OUTLINE
OF ISSUES FROM IMPORTANT RECENT
FEDERAL COURT IMMIGRATION CASES
FOCUSING ON SIXTH, SEVENTH, AND EIGHTH CIRCUITS
BUT
INCLUDING SOME RECENT DECISIONS FROM OTHER CIRCUITS
by Nadine K. Wettstein
American Immigration Law Foundation
Washington, D.C.
I. INTRODUCTION AND
PRACTICE TIP
This article summarizes recent reported
federal court immigration decisions. It concentrates on
cases in the Sixth, Seventh, and Eighth Circuits, although a
few important cases from other circuits and a few district
court decisions are included as well. The article is arranged
by topic, with the specific circuits' decision listed within
that topic.
Many of the cases focus on whether the
courts retain jurisdiction to even consider an appeal or a
petition for habeas corpus review. There has been a
great deal of litigation over this issue during the last
three years. Summarized here are only the most recent
cases, and primarily from these three circuits.
Courts are only now beginning to
consider the IIRAIRA's "permanent" judicial review
rules. I have included two such cases, Liang v. INS, __
F.3d __, Nos. 99-5053, 99-5327, 99-6039, 2000 U.S. App. Lexis
3586 (3d Cir. Mar. 9, 2000) and Max-George v. Reno __
F.3d __, No. 98-21090, 2000 U.S. App. Lexis 2717 (5th
Cir. Feb. 24, 2000). These two cases reach
opposite conclusions regarding whether the IIRAIRA's
permanent rules deprive the district courts of habeas corpus
jurisdiction under 28 U.S.C. § 2241. Max-George (Fifth
Circuit) says IIRAIRA strips courts of habeas corpus
jurisdiction; Liang (Third Circuit) says they do not. As
far as I know, the Sixth, Seventh, and Eighth Circuits have
not decided this issue.
No doubt there will be many more
jurisdictional decisions in the months to come. Based
on the uncertainty in the law and some of the courts' changes
in direction over the last three years (particularly the
Seventh Circuit, but also the Eleventh and Fifth), AILF urges
all practitioners to strongly consider filing protective
petitions for review, even if the circuit law seems to
preclude that option. Filing a petition for review is
particularly important where you are making constitutional
claims, for example, arguing that the statute or INS
procedures violate your clients' rights to due process or
equal protection. See, in this regard, Max-George
(repeatedly stating that had Mr. Max-George filed a petition
for review, the court would have had to consider the
constitutionality of depriving him of the right to habeas
corpus review and other issues).
Note too that the government has
conceded in many cases that some review of constitutional
claims survives the AEDPA and the IIRAIRA.[1] The
government's position has shifted too, and currently the
government argues that such claims must be brought in the
court of appeals. Practitioners may want to indicate on the
petition for review (which otherwise is a one-paragraph
document) that this is a protective petition for review,
being filed because the law is unsettled.
II. JUDICIAL
REVIEW AND HABEAS CORPUS JURISDICTION
Explanatory Note
The effect of the AEDPA and IIRAIRA's
judicial review amendments was to create three time frames
for judicial review:
- Deportation or exclusion orders that became
administratively final[2] before October 31, 1996 are
governed by former INA § 106.
- Administratively final deportation and exclusion
orders entered by the BIA on or after October 31,
1996—including after April 1, 1997—are
governed by the transitional changes in judicial
review set out in IIRAIRA § 309(c)(4).
- Removal cases begun on or after April 1, 1997 by
issuance of a Notice to Appear pursuant to INA § 239
are subject to the INA § 242.
In other words, deportation and
exclusion cases that were pending on April 1, 1997 (old law
cases) still are governed by former INA § 106(a). However,
that section was amended by the AEDPA and has been impacted
by INA § 242(g).
Deportation and exclusion cases in
proceedings on April 1, 1997 (old law cases), in which an
administratively final order was issued on or after October
31, 1996, are governed by the IIRAIRA transition rules, §
309(c)(4).
Removal proceedings--cases begun on or
after April 1, 1997 after issuance of a Notice to Appear--are
controlled by INA § 242. INA § 242 does not apply to
pre-existing deportation or exclusion proceedings, except for
§ 242(g).[3]
AEDPA § 440(a) - Limitation on Court
"Review" of Deport Orders For People Deportable
"By Reason Of" Specified Crimes.
Sixth Circuit
Habeas corpus jurisdiction under 28
U.S.C. § 2241 survives § 440(a) limitations on review. Haio
v. INS, 199 F.3d 302, 303-05 (6th Cir. 1999); Pak
v. Reno, 196 F.3d 666, 672-73 (6th Cir. 1999).
Seventh Circuit
For the class of noncitizens encompassed
by § 440(a), judicial review by means of habeas corpus did
not survive the enactment of that section. However,
direct review, that is, a petition for review in the court of
appeals, remains available to challenge deportation on
constitutional grounds. LaGuerre v. Reno, 164 F.3d 1035, 1040
(7th Cir. 1998).
Also, if, for reasons beyond the
noncitizen's control, he or she could not have raised a
substantial constitutional issue directly in the court of
appeals under § 440(a), he or she may be able to proceed in
the district court under 28 U.S.C. § 2241 (LaGuerre safety
valve) LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th
Cir. 1998); Shamsher Singh v. Reno, 182 F.3d 504, 510
(7th Cir. 1999) (one of the "rare cases"
where it is appropriate to invoke LaGuerre "safety
valve:" pre-LaGuerre law directed him to district
court's habeas corpus procedure and he presents a substantial
constitutional claim that entitles him to review in the court
of appeals); Turkhan v. Perryman, 188 F.3d 814, 824 (7th
Cir. 1999) (case law pre-LaGuerre directed Turkhan to the
district court rather than the court of appeals, thus this is
one of the rare cases anticipated in LaGuerre where habeas
corpus review survives); Musto v. Perryman, 193 F.3d 888, 891
(7th Cir. 1999) (acknowledging LaGuerre safety
valve; but even had Musto timely filed in the court of
appeals, he would not have prevailed).
Eighth Circuit
Habeas corpus jurisdiction under 28
U.S.C. § 2241 survives § 440(a) limitations on review.
Subsection 440(a) does not remove the
district courts' jurisdiction to review cases governed by the
IIRAIRA judicial review transition rules. Shah v. Reno, 184
F.3d 719, 723 (8th Cir. 1999).
Who is "Deportable" --
Convention Against Torture "Trumps" § 440(a)?
