Armendariz-Montoya v. Sonchik, Ninth Circuit
In this case, the court
Hugo Armendariz-Montoya, a citizen of Mexico, became a permanent resident of the US in 1978, when he was eight years old. In 1995, he was convicted of possession of cocaine with intent to distribute, and was sentenced to five years and eight months in prison. The INS issued an order notifying Armendariz that it was beginning deportation proceedings, but did not file it with the Immigration Court until December 1996. In 1997, the deportation hearings were held. Armendariz conceded deportability, but sought a waiver. The immigration judge concluded that he was not eligible for the waiver, and the Board of Immigration Appeals affirmed.
In 2000, Armendariz filed a petition for a writ of habeas corpus. The petition was granted, and the INS appealed. On appeal, the issue was whether a section of the Antiterrorism and Effective Death Penalty Act of 1996 applied to the proceedings. This section made people convicted of certain offenses ineligible for waivers of deportation. Whehter the section applies, the court noted, depends on when the proceedings against Armendariz were begun. The Ninth Circuit had previously ruled that proceedings begin when the notice of deportation proceedings is filed with the immigration court. Armendariz argued that this ruling should not apply to him, because it dealt with a case under the Illegal Immigration Reform and Immigrant Responsibility Act. The court did not find this distinction persuasive, and ruled that proceedings began when the INS filed the notice with the immigration court.
The court then addressed whether applying the AEDPA section to Armendariz, who had been convicted before it became effective, was impermissibly retroactive. Thise provision has been subject to much litigation from people who pled guilty in hopes that it would improve their chances of obtaining a waiver. In these cases, most courts rule that the section is impermissibly retroactive. However, because Armendariz pled not guilty and was convicted after a jury trial, the court found that application of the section was not impermissibly retroactive. Therefore, the court upheld the order of deportation and the finding that Armendariz was ineligible to apply for a waiver.
The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/0116029p.pdf.
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In re Romalez-Alciade, Board of Immigration Appeals
In this case, the Board
Hilario Romalez-Alciade, a citizen of Mexico, first entered the US in 1984. In both 1993 and 1994, he left the US under threat of deprotation. In each case, he remained in Mexico for a couple of days, and then reentered the US. In 1997, he was formally placed in deportation proceedings, charged with unlawfully entering the US. Romalez conceeded deportability, but sought cancellation of removal. To be eligible for cancellation, the person must have resided in the US for 10 continuous years. The immigration judge found that Romalez did not meet this requirement because of his departures in 1993 and 1994. Romalez appealed.
The cancellation statute contains a number of rules on the calcuation of physical presence. Absenses of less than 90 days, totally less than 180 days, will not break the period of continuous physical presence. The board found that this statute did not act to forgive all departures from the US, and that it was written to say that breaks of more than 90 days or a total of more than 180 days would automatically terminate continuous physical presence, not that this was the only way in which physical presence could be broken. It does not address the situation in which Romalez departed the US – after being arrested by Border Patrol agents and told he would be placed in deportation proceedings.
The Board noted that in cases brought under the Nicaraguan Adjustment and Central American Relief Act, which has a similar cancellation provision and physical presence requirement, leaving the US while under the threat of deportation is deemed to break continuous presence. Before the changes to immigration law made in 1996, departing the US under threat of deportation was treated the same as a departure under a deportation order, and would break physical presence. Based on theses factors, the Board found that Romalez’ departures in 1993 and 1994 terminated his continuous physical presence, making him ineligible for cancellation of removal.
The opinion is avialable online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3475.pdf.
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In re Small, Board of Immigration Appeals
In this case, the Board
The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3476.pdf.
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