Opposition Brief — INS v. Aguirre-Aguirre

2 Pe ea ae ae ae ae

FILE!

No. 97-1754 A

JUL 6 19%

In The 1 OFFICE OF THE CLERK

Supreme Court of the United States -—.-—

October Term, 1997

IMMIGRATION AND NATURALIZATION SERVICE,

Petitioner,

V.

JUAN ANIBAL AGUIRRE-AGUIRRE,

Respondent.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

S

RESPONDENT'S BRIEF IN OPPOSITION

.

Napine K. WertstTEIN

Counsel of Record

P. O. Box 64673

Tucson, Arizona 85728

(520) 529-6731

HirosH:1 MoTromMuRA

University of Colorado”

School of Law

Campus Box 401

Boulder, Colorado 80309

(303) 492-7008

*(for identification only)

VERONICA VALENTINI

617 Hoover Street

Las Vegas, Nevada 89101

(702) 384-8600

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether this Court should grant this Petition for

Writ of Certiorari when the facts underpinning the Board

of Immigration Appeals’ and the Court of Appeals’ deci-

sions are not the facts of this case.

2. Whether this Court should grant this Petition for

Writ of Certiorari to consider an unremarkable exercise of

judicial review, where there is no circuit conflict on the

issue decided, and where the legal and factual issues are

narrow and infrequently raised.

TABLE OF CONTENTS

Page

CURSING PRESENTED 2. occ ccccccsccsccsccvees i

TABLE OF AUTISORITIES ... ccc cccccccccccesnecess iii

TE oad hs CEH ed aki e cece eels seReanevewes 1

REASONS FOR DENYING THE PETITION......... 5

I. The Court of Appeals’ Decision is An Unremark-

able Example of Proper Judicial Review........ 5

Il. The Serious Non-Political Crimes Bar to With-

holding is Almost Never Invoked, and That

Fact Will Not Change With the Recent Amend-

ef ! COE rte err e TTI Te 12

fll. The Court of Appeals’ Decision Does Not Cre-

OF CE SAME oy hike dd vce dencccuees 19

[V. There Were Independent Grounds For The

Court of Appeals’ Decision.................. 21

SI Ab ne ¢ 008 Cc ons Ved +90 cpecccshumeeeens 24

TABLE OF AUTHORITIES

Page

Cases:

Abdel-Masieh v. U.S. INS, 73 F.3d 579 (5th Cir.

Sc haddidd pha (daw dhvowe be Gr cade caacetcc teen 7

Akinyemi v. INS, 969 F.2d 285 (7th Cir. 1992)......... 7

Arauz v. Rivkind, 845 F.2d 271 (11th Cir. 1988)... .20, 21

A__S___, Matter of, Int. Dec. 3336 (BIA 1998)........ 7

Azzouka v. Sava, 777 F.2d 68 (2d Cir. 1985) .......... 16

Babai et al v. INS, 985 F.2d 252 (6th Cir. 1993)........ 7

Ballester-Garcia, Matter of, 17 I & N Dec. 592 (BIA

1980) (modified on other grounds), Matter of

Gonzalez, 19 | & N Dec. 682 (BIA 1988)........... 14

Batanic v. INS, 12 F.3d 662 (7th Cir. 1993).......... 6, 7

Bedoya-Valencia v. INS, 6 F.3d 891 (2d Cir. 1993)...... 7

Boromand, Matter of, 17 | & N Dec. 450 (BIA 1980) ..... 7

Bowen v. Georgetown University Hospital, 488 U.S.

Ee CPD a ew ee bark ah csqbapenurecel speseedssaegs 9

C___, Matter of, 20 I & N Dec. 529 (BIA 1992)....16, 17

Castellon-Contreras v. INS, 45 F.3d 149 (7th Cir.

SPORE FN si ws oe ub hints bode ec Oecd nee hebebedoecses 7

Chevron U.S.A. v. Natural Resources Defense Council,

hs Sr 6 ok wi wenn dnmbeds danee sees 6

Choeum v. INS, 129 F.3d 29 (1st Cir. 1997)........ 16, 22

Demarest v. Manspeaker, et al., 498 U.S. 184 (1991) ..... 6

Diaz-Resendez v. INS, 960 F.2d 49: (5th Cir. 1992)..... 7

iv

TABLE OF AUTHORITIES —- Continued

Doherty v. INS, 908 F.2d 1108 (2d Cir. 1990), rev'd,

gt & | —_- RNA reas eae ee OTe 10

Doural, Matter of, 18 | & N Dec. 37 (BIA 1981)

(modified on other grounds), Matter of Gonzalez,

19 1 & N Dec. 682 (BIA 1988) ............ . 14, 16, 23

Dulane v. INS, 46 F.3d 988 (10th Cir. 1995)........... 7

Dwomoh v. Sava, 696 F. Supp. 970 (S.D.N.Y. 1988) ..... 8

Frentescu, Matter of, 18 | & N Dec. 244 (BIA 1982)

(modified on other grounds), Matter of Gonzalez,

BD F & OE ee Gee WU ove Web he vovstbecuccc 14

Garcia-Mir v. Smith, 766 F. 2d 1478, 1487 n. 10 (11th

Cir. 1985) cert. denied sub nom. Marquez-Medina v.

Meese, 475 U.S. 1022 (1986) ............ 14, 16, 19, 20

Goncalves v. INS, 6 F.3d 830 (Ist Cir. 1993)........... 7

Guillen-Garcia v. INS, 999 F.2d 199 (7th Cir. 1993)..... 7

Kulle, Matter of, 19 | & N Dec. 318 (BIA_1985) >=.

ENS @ Abeta, GES UE OO. Cee a svn decwsdsccc cscees 13

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ....8, 11, 13

INS v. Doherty, 502 U.S. 314 (1992) sastndas ichbngwets 13

INS v. Stevic, 467 U.S. 407 (1984). ............ 10, 12, 13

Institute for Technology Development v. Brown, 63

PROG Gap Ga GA Dee s ivisndkcckuws Giusievsccrane 6

Izatula, Matter of, 20 1 & N Dec. 149 (BIA 1990)...... 8

Komarenko v. INS, 35 F.3d 432 (9th Cir. 1994)........ 18

Martinez-Benitez v- INS, 956 F.2d 1053 (11th Cir.

