Jay Krishnan

2003 Immigration Law Final

 

Question 1:        Recommended Time:     1 Hour

 

Brockman is a newspaper journalist in the state of Minnesota.  For the past couple years he has been investigating a suspected – but never charged or convicted – crime-boss named Adolpho Snake.  Snake is an 83 year-old German citizen, but he is a lawful permanent resident who entered the U.S. in 1957.

 

One day, Brockman receives an anonymous package in the mail.  Inside he finds official documents from the German government describing Snake’s service record during World War II.  The documents state that between 1942 and 1945 Snake had been a member of the German military, stationed at what was called the N4Z prison in Nazi-occupied Poland.  The documents do not describe what Snake’s duties were while at this prison or what went on inside this facility. 

 

Brockman decides to publish in his newspaper this information he receives on Snake.  Homer S, an agent in the Department of Homeland Security (DHS) who tracks former Nazi soldiers in the U.S., reads Brockman’s story.  Homer calls Brockman to tell him that the N4Z prison did not house “ordinary criminals;” rather it was a notorious concentration camp where thousands of Jews were beaten and murdered.  Homer wants to institute deportation proceedings against Snake, and he tells Brockman that he knows of an expert in German military history (a Professor J. Frink), as well as three survivors from the N4Z camp, all of whom can testify as to the brutality that occurred at the hands of the Nazis at this place.

 

Soon thereafter, Snake is arrested.  While awaiting his day in immigration court, Snake grants Brockman an interview, where he tells the journalist:

 

  1. that the N4Z prison was not a concentration camp but rather a medium security prison for what he described as “run of the mill convicts;”
  2. that he worked in the prison kitchen washing dishes, and that he never harmed anyone nor did he witness any person even being badly treated;
  3. and that, in his view, Professor Frink’s seminal book on Nazi concentration camps (that has a chapter on the N4Z prison) lacks proper documentation and research.

 

Snake admits in his interview that he does recall how Jewish prisoners wore a Star of David patch on their arms but that at the time he did not think anything of it.   

 

During the course of the immigration proceeding, Snake refuses to testify, stating:  “What I have to say, you can read in Brockman’s article.”  For the government, Professor Frink and the three former detainees of N4Z do testify.

 

Please describe the arguments the government might make in its closing statement to the immigration judge and then discuss the counter-arguments.  What do you think is the most likely outcome?  Please be sure to explain all sides of all issues and the public policy ramifications of any judicial decision.  [Hint: for this question, two key statutory provisions to concentrate on are INA 237(a)(4)(D) and INA 212(a)(3)(E).]
Question 2:        Recommended Time:     1 Hour

 

Apu was born, raised, and is a citizen of the country of Springfield.  While he lived in Springfield, Apu was a shopkeeper who was only mildly active in politics.  On those occasions where he did vote, he would cast his ballot for members of the ruling XYZ party.  Note, for many years, international human rights groups criticized the XYZ party for rigging elections and for preventing opposition parties from voicing dissenting opinions. 

 

Three years ago the XYZ government was overthrown by a group of grassroots militants. Upon seizing control, the militants sought to arrest members of the XYZ party and their supporters.  Apu was among those arrested and accused of being an XYZ official.  While in custody Apu was beaten, denied food for days, and kept in solitary confinement.  Also during his detainment, Apu’s life was repeatedly threatened by prison guards.  Thankfully for Apu, he was released but was told that if government officials ever saw him again, he would be killed.

 

Apu comes from a minority ethnic group in Springfield.  He believes the militants’ racist views towards his ethnic identity were behind his arrest.  In fact, after his release he began collecting various newspaper articles documenting the militants’ general hostility and prejudice towards his ethnic community.  After his release, Apu fled to the bordering country of Shelbyville, where he lived in hiding for one year.  Yet Apu returned to Springfield because he heard that his uncle and aunt had been arrested by the militants now running the country.  Upon his arrival to Springfield, Apu learned that these relatives had been executed by the regime.  Knowing the potential danger facing him, Apu, nevertheless, decided to stay in a suburb just outside of Springfield’s capital city, where about six months passed without any incident.

 

Eventually, Apu acquired a Springfield passport and a tourist visa to enter the United States.  (The Springfield government bureaucrats who granted Apu the passport failed to identify him as a person wanted by the military rulers.)  Upon his arrival in the U.S., Apu asked American immigration authorities for asylum.  In addition to the above information, assume:  

 

a).        that in his written asylum application, Apu stated that his uncle and aunt were executed in Springfield’s capital city.  During his oral testimony in immigration court, however, Apu said these relatives were killed in another city, actually located 50 miles away; 

 

b).        also that Apu has never previously applied for asylum in any other country;

 

c).        and that during the XYZ era, Apu had fathered an out-of-wedlock child.  Both the mother and child were killed during a random car accident before the revolution.  (This fact came up during the immigration judge’s aggressive questioning of Apu; but the asylum application form never required Apu to provide this specific information.)    

