INS v. Aguirre-Aguirre, Juan Anibal (05/03/1999)

By: Jolyn Okimoto, Medill News Service

Questions presented

Whether the court of appeals erred in reversing the decision of the Board of Immigration Appeals' determination that respondent is barred from eligibility for the relief of withholding of deportation under Section 243(h)(1) of the Immigration and Nationality Act, 8 U.S.C. 1253(h)(1), because there are ""serious reasons for considering"" that, prior to his arrival in the United States, respondent ""committed a serious nonpolitical crime"" within the meaning of Section 243(h)(2)(C) of the Act, 8 U.S.C. 1253 (h)(2)(C)?

Brief

Juan Anibal Aguirre-Aguirre entered the United States without inspection in 1993 and applied for asylum and withholding of deportation. He testified that as a student leader in Guatemala, he had burned ten buses and disrupted business at stores as a way of demonstrating against the Guatemalan government's raising of bus fares and its indifference to, and possible involvement in, several disappearances and deaths of political activists.

Based on Aguirre's testimony, the immigration judge granted his application for asylum and withholding of deportation.

Upon appeal by the Immigration and Naturalization Service, the Board of Immigration Appeals reversed. The board held that ""the nature of [Aguirre's] acts against innocent Guatemalans"" disqualified his application for asylum and that the acts were more criminal than political, thus barring him from withholding of deportation.

Aguirre appealed.

A divided 9th Circuit Court of Appeals reversed and remanded, stating that the only reason an alien is ineligible for withholding deportation is if the Attorney General determines that ""there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States"" prior to his arrival. The majority found that Aguirre's case did not fit into that category.

In so holding, the majority found a close connection between Aguirre's crimes and their alleged political purpose, which was to challenge the government's indifference and possible involvement in murder of its own citizens.

""When you are dealing with an ass it may be necessary to move the beast by a blow on a sensitive part even though what you want to move are the feet,"" the majority wrote. ""When you are dealing with a government that is an accomplice or an accessory to terroristic methods of government, you need to use forceful measures ... you look for a sensitive area.""

The court found Aguirre's methods politically necessary as well as successful in gaining the government's attention. It also held Aguirre's crimes were neither grossly out of proportion to their objectives nor of an atrocious nature.

Finally, the court held that the board had erred in its failure to consider the persecution Aguirre might suffer if he returned to Guatemala. According to Aguirre, several student leaders had been killed since he left.

The dissent called Aguirre's crimes disproportionate to their political objective, citing the example that Aguirre burned buses after evacuating passengers by hitting them with sticks.

""Asylum law is supposed to protect innocent victims of persecution,"" the dissent wrote. ""We grossly distort it by requiring the government to give asylum to violent criminals. The United States should be a haven for innocent people fleeing persecution. It should not be a haven for thugs.""

The Immigration and Naturalization Service's petition for certiorari was granted by the U.S. Supreme Court on Oct. 5, 1998.

On May 3, 1999, a unanimous Court sided with the INS and reversed. Writing for the Court, Justice Anthony Kennedy faulted the 9th Circuit for balancing Aguirre's criminal acts against his risk of persecution in Guatemala, instead of requiring an independent consideration of thepersecution risk facing an alien before withholding deportation. In so holding, the Court rejected a United Nations handbook relied on by the 9th Circuit and found it not binding on the Attorney General, the BIA, orthe federal courts.

The Court also found that the BIA need not have considered whether Aguirre's acts were atrocious and grossly disproportionate to their alleged objective. The Court said that although an offense involving atrocious acts may result in deportation, an offense's criminal element may outweigh its political aspect even if none of the acts are atrocious. Thus, the Court concluded, the BIA did not need to give express consideration to atrociousness before determining that Aguirre had committed serious nonpolitical crimes.