SOT: Gos cs vo 0d eleaccudebest a caes skin eeeeGbe san 8

v

TABLE OF AUTHORITIES - Continued

Page

McMullen, Matter of, 19 1 & N Dec. 90 (BIA 1984) ..14, 16

McMullen, Matter of, 17 1 & N 542 (BIA 1980).. 16, 17, 22

McMullen v. INS, 788 F.2d 591 (9th Cir. 1986) ....... 22

Pula, Matter of, 19 | & N Dec. 467 (BIA 1987)........ 7

Q__T__M__T__. Matter of, Int. Dec. 3300 (BIA

tees uk ibds st dddbicctenseiduds odeccuad 17, 22

Ramirez-Ramos v. INS, 814 F.2d 1394 (9th Cir.

te rie he Pals oa ree CEE ete Sy ct 18, 19

Ramirez-Rivero, Matter of, 18 | & N Dec. 135 (BIA

RMR SRR, Oy Ry cy Oe Py ee Oh ee 14, 16, 23

Rodriguez-Coto, Matter of, 19 | & N Dec. 208 (BIA

1985) (modified on other grounds), Matter of

Gonzalez, 19 | & N Dec. 682 (BIA 1988)........... 14

Rodriguez-Majano, Matter of, 19 | & N Dec. 811

Dn <stvarcsnchechenestnes bapseparsesceses 8, 9

Rodriguez-Palma, Matter of, 17 | & N Dec. 465 (BIA

1980) (modified on other grounds, Matter of

Gonzalez, 19 | & N Dec. 682 (BIA 1988)........... 14

Rosario v. INS, 962 F.2d 220 (2d Cir. 1992)............ 7

S__S__ Matter of, Int. Dec. 3317 (BIA 1997) ....... 16

Saiyid v. INS, 132 F.3d 1380 (11th Cir. 1998)......... 16

Salameda v. INS, 70 F.3d 447 (7th Cir. 1995) .......... 7

Turri v. INS, 997 F.2d 1306 (10th Cir. 1993)........... 7

Urbina-Mauricio v. INS, 989 F.2d 1085 (9th Cir.

> REM O Sat ean ge Be Sir So ae Bae a 18

White v. INS, 75 F.3d 213 (Sth Cir. 1996) ............. 7

vi

TABLE OF AUTHORITIES — Continued

Page

Yeung v. INS, 76 F.3d 337 (11th Cir. 1995) ............ 7

Yeung, Matter of, Int. Dec. 3297 (BIA 1996) .......... 17

Treaties, STATUTES REGULATIONS:

United Nations Convention Relating to the Status

of Refugees, July 28, 1951, 189 U.N.T.S. 150

(reprinted in 19 U.S.T. 6259)... 0.0... 2c cece eeeee 9

United Nations Protocol Relating to the Status of

Refugees, 19 US.T. G223..... 2... ccccccccecsnceceee 9

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA)

ORME ss ccadcccedvcncdvcovetasthadéserevadewe 17, 21

GS SEDI ie. 0. u:nins dis dnb tb Hida cannes sesstdeanenctenesen 22

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208,

Div. C, 110 Stat. 3009-546 (IIRIRA)

DE TMD 6 56 cevngewdssctacthevenns tedcerveunecevage 17

Oe abate 5 ym SE cnbe: Dh Seah RRO ae

Immigration and Nationality Act,

8 U.S.C. § 1101 et . (INA)

§ 101(a)(43), 8 U.S.C. § 1101(a)(43)................ 16

P Sat ae S) Meprrrerrrrrrirerrrt ee 13

§ 208(b)(2)(B)(i), 8 U.S.C. § 1158(b)(2)(B){i) ......-. 16

yo! a ge pape ee 16

Ph Et oe 8 a ee ee 13

§ 241(b)(3)(B)(ii), 8 U.S.C. § 1231(b)(3)(B)ii)....... 17

6 245TH), & USL. | TBR. « - os. vacsccccncetss 12, 22

vil

TABLE OF AUTHORITIES - Continued

| Page

§ 243(h)(2)(A), 8 U.S.C. § 1253(h)(2M(A)..........-. 18

§ 243(h)(2)(B), 8 U.S.C. § 1253(h)(2)(B) ......... 17, 18

§ 243(h)(2V(C), 8 U.S.C. § 1253(h)(2)(C)

eededtashplawoed’ Situs Gerth asta sie 13, 15, 18, 19, 22

REGULATIONS:

SCRE tii 8

a ME bdo eta hnceteosnsndbdcpeagtucdecedanti 8

DB CR See aii ado cae dee ccd cove cdces 15

8 C.F.R. § 208.13(c)(2) (proposed rule).......... eee

FepeRAL RecisTer:

52 Fed. Reg. 32557 (Aug. 28, 1987)...............- 15

53 Fed. Reg. 11300 (April 6, 1988) .......... 9, 15, 23

53 Fed. Reg. 11301 (April 6, 1988) .......... 9, 15, 23

53 Fed. Reg. 11306 (April 6, 1988) ............. 15, 23

55 Fed. Reg. 30674 (July 27, 1990)................. 15

55 Fed. Reg. 30683 (July 27, 1990)................. 15

MISCELLANEOUS:

United Nations High Commissioner for Refugees,

Handbook on Procedures and Criteria for Determin-

ing Refugee Status under the 1951 Convention and

the 1967 Protocol to the Status of Refugees (Jan.

PAA. a CG) de hicks bk vdnond curiae dedpeewsdd 040 50% 10, 11

RESPONDENT'S BRIEF IN OPPOSITION

Respondent Juan Anibal Aguirre-Aguirre hereby

opposes the Petition for a Writ of Certiorari to review the

judgment of the United States Court of Appeals for the

Ninth Circuit in this case.

