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U.S. Supreme Court rules 5 to 4 that Immigration and Naturalization Act must be construed to allow alien opportunity to withdraw motion for voluntary departure, provided alien makes request before expiration of departure period
Petitioner Samson Taiwo Dada (Petitioner), native and citizen of Nigeria, came to the U.S. in April 1998 on a temporary nonimmigrant visa. He overstayed it. Petitioner claims that he married an American citizen in 1999. His wife filed an I 130 Petition for Alien Relative on his behalf. She failed to produce the required documentary evidence in support, however, so immigration authorities denied his petition in February 2003.
In 2004, the Department of Homeland Security (DHS) charged Petitioner with being removable under the Immigration and Nationality Act (INA) [66 Stat. 201, as amended, 8 U.S.C. Section 1227(a)(1)(B) (2000 ed., Supp. V)] for overstaying his visa. Petitioner’s wife then filed a second I 130 petition. The Immigration Judge (IJ) denied Petitioner’s request for a continuance pending adjudication of the newly filed I 130 petition, pointing out that those petitions take an average of about three years to process. The IJ found Petitioner removable but granted his request for voluntary departure under the INA.
The Board of Immigration Appeals (BIA) affirmed on November 4, 2005, without a written opinion. It ordered Petitioner to depart within 30 days or suffer certain statutory penalties. These involved a civil fine of not less than $1,000 nor more than $5,000, and ineligibility for relief under the INA for 10 years.
On December 2, 2005, two days before the 30 day period ran out, Petitioner asked to withdraw his request for voluntary departure. At the same time he filed with the BIA a motion to reopen removal proceedings under the INA. He argued that his motion recited new and material evidence showing a bona fide marriage and that the IJ should continue his case until the decision on the second I 130 petition.
After the voluntary departure period had ended, the BIA denied the request. It reasoned that the statute bars an alien on the voluntary departure track who fails to leave the U.S. in a timely fashion from receiving adjustment of status. It did not consider Petitioner’s request to withdraw his voluntary departure request. The Fifth Circuit affirmed. On a grant of certiorari, a bare majority of the Supreme Court reverses and remands. It rules that the statute must allow an alien a chance to withdraw a motion for voluntary departure, provided he or she makes the request before the departure period has run out.
Resolution of this case turns on the interplay between two aspects of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 “� [1] the alien’s right to file a motion to reopen in removal proceedings and [2] the rules governing voluntary departure. Voluntary departure is discretionary relief that allows certain favored aliens to leave the country willingly.
First, it helps the Government, for example, by speeding up the departure process and avoiding the expense of deportation proceedings. It also benefits the alien by, e.g., facilitating readmission. To earn these benefits, the alien must depart in a timely manner. As relevant here, when the alien asks for a voluntary departure at the end of removal proceedings, the departure period may not last longer than 60 days.
The INA allows an alien to file one motion to reopen, such as by asking the BIA to change its decision because of newly discovered evidence or changed circumstances. The alien must generally file his/her motion within 90 days of a final administrative removal order. The statutory text plainly guarantees to each alien the right to file one motion to reopen proceedings under this section.
Section 1229c(b)(2) clearly states that the voluntary departure period shall not be valid for more than “60 days,”� but says nothing about the motion to reopen; and nothing in the statutes or past usage indicates that voluntary departure or motions to reopen cannot coexist. The Government contends that an alien who has agreed to voluntarily depart is not entitled to pursue a motion to reopen; this argument is unsustainable. Reading the Act as a whole, and considering the statutory scheme governing voluntary departure alongside the statutory right to pursue “one motion to reopen,”� it would render the statutory reopening right a nullity in most voluntary departure cases. This is because it is foreseeable, and quite likely, that the voluntary departure time will expire long before the BIA decides a timely filed motion to reopen.
“Absent tolling or some other remedial action by the Court, then, the alien who is granted voluntary departure but whose circumstances have changed in a manner cognizable by a motion to reopen is between Scylla and Charybdis: He or she can leave the United States in accordance with the voluntary departure order; but, pursuant to regulation, the motion to reopen will be deemed withdrawn. Alternatively, if the alien wishes to pursue reopening and remains in the U.S. to do so, he or she risks expiration of the statutory period and ineligibility for adjustment of status, the underlying relief sought.”�
“The purpose of a motion to reopen is to ensure a proper and lawful disposition. We must be reluctant to assume that the voluntary departure statute was designed to remove this important safeguard for the distinct class of deportable aliens most favored by the same law. … This is particularly so when the plain text of the statute reveals no such limitation. See Costello v. INS, 376 U.S. 120, 127 128 (1964) (counseling long hesitation “�before adopting a construction of [the statute] which would, with respect to an entire class of aliens, completely nullify a procedure so intrinsic a part of the legislative scheme’); see also Stone v. INS, 514 U.S. 386, 399 (1995) (“�Congress might not have wished to impose on the alien’ the difficult choice created by treating a motion to reopen as rendering the underlying order nonfinal for purposes of judicial review); INS v. St. Cyr, 533 U.S. 289, 320 (2001) (recognizing the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien “� (quoting INS v. Cardoza Fonseca, 480 U.S. 421, 449 (1987)).”�
It is thus necessary to read the Act to preserve the alien’s right to pursue reopening while respecting the Government’s interest in the voluntary departure arrangement’s quid pro quo. There is no statutory authority for Petitioner’s proposal to automatically toll the voluntary departure period during the motion to reopen’s pendency.
