Recent Decisions

TREATY ON THE EXECUTION OF PENAL SENTENCES--Federal Court is not Precluded from Using Mexican Conviction as Evidence of Prior Conduct in Enhancing Subsequent Sentence, United States v. Fleishman, 684 F.2d1329 (9th Cir. 1982). The instant decision examines for the first time two significant issues surrounding the repatriation of United States prisoners from Mexico under TEPS: the legality of prisoner challenges to the collateral effects of a Mexican conviction and the use of a Mexican conviction to enhance a subsequent sentence. By refusing to extend the Rosado holding to preclude "collateral effects" challenges, the instant court wisely recognized the importance of preserving prisoner access to the United States federal courts, at least in the absence of the compelling diplomatic and humanitarian considerations confronting the Rosado court. ================== DEPORTATION--Aliens in Deportation Proceedings have Liberty or Property Right to Seek Political Asylum which is protected by Due Process, Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982) Over time, the balance between the Government's power to regulate the entry of aliens and the due process rights accorded those aliens has increasingly shifted in favor of due process. Historically, Congress sought to protect alien rights under United States immigration law through the passage of the INA, the adoption of the Protocol, and most recently with the incorporation of the 1980 Refugee Act into the INA. Despite these indications from Congress, however, the INS and its regulations have lagged behind the legislature in the recognition of these increased due process rights, and this divergence has caused inconsistencies between the two government branches. The courts thus have been forced to decide which of the conflicting laws or regulations apply and the extent to which they create due process rights.