STATEMENT

Central to the Immigration and Naturalization Ser-

vice’s (INS) Petition and the decision of the Board of

Immigration Appeals (BIA) below was their belief that

Mr. Aguirre committed serious crimes against civilians in

Guatemala before fleeing to the United States. This con-

tention is based on a transcript of the immigration judge

(IJ) hearing in this case, held on April 5, 1995. Recently

obtained information demonstrates that the transcript

contains significant errors, and the INS, the BIA, and the

Court of Appeals were mistaken about Mr. Aguirre’s

conduct in Guatemala. In short, this is not the same case

the BIA and the Court of Appeals decided and this Court

cannot grant certiorari under these circumstances.

At the hearing, Mr. Aguirre testified in Spanish; an

interpreter interpreted questions and answers. As is typi-

cal in IJ proceedings, no court reporter was present.

Rather, the proceedings were tape recorded. Later, a tran-

script was made of that tape recording and was used by

the parties, by BIA, and by the Court of Appeals.

With the assistance of the Solicitor General's office,

counsel for Mr. Aguirre herein recently obtained a copy

of the official tape recording of the IJ hearing. A review of

the tape recording reveals both that the interpreter made

mistakes in the interpretation of crucial aspects of the

questions and answers at critical junctures, and that the

transcriber committed at least one significant error,

changing the meaning of crucial testimony.

The BIA, the Court of Appeals, and the INS all

believed that Mr. Aguirre had said he stoned people, hit

them with rocks. The dissent said “Hitting someone on

the head with .. . a stone in the nature of a brick... ” Pet.

at 10a. But the hearing tape does not support this version

of the facts.

Mr. Aguirre was asked on cross-examination by the

INS trial attorney (TA): “And, were there any people on

board these buses when you did this?” [when Mr.

Aguirre and his compatriots burned the buses]. The inter-

preter correctly interpreted his answer, which was: “No,

because we would stop the bus, help all the people, uh,

get out of the bus, and then because there were so many,

we would just stone them and make them get away and

then burn the bus.” AR 93.!

It is clear from the taped testimony that the stone-

throwing was part of the process of clearing the buses of

people so they would not be hurt when the buses were

burned. In the immediate next question, the TA asked Mr.

Aguirre whether anyone was hurt “during any of these

bus burnings or stonings?” Mr. Aguirre said no. In subse-

quent questions, the TA asked specifically about the ston-

ing of people, but very significantly, the interpreter

' AR refers to the administrative record before the Court of

Appeals.

omitted those parts of the questions - perhaps because

she knew Mr. Aguirre had not testified that he threw

rocks at people, and in her mind, she was keeping the

record straight.

Specifically, the TA asked: “When you were burning

these buses and throwing rocks and things at people did

you cover your face with a bandanna or in some other

way hide your identity?” The interpreter omitted the

phrase “throwing rocks and things at people.” AR 94.

Again, the TA asked, “The people who were in the stores,

did you treat them in a similar fashion that you treated

the people on the bus, that is throw rocks at them and hit

them with sticks and tie them with ropes in “rder to get

them to go?” AR 94. The interpreter omitted words,

“throw rocks at them.”

In sum, Mr. Aguirre was not told that the TA believed

he had thrown rocks at people. The record reflects these

questions, but no denials or clarifications by Mr. Aguirre.

Mr. Aguirre’s then-counsel did not clarify the matter

either, apparently because he did not understand Span-

ish.

Mr. Aguirre explained that if the people on the bus

would “heed” the protesters, they (the passengers) would

leave the bus. AR 93. The interpreter interpreted cor-

rectly, but the transcript shows this: “But, if they be, |

mean if they hit our, uh, bus then we get off the bus.”

Other language problems color the transcript. Mr.

Aguirre testified that if people did not leave the bus, the

protesters would hit them with “sticks.” AR 93. The word

he used for “sticks” is “palos” which also may refer to a

small tree branch, and which conveys a far different

concept than “baseball bat,” the term used by the dissent

in the Court of Appeals. Regarding the tying of the bus

passengers, as part of his explanation, Mr. Aguirre said

“asi,” which essentially means, “like this.” This indicates

that Mr. Aguirre was demonstrating how he tied people,

presumably by the wrists to lead them out of the bus, not

lynch-mob style as the dissent below implies. The word

“asi” and the explanation do not appear in the record. AR

93.

Mr. Aguirre testified that the protesters would break

the windows of the stores and, using vernacular, he said

“trash” them. The interpreter said “raid them. Taking

everything they have.”-AR 94. This was the interpreter ’s

erroneous expansion, not Mr. Aguirre’s testimony. For-

tunately, in this instance the TA asked a follow-up ques-

tion that was properly interpreted, so Mr. Aguirre

clarified that the protesters would not steal anything but

rather would leave the stores’ contents on the floor. AR

94.

Mr. Aguirre was asked this question by the TA: “Do

you think the government would be able to control those

who are threatening you?” AR 92. The interpreter com-

pletely misinterpreted the question, asking Mr. Aguirre if

he feared persecution by the government. No one real-

ized the mistake and the matter never was clarified.

The BIA’s decision, the Court of Appeals’ dissent,

and the INS’s Petition all are grounded on their belief

that Mr. Aguirre committed serious crimes against civil-

ians in Guatemala. The hearing tape demonstrates that

the facts are not as everyone believed.2

¢

REASONS FOR DENYING THE PETITION

As noted above, the Petition for Certiorari is based

on an erroneous concept of the facts. The Petition also

misconstrues what the Court of Appeals did below, mis-

construes the magnitude of the issue, and claims there is

a circuit split when there is not. A decision in this case

would be largely advisory, having no application beyond

the narrow confines of a seldom-invoked exception to a

limited ground of relief from deportation. The number of

cases and number of people even potentially affected by

this court’s decision would be minuscule, despite the

INS's contentions to the contrary. Moreover, this Court’s

decision on the question raised would not dispose of the

case, as there are independent grounds on which the

Court of Appeals could reverse the BIA.