 

You are Apu’s lawyer; the immigration court allows you to make a closing argument on behalf of your client.  What might you say?  What might a lawyer for the government argue in opposing the asylum application?  Given what we have discussed and read during the semester, which side has the more persuasive argument?

 

 

 

Answer Key:  Question 1

 

I.          Two main sections that needed to be analyzed:

            A.        INA 237(a)(4)(D)

            B.         INA 212 (a)(3)(E)

 

                        *these sections discuss mandatory deportation of any alien who . . . (read/cite/apply statute) – remember our discussion of the Holtzman amendment.

 

 

II.         Snake would attack statute – on what grounds

A.                 vagueness

B.                 overbroad

C.                 ex post facto

i.                     how does this apply in particular – would need to discuss Bugajewitz v. Adams – ex post facto clause issue 

ii.                   separate from bill of attainder issue – how?

iii.                  Justice Murphy’s views, 9th circuit’s view, Scalia’s view v. Ginsberg, on this issue more generally with respect to non-citizen rights

* there are important due process considerations that Snake would say he ought to be afforded – discuss:  how does Fleuti, Goldberg, Roth, Matthews fit

 

iv.                 Could there be an equal protection challenges – how:  Snake may argue selection prosecution (goes back to bill of attainder point)

 

D.                 Snake may also claim that the gov’ts evidence here is weak:

i.                     he never personally persecuted anyone

ii.                   testimony from witnesses unreliable and the “expert’s” own book has factual problems

iii.                  he was just a kitchen worker and has never seen or participated in any violence

iv.                 since arriving here he has made no trouble for anyone; even though he has been suspected of organized criminal activities, he has never been charged and is a lawful permanent resident

 

* he has never been convicted of any crime of moral turpitude (would need to define and note how Goldshetein case fits in here)

 

*and the case law even for those who have been convicted of aggravated felonies gives us a mixed record of whether in fact deportability is mandated:

            a.         see Matter of Torres-Varela;

b.         Matter of Lopez-Meza;

c.         Matter of Ramos

 

v.                   And the Chew case directly supports his claim that he should not be deported – after all he, like Chew, has ties to the community, has assimilated, been a LPR (not an un-LPR) – so no justification to deport

 

III.       Government rebuttal:

 

A.                 First thing – the INA’s relevant sections main purpose is to ensure that someone like Snake not view the U.S. as a safe-refuge from those seeking to prosecute

B.                 We discussed the legislative history behind why Congress passed these provisions, and clearly the intent was to keep someone like Snake out

i.                     moreover, plenary power doctrine and deference ought to apply (while Chew case may be in Snake’s favor, what about Knauff and Mezei decisions?)

ii.                   the court should not be stepping into a policy decision on immigration given the long history of deference shown to the Leg. Branch

C.                 Also, the evidence here is pretty damning against Snake:

i.                     Professor Frink’s book

ii.                   Independent accounts by three separate eye-witnesses who describe the horrific place that N4Z was

iii.                  And that Snake himself concedes that he recalls that Jews were distinguished from others by wearing a STAR OF DAVID patch

iv.                 His refusal to testify also should be an inference made against him

·         not a criminal proceeding – thus no 5th amendment right either relating to self-incrimination protection or due process

·         that he gave an interview to Brockman, but not to the court also places any 5th amendment argument in question

 

D.                 Language of statute clear – the term “assisted” very important – even though someone may not have been directly involved in the persecution, assistance is more than enough

i.                     even assuming his story that he “only” worked in the kitchen is true, indirectly his efforts (i.e., cleaning dishes, cups, providing sanitary utensils, etc.) aided prison guards who were involved in the terrible brutality

ii.                   moreover, after 1996 someone who should not have been admitted because but who is here now allegedly legally, does not have a right to claim full protections under U.S. law – gov’t would argue that Snake should have been inadmissible from the start – thus standard that government has to meet to exclude someone like Snake is low and deference should be awarded (remember 237(a)(1)(A))

·         related to this, perhaps the government could also argue that Snake was involved in some type of document fraud, per 274C, as means of excluding/deporting him

·         or that Snake lacked good moral character (see in Re Gonzales-Reccinas) – after all he has long been a suspected crime boss

 

Answer Key Question 2:

 

 

This question deals directly with the 208/241(b)(3) [243(h)] handout passed out in class.  Recall the points from that hand-out: -- (these would have to be discussed and integrated into the analysis)

 

Distinguishing Between 208 & 241(b)(3) [formerly 243(h)]

 

-Section 208:

 

Characteristics:

 