Seventh Circuit
Petitioner's argument that he is not
"deportable" for purposes of AEDPA § 440(a)
because the Convention Against Torture precludes his return
to Liberia is rejected. He committed crimes covered in
AEDPA § 440(a). That provision says that a final order
of deportation against a person who is "deportable"
of reason of having committed a specified criminal offense is
not subject to review by any court. The Convention
Against Torture does not define who is "deportable"
for the purpose of § 440(a). The Convention is not a
separate ground of jurisdiction. Diakite v. INS, 179 F.3d 553
(7th Cir. 1999).
AEDPA § 401(e) - Repeal of INA's
Habeas Corpus Jurisdiction
Sixth Circuit
The AEDPA’s repeal of former INA §
106(a)(10) that explicitly provided habeas corpus
jurisdiction did not repeal general habeas jurisdiction under
28 U.S.C. § 2241. Section 401(e) says nothing about the
general habeas corpus statute, 28 U.S.C. § 2241. Pak v.
Reno, 196 F.3d 666, 672-73 (6th Cir. 1999).
Eighth Circuit
The AEDPA’s repeal of former INA §
106(a)(10) that explicitly provided habeas corpus
jurisdiction did not repeal general habeas jurisdiction under
28 U.S.C. § 2241. Section 401(e) says nothing about the
general habeas corpus statute, 28 U.S.C. § 2241. Shah
v. Reno, 184 F.3d 719, 723 (8th Cir. 1999).
IIRAIRA § 242(g) - Judicial Review
"Exclusive Jurisdiction"
Explanatory Note
Subsection 242(g), unlike the rest of
IIRAIRA § 242, applies to past, pending, or future cases, so
it may apply to deportation or exclusion cases as well as
removal cases.
Sixth Circuit
Although § 242(g) forecloses review of
certain interim discretionary decisions of the Attorney
General, it does not preclude review of final orders of
deportation. Pak v. Reno, 196 F.3d 666, 671 (6th
Cir. 1999).
Among the claims that are not barred by
§ 242(g), even though they arise from deportation
proceedings, are claims of ineffective assistance of counsel
in those proceedings. Their challenge is not to
the decision or action to "commence proceedings" or
"adjudicate cases" or "execute a removal
order." Rather, their claim is that their
counsel's ineffective performance at their hearing resulted
in a deportation order entered against them without due
process. The alleged breaches by their attorney took
place well before any decision by the Attorney General to
execute a removal order. Mustata v. U.S. DOJ, 179
F.3d 1017, 1022-23 (6th Cir. 1999).
A challenge to the right of the Attorney
General to detain a person indefinitely when it appears that
the deportation order may never be executed did not arise
from the Attorney General's "decision or action ... to
.. execute removal orders." Therefore, it is not
foreclosed by § 242(g). Zhislin v. Reno, 195 F.3d 810,
813-14 (6th Cir. 1999).
Seventh Circuit
Section 242(g) is not a general
preclusion statute; it precludes review of only the three
listed discretionary decisions or actions of the Attorney
General: to commence proceedings, adjudicate cases, or
execute removal orders. Fedorca v. Perryman, 197 F.3d
236, 240 (7th Cir. 1999), following Reno v.
American-Arab Anti-Discrimination Committee, 525 U.S. 471,
119 S.Ct. 936, 944 (1999) (AADC) (but holding that Fedorca's
challenge to the IJ decision to deny him NACARA relief and
the district director's refusal to issue him a stay of
deportation were precluded by § 242(g)).
Section 242(g) does not remove the
court's jurisdiction to hear a claim that the mandatory
detention provision of the INA, § 236(c), violates due
process. Such a claim concerns detention while the
administrative process lasts, and it may be resolved without
affecting pending deportation or removal proceedings. Parra
v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999).
The district court did not have
jurisdiction over a suit contesting the INS's decisions: 1)
refusing to grant the plaintiffs' request for a stay of
deportation; 2) failing to reinstate his administrative grant
of voluntary departure; and 3) denying his request for
humanitarian parole. In AADC, the Supreme Court
"indicated" that a denial of a stay of deportation
is not among the actions or decisions to which § 242(g) is
inapplicable. The plaintiffs themselves concede that
humanitarian parole is relief functionally equivalent to
deferred action, one of the types of discretionary decisions
the Supreme Court indicated was governed by § 242(g). The
plaintiffs failed to suggest any distinctions among deferred
action, humanitarian parole, and voluntary departure that
would exclude the latter two from the scope of § 242(g) if,
as the Supreme Court said, deferred action comes under it.
Botezatu v. INS, 195 F.3d 311, 314 (7th Cir.
1999).
Northern District of Illinois
Denial of a visa petition has nothing to
do with deportation proceedings; § 242(g) does not apply to
all claims brought in immigration matters and thus does not
deprive the court of jurisdiction to consider the INS's
failure to process a Diversity Immigrant Visa application.
Paunescu v. INS, 76 F. Supp. 2d 896, 898 (N.D. Ill 1999).
Eighth Circuit
Section 242(g) did not repeal general
habeas jurisdiction under 28 U.S.C. § 2241. Shah v. Reno,
184 F.3d 719 (8th Cir. 1999).
Section 242(g) “has nothing to do
with petitions for review of final orders of deportation, or
indeed with any sort of review of such orders,” Shah v.
Reno, 184 F.3d 719, 722 (8th Cir. 1999)
following AADC.
Section 242(g) does not refer to
deportation orders but only to certain separate and discrete
actions in the deportation process. Reyes-Lechuga v. Reno,
183 F.3d 867 (8th Cir. 1999).
A petition for adjustment of status
(AOS) is separate and distinct from any matter related to an
order of deportation, therefore § 242(g) does not preclude
jurisdiction in a civil suit (not habeas) brought to contest
the denial of AOS. Sabhari v. Reno, 197 F.3d 938, 942
(8th Cir. 1999).
IIRAIRA Judicial Review Transition
Rule: No "Appeal" for People Deportable "By
Reason Of" Specified Criminal Convictions - IIRAIRA §
309(c)(4)(G)
Sixth Circuit
The court is obligated to interpret
IIRAIRA § 309(c)(4)(G) to avoid serious constitutional
problems, including whether the AEDPA and IIRAIRA amendments
suspend the writ of habeas corpus in violation of the
Constitution's Suspension Clause. Choosing to interpret
the amendments as preserving access to the writ of habeas
corpus under 28 U.S.C. § 2241 for people in transition cases
avoids these constitutional questions. Therefore,
habeas corpus jurisdiction under § 2241 survives both the
AEDPA's amendments and the IIRAIRA's transition rules. Pak
v. Reno, 196 F.3d 666, 673 (6th Cir. 1999).
