Case of the Day: Lui-Dix v. Holder

The case of the day is Lui-Dix v. Holder (7th Cir. 2013). Chia-I Lui-Dix was a Taiwan national. In 1996, she and her first husband, Yu-Ping Lin (who later died), were tried in Taiwan for violation of Taiwan’s Drug Eradication Act. The trial lasted fifteen minutes. The only witness was the chief of police; Lui-Dix and Lin were not permitted to cross-examine him. Lin confessed to using heroin and to possession of the 1.22 g of heroin that the police had seized from the couple’s home. Lui-Dix denied using drugs, but a urine test showed that she had morphine in her system. The test did not distinguish between morphine and heroin, but the Taiwan court reasoned: “[M]ost drug users use heroin. Rarely do they use morphine. Therefore, the court believes the illegal drug [Lui-Dix] used was heroin.” It convicted her of heroin use and sentenced her to three years in prison.

In 2000, after she served her sentence, Lui-Dix entered the United States on a student visa. She married Paul Dix, a US citizen, and the couple had a child. After the marriage, Lui-Dix sought adjustment of her status to that of a legal permanent resident, and she disclosed her criminal conviction on the application. The Department of Homeland Security denied the application because of the conviction and began removal proceedings on the grounds that her conviction made her inadmissible at the time of her entry into the United States. Lui-Dix challenged removability on the grounds that the urine test used in Taiwan was unreliable, and that the proceedings in Taiwan did not require proof beyond a reasonable doubt and was otherwise procedurally deficient. The immigration judge rejected her arguments, and on appeal, the Board of Immigration Appeals affirmed, noting that it could rely on the Taiwan conviction “without considering the procedural adequacy of the trial.” Lui-Dix petitioned the Court of Appeals for the Seventh Circuit to review the BIA’s decision.

The court denied her petition. “Only if there is some evidence that the foreign conviction was obtained in a manner that falls below the standards accepted by any civilized system would it be appropriate” to permit a collateral attack on a foreign criminal judgment in US immigration proceedings. The court pointed, by way of example, to Doe v. Gonzales, 484 F.3d 445 (7th Cir. 2007), where a Salvadoran army officer had been convicted by an “Honor Commission” of military officers of participation in the murder of several Jesuits, even though several others, including the commander, were acquitted despite confessing to their participation and even though Doe “did not give orders, fire his gun, seize anyone, or block anyone’s attempted escape.” Doe could collaterally attack his conviction because the trial was “a cover up,” “incomprehensible factually and legally. It was a kangaroo court to make kangaroos blush.” Absent such egregious facts, Lui-Dix could not challenge the Taiwan conviction.

My informal view is that the Taiwan proceedings, if they didn’t cross the line, came pretty close. No cross-examination? Fifteen minutes?

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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