A.                 The asylum provision for refugees seeking to gain permanent residence

 

1.       to qualify as a refugee must meet 101(a)(42) definition (i.e., well-founded fear + being persecuted on account of race, religion, nationality, membership in a particular social group or political opinion)

 

B.                 After INS v. Cardoza Fonseca (US SC, 1987) – Court says 208 must be read differently than 243(h) [241(b)(3)]:

 

1.       If applicant qualifies as a refugee & if she/he has well-founded fear on account of 1 of 5 categories – applicant is eligible for asylum

 

2.       But, simply because applicant is eligible, does not mean she/he will be granted asylum – AG retains discretion

 

3.       If AG grants asylum then applicant will be given permanent residence

 

4.       Some worried that AG would use discretion against applicants, but where applicants have met eligibility requirements, Justice Dept has been willing to grant asylum

 

-Section 241(b)(3) [formerly 243(h)]

 

Characteristics:

 

A.                 The withholding of deportation provision for those seeking not to be returned to their home country because their “life or freedom would be threatened.”

 

1.       Just because one meets the definition of refugee does not mean that she/he is entitled to have 241(b)(3) apply. (INS v. STEVIC, US SC 1984)

 

2.       To be afforded 241(b)(3) protection, applicant needs to show that “it is more likely than not that the alien would be subject to persecution.” (Id.)

 

3.       Key point, if alien can show by objective evidence that she/he more likely than not will be persecuted, then because the U.S. has signed onto the UN’s Convention Relating to the Status of Refugees (Art. 33.1), alien cannot be returned ----> even though if you read 241(b)(3) there may be an argument that AG still has discretion, SC says no

 

4.       But, making the “objective” case is going to be a higher threshold for the applicant -----> and even if applicant gets 241(b)(3) protection, she/he is not entitled to permanent residence benefits  

 

 

*IF ARGUING FOR THE GOV’T, AN APPLYING THE ABOVE RULES, WHAT WOULD CONCEIVABLY BE STATED:

 

1.         That Apu never demonstrated that he was ever singled out for persecution due to his political beliefs or membership in a social group – cannot use above rules as a catchall to gain asylum protection

                       

A.        Recall Scalia’s opinion on imputed opinions in Elias-Zacarias

 

                        B.         What about Matter of Fuentes – no protection given there

 

C.         Other key cases – Matter of Acosta and Matter of H – how do those fit in here?

 

D.        Key thing would be to define persecution and show how Apu was not in fact persecuted (look to Chang case as well as Borca)

 

E.         Could the government make an internal flight argument? – after all Apu returned to Springfield and then lived outside the capital city without any incident – how bad could it be?

 

F.         Didn’t have his facts straight on where his relatives were killed – does this put into doubt the evidence of his story – his newspaper clippings also were too general – not specific enough to his situation.

 

Other points:

 

*Could have applied for asylum in Shelbyville but didn’t – why not? It is a neighboring country after all – closer to his come presumably

 

*The fact that he had an out-of-wedlock child – what if he has another out-of-wedlock child here in the U.S. – could that child end up being a public charge?

 

 

 

 

 

 

 

 

Apu’s Lawyer – Arguments to make:

 

1.         First, in terms of the public charge issue, this is totally irrelevant – as we know from previous case law in class, neither the government nor the Immigration judge may ask or probe into matters that are completely irrelevant from the case at hand – this is more of a bullying/scare tactic that the government is arguing to the court – it has no place here – recall how appellate courts have shot down the government’s efforts to delve into motives for why one marries (see Sham Marriage case law)

 

2.         the discrepancy between his oral testimony and written application here is minor and not substantively damaging enough to place his application in peril.  This does not discount or take away from what happened to Apu

 

            3.         other issues and relevant case law that would need to be discussed:

                       

                        *see pages 898-902

                        *Matter of H / Matter of Acosta

                        * Matter of Chen; Sanchez-Trujillo; and Hernandez-Montiel

*do the rules from the gender-based claims have relevance here – if so what?

*how Salim, Stevic, Cardoza-Fonseca, relate to Apu’s claim directly here

*how indeed he is part of a particular group (newspaper accounts are relevant for this case)

*how it would not be out of the question to think that the new regime knew of his previous, occasional votes on behalf of the government

*his relatives were killed – why not him next, after all – no place in a country like that would be safe for him

*he came and asked for asylum properly – did not try to sneak into the U.S. – played it as straight as he could

*given what he has endured, he satisfies Article 33 of UN Convention

*given what has happened to him, he satisfies: well-founded fear of persecution standard (208a)

*given what has happened to him, he also satisfies clear probability of persecution and/or more likely than not to be persecuted standard incorporated by Court to be used for 241(b)(3)

*because this is the case, he must be granted a withholding of deportation by the AG.