Eighth Circuit
IIRAIRA § 309(c)(4)(G) did not repeal
general habeas jurisdiction under 28 U.S.C. § 2241. A
habeas corpus action in the district court is not an
"appeal" and § 309(c)(4)(G) does not apply. Shah
v. Reno, 184 F.3d 719, 723 (8th Cir. 1999);
Reyes-Lechuga v. Reno, 183 F.3d 867 (8th Cir.
1999).
IIRAIRA Judicial Review Transition
Rule for Specified Discretionary Decisions -- IIRAIRA §
309(c)(4)(E).
Ninth Circuit
The BIA denied voluntary departure
because it concluded that an undesignated offense should be
designated a felony, and that the respondent therefore was
ineligible for voluntary departure. The BIA's
determination was not a discretionary act. Rather, it
was an application of a statutory provision. A
determination of per se ineligibility, as the BIA did here,
is not a discretionary matter. Therefore, §
309(c)(4)(E) did not apply and the court retained
jurisdiction. Lafarga v. INS, 170 F.3d 1213, 1215 (9th
Cir. 1999).
IIRAIRA Judicial Review
"Permanent" Rule for Noncitizens Removable "By
Reason Of" Enumerated Crimes -- INA §
242(a)(2)(C)
Third Circuit
There is no reason why the
jurisdictional ruling under the permanent judicial review
rules should be different than it was under the transition
rules. All the provisions use comparably comprehensive
language. All fail to expressly refer to habeas corpus
jurisdiction or to 28 U.S.C. § 2241 jurisdiction in
particular. Just as with the transition rules, a repeal
of habeas corpus jurisdiction will not be found by
implication. Liang v. INS, __ F.3d __, Nos. 99-5053,
99-5327, 99-6039, 2000 U.S. App. Lexis 3586 at * 26-28 (3d
Cir. Mar. 9, 2000).
Fifth Circuit
Unlike the IIRAIRA transition judicial
review rules, which contain "somewhat explicit"
jurisdiction-stripping provisions, the "clear
language" of IIRAIRA's permanent rules precludes 28
U.S.C. § 2241 habeas corpus jurisdiction for review of final
removal orders "for cases that fall within" §
242(a)(2)(C) (see below regarding determining if case falls
within this section). The primary difference between the
"transition" and "permanent" rules is the
preclusive language "notwithstanding any other provision
of law" in the permanent rules. Congress could
"theoretically" have been more explicit by
specifically mentioning habeas corpus in general or 28 U.S.C.
§ 2241 in particular in INA § 242. Nevertheless, the
jurisdictional limitations "described throughout"
§ 242 [§§ 242(a)(2)(C) and also 242(b)(9), see below] are
sufficiently explicit to eliminate habeas corpus jurisdiction
under § 2241 in cases in which they apply [Note -- in this
case both §§ 242(a)(2)(C) and 242(b)(9) were involved.
Arguably the combination of their effects convinced the court
that withdrawal of habeas corpus jurisdiction was
"clear" even though neither section mentions habeas
corpus or 28 U.S.C. § 2241.Also, see below regarding
constitutional inquiry survives] Max-George v. Reno, __ F.3d
__, No. 98-21090, 2000 U.S. App. Lexis 2717 at *9-13 (5th
Cir. Feb. 24, 2000).
To determine whether "the specific
conditions exist that bar jurisdiction," when the INS
invokes § 242(a)(2)(C), the court will determine whether the
petitioner is: 1) an alien; 2) removable; 3) for committing a
specified crime. The court has jurisdiction to
determine if these prerequisites for precluding review have
been met. Max-George v. Reno, __ F.3d __, No. 98-21090, 2000
U.S. App. Lexis 2717 at *14-15 (5th Cir. Feb. 24,
2000), citing Richardson v. Reno, 180 F.3d 1311, 1315 (11th
Cir. 1999), cert denied March 29, 2000 (Richardson II).
IIRAIRA "Permanent"
Restriction on Review of Discretionary Decisions - INA §
242(a)(2)(B)
Northern District of Illinois
This restriction does not apply to a
suit challenging the INS's failure to take action on
plaintiffs' applications for adjustment of status based on
the Diversity Immigrant Visa lottery. Plaintiffs are
not contending that they were denied relief -- if they were,
the court likely would not have jurisdiction. They are
not asking the court to "review" any
"decision" or "action" but rather to
examine and rectify a gross inaction. Defendants are
incorrect that every decision relating to an application for
adjustment of status is discretionary. Thus this
provision does not deprive the court of jurisdiction.
Paunescu v. INS, 76 F. Supp. 2d 896, 900 (N.D. Ill. 1999).
(but see Diallo v. Reno, 61 F. Supp. 2d
1361 (N.D. Ga. 1999) (§ 242a)(2)(B) precludes judicial
review of a denial of adjustment of status for a Diversity
Immigrant Visa applicant).
The IIRAIRA "Permanent"
Consolidation Rule - § 242(b)(9)
Third Circuit
Section 242(b)(9) clearly expresses
Congressional intent that judicial review of questions
arising from a removal proceeding be conducted in the courts
of appeals, but it does not clearly express Congressional
intent that the district courts be divested of their habeas
corpus jurisdiction under 28 U.S.C. § 2241. There must
be an explicit statutory reference to habeas corpus or to 28
U.S.C. § 2241 to effect Congressional intent of repeal.
Liang v. INS, __ F.3d __, Nos. 99-5053, 99-5327, 99-6039,
2000 U.S. App. Lexis 3586 at * 32-40 (3d Cir. Mar. 9, 2000)
Fifth Circuit
The "clear language" of
IIRAIRA's permanent rule forces people to raise all potential
issues regarding their removal at one place and time: in a
petition for review filed in the court of appeals. "Theoretically"
Congress could have been more explicit by specifically
mentioning habeas corpus in general or 28 U.S.C. § 2241 in
particular in INA § 242. Nevertheless, the
jurisdictional limitations "described throughout"
§ 242 [§§ 242(b)(9) and also 242(a)(2)(C)] are
sufficiently explicit to eliminate habeas corpus jurisdiction
under § 2241 [Note -- in this case both §§ 242(b)(9) and
242(a)(2)(C) were involved. Arguably the combination of
their effects convinced the court that withdrawal of habeas
corpus jurisdiction was "clear" even though neither
section mentions habeas corpus or 28 U.S.C. § 2241.]
Max-George v. Reno, __ F.3d __, No. 98-21090, 2000 U.S. App.
