafficking crimes and therefore aggravated felonies for which there was no relief from deportation. Santos appealed to the Board.
In analyzing whether a state drug offense is a drug trafficking crime, the Board looks to decisions by the federal appeals court with jurisdiction over the state. In this case, that is the Fifth Circuit. The Fifth Circuit holds that an offense is a drug trafficking crime if it is punishable under federal law and is a felony under either state or federal law. The convictions at issue could both have been obtained under federal law, but the state treated them as misdemeanors. Therefore, Santos was automatically ineligible for relief from deportation, and the case was remanded for further proceedings.
The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3474.pdf.
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In re Small, Board of Immigration Appeals
In this case, the Board
Anderson David Justin Small, a citizen of Trinidad and Tobago and permanent resident of the US, was convicted in 2000 of sexual abuse of a minor in New York. He was sentenced to one year in prison. Under state law, the offense was a misdemeanor. The INS placed Small in deportation proceedings, arguing that the offense was an aggravated felony. Disagreeing with this, an Immigration Judge terminated the proceedings. The INS appealed to the Board.
In 2001, the Board issued a decision in which it ruled that state misdemeanor sexual abuse offenses were not aggravated felonies. However, this decision was later withdrawn after the Board learned that the alien had left the US before the decision was issued. Therefore, this case was heard completely anew.
Noting that since its previous opinion, a number of appellate courts have ruled on similar issues, generally finding that state law misdemeanors can be aggravated felonies, the Board decided to adopt this position. Therefore, the case was remanded for further proceedings.
The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3476.pdf.
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