Il. The Court of Appeals’ Decision is An Unremarkable

Example of Proper Judicial Review.

A. The petition construes this case as a purported

example of the Court of Appeals’ improperly usurping

? As Mr. Aguirre’s counsel has informed counsel for the

INS, she will obtain a full and accurate transcript of both

Spanish and English testimony, using the services of a certified

court interpreter, and will lodge the transcript with the Court

and provide a copy to the INS.

the discretion of the Attorney General. In fact, the Court

of Appeals applied the proper degree of deference,

imposed the correct standard of review, and reached the

correct result on the merits.

The Court of Appeals applied the proper standard of

review in reviewing purely legal issues: de novo. The

judiciary is the final authority on issues of statutory

construction. Chevron U.S.A. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 843, n. 9 (1984); Demarest v.

Manspeaker, et al., 498 U.S. 184, 190 (1991). No deference is

afforded an agency’s interpretation of strictly legal terms,

with respect to which it has no particular expertise.

Batanic v. INS, 12 F.3d 662, 665-666 (7th Cir. 1993); Insti-

tute for Technology Development v. Brown, 63 F.3d 445, 450

(Sth Cir. 1995).

The Court of Appeals did not substitute its judgment

for the BIA’s. Rather, it faulted the BIA for the agency's

failure in procedure, that is, failure to properly consider

all the facts and circumstances of Mr. Aguirre’s withhold-

ing application. Specifically, the Court said the BIA com-

mitted three errors of law in evaluating Mr. Aguirre’s

withholding application: 1) failing to consider Mr.

Aguirre’s offenses in relation to his declared political

objectives. Pet. at 4a; 2) failing to consider and properly

apply relevant Ninth Circuit law in determining whether

Mr. Aguirre’s acts were “political.” Pet. at 6a; 3) failing to

consider the pe-secution Mr. Aguirre might suffer if

deported to Guatemala. Pet. at 6a.

The Court of Appeals below is by no means the only

court to have reversed the BIA for failing to apply the

correct standards or for failing to properly consider all

the facts and circumstances in an application for relief

from deportation. See Abdel-Masieh v. U.S. INS, 73 F.3d

579 (Sth Cir. 1996); Diaz-Resendez v. INS, 960 F.2d 493 (5th

Cir. 1992); Babai et al v. INS, 985 F.2d 252 (6th Cir. 1993);

Akinyemi v. INS, 969 F.2d 285 (7th Cir. 1992); Guillen-

Garcia v. INS, 999 F.2d 199 (7th Cir. 1993); Salameda v. INS,

70 F.3d 447 (7th Cir. 1995); Batanic v. INS, 12 F.3d 662 (7th

Cir. 1993); Dulane v. INS, 46 F.3d 988 (10th Cir. 1995); Turri

v. INS, 997 F.2d 1306 (10th Cir. 1993). Many other cases

have reversed the BIA for making errors of law, just as

the Court did below. See Goncalves v. INS, 6 F.3d 830 (1st

Cir. 1993); Rosario v. INS, 962 F.2d 220 (2d Cir. 1992);

Bedoya-Valencia v. INS, 6 F.3d 891 (2d Cir. 1993); White v.

INS, 75 F.3d 213 (5th Cir. 1996); Castellon-Contreras v. INS,

45 F.3d 149 (7th Cir. 1995); Yeung v. INS, 76 F.3d 337 (11th

Cir. 1995). ——

The Court of Appeals in this case properly reversed

the BIA, among other reasons, because in overturning the

Ij’s grant of withholding, the BIA failed to follow its own

precedent. The BIA frequently has said that the IJ’s cred-

ibility findings are entitled to “substantial deference.”

Matter of Pula, 19 | & N Dec. 467 (BIA 1987) and cases

cited therein. The IJ’s determinations must be given sig-

nificant deference by reviewing courts and the BIA

because the IJ is in the best position to observe the

demeanor of the witness. Matter of Kulle, 19 I & N Dec.

318, 331 (BIA 1985); Matter of Boromand, 17 | & N Dec. 450,

452 (BIA 1980); Matter of A__S___, Int. Dec. 3336 (BIA

1998). Yet in this case, the BIA discarded the careful and

considered judgment of the IJ.

Further, “the Attorney General” adopted opposing

views in this case. Both the IJ and the BIA are delegatees

of the Attorney General.’ This kind of internal conflict

has led this Court to reject the INS’s request for defer-

ence. INS v. Cardoza-Fonseca, 480 U.S. 421, 446, n. 30

(1987). Circuit Courts also may be less willing to defer to

the decisions of the BIA when they reverse an IJ’s grant of

relief. See, for example, Martinez-Benitez v. INS, 956 F.2d

1053, 1056 (11th Cir. 1992) (BIA should have considered

the IJ’s findings and grant of relief in considering the

proper weight to give the conviction).

The BIA also ignored its own precedent in deciding

the merits of the case. The agency has acknowledged that

violent actions may be the only option in countries where

citizens have no opportunity to seek change in the politi-

cal structure of the government through peaceful pro-

cesses. Matter of Izatula, 20 | & N Dec. 149, 153-154 (BIA

1990), citing Dwomoh v. Sava, 696 F. Supp. 970, 979

(S.D.N.Y. 1988); Matter of Rodriguez-Majano, 19 1 & N Dec.

811, 815 (BIA 1988) (activities directly related to a civil

war, including the engaging in military actions, the burn-

ing of cars and the destruction of other property is not

persecution of others). The BIA said:

Were we to hold that practices such as attacking

military bases, destroying property or [burning

cars] constitute persecution [of others], mem-

bers of armed opposition groups throughout the

world would be barred from seeking haven in

this country. . . . We do not believe Congress

intended to restrict asylum and withholding

only to those who had taken no part in armed

conflict.”

’ See 8 C.E.R. § 1.1(1); 8 C.ER. § 3.0(a).