Voluntary departure is an agreed upon exchange of benefits, much like a settlement agreement. An alien who is permitted to stay past the departure date to wait out the motion to reopen’s adjudication cannot then demand the full benefits of voluntary departure, for the Government’s benefit “� a prompt and costless departure “� would be lost. It would also invite abuse by aliens who wish to stay in the country but whose cases are unlikely to be reopened.
Absent a valid regulation otherwise, the appropriate way to reconcile the voluntary departure and motion to reopen provisions is to allow an alien to withdraw from the voluntary departure agreement. The Department of Justice, which has authority to adopt the relevant regulations, has made a preliminary determination that the Act permits an alien to withdraw a voluntary departure application before expiration of the departure period. Although not binding in the present case, this proposed interpretation “warrants respectful consideration.”� Wisconsin Dept. of Health and Family Servs. v. Blumer, 534 U.S. 473, 497. To safeguard the right to pursue a motion to reopen for voluntary departure recipients, the alien must be permitted to withdraw, unilaterally, a voluntary departure request before the departure period expires, without regard to the motion to reopen the underlying merits.
The alien has the option either to abide by the voluntary departure’s terms, and receive its agreed upon benefits; or, alternatively, to forgo those benefits and remain in the country to pursue an administrative motion. An alien selecting the latter option gives up the possibility of readmission and becomes subject to the IJ’s alternative order of removal. The DHS may remove the alien within 90 days, even if the agency hasn’t yet adjudicated the motion to reopen. But the alien may move for a stay of the removal order.
Although the BIA has discretion to deny a motion for a stay based on the merits of the motion to reopen, it may amount to an abuse of discretion for the BIA to deny a motion for stay where the motion sets forth nonfrivolous grounds for reopening. Of course, this interpretation still presents the alien with a hard choice but it does escape both the quixotic results of the Government’s proposal and the elimination of benefits to the Government that would follow from Petitioner’s tolling rule.
Citation: Dada v. Mukasey, 128 S. Ct. 2307, 6 U.S. L. W. 4461 (Sup. Ct. June 16, 2008).
Filed in: 2008 International Law Update, Issue6
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U.S. Supreme Court affirms deportation order under IIRIRA over objections that Petitioner’s illegal re-entry of U. S. took place before effective date of statute
For a substantial period of time, U. S. Immigration law has provided that the Immigration & Naturalization Service (INS) may revive an order for removing an alien present unlawfully if he leaves the U. S. and unlawfully reenters. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the Immigration and Nationality Act (INA) to expand the class of illegal re-entrants whose orders may be reinstated and to restrict the range of relief available from a removal order.
In 1982, Humberto Fernandez-Vargas (Petitioner), a Mexican citizen, unlawfully came back into the United States after having been deported. Undiscovered for over two decades spent in Utah, Petitioner fathered a son in 1989 and, two years later, married the boy’s mother, a U.S. citizen. He also started a trucking business. After Petitioner applied to change his status to that of a lawful permanent resident, the Government had his 1981 deportation order reinstated under Section 241(a)(5).
Petitioner then asked the Tenth Circuit to review the reinstatement order. To that Court, he argued, first, that Section 241(a)(5) did not preclude his application for adjustment of status because he had unlawfully reentered the country before IIRIRA’s effective date. Moreover, he urged that Section 241(a)(5) would be unacceptably retroactive if construed to bar his adjustment application.
The Court of Appeals, however, ruled that Section 241(a)(5) did defeat his application and relied on Landgraf v. USI Film Products, 511 U.S. 244 ( 1994) in deciding that IIRIRA had no impermissibly retroactive effect in his case.
The U.S. Supreme Court granted certiorari to resolve a split among the Circuits over whether to apply Section 241(a)(5) to an alien who reentered illegally before IIRIRA’s effective date. On June 22, 2006, the Court affirms in an 8 to 1 split. It holds (1) that Section 241(a)(5) does apply to those who reentered the U. S. before IIRIRA’s effective date and (2) that this reading does not retroactively impair any right of, or place any onus on, the Petitioner, the continuing INA transgressor before the Court.
The Majority opinion then outlines the Court’s general approach to retroactivity of statutes. “Statutes are disfavored as retroactive when their application ‘would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.’ Landgraf, supra, at 280. The modern law thus follows Justice Story’s definition of a retroactive statute, as ‘tak[ing] away or impair[ing] vested rights acquired under existing laws, or creat[ing] a new obligation, impos[ing] a new duty, or attach[ing] a new disability, in respect to transactions or considerations already past,’ Society for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CCNH 1814).
“Accordingly, it has become ‘a rule of general application’ that ‘a statute shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication.’ United States v. St. Louis, S. F. & T. R. Co., 270 U.S. 1, 3 (1926) (opinion for the Court by Brandeis, J.).” [Slip op. 5]
“Needless to say, Congress did not complement the new version of Section 241(a)(5) with any clause expressly dealing with individuals who illegally reentered the country before IIRIRA’s April 1, 1997, effective date, either including them within Section 241(a)(5)’s ambit or excluding them from it.”
“[Petitioner] argues instead on the basis of the generally available interpretive rule of negative implication, when he draws attention to language governing temporal reach contained in the old reinstatement provision, but missing from the current one. Section 242(f) applied to ‘any alien [who] has unlawfully reentered the United States after having previously departed or been deported pursuant to an order of deportation, whether before or after June 27, 1952, on any ground described in … subsection (e).’ 8 U.S.C. Section 1252(f) (1994 ed.).”
“According to [Petitioner], since that before-or-after clause made it clear that the statute applied to aliens who reentered before the enactment date of the earlier version, its elimination in the current iteration shows that Congress no longer meant to cover pre-enactment re-entrants. [Cite]. But the clues are not that simple.”