Lexis 2717 at *9-13 (5th Cir. Feb. 24, 2000).
Jurisdiction Via Petition for Review
to Determine if Preclusion of Habeas Corpus Review is
Constitutional
Fifth Circuit
Notwithstanding the permanent rules,
§§ 242(a)(2)(C) and 242(b)(9), restricting habeas corpus
review, if a petition for review is filed, the court of
appeals retains jurisdiction to determine whether the
preclusion of habeas corpus review can be reconciled both
with the constitutional limitation on the suspension of
habeas corpus and the constitutional guarantee of due
process. [The suspension clause: U.S. Constitution, Art. I,
§ 9 says "The Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it"] Max-George
v. Reno, __ F.3d __, No. 98-21090, 2000 U.S. App. Lexis 2717
at *18 (5th Cir. Feb. 24, 2000).
Constitutional Habeas Corpus v.
Statutory Habeas Corpus under 28 U.S.C. § 2241
Fifth Circuit
The writ of habeas corpus preserved from
suspension in the Constitution is narrower than the writ made
available in 28 U.S.C. § 2241. Accordingly, Congress
can repeal or supercede § 2241 without violating the
Suspension Clause, as long as long as Congress' action does
not eliminate the constitutional writ. Max-George v. Reno, __
F.3d __, No. 98-21090, 2000 U.S. App. Lexis 2717 at *18 (5th
Cir. Feb. 24, 2000).
Jurisdiction to Determine if Court
Has Jurisdiction
Fifth Circuit
The court has jurisdiction to determine
if the specific prerequisites for precluding review have been
met. They also retain jurisdiction to determine whether
the particular provisions classifying the petitioner under
the jurisdiction-stripping provision (for example, as having
committed an "aggravated felony" or a "crime
involving moral turpitude") are being constitutionally
applied. Max-George v. Reno, __ F.3d __, No. 98-21090,
2000 U.S. App. Lexis 2717 at *14-15, 16 (5th Cir.
Feb. 24, 2000), citing Richardson v. Reno, 180 F.3d 1311,
1315 (11th Cir. 1999) (Richardson II)
Seventh Circuit
As the court has authority to determine
jurisdiction, it may review whether the petitioner has
committed an aggravated felony. Both its jurisdiction
to hear the case and the merits of the appeal turn on that
question. Solorzano-Patlan v. INS, __ F.3d __, No. 99-3310,
2000 U.S. App Lexis 3641 at *6-7 (7th Cir. Mar.
10, 2000).
To determine if it has jurisdiction, the
court can determine whether the crime of which the petitioner
was convicted was correctly characterized by the IJ and INS
as an aggravated felony. This jurisdiction also permits
the court to rule that the INS may not add additional charges
of "aggravated felony" at the court of appeals
stage of the proceedings. Xiong v. INS, 173 F.3d 601,
604, 607-608 (7th Cir. 1999).
Determining Whether the Transitional
or Permanent Rules Apply -- (Which May Determine
Whether Habeas Corpus Review is Available)
Eleventh Circuit
Removal [sic] proceedings commenced in
June 1995, when the INS served Alanis-Bustamante with an
Order to Show Cause (OSC), after having filed a warrant of
detainer against him. The proceedings commenced at that
time even though the OSC was not served on the respondent at
that time. Thus, the proceedings "commenced"
long before the INS issued a Notice to Appear under the
post-IIRAIRA statute, in June 1997. Hence, the
transition judicial review rules IIRAIRA § 309(c)(4)
apply, as does Mayers v.U.S. INS, 175 F.3d 1289 (11th
Cir. 1999). The permanent judicial review rules of §
242 and Richardson v. Reno, 180 F.3d 1311 (11th
Cir. 1999) do not apply. Therefore, habeas corpus review of
Alanis-Bustamante's deportation order is available. Alanis-Bustamante
v. Reno, 201 F.3d 1303 (11th Cir. 2000). See
also Wallace v. Reno, 194 F.3d 279 (1st Cir.
1999).
IIRAIRA Restriction on Judicial
Review of "Discretionary Judgment" Regarding the
Application of Mandatory Detention (INA § 236(e))
Seventh Circuit
INA § 236(e) -- restricting review of
the Attorney General's discretionary judgment regarding the
application of INA § 236, governing apprehension and
detention -- does not foreclose challenges to the mandatory
detention statute itself [INA § 236(c)]. Challenges to
the legislation itself are distinct from challenges to
decisions implementing that subsection. Those
operational decisions are what § 236(e) applies to. Parra
v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999).
IIRAIRA Amendment to INA § 279 (8
U.S.C. § 1329) - Jurisdiction of District Courts
Eighth Circuit
Although the new language IIRAIRA
inserted into INA § 279 divests the district courts of some
of the jurisdiction they once enjoyed, the amended § 279
does not preclude litigants from invoking alternative bases
for subject matter jurisdiction. Sabhari v. Reno, 197
F.3d 938, 942 (8th Cir. 1999) citing Shanti Inc.
v. Reno, 36 F. Supp. 2d 1151, 1159 (D. Minn. 1999).
Habeas Corpus Review - Scope
Sixth Circuit
The district court acting under habeas
corpus jurisdiction can order a stay of deportation.
It also can review of a final order of deportation, and
can order a remand to the BIA for it to reconsider its
determination of the factual issue of whether petitioner
served five years of his prison sentence. Haio v. INS,
199 F.3d 302, 303-05 (6th Cir. 1999).
Eighth Circuit
Habeas corpus review under 28 U.S.C. §
2241 is not limited to constitutional questions but also
includes pure questions of law. Shah v. Reno, 184 F.3d 719,
720 (8th Cir. 1999).
Habeas Corpus Review -- Must
Petitioner File Petition For Review in Court of Appeals
Before Proceeding By Habeas?
No such requirement indicated in
decision: Shah v. Reno, 184 F.3d 719, 720 (8th
Cir. 1999); Reyes-Lechuga v. Reno, 183 F.3d 867 (8th
Cir. 1999); Pak v. Reno, 196 F.3d 666, 669 (6th
Cir. 1999) (filed habeas corpus petition one year after BIA
decision); Tasios v. Reno, __ F.3d __, No. 99-6061,
2000 U.S. App. Lexis 2878 (4th Cir. Feb. 28,
2000); Parra v. Perryman, 172 F.3d 954 (7th Cir.
1999).