=

Rodriguez-Majano, 19 | & N Dec. at 816. Contrary to the

dissent’s argument that, “The United States should be a

haven for innocent people fleeing persecution,” the BIA

has conceded that withholding is not to be used as a

reward for perfect behavior nor as a punishment for bad

behavior.

Furthermore, reduced deference is appropriate where

the agency has been inconsistent, as the INS has been in

implementing the bar on serious non-political crimes.

Bowen v. Georgetown University Hospital, 488 U.S. 204,

212-213 (1988). In 1988, the INS interpretation of the

serious non-political crimes bar was entirely consistent

with the Court of Appeals’ decision below. Directing how

these cases were to be handled, the INS said:

[E]vidence of the commission of such non-politi-

cal crimes will now be a discretionary factor to

be considered together with the totality of cir-

cumstances and equities on a case-by-case basis

consistent with the proper intent of the Refugee

Act of 1980 as well as the 1951 U.N. Convention

and 1967 Protocol Relating to the Status of Refu-

gees.

53 Fed. Reg. 11300, 11301 (April 6, 1988).*

If the agency has reversed its position on the application

of this bar, then the agency is not entitled to deference on

this point. If, however, the agency’s interpretation of this bar

* Referring to the United Nations Convention Relating to

the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 (reprinted

in 19 U.S.T. 6259) and the United Nations Protocol Relating to

the Status of Refugees, 19 U.S.T. 6223 (hereafter Protocol).

10

is still as it was in 1988, then the agency's interpretation is

not at odds with the Court of Appeals.

The INS repeatedly cites the Attorney General's

Opinion, Deportation Proceedings for Joseph Patrick Thomas

Doherty, 13 Op. Off. Legal Counsel 1 (1989), rev'd, Doherty

v. INS, 908 F.2d 1108 (2d Cir. 1990), rev'd, 502 U.S. 314

(1992). Pet. at 14, 19, 20, 22. That the INS attempts to cite

this opinion as precedent highlights the odd position of

the Attorney General in immigration matters: she is at

once a party and the final administrative adjudicator.

Moreover, the INS concedes that the Attorney Gen-

eral’s decision in Doherty was reversed by the Second

Circuit, albeit on other grounds. Doherty v. INS, 908 F.2d

at 1121-22. This Court reversed the decision of the Second

Circuit, INS v. Doherty, 502 U.S. 314, but did not reach the

issue cited by the INS in its certiorari petition. Thus, even

if the original decision of the Attorney General had any

precedential value, it surely retains none. That the INS

resorted to repeatedly citing this 1989 Legal Opinion by

the Attorney General demonstrates that there is little

authority for its position.

B. The Court of Appeals was correct that the BIA

misapplied rulings of this Court and the Circuit when it

refused to follow the Handbook® and Protocol. This Court

has directed that the definition of “refugee” is to be

construed consistently with the U.N. Protocol. INS ov.

° Referring to the United Nations High Commissioner for

Refugees, Handbook on Procedures and Criteria for Determining

Refugee Status under the 1951 Convention and the 1967 Protocol to

the Status of Refugees, (Jan. 1988), hereafter Handbook.

11

Stevic, 467 U.S. 407, 426, n.20 (1984). The Handbook “pro-

vides significant guidance in construing the Protocol, to

which Congress sought to conform.” Cardoza-Fonseca, 480

U.S. at 439, n. 22. The High Commissioner's analysis as

expressed in the Handbook, this Court said, is consistent

with its own. Id. Regarding the serious non-political

crime exception, the Handbook says that:

[I]t is also necessary to strike a balance between

the nature of the offense presumed to have been

committed by the applicant and the degree of

persecution feared. If a person has a well-

founded fear of very severe persecution, e.g.,

persecution endangering his life or freedom, a

crime must be very grave in order to exclude

him. If the persecution feared is less serious, it

will be necessary to have regard to the nature of

the crime or crimes presumed to have been com-

mitted in order to establish whether the appli-

cant is not in reality a fugitive from justice or

whether his criminal character does not out-

weigh his character as a bona fide refugee.

Handbook, paragraph 156, emphasis in original.

The Court of Appeals was correct to remand the case

for the BIA to reconsider this case consistent with the

Handbook and Protocol and with the BIA’s own prece-

dent.

12

Il. The Serious Non-Political Crimes Bar to Withhold-

ing is Almost Never Invoked, and That Fact Will

Not Change With the Recent Amendment of the

INA.

A. The INS also misconstrued the magnitude of this

issue. This Court's decision in this case would be largely

advisory because this bar to withholding applies to so

few people. Further, the legal issue here is narrow

beceuse the Court's ruling applies only to this bar to

withholding, not to other bars nor to other forms of relief.

Within the narrow field of immigration law, there is

the far narrower area known as relief from deportation.

This area encompasses waivers and other remedies by

which noncitizens seek to avoid being deported. Within

this narrow area is the still narrower topic at issue in this

case: withholding of deportation. Withholding of depor-

tation is available to people who prove it is more likely

than not that they will be persecuted if deported. Stevic,

467 U.S. at 429-30. Specifically, the INS is prohibited from

deporting the person to a country where his or her life or

freedom would be threatened on account of one of the

five statutory grounds. Id. and see INA § 243(h), 8 U.S.C.

§ 1253(h).° A person granted withholding does not gain

any immigration status as a result of having his or her

deportation withheld.

* Except as noted, all statutory references are to the statute

as it existed prior to its amendment by the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (IIRIRA). For

consistency, after the first reference, Respondent will refer to

statutory sections with the INA section number rather than the

United States Code section number.

13

Asylum is a different form of relief.” See INA § 208, 8

U.S.C. § 1158. In some aspects, proving eligibility for

asylum is easier than proving eligibility for withholding.