“If, moreover, we indulged any suggestion that omitting the clause showed an intent to apply Section 241(a)(5) only to deportations or departures after IIRIRA’s effective date, the result would be a very strange one: it would exempt from the new reinstatement provision’s coverage anyone who departed before IIRIRA’s effective date but reentered after it.”
“The point of the statute’s revision, however, was obviously to expand the scope of the reinstatement authority and invest it with something closer to finality, and it would make no sense to infer that Congress meant to except the broad class of persons who had departed before the time of enactment but who might return illegally at some point in the future.” [Slip op. 6]
“This facial reading is confirmed by two features of IIRIRA, not previously discussed, that describe the conduct to which Section 241(a)(5) applies, and show that the application suffers from no retroactivity in denying [Petitioner] the opportunity for adjustment of status as the spouse of a citizen of the United States.”
“One is in the text of that provision itself, showing that it applies to [Petitioner] today not because he reentered in 1982 or at any other particular time, but because he chose to remain after the new statute became effective. The second is the provision setting IIRIRA’s effective date, Section 309(a), 110 Stat. 3009-625, which shows that [Petitioner] had an ample warning of the coming change in the law, but chose to remain until the old regime expired and Section 241(a)(5) took its place.” [Slip op. 8]
“That in itself is enough to explain that [Petitioner] has no retroactivity claim based on a new disability consequent to a completed act, but in fact his position is weaker still. For [Petitioner] could not only have chosen to end his continuing violation and his exposure to the less favorable law, he even had an ample warning that the new law could be applied to him and ample opportunity to avoid that very possibility by leaving the country and ending his violation in the period between enactment of Section 241(a)(5) and its effective date. IRRIRA became law on September 30, 1996, but it became effective and enforceable only on ‘the first day of the first month beginning more than 180 days after’ IIRIRA’s enactment, that is, April 1, 1997. Section 309(a), 110 Stat. 3009-625.”
“Unlawful alien re-entrants like [Petitioner] thus had the advantage of a grace period between the unequivocal warning that a tougher removal regime lay ahead and actual imposition of the less opportune terms of the new law. In that stretch of six months, Fernandez-Vargas could have ended his illegal presence and potential exposure to the coming law by crossing back into Mexico.”
“For that matter, he could have married the mother of his son and applied for adjustment of status during that period, in which case he would at least have had a claim (about which we express no opinion) that proven reliance on the old law should be honored by applying the presumption against retroactivity.”
“[Petitioner] did not, however, take advantage of the statutory warning, but augmented his past 15 years of unlawful presence by remaining in the country into the future subject to the new law, whose applicability thus turned, not on the completed act of reentry, but on a failure to take timely action that would have avoided application of the new law altogether.”
“To be sure, a choice to avoid the new law before its effective date or to end the continuing violation thereafter would have come at a high personal price, for [Petitioner] would have had to leave a business and a family he had established during his illegal residence. But the branch of retroactivity law that concerns us here is meant to avoid new burdens imposed on completed acts, not all difficult choices occasioned by new law.”
“What [Petitioner] complains of is the application of new law to continuously illegal action within his control both before and after the new law took effect. He claims a right to continue illegal conduct indefinitely under the terms on which it began, an entitlement of legal stasis for those whose lawbreaking is continuous. But ‘[i]f every time a man relied on existing law in arranging his affairs, he were made secure against any change in legal rules, the whole body of our law would be ossified forever.’ L. Fuller, The Morality of Law 60 (1964)…” [Slip op. 9].
Citation: Fernandez-Vargas v. Gonzales, 2006 WL 1698970 ( Sup. Ct. June 22).
Filed in: 2006 International Law Update, Issue6
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Ninth Circuit rejects defendant’s challenge to border search conducted pursuant to suspicion that defendant was violating U. S. immigration laws by escorting illegal aliens from Korea to Hawaii on false passports
On October 19, 1999, the U.S. Immigration and Naturalization Service (INS) detained two individuals trying to board a flight to Honolulu from Guam International Airport when they were unable to answer an INS officer’s questions. Upon review, the officer discovered that their Taiwanese passports were photo substitutions, and that their legal names were He and Chen.
Further investigation turned up the fact that the two had stayed at a Guam hotel that was paid for by the credit card of one His Huei Tsai. Arrival flight records showed that Tsai was a passenger not only on the flight He and Chen were trying to board, but also on the flight He and Chen had taken to Guam. No other passenger was present for both flights. The INS inferred that the three had been traveling together and that Tsai was aiding and abetting He and Chen in their effort to enter the U.S. illegally.
Upon the flight’s arrival at Honolulu airport, an INS officer stopped Tsai as he deplaned. A search of Tsai’s valise turned up an airline ticket jacket with the names “Cheng Wen Ping” and “Chang Ching Hsueh” inside: the names that appeared on the fraudulent passports of He and Chen. Interrogation of Chen revealed a collaborative alien smuggling plot in which Tsai and a female escort, using the name “Jessica Huang,” had initiated a three-legged journey for He and Chen. First, the aliens flew from Saipan to Seoul with Ms. Huang, using the corporate credit card of a company called “La Marie Co., Ltd.” Tsai’s wife ran this company, using her husband’s address in the State of Georgia as its business address. The aliens stayed in a Korean motel room for several weeks, until Tsai appeared to escort them to Guam. The final leg of the journey was to consist of the flight from Guam to Honolulu.