Procedure, Petitions for Review
Seventh Circuit
Filing a petition for review of the
BIA's denial of a motion for reconsideration [or reopen] does
not preserve review of any matters relating to the underlying
deportation or removal order. Filing a motion to
reconsider [or reopen] does not toll the time for filing a
petition for review of a deportation or removal order. That
is, a petition for review must be filed within 30 days of an
adverse BIA decision, even if a motion to reopen or
reconsider has been filed and is pending. Tittjung v.
Reno, 199 F.3d 393, 396 (7th Cir. 1999). See
also Stone v. INS, 115 S.Ct. 1537 (1995).
Exhaustion of Administrative Remedies
Seventh Circuit
Certain constitutional due process
claims may not require administrative exhaustion because the
BIA could not deal dispositively with them. Procedural
errors, correctable by the BIA, are examples of matters
requiring administrative exhaustion. Shamsher Singh v.
Reno, 182 F.3d 504, 511 (7th Cir. 1999).
III. OTHER
CAUSES OF ACTION AND FORMS OF JURISDICTION
Mandamus Jurisdiction (28 U.S.C. §
1361), Diversity Immigrant Visas
Northern District of Illinois
The INS had a non-discretionary duty to
issue a decision on plaintiffs' Diversity Immigrant Visa
applications within a reasonable time. The court
rejected INS argument that it does not have a clear duty to
issue a decision on an adjustment of status application at
all, let alone to issue a decision before the end of the
fiscal year. Plaintiffs are entitled to the visas they
would have received but for defendants' failure to timely
process their applications, notwithstanding defendants'
argument that the State Department has no legal authority to
issue the visa after the fiscal year. Paunescu v. INS,
76 F. Supp. 2d 896, 901 (N.D. Ill. 1999)
(but see Diallo v. Reno, 61 F. Supp. 2d
1361 (N.D. Ga. 1999) (the decision of how to handle and
investigate an application for a Diversity Immigrant Visa
adjustment of status is a discretionary act).
Civil Federal Question Jurisdiction,
28 U.S.C. § 1331, and the Administrative Procedures Act, 5
U.S.C. § 702
Eighth Circuit
Section 1331 is the general grant of
civil federal question jurisdiction for actions arising under
the Constitution, laws, or treaties of the United States.
For relief against the United States, it must, however, be
tied to some additional authority that waives the
government's sovereign immunity. The APA, 5 U.S.C. §
702, provides that waiver and together, grant the district
court jurisdiction to consider a suit challenging the denial
of adjustment of status. Sabhari v. Reno, 197 F.3d 938,
942 (8th Cir. 1999).
IV. RELIEF FROM
DEPORTATION
AEDPA § 440(d) (§212(c)
relief, Matter of Soriano)
Fourth Circuit
If AEDPA 440(d) applied to guilty pleas
or concessions of deportability made before AEDPA's effective
date, it would upset reasonable, settled expectations and
change the legal effect of prior conduct. Because
Congress has not expressly commanded such retroactive effect,
§ 440(d) is inapplicable to people who pled guilty or
conceded deportability before AEDPA was in effect.
Tasios v. Reno, __ F.3d __, No. 99-6061, 2000 U.S. App. Lexis
2878 (4th Cir. Feb. 28, 2000).
Sixth Circuit
Unlike other parts of AEDPA, § 440(d)
does not contain an express statement indicating that it
would apply to pending applications. Consequently, it
must be presumed that Congress did not intend § 440(d) to
apply to pending cases. This is supported by the
legislative history. Consequently, § 440(d) does not
apply to cases pending on the date AEDPA was
"enacted." Pak v. Reno, 196 F.3d 666, 676 (6th
Cir. 1999); Haio v. INS, 199 F.3d 302, 305 (6th
Cir. 1999).
Seventh Circuit
AEDPA § 440(d) applies retroactively to
bar covered individuals from seeking a discretionary waiver
of deportation under § 212(c) except where the noncitizen
conceded deportability before the AEDPA became law and had a
colorable defense to deportability. Turkhan v.
Perryman, 188 F.3d 814, 827 (7th Cir. 1999),
following Reyes-Hernandez, 89 F.3d 490, 493 (7th
Cir. 1996) and LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th
Cir. 1998).
AEDPA § 440(d) does not violate equal
protection. There is a rational and sensible reason for
Congress's more lenient treatment of excludable rather than
deportable aliens. § 440(d) creates an incentive for
deportable aliens to leave the United States voluntarily.
That is, if they leave, they may apply for a waiver should
they seek to return. LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th
Cir. 1998); Chow v. Reno, 193 F.3d 892, 894 (7th
Cir. 1999); Musto v. Perryman, 193 F.3d 888, 891 (7th
Cir. 1999).
Retroactive application of AEDPA §
440(d) does not violate due process except where the
noncitizen conceded deportability before the AEDPA became law
and had a colorable defense to deportability. Turkhan
v. Perryman, 188 F.3d 814, 827 (7th Cir. 1999);
Musto v. Perryman, 193 F.3d 888, 891 (7th Cir.
1999), following Reyes-Hernandez v. INS, 89 F.3d 490, 493 (7th
Cir. 1996)
Eighth Circuit
Section 440(d) does not apply to persons
whose deportation proceedings had already commenced on the
date of AEDPA’s “enactment.” Thus, §
440(d) does not deprive the Attorney General of discretion to
waive deportation [under former INA § 212(c)] for people who
were in proceedings before AEDPA’s date of “enactment.”
Shah v. Reno, 184 F.3d 719, 720, 724-25 (8th Cir.
1999); Reyes-Lechuga v. Reno, 183 F.3d 867 (8th
Cir. 1999).
