CAV RULES ON SODOMY CLAIM; FOURTH CIRCUIT REVERSES ON MAILING PRESUMPTION

 

Today, June 13, two interesting published decisions arrive from the state and federal courts of appeals.

COURT OF APPEALS OF VIRGINIA

Last year, the Supreme Court of Virginia decided Martin v. Ziherl, 269 Va. 35 (2005), in which it struck down Virginia’s anti-fornication statute as unconstitutional. It did so on the authority of the US Supreme Court’s holding in Lawrence v. Texas, 539 US 558 (2003). These two cases stand generally for the principle that the government has no place in the bedrooms of consenting adults. Today the Court of Appeals addresses the related question of just what a consenting adult is.

William Scott McDonald is a middle-aged man who appears to prefer younger women, or in this case, girls. Charged with committing consensual sodomy on separate occasions with two females, then aged 16 and 17, respectively, he did not dispute that the events had taken place; he simply claimed that the state’s prohibition of these sexual acts was obsolete in the wake of Martin and Lawrence. A trial court disagreed and convicted him.

The issue in the case, as noted above, is whether the two girls were consenting adults. In Virginia, he notes, the age of consent for sexual intercourse is 15. (It’s still a misdemeanor; but the sodomy charge is a Class 6 felony.)

McDonald fails to find a sympathetic ear in the Court of Appeals; in McDonald v. Commonwealth , the court affirms the convictions, since (age of consent or not) 16- and 17-year-old girls are not adults. Accordingly, since both Martin and Lawrence specifically excluded sex with minors from the reach of their doctrines, McDonald’s Due Process challenge to the statute finds no support in those decisions.

FOURTH CIRCUIT

Mail is mail, right? Actually, the Fourth Circuit finds today, there’s mail, and then there’s certified mail, and presumptions from one type of delivery system don’t apply to the other.

Aimee Nibagwire is a citizen of Rwanda who traveled to the United States on a visa that allowed her to stay for five months. At the end of that time, she filed a request for asylum, and listed her address as an apartment in Adelphi, Maryland. She waited patiently there for some time for word of when her asylum hearing would take place. Instead, she eventually received a notice that said that her request had been denied after she failed to show up for her removal (essentially, deportation) hearing before an immigration judge. She immediately contacted the immigration court to find out what had happened. She was told that the Department of Homeland Security (which now handles matters such as this) had mailed a letter to her, notifying her of the date and time of the hearing. She claimed that she had never received such a notice.

As a result of a statutory change enacted in 1996, notices of hearings such as this no longer have to be sent by certified mail; Homeland Security now has the ability to use regular mail. And that’s what happened here. In evaluating Nibagwire’s earnest contention that she never received word of the hearing, the Board of Immigration Appeals exclusively applied the precedent of a 1995 BIA case, finding that mailing creates a strong presumption of receipt. The BIA found her application wanting by the evidentiary standard set forth in that 1995 case for relief.

The trouble with this position, the Fourth Circuit finds today, in Nibagwire v. Gonzales , is that the 1995 case was decided when such mailings had to be by certified mail. The recent liberalization of the mail rule means that pre-1996 caselaw is no longer applicable. Certified mail, the court notes, is the subject of more careful assurances of delivery by the Postal Service. In addition, unlike regular mail, certified mail can be tracked, and evidence of delivery (or nondelivery) can be produced. The case is thus remanded to the BIA for a reevaluation of Nibagwire’s claim for relief from the removal order.