Authorities also found airline vouchers for a Yee Khong Lim and Gaik Choo Tan in Tsai’s carry-on luggage at Honolulu airport. From Tsai’s credit card statements, and Chen’s testimony, the INS concluded that Tsai had escorted Lim and Tam from Saipan to Honolulu one month earlier, in exactly the same fashion as he had done with He and Chen. Further investigation uncovered a similar plot that enabled a fifth alien to travel to Atlanta on a stolen South Korean passport, using the name Ji Yeong Yun.
The Guam district court found Tsai guilty on three counts of escorting unauthorized aliens into the United States for financial gain in violation of 8 U.S.C. Section 1324(a)(2). Tsai appealed, alleging, inter alia, that the INS search of Tsai’s effects at the Honolulu airport was unlawful. He argued that the INS inspector knew that the government suspected Tsai of criminal activity in Guam, and therefore he had improperly conducted the search for a specific investigative purpose.
The U.S. Court of Appeals for the Ninth Circuit affirms. The Court views the Honolulu airport as the “functional equivalent” of a land-border, with respect to searches of international air travelers. The INS search of Tsai was only minimally intrusive, since it probed no further than his valise and carry-on luggage.
When the law requires a search warrant, its scope applies in a broad and general manner. When the law removes the need for a search warrant, e.g., for border searches, it rescinds it in an equally broad manner. The Court is unwilling to conclude that the customary, non-invasive, warrantless search endured by Tsai would be permissible for every other passenger excepting those under suspicion by the INS of taking part in criminal activity. The searching officer had reasonable cause to suspect that Tsai was aiding and abetting aliens in their attempts to penetrate the borders of the U.S. illegally. He also had grounds to believe that Tsai had thereby rendered himself ineligible to enter the U.S.
Citation: United States v. Tsai, 2002 WL 338230 (9th Cir. March 5, 2002).
Filed in: 2002 International Law Update, Issue 3
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In 5-to-4 vote, U.S. Supreme Court develops procedural framework for meeting due process standards with respect to removable aliens held in custody where government is having difficulty in finding nations willing to accept them
When an alien who enters the U.S. but no longer has the legal right to remain, the Immigration and Naturalization Service (INS) institutes removal proceedings. Under the statutes, the INS may hold the alien in custody for a ninety-day removal period. If the INS has been unable to make adequate arrangements for the alien within that period, the statute authorizes further detention or supervised release which is open to administrative review.
Kestutis Zadvydas is a resident alien. He was born in a German displaced persons camp, seemingly of Lithuanian parents. Because of his criminal record, U.S. authorities ordered his deportation. Unfortunately, neither Germany nor Lithuania was willing to take Zadvydas because he could not show that he was a citizen of either nation. The INS was also unsuccessful in trying to send him to the Dominican Republic, his wife’s native country.
After the ninety-day period had run out and Zadvydas was still in custody, he petitioned for a writ of habeas corpus under 28 U.S.C. Section 2241. The district court issued the writ. It held that the government would never be able to remove Zadvydas, thus making his loss of freedom unconstitutionally permanent. The Fifth Circuit, however, reversed, reasoning that Zadvydas’ detention did not contravene the Constitution, eventual deportation was not impossible, the government was still making good faith efforts to remove him and there was administrative review of his detention.
Kim Ho Ma (Ma), born in Cambodia, is a resident alien to be removed based on an aggravated felony conviction. Finding himself still in custody after the ninety-day period had run out, Ma successfully sued out a habeas writ. The court reasoned that post-removal-period detention violated the Constitution unless there is a realistic chance of actual removal. That did not exist for Ma because Cambodia lacked a repatriation treaty with the U.S. The Ninth Circuit affirmed. It allowed for a reasonable period of detention beyond ninety days but held that the lack of a repatriation treaty had caused that period to run out. The U.S. Supreme granted certiorari and then vacates and remands in a 5-to-4 vote.
First, the Court affirms that statutory changes in the immigration laws did not purport to affect Section 2241 habeas proceedings. They continue to remain available to obtain judicial review of the legality of petitioners’ detentions, whatever limitations the immigration laws may seem to impose.
In light of constitutional mandates, the courts have to see a reasonable time limit as implicit in the removal setting rather then recognize the possibility of indefinite detention. The present proceedings are not criminal and punitive but civil in nature. The government has produced no justification strong enough to support indefinite civil detention under the INS statutes.
The government developed two justifications for continued detention: (1) prevention of flight; and (2) protection of the community. The first falls short where removal seems a remote possibility. The courts have upheld the second ground of preventive detention only where some special factor such as mental illness combines with dangerousness. Here, the aliens’ removal status has no connection to dangerousness. Moreover, the limited availability of administrative review where the alien must show that he or she is not dangerous coupled with the government’s theory that no judicial review is available raises serious constitutional concerns.
Once an alien enters the U.S., he triggers Due Process Clause protections whether his or her presence is lawful or unlawful, permanent or temporary. Congress’ plenary power over immigration law does not require the courts to ignore its constitutional limits. An alien’s liberty interest is powerful enough to create major constitutional difficulties with indefinite detention. Congress might have saved the day by clearly and intentionally give the Attorney General the power to detain indefinitely an alien ordered to be removed but the majority is unable to find any such indication in the legislative history or in similar related statutes.
The federal habeas statutes grant the federal courts the power not only to decide whether detention after the ninety-day period complies with statute but also to rule on whether the detention is vital to make sure the alien is available at the time of removal. With no prospect of removal, the courts should find further detention unreasonable.
If removal is foreseeable, dangerousness remains relevant to the reasonableness of continued confinement. Other factors include the Executive Branch’s greater expertise on immigration matters, the administrative needs and concerns of the INS and the Nation’s need to speak with one voice on immigration.