V. CRIMINAL
ISSUES
Aggravated Felony Definition --
Uniform Interpretation
Seventh Circuit
An Illinois conviction is not
necessarily a per se "aggravated felony" simply
because the defendant was convicted under an Illinois statute
entitled "burglary." "Burglary
offense" in INA § 101(a)(43)(G) means
"burglary" in its generic sense and must satisfy
uniform, basic elements. There must be a uniform
national interpretation of "burglary." Even
the statutes in the states comprising the Seventh Circuit --
Illinois, Indiana, and Wisconsin -- all use different
criteria to categorize basically the same conduct. The
INS must look at the charging papers to ensure that these
basic elements are satisfied "before it initiates the
serious ramifications of removal proceedings based on an
alleged "burglary offense." Solorzano-Patlan
v. INS, __ F.3d __, No. 99-3310, 2000 U.S. App Lexis 3641 at
*8-15 (7th Cir. Mar. 10, 2000)
Aggravated Felony Definition --
Individualized Analysis of Conduct
Seventh Circuit
In determining whether a crime should be
considered a "crime of violence" and thus an
"aggravated felony" under INA § 101(a)(43)(F), 8
U.S.C. § 1101(a)(43)(F), the IJ must make an individualized
analysis of whether the conduct carried a substantial risk
that force would be used against persons or property. It
is not sufficient for the IJ to limit consideration to the
language and title of the statute. Solorzano-Patlan v. INS,
__ F.3d __, No. 99-3310, 2000 U.S. App Lexis 3641 at *15-19
(7th Cir. Mar. 10, 2000)
Aggravated Felony -- IJ Must Look
Beyond Language of Statute
Seventh Circuit
The IJ must look beyond the language of
the statute to determine whether an offense is a crime of
violence and hence an "aggravated felony" under INA
§ 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). When the
statutory definition of a criminal offense encompasses
conduct that does not constitute a crime of violence and
conduct that does, an IJ may not simply categorize all
conduct covered by the offense as a crime of violence. The
IJ may look at the charging papers -- the indictment or
information -- and in some circumstances, may look beyond the
charging papers. Here the IJ was authorized to and
should have looked beyond the charging papers, and would have
found that what Xiong was convicted of consisted of
consensual sex between an eighteen year old and his
fifteen-year old girlfriend. Absent a substantial age
difference, this conduct did not, by its nature, involve a
substantial risk of physical force. Xiong v. INS, 173 F.3d
601, 605-607 (7th Cir. 1999).
Aggravated Felony -- Adding Charge at
Court of Appeals Stage
Seventh Circuit
The INS may not substitute or add
alternative grounds for deportation at the judicial review
stage in the proceedings. Briefing and argument before
the court of appeals do not give the petitioner sufficient
notice and a meaningful chance to be heard as required by the
Fifth Amendment. Even though the same conviction underlies
the original charge and the amended charge, Xiong was not
given an opportunity to challenge its characterization.
That is, the IJ found that his conviction for "sexual
intercourse with a person under 16" did constitute a
crime of violence and thus an aggravated felony. The
INS now argues that the conviction constituted "sexual
abuse of a minor," also an aggravated felony (INA §
101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A)). But the IJ
was not asked to rule on whether the crime of which Xiong was
convicted was "sexual abuse of a minor," and Xiong
was not given an opportunity to argue against that
characterization. Xiong v. INS, 173 F.3d 601, 607-608 (7th
Cir. 1999).
Aggravated Felony Definition --
Retroactivity
Fifth Circuit
It is not unconstitutionally retroactive
for a crime to be classified as an "aggravated
felony" now when it was not so classified at the time it
was committed or at the time of the conviction. Max-George v.
Reno, __ F.3d __, No. 98-21090, 2000 U.S. App. Lexis 2717 at
*16-17 (5th Cir. Feb. 24, 2000).
Illegal Reentry After Conviction for
"Aggravated Felony;" "Found" in
U.S.
Eighth Circuit
Even though conviction was not
considered an "aggravated felony" when committed
nor when defendant reentered U.S., the crime of illegal
reentry under 8 U.S.C. § 1326 is an on-going offense that
continues until an individual is discovered by authorities.
An individual can violate § 1326 after being deported by
being “found” in the United States without having
had permission of the Attorney General to reenter. When
an individual is “found” in the United States, the
date he or she is found is generally considered to be the
date of the violation. Thus, appellant’s offense
of illegal reentry ended when he was found in Nebraska in
1997 – not when he reentered in 1991. There was no
ex post facto violation when the sentencing court applied a
16-level increase on the basis of the prior "aggravated
felony" conviction. United States v. Estrada-Quijas, 183
F.3d 758 (8th Cir. 1999)
Marriage Fraud Prosecution --
Defendant's Knowledge
Sixth Circuit
For the government to prove a violation
of the marriage fraud statute -- INA § 275(c), 8 U.S.C. §
1325(c) -- it must show that the defendant knew his conduct
was unlawful, but it need not prove that knowledge of the
specific law being violated. United States v.
Chowdhury, 169 F.3d 402, 406-07 (6th Cir. 1999).
Prosecution for Illegal Reentry;
Collateral Attack on Deportation and Lack of Prior Judicial
Review; Denial of Stay of Deportation - Violation
of Due Process
Southern District of Indiana
A civil statute that allows a circuit
court to divest itself of jurisdiction over an appeal by
denying a stay of deportation may violate the due process
clause of the Fifth Amendment by eliminating judicial review
of a civil order that subsequently forms the basis of a
criminal charge. Former INA § 106(a)(3), 8 U.S.C. §
1105a(a)(3), said that there would be no automatic stay of
deportation upon the filing of a petition for review by a
person convicted of an aggravated felony. Former INA §
106(c), 8 U.S.C. § 1105a(c) said an order of deportation
could not be reviewed by the court of appeals after the
petitioner was deported. The Fifth Circuit denied the
petitioner's request for a stay while his petition for review
was pending, and he was deported immediately. He
subsequently reentered and was prosecuted. He alleged
(unsuccessfully under the facts of the case) that he failed
to receive adequate judicial review of his prior deportation
orders, in violation of the Fifth Amendment, because the
Fifth Circuit denied the stay of deportation. United States
v. Anderson, 64 F. Supp. 2d 870 (S.D. Ind. 1999).
Sentencing Court Recommendation of
Deportation -- Notice to Defendant
Sixth Circuit
Where a court orders deportation as a
part of sentencing, notice and a very detailed procedure are
required [see INA § 238(c), Judicial Removal, 8 U.S.C. §
1228(c)]. Where, however, the court merely recommends
to the INS that the defendant be deported, the court need not
give advance notice to the defendant. United States v.
Chowdhury, 169 F.3d 402, 408 (6th Cir. 1999).
VI. ASYLUM AND
WITHHOLDING OF DEPORTATION
Factual Errors in BIA's Decision -
BIA Must Reconsider
Seventh Circuit
Where some of the BIA's assertions of
fact have no support in the record, it is impossible to be
confident that the petitioner's asylum claim has been fully
understood or analyzed and the BIA must consider his
application again. Chitay-Pirir v. INS, 169 F.3d 1079,
1081 (7th Cir. 1999)
BIA Sua Sponte Changing IJ 's
Designation of Country of Deportation
Seventh Circuit
The BIA modified the IJ's order to
change Kuhai's country of deportation from Uzbekistan to
Ukraine. The BIA said Kuhai could go to Ukraine
because she was born there and consequently, she did not have
a well-founded fear of persecution in Uzbekistan. But
neither party had briefed whether Kuhai may be eligible for
Ukrainian citizenship. The BIA sua sponte determined
that she could return to Ukraine, without allowing either
party to address the questions of Ukranian law. Affirming
a deportation order without a fair hearing violates due
process. Kuhai v. INS, 199 F.3d 909 (7th
Cir. 1999).
