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Recent Immigration Decisions
by Greg Siskind and Amy Ballentine

Lin v. INS, Third Circuit

In this case, the court reversed the decision denying a Chinese student dissident asylum.

Li Wu Lin was a student demonstrator during the weeks leading up to the 1989 crackdown on pro-democracy rallies at Tiananmen Square. Fearing for his safety following the crackdown, he fled China and sought asylum in the US. While only 15 at the time of the protests, because he is unusually tall, he was given positions of prominence in the demonstrations. He did not participate in any of the rallies at Tiananmen Square, but after hearing reports of the Chinese government’s actions there, became concerned that the government would seek him out. He left home to stay with a relative, and less than a week later police officers came to his home demanding that he appear for questioning. Upon learning of this, he moved even farther away and over the next two and a half years he and his family worked to save the money to hire a smuggler to get Lin out of China. During this time the police came to Lin’s former home at least five times. Lin also learned that fellow students with whom he had demonstrated had been arrested and sentenced to forced labor.

In 1992, Lin had the money to contact a smuggler, who took him to Czechoslovakia. After eight months there, he came to the US. The Immigration Judge denied his application for asylum, and after a six and a half year delay, the Board of Immigration Appeals affirmed. They found that while Lin’s testimony was credible, the government was not persecuting him, but merely seeking to enforce trespass laws.

The Third Circuit found that simply because the Chinese government was pursuing Lin for legal action did not mean it could not be a basis for an asylum claim. It found that the record did not support the Board’s conclusion that the government was seeking to enforce trespass laws – indeed, the police had told Lin’s family that they were seeking him because of his political activities. Moreover, given what is known about the government crackdown on student activists in the wake of Tiananmen Square, it would be unreasonable to think that the Chinese government was interested in anything other than Lin’s political opinions.

The INS argued that because Lin stayed in China for almost three years following his demonstrations, he could not have seriously feared persecution. The court noted that at no point in the proceedings had Lin been questioned about his activities during this period, and that, at any rate, it is reasonable to assume that the Chinese government would not expend great effort to track a 15-year old dissident. Finally, the INS argued that a sentence of one year of forced labor did not constitute persecution. The court disagreed, finding that it was “a very long sentence for simply voicing opposition to the government.”

The court reversed and remanded to the Board with instructions to grant Lin asylum.

*********

US v. Thomas, Fifth Circuit

In this case, the court found that a guard at a private prison where INS detainees are held is subject to the same standards of conduct as a guard employed directly by the federal government.

Shannon Thomas was a guard at a private prison facility in Texas where INS detainees were housed. As part of the contract between the state of Texas and the private prison company, Corrections Corporation of America (CCA), all CCA employees were required to abide by the same standards as if the federal government had directly employed them. One of these standards prohibited guards from bringing contraband into the facility. Thomas violated this rule by bringing cigarettes to the facility and selling them to detainees. He was charged with bribery under a statute that prohibits “public officials” from accepting anything of value in exchange for violating the terms of their job. He was convicted and sentenced to five years probation.

Thomas appealed, arguing that he was not a “public official.” He based this argument on the fact that he was not responsible for developing or implementing public policy, but was merely an employee, and that he did not occupy a position of public trust.

The Fifth Circuit has never before addressed this issue, but other courts have. These cases have overwhelmingly found that people in Thomas’s position are public officials even if directly employed by a private business, and even though they do not develop public policy. Because Thomas was bound by a contract to perform all the duties a guard employed directly by the federal government and to abide by all rules covering federal employees, he was a “public official” for purposes of the bribery statute and was properly convicted.

*********

Castro-Cortez v. INS, Ninth Circuit

In this case, the court found that the provisions dealing with the reinstatement of deportation orders enacted in 1996 could not be applied to people who reentered the US before the new provisions went into effect.

This case involved five individuals, all of who had been ordered deported, left the US, and then reentered without authorization, against whom the INS reinstated the deportation orders. They claimed that the procedures by which the INS reinstated these orders violated their due process rights. They also claimed that the new reinstatement rule could not be applied to them because they reentered the US before the new rule went into effect.

First the court had to address the issue of jurisdiction. These cases arrived at the Ninth Circuit in two ways – some by direct appeal from the Board of Immigration Appeals and some through a petition for a writ of habeas corpus. The court found that it had jurisdiction over the cases on direct appeal as the jurisdiction-stripping provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 referred only to final orders of removal, and did not mention reinstatement orders. The court also found that it had jurisdiction over the cases on habeas corpus under a federal statute designed to cover the need to transfer cases from district courts to courts of appeals. The court found that all three requirements – that the appellate court could have heard the case when it was filed in district court, that the district court lacked jurisdiction, and that transfer is in the interest of justice – were met.

Before 1996, the reinstatement statute provided that before a deportation order could be reinstated, the alien was to be given a hearing before an Immigration Judge. Since then, however, reinstatement can be ordered by an Immigration Officer (an INS employee, unlike Immigration Judges, who are in a separate agency), and there is no requirement of a hearing. Aliens in the new reinstatement proceedings are not allowed to be represented by attorneys, nor is there any written record of the proceedings. The court noted that whether these procedures comply with due process requirements is an important question, but said, “nevertheless, while we have serious doubts as to the constitutionality of these procedures, we do not decide that question because we may rule in petitioners’ favor on a narrower ground.” This ground is that the new reinstatement statute did not apply to them because they reentered the US before it was enacted.

In determining whether a statute applies to events that occurred before its enactment, a court examines first whether Congress made clear the temporal application of the statute. If there is no congressional intent, the court is to examine the statute to determine if it has a retroactive effect.

The Ninth Circuit found that Congress clearly did not intend the 1996 reinstatement statute to be applied retroactively. First, language that would have made it retroactive was eliminated while the law was being written. Second, throughout the Illegal Immigration Reform and Immigrant Responsibility Act Congress specified which sections apply to events that occurred before it became effective, supporting the negative implication that in the absence of such an indication, the statute is not meant to apply retroactively.

Finding that the new reinstatement provision did not apply to the cases before it, the court ordered that the reinstatement of the deportation orders be vacated.


About The Author

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues. After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM Publishing Board as Marketing Vice Chairman and on the Council of the Law Practice Management Section. He is also a member of the Tennessee Bar Association, the Nashville Bar Association and the Memphis Bar Association. He serves on the board of the British American Business Association of Tennessee. And he serves on the Board of Directors of the Hebrew Immigrant Aid Society and on the executive boards of the Jewish Family Service agencies in Nashville and Memphis, Tennessee. He recently was named one of the Top 40 executives under age 40 in his hometown of Memphis, Tennessee.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com.

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com.



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