In the majority’s view, practicality suggests judicial recognition of a presumptively reasonable detention period. Congress probably did not expect that every single removal could take place within ninety days nor would it likely have deemed a detention period of more than six months to square with the Constitution. For the sake of uniformity, the Court then decides that six months is a proper presumptive period. When the six months have expired and a detained alien proves there is no meaningful probability of removal in the rationally foreseeable future, the government must come up with enough evidence to rebut that showing.
“The Fifth Circuit held Zadvydas’ continued detention lawful as long as ‘good faith efforts to effectuate … deportation continue’ and Zadvydas failed to show that deportation will prove ‘impossible.’ (Cit.) But this standard would seem to require an alien seeking release to show the absence of any prospect of removal no matter how unlikely or unforeseeable which demands more than our reading of the statute can bear. The Ninth Circuit held that the Government was required to release Ma from detention because there was no reasonable likelihood of his removal in the foreseeable future. (Cit.) But its conclusion may have rested solely upon the ‘absence’ of an ‘extant or pending’ repatriation agreement without giving due weight to the likelihood of successful future negotiations. (Cit.) Consequently, we vacate the decisions below and remand both cases for further proceedings consistent with this opinion.” [2505]
Citation: Zadvydas v. Davis, 121 S.Ct. 2491, 150 L.Ed.2d 653 (June 28, 2001).
Filed in: 2001 International Law Update, Issue8
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Eleventh Circuit holds that, under Chevron doctrine, Immigration and Naturalization Service did not abuse its discretion in dismissing asylum application by six-year-old Cuban boy made against wishes of Cuban parent
In Cuba, plaintiff Elian Gonzalez was born in December 1993 to Juan Miguel and Elizabeth Gonzalez who separated when plaintiff was three. Elizabeth kept custody of plaintiff although Juan Miguel had regular and meaningful contacts with him. On November 22, 1999, Elizabeth left Cuba to take plaintiff to the U.S. along with twelve other Cuban nationals. But when strong winds and rough seas capsized their small boat off the coast of Florida, eleven of the passengers died, including plaintiff’s mother.
Plaintiff survived by clinging to an inner tube for two days. Florida fishermen rescued plaintiff at sea and took him for treatment at a Miami hospital. At the instance of Miami resident and great-uncle, Lazaro Gonzalez, INS officials put off plaintiff’s immigration inspection and paroled him into Lazaro’s custody and care.
Aided by a Miami attorney, Lazaro filed two applications for asylum on plaintiff’s behalf and plaintiff signed a third request himself. The applications alleged that the Castro government had persecuted many members of plaintiff’s family for opposing the communist government, e.g., by imprisoning two of plaintiff’s great-uncles for their political activity. Moreover, if the U.S. sent plaintiff back to Cuba, the complaint alleged that the government would exploit him as a “propaganda tool” and would involuntarily indoctrinate him in communist dogma.
When an INS official interviewed Juan Miguel at his Cuban home, the latter spurned any claim for asylum by his six-year-old and demanded plaintiff’s immediate return to his custody. INS officials in Miami next met with Lazaro and several lawyers. Lazaro continued to maintain that the Cuban government was coercing Juan Miguel to demand plaintiff’s return to Cuba. An INS official again talked to Juan Miguel in Cuba and concluded that he genuinely and freely wanted plaintiff to come back to Cuba.
In January 2000, the INS Commissioner turned down plaintiff’s applications for asylum as legally void for lack of plaintiff’s capacity to file his own applications against the wishes of his father. Acting by and through Lazaro as next friend, plaintiff sued in federal court to compel the INS to rule on the merits of his applications. The district court, however, summarily dismissed the complaint and plaintiff appealed. Preliminarily, the Circuit Court enjoined Elian’s removal from the U.S. pending the appeal [see 2000 International Law Update 59].
Plaintiff contended that the lower court had violated due process and erred in not appointing a guardian ad litem for Elian. Rejecting these two points without extended discussion, the appellate court focuses on the dismissal of plaintiffs claim under 8 U.S.C. Section 1158 which provides in part that “[a]ny alien…may apply for asylum.” In plaintiff’s view, the statute includes himself despite his young age.
The INS replied by contending that Section 1158 does not speak to the issue of a six-year-old’s capacity to file an application for asylum against the wishes of the child’s parent. In such instances, the INS was free to fashion a policy that Juan Miguel be the one to decide whether to seek asylum for plaintiff and thus to regard plaintiff’s and Lazaro’s application(s) as legally void. The U.S. Court of Appeals for the Eleventh Circuit affirms the lower court.
The basic issue is plaintiff’s capacity to file his or her own independent asylum claim under the circumstances of this case. “The important legal question in this case, therefore, is not whether Plaintiff may apply for asylum; that a six year old is eligible to apply for asylum is clear. The ultimate inquiry, instead, is whether a six year old child has applied for asylum within the meaning of the statute when he, or a non parental relative on his behalf, signs and submits a purported application against the express wishes of the child’s parent.” [Slip op. 5].
So much for what Section 1158 does say; the problem is how to deal with what Congress did not say. “The statute does not set out procedures for the proper filing of an asylum application. Furthermore, the statute does not identify the necessary contents of a valid asylum application. In short, although the statute requires the existence of some application procedure so that aliens may apply for asylum, section 1158 says nothing about the particulars of that procedure.” [Id.]
