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Editor's Comments of the Day
The 9th Circuit in Larita-Maritnez v. INS, No. 98-71452 (9th Cir. July 21, 2000), in affirming the Board
of Immigration Appeal's decision has committed the same error it recently found required a remand in
another case. Larita-Martinez conceded deportability and applied for suspension of deportation.
Petitioner claimed that separation from his aunt and uncle who were in the United States would
constitute an extreme hardship. After the denial by the Immigration Judge but before the decision
by the Board of Immigration Appeals petitioner's aunt and uncle were granted permanent resident
status and petitioner advised the BIA. The BIA affirmed the IJ's decision stating, "we have reviewed
the record of proceedings, the Immigration Judge's decision and the respondent's contentions on
appeal." The petitioner appealed the BIA's decision on the grounds that it was an abuse of
discretion for the Board to deny the application for suspension without specifically mentioning
all relevant evidence in the decision. The 9th Circuit determined that the appropriate standard
of review was not abuse of discretion, but whether petitioner's 5th Amendment due process right
to a full and fair hearing had been violated.
The Court held that an alien attempting to establish that the Board of Immigration Appeals violated his right to due
process by failing to consider relevant evidence must overcome the presumption that the Board did review the
evidence. The Court then goes on to dismiss petitioner's argument that the Board did not consider the evidence
by citing the definition of "record of proceedings," in the federal regulations which includes "documents submitted
in support of appeals." Following this reasoning creates an irrebutable presumption that the Board has reviewed all
the evidence because merely reciting the words "record of proceedings" would preclude the argument that the Board
did not consider evidence even if not specifically mentioned in its decision.
The Court's holding in Larita-Martinez contradicts its recent decision in Singh v. INS, No. 98-70663 (9th Cir. May
25, 2000). In that case the 9th Circuit found the BIA had erred when it created a new evidentiary standard and
then denied the appeal for failure to meet that standard. The court wrote, "the failure to give notice and an
opportunity to respond in the face of ever shifting evidentiary standards denied Singh a full and fair hearing."
The 9th Circuit has done the very same thing here creating a new standard of a presumption that the Board
considered the evidence, and then denying the petitioner an opportunity for a full and fair hearing under
Cases of the Day
BIA Presumed to Review All Evidence
The 9th Circuit in Larita-Maritnez v. INS, No. 98-71452 (9th Cir. July 21, 2000), held that an alien attempting
to establish that the Board of Immigration Appeals violated his right to due process by failing to consider
relevant evidence must overcome the presumption that the Board did review the evidence.
Being "Found in" the US a Continuing Offense
In US v. Ruelas-Arreguin, No. 99-50213 (9th Cir July 19, 2000), the 9th Circuit ruled that being
"found in" the United States is a continuing offense which commences with entry and concludes with discovery
and venue is proper in any place at which the violation may occur.
Congressional News of the Day
Report to Senate on S. 2812
The Senate Committee on the Judiciary made a favorable report to the Senate on
S. 2812 would amend the Immigration
and Nationality Act to provide a waiver of the oath of renunciation and allegiance for naturalization of aliens
having certain disabilities.
Final Rules on Asylum Office Change and Labor Certifications for H-2A's Referred to Committee on the Judiciary
The INS has sent the final rule for the "Jurisdictional Change for the Los Angeles and San Francisco Asylum Offices,"
and the Department of Labor has transmitted its final rule for the "Labor Certification and Petition Process for the
Temporary Employment of Nonimmigrant Aliens in Agriculture in the United States; Delegation of Authority to Adjudicate
Petitions," to the Committee on the Judiciary.
INS News of the Day
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DOS News of the Day
US Contributes $2 Million to the UNHCR
The Department of State announced an additional $2 million to the United Nations High Commission on Refugees to
support assistance programs in northern Angola which provide emergency relief and humanitarian needs for Congolese
refugees and returned Angolan refugees.
ILW.COM Featured Article of the Day
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foreign student advisors, human resources personnel, scholars and those whose lives have been effected
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Immigration News of the Day
Reno Immigrants Fearing Deportation Win Temporary Reprieve
According to the Las Vegas Sun, several immigrants from Mexico who claim they have been falsely accused of committing
fraud on their immigration forms and fear that they might be deported, have won a temporary reprieve from an
immigration judge in their bid to remain in Nevada.
Magistrate Reignites Feud, Orders INS to Free Ex-Convict
Sacbee News reports that contrary to the express wishes of the District Judge in the case, and despite the government
's position that he has no authority to do so, a Magistrate Judge ordered the temporary release of a foreign-born
ex-convict who cannot be deported.
Senate Panel Votes to Let Border Patrol Add 1,000 Agents
The Houston Chronicle reports that the Senate Appropriations Committee has approved legislation to add 1,000 agents to
the Border Patrol to fight drug smuggling and illegal immigration. However, even if the Senate measure passes, the
proposed number of agents could be sharply reduced by a House-Senate conference committee.
ILW.COM Highlights of the Day
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