Fear of Ethnic Persecution Common to
All Members of Ethnic Minority (Ethnic Serb from Croatia)
Seventh Circuit
Petrovic testified unequivocally and
without contradiction that his father and sister were fired
because of their religion and nationality, and that his
father was attacked -- and the authorities refused to
investigate -- for the same reason. Nevertheless, the
court majority said the BIA properly found that this was
insufficient to establish particularized past persecution or
well-founded fear of future persecution. Fear of
general conditions of ethnic persecution common to all
members of an ethnic minority does not constitute
well-founded fear. Petrovic v. INS, 198 F.3d 1034, 1037
(7th Cir. 2000) (dissent by Rovner, faulting BIA
for "unfounded speculation" that there may be other
explanations for the mistreatment of Petrovic's father
and sister).
Living Safely in Home Country Before
Fleeing
Seventh Circuit
That the petitioner could avoid
execution by going into hiding and "living a fugitive's
life" does not mean he does not have a well-founded fear
of persecution. Chitay-Pirir v. INS, 169 F.3d 1079,
1081 (7th Cir. 1999)
Changed Country Conditions -- Court
of Appeals Takes Judicial Notice
Seventh Circuit
After an appeal had been pending at the
BIA for six years, the BIA's decision was based on outdated
information. Because current conditions in Romania are
crucial to the decision, the court would take judicial notice
of the State Department's most recent Romanian Country
Report, which characterizes Romania as a constitutional
democracy. Because the court views the petitioner's
arguments in light of current country conditions, it finds
that his fears of future persecution are unfounded.
Teodorescu v. INS, 195 F.3d 970, 973 - 974 (7th
Cir. 1999).
Changed Country Conditions - INS
Rebutted Presumption of Future Persecution
Eighth Circuit
Even assuming petitioner endured past
persecution, the INS successfully rebutted the presumption of
future persecution by proving that conditions in Bulgaria had
changed. There was substantial evidence to support the
BIA’s finding that he lacked a well-founded fear of
future persecution. Kratchmarov v. Heston, 172 F.3d 551 (8th
Cir. 1999).
Conscription into Military -
Not "Well-Founded Fear"
Eighth Circuit
Despite claims of petitioner that if
forced to return to Bulgaria he would be conscripted into the
military, once again be asked to carry out human rights
abuses against other minority groups, and once again be
subject to persecution if he refuses, there was substantial
evidence to support the BIA’s finding that he lacked a
well-founded fear of future persecution. The military and
court summons he had been issued since his departure from
Bulgaria evidence only an attempt by the Bulgarian government
to recoup the cost of his police training. Kratchmarov v.
Heston, 172 F.3d 551 (8th Cir. 1999).
"Humanitarian Asylum" - Not
Requisite Level of "Atrocity"
Eighth Circuit
Petitioner's request for “humanitarian
asylum” based on past persecution would be denied
because the incidents he cited did not rise to the requisite
level of atrocity. And although there is evidence
suggesting that the petitioner may be conscripted upon his
return, the remaining chain of events he presents are too
speculative to support a claim of future persecution.
Kratchmarov v. Heston, 172 F.3d 551 (8th Cir.
1999).
Inconsistent Testimony, No Pattern of
Persecution, Deference to IJ's Credibility Finding
Eighth Circuit
Petitioner did not present specific
facts establishing she had been persecuted in Cameroon. Her
testimony was inconsistent, she could not remember dates, she
submitted two different lists of the names of protesters, and
her name was inexplicably out of alphabetical order on each
list. Regarding her claim of persecution based on her family
name and her family’s political opinion, she failed to
show a sufficient pattern of persecution justifying an
objectively reasonable well-founded fear. Deferring to
IJ's credibility finding. Daiga v. INS, 183 F.3d 797 (8th
Cir. 1999).
Testimony Too Vague, Speculative, and
Insubstantial
Seventh Circuit
Hindu who gave aid to Moslems during
riots in India in 1992-93 testified that he feared to return
to India. He testified that he was beaten several times, that
his store was broken into and ransacked, that Hindus
protested publicly in front of his store, and that threats
were issued to him. He believed the assailants were
members of radical Hindu militant groups. Police did
nothing when he complained. Later, he was solicited for
funds by a radical Hindu political party member and was
beaten by an unknown person. His testimony was too
vague, speculative and insubstantial to establish either past
or future persecution. He was never tortured, arrested,
or detained by Hindu militants or police. Beyond his
testimony, the record contains no evidence corroborating the
beatings or describing the severity of his injuries. There
is no evidence his family members have been harmed while he
has been in the United States. Unpleasant or even dangerous
conditions do not necessarily rise to the level of
persecution. Bhatt v. Reno, 172 F.3d 978, 979, 982 (7th
Cir. 1999)
Despite Evidence of Past Persecution,
Fear of Future Persecution Not Objectively Reasonable
Eighth Circuit
Although there is evidence that citizen
of Laos at one time was victim of persecution -- he spent
most of 1981 in a labor camp because of his anti-Communist
opinions -- a reasonable fact finder could find his fear of
future persecution was not objectively reasonable. After
release from the labor camp, he received a degree from a
government university, worked for a city government, and
obtained a visa and passport. His father and children have
been living in Laos without incident. Affirming BIA's
denial of asylum and withholding of deportation. Manivong
v. District Director, 164 F.3d 432 (8th Cir.
1999).
"Vague" Testimony -
Insufficient Evidence
Eighth Circuit
Petitioner's vague testimony and failure
to provide corroborating evidence did not establish
that she had been victim of past persecution in Guatemala. It
was implausible that guerillas would threaten her based upon
her “minor” political activities. A
reasonable fact finder could find that her fear of future
persecution was not objectively reasonable. Substantial
evidence supports the denial of asylum and withholding.
Rucu-Roberti v U.S. DOJ, 177 F.3d. 669 (8th Cir.
1999).
Discrepancies, Inconsistencies, Gaps
-- Applicant Not Credible
Seventh Circuit
Syrian Catholic, supported of Christian
Phalangist militia and member of Christian militia testified
he was captured by the Syrian army and Hezhollah. He alleged
he had been kidnapped, beaten and tortured by Syrian forces
but failed to mention these events in his asylum application.