Noting that the courts cannot properly reexamine the wisdom of an agency-promulgated policy to fill the gaps left by Congress, this Court outlines the discretionary policy choice the INS made in this case. The INS decided that six-year-old children lack the capacity to personally submit an asylum application without the representation of an adult. In the absence of special circumstances, the child’s parent is the only proper adult to assume this role, even though the parent resides abroad. Especially in light of the statutory hiatus, it cannot be said that these positions by the INS are unreasonable.
Finally, “[T]hat the parent lives in a communist totalitarian state (such as Cuba), in and of itself, does not constitute a special circumstance requiring the selection of a non parental representative. Our duty is to decide whether this policy might be a reasonable one in the light of the statutory scheme. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).” [Slip op. 6]
The Court does, however, express some misgivings. “We recognize that, in some instances, the INS policy of deferring to parents especially those residing outside of this country might hinder some six year olds with non frivolous asylum claims and prevent them from invoking their statutory right to seek asylum. But, considering the well established principles of judicial deference to executive agencies, we cannot disturb the INS policy in this case just because it might be imperfect. (Cits.) And we cannot invalidate the policy one with international relations implications selected by the INS merely because we personally might have chosen another.” [Slip op. 7].
Finally, the Court applies the above principles to the facts of this case. “No one should doubt that, if Plaintiff returns to Cuba, he will be without the degree of liberty that people enjoy in the United States. Also, we admit that re education, communist indoctrination, and political manipulation of Plaintiff for propaganda purposes, upon a return to Cuba, are not beyond the realm of possibility. Nonetheless, we cannot say that the INS’s assessment of Plaintiff’s asylum claim that it probably lacked merit — was arbitrary. To make a meritorious asylum claim, an asylum applicant must show that he has a ‘well founded fear of persecution’ in his native land. (Cit.) Congress largely has left the task of defining with precision the phrase ‘well founded fear of persecution’ to the INS. (Cits.)
“Plaintiff points to no earlier INS adjudications or judicial decisions where a person, in circumstances similar to Plaintiff’s, was found to have established a ‘well founded fear of persecution.’ Political conditions ‘which affect the populace as a whole or in large part are generally insufficient to establish [persecution].’ (Cit.) We cannot say that the INS had to treat education and indoctrination as synonymous with ‘persecution.’ (Cits.) Not all exceptional treatment is persecution.” [Slip op. 9-10]
In sum, the INS did not abuse its considerable discretion in this matter.
Citation: Gonzalez v. Reno, No. 00-11424 (11th Cir. June 1, 2000).
Filed in: 2000 International Law Update, Issue 6
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Eleventh Circuit preliminarily enjoins departure of Elian Gonzalez from U.S. pending decision on merits of asylum case
After six-year-old Elian (plaintiff) arrived in U.S. territorial waters clinging to a raft six months ago, he applied for asylum in at least one document he signed personally. When his Cuban father sought to have it withdrawn, the Immigration and Naturalization Service (INS) determined that Plaintiff was too young to make an independent request and refused to consider it.
With the aid of his temporary legal custodian, Lazaro Gonzalez, Plaintiff then sued in federal court challenging this action but that court denied his claim. On appeal, the U.S. Court of Appeals for the Eleventh Circuit grants Plaintiff’s motion for an injunction against his physical removal from U.S. jurisdiction pending the decision of his appeal which is to be argued early in May.
The Court first balances the equities. “The equities, in this case, weigh heavily in favor of issuing an injunction pending appeal. Apart from concerns about what might happen to this child if he is returned to Cuba (which we do not address), if Plaintiff leaves the United States during the pendency of his appeal, his case will likely become moot. Our failure to issue an injunction pending appeal, therefore, could strip the Court of jurisdiction over this case and deprive Plaintiff forever of something of great value: his day in a court of law. That circumstance alone presents a significant risk of irreparable harm to Plaintiff.” [Slip op. 2]
Nor would an interim injunction offend the interests of the INS. As to the public interest, the INS pointed to the plenary power of the political branches over immigration matters. “But we fail to see how an injunction in this case infringes upon the congressional power; after all, the heart of Plaintiff’s appeal is that the INS by refusing to consider Plaintiff’s asylum application, has disregarded the command of Congress. And we doubt that protecting a party’s day in court, when he has an appeal of arguable merit, is contrary to the public interest.” [id.]
Plaintiff has a substantial argument on the merits since 8 U.S.C. Section 1159(a)(1) provides that “any alien who is physically present in the United States… may apply for asylum.” Moreover, INS’s own regulations and guidelines provide for the “active and independent” participation of minors in asylum proceedings and “contemplate that a minor, under some circumstances, may seek asylum against the express wishes of his parents.” [Slip op. 3]
There is also support for the notion that testimonial competency rather than contractual competency should be the proper test for minors in asylum cases. Finally, despite indications that Plaintiff does not want to leave the U.S., INS officials have never tried to interview him about his own wishes.
Even if the INS is right that Plaintiff needs an adult to apply for asylum, it is not obvious that Plaintiff’s father was the only proper representative or that Lazaro Gonzalez, Plaintiff’s great-uncle by blood, whom the INS had designated as his representative and care-giver, was a legally inappropriate person to have submitted the asylum request on plaintiff’s behalf. “Lazaro’s interests, to say the least, are not obviously hostile to Plaintiff’s interests.” [Slip op. 4]
[The Associated Press reports that, just before dawn on April 22, federal agents armed with automatic weapons and using tear gas on the crowd, broke into the home where Elian had been staying and forcibly removed him over his cries and screams. There are indications that government agents may have transferred Elian into his father's custody at Andrews Air Force Base just south of Washington, D.C.]