See Cardoza-Fonseca. Also, a person granted asylum can

adjust his or her status to lawful permanent residence

after one year. INA § 209, 8 U.S.C. § 1159. However,

whether to grant asylum is a matter of discretion for the

INS; withholding is mandatory. Stevic, 467 U.S. at 421-22,

n. 15; INS v. Doherty, 502 U.S. 314, 332 (1992) (Scalia,

concurring /dissenting) (“Because of the mandatory

nature of the withholding-of-deportation provision, the

Attorney General's power to deny withholding claims

differs significantly from his broader authority to admin-

ister discretionary forms of relief such as asylum and

suspension of deportation. Our decision in INS v. Abudu,

485 U.S. 94 (1988) reflects this.”)

A withholding applicant must show a “clear proba-

bility” of persecution. Cardoza-Fonseca, 480 U.S. at 423;

Stevic, 467 U.S. at 429-430. This is a high burden of proof.

Narrowing the subset of withholding-eligible people

even further are statutory and regulatory exceptions to

the granting of withholding of deportation. One of the

least invoked of those exceptions is at issue in this case:

the bar to withholding for commission of “serious non-

political crimes” found at § 243(h)(2)(C).

” Although Mr. Aguirre applied for and was granted

asylum, the BIA and the Court of Appeals focused on the

withholding application, and the INS petitions for certiorari

only on the withholding issue.

14

Few cases have even applied this exception to with-

holding of deportation, much less considered the balanc-

ing question at issue here. There are only five reported

cases in which the BIA considered whether the “serious

non-political crime” bar applied. Matter of Rodriguez-

Palma, 17 | & N Dec. 465 (BIA 1980) (modified on other

grounds, Matter of Gonzalez, 19 | & N Dec. 682 (BIA

1988)); Matter of Ballester-Garcia, 17 | & N Dec. 592 (BIA

1980) (modified on other grounds by Gonzalez); Matter of

Doural, 18 | & N Dec. 37 (BIA 1981) (modified on other

grounds by Gonzalez); Matter of Ramirez-Rivero, 18 | & N

Dec. 135 (BIA 1981); Matter of McMullen, 19 1 & N Dec. 90

(BIA 1984). In two other cases the BIA discussed the

serious non-political crimes bar in dicta. Matter of

Rodriguez-Coto, 19 1 & N Dec. 208 (BIA 1985) (modified on

other grounds by Gonzalez); Matter of Frentescu, 18 | & N

Dec. 244 (BIA 1982) (modified on other grounds by

Gonzalez).

Unlike this case, all these BIA cases concerned asy-

lum and withholding. Almost all involved Cuban

nationals who came to the United States after being

released from Cuban prisons during the Mariel boatlift.

The boatlift was a complex and unique situation, raising

legal and political issues that were sui generis.

The Circuit Courts of Appeals have had even fewer

occasions to rule on the “serious non-political crimes”

bar. There is no circuit split; as discussed below, the case

the INS cites as creating a circuit conflict, Garcia-Mir v.

Smith, 766 F.2d 1478, 1487 n. 10 (11th Cir. 1985) cert. denied

sub nom. Marquez-Medina v. Meese, 475 U.S. 1022 (1986)

did not involve or decide this issue. Indeed, the case

15

below is the only federal court ruling squarely on this

issue.

The dearth of cases applying the serious non-political

crime bar is especially striking because from at least 1980

to 1990, the INS’s own asylum regulations included pre-

cisely this same ground of disqualification. The regula-

tion appeared first at 8 C.F.R. § 208.8(f)(1)(v), then at

208.13(c)(2) (proposed rule). See also 52 Fed. Reg. 32557

(Aug. 28, 1987); 53 Fed. Reg. 11301, 11306 (April 6, 1988);

55 Fed. Reg. 30674, 30683 (July 27, 1990). In 1988, the INS

proposed deleting the serious non-political crimes bar

from the regulations because the agency had “serious

concerns with respect to the difficulties in determining

the validity of allegations of ‘serious non-political

crimes.’ ” 53 Fed. Reg. 11300, 11301, 11306 (April 6, 1988).

The bar was in fact deleted in 1990. 55 Fed. Reg. 30674,

30683 (July 27, 1990).

In an effort to make the “serious non-political

crimes” bar appear more important than it is, the INS

repeatedly cites to the 1996 IIRIRA amendment adding

the “serious non-political crime” provision as a “new”

ground of disqualification from asylum. The INS argues

that this issue has “added importance now” because the

§ 243(h)(2)(C) withholding bar has been extended by

IIRIRA § 604(a) to asylum cases.

Once again the INS’s Petition misconstrues the situa-

tion. The IRIRA amendment only codified the asylum

regulation that had been in place for at least a decade.

The regulation could scarcely have escaped the INS’s

notice: beginning in 1980 and continuing through 1998,

occasional BiA and federal court cases — including cases

16

cited by the INS in its brief — cite this regulation. See

Garcia-Mir, 766 F.2d at 1487 n. 10; McMullen, 19 1 & N Dec.

90; Matter of McMullen, 17 1 & N 542, 544, n. 2 (BIA 1980);

Saiyid v. INS, 132 F.3d 1380 (11th Cir. 1998); Azzouka v.

Sava, 777 F.2d 68, 73 (2d Cir. 1985); Matter of Doural, 181 &

N Dec. 37 (BIA 1981); Matter of Ramirez-Rivero, 18 1 & N

Dec. 135 (BIA 1981). In sum, although this bar was in the

regulations for a decade, only a handful of cases had

applied it to an asylum application, and most were sui

generis. That the same bar is now in the asylum statute

has not changed matters: the INS does not point to deci-

sions of either the BIA or the Courts of Appeals applying

this “new” IIRIRA asylum bar. The 1996 IIRIRA amend-

ment has not resulted in a flood of cases presenting this

issue, nor is it reasonable to expect such a flood.