Also during those years, he visited the United States on six
occasions but never sought asylum. He also alleged
losses to his business and property holdings during course of
Lebanese civil war, but failed to establish those losses were
the result of persecution. There were inconsistencies
between his and his wife's testimony. The BIA did not
make unsupported, blanket statements that it did not believe
him, and provided ample reasons for its disbelief. Malek
v. INS, 198 F.3d 1016 (7th Cir. 2000).
VII. DETENTION
Seventh Circuit
INA § 236(c), mandating detention of
enumerated classes of deportable or inadmissible noncitizens,
does not violate the due process clause of the Fifth
Amendment. Parra v. Perryman, 172 F.3d 954, 958 (7th
Cir. 1999).
VIII. MISCELLANEOUS
MATTERS
Motion to Reopen, Sua Sponte by BIA
Ninth Circuit
When determining whether to reopen this
deportation case sua sponte pursuant to 8 C.F.R. 3.2(c)(2),
the BIA abused its discretion by simply concluding that
"the respondent has not demonstrated exceptional
circumstances in this case." The BIA did not
consider any of the factors relevant to whether this is an
"exceptional" situation or indicate how it arrived
at its decision. It should have considered many factors
that weigh heavily in favor of a finding that this situation
was "exceptional." Those factors include that
Socop-Gonzalez tried to comply with INS regulations but an
INS officer misinformed him on two occasions. His
adherence to the officer's advice is what caused him to
withdraw his appeal and miss the deadline for filing a motion
to reopen. He was not represented by counsel at that
time. He is married to a U.S. citizen and the INS has
approved his relative visa, indicating the INS believes the
marriage is not fraudulent. There were a "plethora
of factors weighing in favor of reopening Socop-Gonzalez's
case" and the BIA abused its discretion in
not considering them. Socop-Gonzalez v. INS, __ F.3d __, No.
98-70782, 2000 U.S. App. Lexis 5065 at *3, 20-21 (9th
Cir. Mar. 27, 2000).
Equitable Estoppel Against the
Government
Ninth Circuit
The doctrine of equitable estoppel
applies against the government only if it engaged in
"affirmative misconduct going beyond mere
negligence." Providing incorrect information and
advice or failure to inform an individual of his or her legal
rights is not affirmative misconduct. There must be
evidence of "a deliberate lie" or a "pattern
of false promises" to establish "affirmative
misconduct." Nevertheless, the facts that the
petitioner relied to his detriment on the misinformation
given him by an INS officer should have been considered by
the BIA when it was deciding whether this was an
"exceptional" situation meriting reopening sua
sponte. Socop-Gonzalez v. INS, __ F.3d __, No.
98-70782, 2000 U.S. App. Lexis 5065 at *2, 8-9, 21 (9th
Cir. Mar. 27, 2000).
Stay of Deportation
Seventh Circuit
The orderly course of judicial review
would be well served if the INS refrained from issuing
"bag and baggage" letters to noncitizens facing
deportation until after the court of appeals has had a chance
to review the proceedings, at least in the cases where the
agency itself takes the position that fair grounds for
judicial review exist. "This would avoid the
shuffle between agency and court that occurs when there is an
immediate deportation order followed by an unopposed stay
[request]." Sofinet v. INS, 188 F.3d 703, 709 (7th
Cir. 1999).
Special Immigrant Juveniles
Sixth Circuit
Congress did not explicitly state its
intent that the 1997 amendments to the Special Immigrant
Juvenile statute -- INA § 101(a)(27)(J), 8 U.S.C. §
1101(a)(27)(J) -- adding the requirement that the Attorney
General consent to the juvenile court's jurisdiction and to
the dependency order, apply retroactively. Therefore,
the amendments would not be applied where the state
dependency case arose before November 26, 1997. Also,
construing § 101(a)(27)(J) to divest state juvenile courts
of jurisdiction over juveniles in INS custody is a departure
from INS's policies, which is an abuse of discretion and is
not entitled to deference. The issue is not moot even
though Gao is no longer a juvenile because by he will receive
a "meaningful legal benefit" if he is granted
Special Immigrant Juvenile status. Gao v.
Jenifer, 185 F.3d 548, 553, 557 (6th Cir. 1999).
Conditional Permanent Residency --
Petition to Remove Condition
Seventh Circuit
Substantial evidence supports IJ's
decision that there was no intent to enter into a bona fide
marriage and BIA adequately reviewed the IJ's decision.
There were many inconsistencies between the wife and
husband's versions of events, including the year they met,
different reasons for their initial break up, and different
periods of time the wife was in Thailand for the wedding.
They gave false information about their correct addresses and
the amount of time they actually lived together. There
was no evidence they shared any assets or liabilities. [However,
it apparently is undisputed that they did conceive two
children, one of whom they both lived with as a family for at
least several months]. Nikrodhanondha v. Reno, 202 F.3d
922 (7th Cir. 2000).
Immigrant Visa -- Valid Marriage at
Time of Entry
Seventh Circuit
Under Illinois law, the divorce decree
was enforceable on the day the Illinois court issued its
judgment. When the petitioner reentered the United
States, approximately three weeks later, he was not
married to his wife. Therefore, he was not eligible for
admission on an immigrant visa based on his marriage to a
U.S. citizen. The INS was not required to rescind his
visa before it could be rendered invalid under the divorce
judgment. The validity of his visa was contingent upon a
valid marriage to a U.S. citizen. Shaikhs v. INS, 181
F.3d 823 (7th Cir. 1999).
The Holtzman Amendment (INA §
237(a)(4)(D) - Deportation of (Nazi) Persecutors of Others
Seventh Circuit
The Holtzman Amendment mandates
deportation of any alien who, between March 1933 and May
1945, under the direction of or in association with the Nazi
government of Germany or its allies, participated in the
persecution of another person because of race, religion,
national origin, or political opinion. The Amendment
does not include a fraud element; misrepresentation is not a
requirement for deportation under the Amendment. An
alien deportable under the Amendment is ineligible for
"humanitarian asylum." Tittjung v. Reno, 199
F.3d 393, 397, 398 (7th Cir. 1999).
[1] Wright v. Ouellette,
171 F.3d 8, 10 (1st Cir. 1999); Mansour v. INS,
123 F.3d 423, 426 (6th Cir. 1997); Fernandez v. INS, 113 F.3d
1151, 1155 (10th Cir. 1997); Kolster v. INS, 101 F.3d 785,
790, (1st Cir. 1996).
[2] A deportation order
becomes final when the BIA affirms the order or when the time
to appeal from an immigration judge’s order expires
without an appeal having been filed, whichever is earlier.
INA § 101(a)(47)(B), 8 U.S.C. § 1101(a)(47)(B).