Citation: Gonzales v. Reno, Case No. 00-11424-D (11th Cir. April 19, 2000); Associate Press Newswires, Sat. April 22, 2000, under byline of Alan Clendenning.]
Filed in: 2000 International Law Update, Issue 4
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In case of Filipino asylum-seeker threatened for exposing political corruption in his home country, Ninth Circuit concludes that whistle blowing against government officials may give rise to “well-founded fear of persecution” of political nature
Dionesio Calunsag Grava, a citizen of the Philippines, entered the U.S. illegally in 1991. When the Immigration and Naturalization Service (INS) began deportation proceedings against him, he petitioned for asylum. According to his testimony, Grava had been working as a policeman and customs officer. On several occasions, he exposed the official corruption and misdeeds of his supervisors.
Grava claims to have suffered mistreatment as a result. For example, someone had poisoned his dog and his monkey, and he had received several threatening telephone calls. If sent back to the Philippines, Grava fears further persecution from several Philippine groups, including Marcos Loyalists, the police force and Communist insurgents.
The immigration judge denied Grava’s petition for asylum. On appeal, the Board of Immigration Appeals (BIA) affirmed, inter alia, because Grava’s alleged persecution was not based on his “political” opinions. The U.S. Court of Appeals for the Ninth Circuit reverses. It rules that whistle blowing may constitute an expression of political opinion and may lead to a sufficiently “well-founded fear of persecution” to justify granting asylum.
“Whistle blowing against one’s supervisors at work is not, as a matter of law, always an exercise of political opinion. However, where the whistle blows against government officials, it may constitute political activity sufficient to form the basis of persecution on account of political opinion. …”
“Refusal to accede to government corruption can constitute a political opinion for purposes of refugee status. … Thus, official retaliation against those who expose and prosecute governmental corruption may, in appropriate circumstances, amount to persecution on account of political opinion.” [1181] The Court therefore remands to the BIA for consideration of whether Grava has proven a well-founded fear of persecution from his whistle blowing activities.
Citation: Grava v. Immigration and Naturalization Service, 205 F.3d 1177 (9th Cir. 2000).
Filed in: 2000 International Law Update, Issue 4
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U.S. Supreme Court holds that Ninth Circuit failed to accord Chevron deference to determination by Board of Immigration Appeals that it should deny alien’s request for withholding of deportation because he had committed serious nonpolitical crimes in his native Guatemala
Juan Anibal Aguirre-Aguirre (respondent) is a Guatemalan who, in 1994, petitioned the I.N.S. to withhold his deportation and grant other relief. At his administrative hearing, he admitted that, as a political activist, he had carried out a number of illegal acts in protest against various policies and actions by the Guatemalan government. For example, he had set buses on fire, assaulted passengers and vandalized or destroyed private property.
Although the Immigration Judge ruled in respondent’s favor, the Board of Immigration Appeals (BIA) vacated the order. The BIA found that his actions constituted “serious nonpolitical crime[s].” Using a balancing test, the BIA decided that the common-law or criminal nature of respondent’s actions outweighed their political character.
The Immigration and Nationality Act (INA) [8 U.S.C. Section 1253(h)(1)] authorizes the Service to withhold deportation to a nation when “the Attorney General determines that [an] alien’s life or freedom would be threatened in such country on account of … political opinion.” Withholding is generally mandatory if the alien proves that he is more likely than not to be “subject to persecution on [that] ground.” Under Section 1253(h)(2)(C), however, withholding is not obtainable if the Attorney-General concludes that the alien had committed a “serious nonpolitical crime” before he came to the United States.
Upon review, a divided panel of the U.S. Court of Appeals for the Ninth Circuit reversed and remanded the case. [121 F.3d 521] The majority disagreed with the BIA on three grounds.
First, the Court thought that the BIA should have explicitly weighed respondent’s admitted crimes against the danger of political persecution. Second, it should have taken into account whether respondent’s actions were grossly disproportionate to their claimed goals or were “atrocious” in light of Circuit precedent. Finally, the BIA ought to have evaluated the political necessity and effectiveness of respondent’s tactics.
The U.S. Supreme Court granted certiorari and reverses the Ninth Circuit. In requiring the BIA to add to its balance-analysis the evaluation of the above three elements, the Circuit failed to give the BIA’s interpretation of the statutes the degree of deference demanded by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
If the statute being administered is silent or ambiguous on a particular point, the reviewing court should ask whether the BIA’s conclusion rested on an allowable interpretation of the statute. Chevron deference is particularly fitting in the immigration context, the Court notes, since the law vests the BIA with the Attorney General’s discretionary authority to pour meaning into ambiguous statutory language on a case-by-case basis.
The Circuit court went furthest astray when it ruled that the BIA should have weighed respondent’s criminal acts against the likelihood of oppression in his homeland. A reasonable reading of the statutory language is that it demands independent evaluation of the danger of persecution facing the alien. Although the Circuit Court had relied upon a U.N. handbook [Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979)], it is not binding either on the Attorney General, the BIA or the U.S. courts.
Moreover, while disproportionality and atrociousness may bear on the nonpolitical crime exception, the Court regards it as premature to treat these two elements as setting the exception in stone.
The Court notes that the statute, by using the term “serious,” implies a deed less culpable and aggravated than an “atrocious” one. Thus, the Circuit Court erred in mandating that the BIA compare respondent’s crimes with Circuit cases interpreting the term “atrocious.”
Nor was the Ninth Circuit correct in insisting that the BIA had to give more explicit consideration to the need for, and political success of, respondent’s criminal acts. Even assuming a plain causal link to politics, a lack of proportionality may strip a crime of its political character.