B. The potential pool of cases presenting the

“serious non-political crimes” bar to asylum or withhold-

ing is narrowed still further by the separate bar for per-

sons convicted of an “aggravated felony” and

particularly by the increasingly expansive definition of

that term. See Matter of S__S__, Int. Dec. 3317 (BIA

1997); INA § 101(a)(43), 8 U.S.C. § 1101(a)(43); Matter of

C__, 20 I & N Dec. 529 (BIA 1992); Choeum v. INS, 129

F.3d 29, 42 (1st Cir. 1997). Since 1990, a person convicted

of an aggravated felony has been statutorily ineligible for

asylum, even if he or she were convicted outside the _

United States. INA § 208(d), as added by § 515(a)(10) of

the Immigration Act of 1990; § 101(a)(43). The current

(post IIRIRA) asylum bar for people convicted of aggra-

vated felonies is at INA § 208(b)(2)(B)(i).

17

Before 1996, a person convicted of an aggravated

felony was deemed to be convicted of a particularly

serious crime, precluding a grant of withholding. INA

§ 243(h)(2)(B). But see, Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA) § 413(f), Matter of

QT M__T__, Int. Dec. 3300 (BIA 1996). Under cur-

rent law, people convicted of aggravated felonies who

were sentenced to at least five years imprisonment are

considered to have been convicted of a particularly

serious crime, making them ineligible for withholding.

Current INA § 241(b)(3)(B)(ii), 8 U.S.C. § 1231(b)(3)(B)(ii).

The definition of “aggravated felony” has been

expanded steadily since it was first applied in the immi-

gration context in 1988. It was expanded again in IIRIRA,

so that many crimes that were not previously aggravated

felonies may now be so classified. See IIRIRA § 321(b).

Matter of Yeung, Int. Dec. 3297 (BIA 1996). Convictions

that might otherwise be considered to be serious non-

political crimes committed outside the United States

would be classified as aggravated felonies, and asylum

and withholding would be barred without resort to the

serious non-political crimes bar.

In fact, with the possible exception of McMullen, in

all the BIA cases presenting the serious non-political

crimes bar, the applicant had been convicted of a crime

that presumably now would be held to be an aggravated

felony. In practice, those few cases that applied this bar in

prior decisions would not even reach the BIA now. Typ-

ically, the IJ would pretermit the withholding and asylum

applications based on the easily applied aggravated fel-

ony bar without reaching the serious non-political crimes

bar. See Matter of C__, 20 I & N Dec. 529 (BIA 1992).

18

C. This case is factually and legally insignificant

also because a decision here would resolve this issue only

in the withholding context, not in the asylum context. If,

arguendo, the INS is correct that in the future the serious

non-political crimes bar will arise more frequently

because the bar now is in the asylum statute, then the

Court can and should await a case presenting the balanc-

ing issue in an asylum case. Any ruling on the bar in the

withholding context would not necessarily apply in the

asylum context. As this Court does not render advisory

opinions or resolve questions not before it, the Court's

resources would be better reserved to resolve this issue, if

need be, in a case concerning both asylum and withhold-

ing.

D. In addition, the Court of Appeals’ decision

applies only to this particular bar to withholding of

deportation, § 243(h)(2)(C). It does not apply to the other,

more commonly applied bars, including the “particularly

serious crime,” § 243(h)(2)(B), or “persecutor of others,”

§ 243(h)(2)(A).

Regarding the former, the Ninth Circuit already has

held that no balancing applies to the “particularly serious

crime” bar. Ramirez-Ramos v. INS, 814 F.2d 1394, 1397-98

(9th Cir. 1987). See also Komarenko v. INS, 35 F.3d 432, 436

(9th Cir. 1994), citing Urbina-Mauricio v. INS, 989 F.2d

1085, 1088 (9th Cir. 1993). In Ramirez-Ramos the Court

distinguished the “particularly serious crimes” bar of

§ 243(h)(2)(B) from the “serious non-political crimes” bar

of § 243(h)(2)(C). It implied — but did not hold — that in

applying the “serious non-political crimes” bar the adju-

dicator should balance the risk of persecution against the

19

crime committed outside the United States. It is instruc-

tive that the Ninth Circuit did not revisit the

§ 243(h)(2)(C) balancing question in the decade following

the Ramirez-Ramos decision.

The INS argues that the Court of Appeals’ decision in

this case is inconsistent with the same Circuit’s decision

in Ramirez-Ramos. However, the two cases pertain to two

different bars to withholding. Ramirez-Ramos anticipated

the Aguirre holding by distinguishing the particularly

serious crime bar from the serious non-political crime bar.

Moreover, even if, arguendo, the two decisions are

inconsistent, that is not cause to grant certiorari in this

case. This Court does not sit to make one circuit's law

internally consistent. The Aguirre decision did not discuss

or distinguish Ramirez-Ramos; in the unlikely event there

is a future case pertaining to this bar, if the Court of

Appeals should believe the two cases are inconsistent, it

can remedy the inconsistency, either in a panel decision

or in an en banc decision.

Ill. The Court of Appeals’ Decision Does Not Create a

Circuit Conflict.

Not surprisingly, considering the insignificance of

this issue and the paucity of cases on this topic, there is

no conflict among the Circuit Courts of Appeals. The sole

case the INS points to as the “circuit conflict” is Garcia-

Mir v. Smith, 766 F.2d 1478 (11th Cir. 1985), cert. denied sub

nom. Marquez-Medina v. Meese, 475 U.S. 1022 (1986). Tell-

ingly, the INS does not attempt to argue that the case

itself actually pertains to this issue.

20

In Garcia-Mir, the Eleventh Circuit did not squarely

hold that the Attorney General may not consider the

degree of possible persecution and the seriousr ss of the

crime committed. Rather, the “conflict” the INS cites was

dictum in a footnote regarding a tangential issue, buried

deep in a complex, multi-layered decision about Mariel

Cubans, exhaustion of administrative remedies, and juris-

diction of the district court in exclusion cases. Id. at 1487,

n. 10.

The issues in Garcia-Mir were: 1) whether the district

court exceeded its authority in ordering the government

to resume its procedures for releasing Mariel boatlift

Cubans; and 2) whether the district court erred in order-

ing the BIA to reopen two class members’ exclusion hear-

ings and in extending that order to all class members. The

case did not address nor hold anything on the substance

or merits of the serious non-political crimes bar. The

footnote the INS cites as creating the circuit conflict is in

the section of the case addressing whether the district

court had properly ordered the BIA to reopen the class

members’ cases. The court agreed with the INS that the

BIA’s disposition of the two class members’ cases did not

satisfy the jurisdictional exhaustion requirements for the

rest of the class. The footnote concerned both withhold-

ing and asylum, further distinguishing it from this case.

Significantly, a decision issued three years after Gar-

cia-Mir reversed the BIA for failing to weigh the appli-

cant’s crime against the favorable evidence. In Arauz v.

Rivkind, 845 F.2d 271 (11th Cir. 1988), the applicant had

been convicted of a drug trafficking crime. The IJ and BIA

held he was statutorily ineligible for withholding and

refused to consider his asylum application. Id., at 274.

21

The Court reversed, holding that, although the narcotics

offense was “an adverse factor which [sic] would militate

heavily against him in the review of his asylum applica-

tion,” the conviction was “not the only evidence to be

considered by the [IJ].” Id. at 276. The applicant must be

afforded a meaningful opportunity to be heard, followed

by the IJ’s “careful consideration of the weight to be given

such evidence.” Id., emphasis added.

The Eleventh Circuit has not addressed this issue

again since 1988 and no other Circuit Court has decided

the matter. There is no Circuit conflict. Certiorari is not

appropriate.

IV. There Were Independent Grounds For The Court of

Appeals’ Decision.

Granting certiorari is not appropriate here because

there were independent grounds for the Court of Appeals

to reverse the BIA’s decision, that is, grounds not

addressed by the Court of Appeals. Because the Court of

Appeals did not reach these issues, and because the

remand to the agency would be correct for any one of

these alternative reasons, this Court’s decision will not

end this case.

A. Remand pursuant to AEDPA § 413(f)

Mr. Aguirre argued below that the case should be

remanded because Congress had recently amended the

INA to permit a grant of withholding of deportation even

where the applicant had committed a serious non-politi-

cal crime outside the United States. § 413(f) of the

22

AEDPA, amending INA § 243(h). See Choeum, 129 F.3d at

41-43; Matter of Q._T__M__T__, Int. Dec. 3300 (BIA

1996). The government responded below that the amend-

ment did not apply to Mr. Aguirre because his case was

“final” before the amendment took effect, citing § 413(g)

of the AEDPA.

The Court of Appeals skirted the issue, saying that

the Court already was bound to apply the standards of

the Protocol, pursuant to McMullen. Pet. at 4a. Instead,

the Court properly could have found that the amendment

applied to Mr. Aguirre and then could have remanded to

the BIA for it to consider the amendment’s affect on this

case. Or, the Court properly could have remanded for the

BIA to determine if the amendment applied to Mr.

Aguirre and if so, how it would affect this case. The

Court could have remanded on the basis of the AEDPA

amendment without reaching any of the issues discussed

in the INS’s Petition for Certiorari.

-

B. “Serious Reasons to Consider”

The Court of Appeals also could have reversed the

BIA’s decision because the BIA failed to properly and

adequately evaluate whether the “serious reasons to con-

sider” prong of § 243(h)(2)(C) was met. To meet this

prong, there must be convincing and reliable evidence

that serious non-political crimes were committed and that

they were committed by the applicant. See McMullen v.

INS, 788 F.2d 591, 598-99 (9th Cir. 1986). As the INS itself

conceded in 1988, when it proposed deleting this bar

from its regulations, determining the validity of charges

23

of “serious non-political crimes” is very difficult.* See,

e.g., Matter of Doural, 18 1 & N Dec. 37, 38-39 (BIA 1981);

Matter of Ramirez-Rivero, 18 | & N Dec. 135, 139 (BIA

1981).

The BIA glossed over this prong in Mr. Aguirre’s

case. This was reversible error as well. The IJ observed

that Mr. Aguirre had not been investigated, charged or

prosecuted for any crime by the police in Guatemala. Pet.

at 30a. The only evidence of any criminal conduct was

from the transcript of Mr. Aguirre’s testimony. The Court

of Appeals could have remanded on this basis as well,

directing the BIA to properly evaluate whether this prong

was met.

C. The BIA‘’s First and Second Errors of Law

The INS’s chief complaint with the Court of Appeals’

decision — that the Court required the BIA to balance the

persecution Mr. Aguirre will face against his criminal

conduct - was the Court's third and last reason for

reversing the BIA. Pet. at 6a. The Court did not reverse

solely or even primarily on this basis.

The first error of law the Court found was that the

BIA did not consider Mr. Aguirre’s offenses in relation to

his declared political objectives. Pet. at 4a. The second

error of law was that the BIA failed to consider and

properly apply relevant Ninth Circuit law in determining

whether Mr. Aguirre’s acts were “political.” Pet. at 6a.

Either of these other errors of law is a proper and suffi-

cient basis for reversing the BIA’s decision. This Court's

® 53 Fed. Reg. 11300, 11301, 11306 (April 6, 1988).

24

holding regarding the balancing of persecution versus

crime will not dispose of these other issues.

er )

CONCLUSION

Because the facts are not as the BIA and the Court of

Appeals believed, this Court should not grant the writ of

certiorari. Further, the case was properly and correctly

decided by the Court of Appeals.

The petition should be denied. Alternatively, in light

of the deficient record, Respondent respectfully requests

this Court to vacate the BIA’s opinion and remand to the

agency with instructions to take new evidence and rehear

Mr. Aguirre’s applications for withholding and asylum.

Respectfully submitted,

Napine K. WetrtsTeIn

Counsel of Record

P. O. Box 64673

Tucson, Arizona 85728

(520) 529-6731

HirosH! MoTomMurRa

University of Colorado”

School of Law

Campus Box 401

Boulder, Colorado 80309

(303) 492-7008

*(for identification only)

VERONICA VALENTINE

617 Hoover Street

Las Vegas, Nevada 89101

(702) 384-8600

July 6, 1998