Nevertheless, respondent, who had the burden of persuasion, failed to brief this point in the BIA. Thus, the BIA’s somewhat perfunctory coverage does not justify reversal on this record.
Citation: Immigration and Naturalization Service v. Aguirre-Aguirre, 526 U.S. 415, 119 S. Ct. 1439, 143 L.Ed.2d 590 (1999).
Filed in: 1999 International Law Update, Issue 11
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U.S. Immigration & Naturalization Service (INS) specifies rules for immigration of foreign investors
Section 203(b)(5) of the 1990 Immigration Act permits foreign individuals who invest $500,000 in rural/high unemployment areas, or $1 million anywhere else, to obtain permanent residence (“green card”) in the U.S. by virtue of the investment (EB-5 visas). Several U.S. companies assist foreign individuals as well as law firms and their clients to obtain U.S. permanent residence through such investments. Currently, however, the INS is carefully examining these applications. An INS Memorandum of October 20, 1997 lays out new guidelines for adjudicating immigrant investor petitions. It emphasizes that:
- The investment must be “at risk for the purpose of generating a financial return.”
- The investment must be in the form of capital actually in the business, not in a protected account such as a trust.
- The Service will scrutinize the use of promissory notes and balloon payments in each application.
- Chinese applicants generally cannot use their assets to secure an investment because China and the U.S. do not recognize each other’s court judgments. Therefore, a U.S. court judgment on a promissory note secured with assets located in China is not enforceable.
The U.S. Department of State has directed all consular posts to stop processing such applications until the INS has published further guidance.
Citation: INS memorandum on EB-5 Investors (October 20, 1997), published in AILA Monthly Mailing, February 1998, page 123; U.S. State Department cable (No. 97-State-241877) (De¬cember 10, 1997).
Filed in: 1998 International Law Update, Issue 4
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New Illegal Immigration statute and Antiterrorism amendments impose added restrictions on U.S. immigration such as making adjustment of status for illegal aliens more difficult
The recent “Illegal Immigration Reform and Immigrant Responsibility Act of 1996″ (IIRAIRA, commonly pronounced “IRA-IRA”) [Pub.L. No. 104-208] comprehensively addresses the problem of illegal immigration. Many of the Act’s provisions may affect you or your clients, even if you usually do not deal with immigration issues. Some of the provisions are effective immediately, some will enter into force at a later date. Here is a summary of these important, recent changes:
- Employers must verify that aliens are authorized to work. IIRAIRA changes some of the documents that employers can accept for verification purposes (beginning no later than September 30, 1997). The proper documents now include a social security card, a U.S. passport, an alien registration card, as well as other documents to be determined in the future (see Section 411). IIRAIRA also imposes a new criminal liability on employers who knowingly hire, in any 12-month period, 10 or more unauthorized aliens who have been illegally smuggled into the U.S.
- IIRAIRA Section 601 amends the definition of “refugee” in the Immigration and Nationality Act (INA), Section 101(a)(42). The term now includes aliens fleeing persecution for resistance to coercive population control methods. [Editors' note: this provision is presumably directed at China].
- IIRAIRA Section 632 adds a new subsection (g) to INA Section 222. It voids an alien’s non-immigrant visa when he or she stays beyond the authorized period. Such an alien can no longer re-enter the U.S. as a non-immigrant unless the consular office in the alien’s country of nationality issues the visa, or unless the U.S. Secretary of State finds that extraordinary circumstances exist. Moreover, the alien can no longer obtain a visa in a third country such as Canada or Mexico.
- Beginning April 1 of this year, a 180-day “grace period” has begun to run for illegal foreigners in the United States. During this period, most people without a valid visa will be able to rectify the situation without drastic punishments, probably by paying a fine. On the other hand, if authorities catch someone without a valid visa after September 27, they will probably fine that person and then deport (now called “remove”) them. The statute bars such persons from re-entering the United States for up to 10 years, depending on the length of their overstay.
- IIRAIRA and the “Antiterrorism and Effective Death Penalty Act of 1996″ (Antiterrorism Act) [Pub.L. No. 104-132] have expanded the “ineligibility” sections of INA (IIRAIRA Section 342 amends INA Section 212(a)(3)(B)). Under the Antiterrorism Act, aliens who “incite” terrorism are ineligible for U.S. visas. This includes those who make utterances, stir up, or arouse terrorist acts. Under Section 219 of the Antiterrorism Act, the Department of State has begun to collect the names of prominent members of terrorist organizations and to designate certain foreign organizations as “terrorist.” (See Wire of the U.S. Department of State No. 006166 of January 1997 to diplomatic and consular posts).
The Immigration and Naturalization Service (INS) has recently issued Interim Final Regulations for IIRAIRA that concern the expedited and regular “removal” proceedings, asylum claims, as well as apprehension and detention. The following are key examples.
- IIRAIRA Section 604 reforms the process for political asylum in INA Section 208. The Regulations, however, extend the deadline for filing for asylum application until April 1, 1998 [see 8 C.F.R. 208.4(a), (a)(2)].
- The INS will use expedited procedures to remove persons who try to enter the U.S. with no documents, or with false documents or misrepresentation. For such persons, an INS officer will conduct an inspection and may issue a removal order that carries a 5-year bar to readmission. Officials will detain anyone who claims they are afraid to return to their home country for a “credible fear screening.” (8 C.F.R. 235.3.)
The effective date of the regulations is April 1, 1997.
Citation: 62 Federal Register 10312 (March 6, 1997).
Filed in: 1997 International Law Update, Issue 4
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