Friday, October 30, 2009

Washington State pair sentenced to prison on immigration fraud charges - Steven Mahoney

October 23, 2009

Washington State pair sentenced to prison on immigration fraud charges

SEATTLE - The former owner of an immigration consulting business in King County, Wash., and his ex-wife were sentenced Oct. 23 in federal court on charges of conspiracy to commit immigration fraud, following an investigation by U.S. Immigration and Customs Enforcement (ICE.)

Steven Mahoney, 41, of Kent, Wash., was sentenced to 18 months in prison and three years of supervised release. Helen Mahoney, 39, also of Kent, was sentenced to six months in prison and two years of supervised released for her role in the conspiracy.

Steven Mahoney owned Mahoney and Associates where he counseled, advised and prepared immigration applications for immigrants seeking legal status to live in the United States. Helen Mahoney assisted in completing and submitting the applications to the federal government.

According to court documents, from October 1998 until June 2007, Steven Mahoney filed up to 99 false asylum claims on behalf of immigrants. The applications falsely stated that these individuals would be abused because they were homosexual, or they held religious or political views that would result in torture in their home countries.

Once the fraudulent applications were completed, Helen Mahoney submitted them to U.S. Citizenship and Immigration Service (USCIS), the federal agency that processes these documents. Court documents show that the Mahoneys knew these statements were not true for certain applicants, but still filed the claims.

The Mahoneys coached applicants on how to pursue immigration status based on these false claims. They were paid between $1,000 and $4,000 for each falsified application.

"Our nation's immigration laws are intended to provide benefits to individuals who meet certain criteria - not opportunists who manipulate the system for personal financial gain," said Leigh Winchell, special agent in charge of ICE's Office of Investigations in Seattle. "ICE will continue to investigate those involved in these types of criminal schemes."

At sentencing, U.S. District Judge John C. Coughenour said, "I want to get the message out to the community that this type of behavior will not be tolerated."

ICE was joined in this investigation by USCIS.

Ahmed v. Ashcroft, 286 F.3d 611 - Abandonment of an LPR (Legal Permanent Resident) Status

Remarks: subjective intent of an alien is irrelevant in analyzing LPR abandonment cases. Burden of proof is on the government (clear and convincing evidence). See Matadin v. Mukasey, 546 F.3d 85 - Abandonment of LPR - Burden of Proof

286 F.3d 611

Ali Zain AHMED, Petitioner,
John ASHCROFT, Attorney General of the United States,* Respondent.

Docket No. 98-4105.

United States Court of Appeals, Second Circuit.

Argued: March 7, 2002.

Decided: March 29, 2002.

Robert D. Kolken, Sacks & Kolken, Buffalo, NY, for petitioner.

Megan L. Brackney, Assistant United States Attorney, for Mary Jo White, United States Attorney for the Southern District of New York; Kathy S. Marks and Jeffrey S. Oestericher, Assistant United States Attorneys, on the brief, for respondent.

Before CALABRESI and CABRANES Circuit Judges, and AMON, District Judge.**


Petitioner Ali Zain Ahmed appeals a decision of the Board of Immigration Appeals (BIA). The BIA ordered his removal on the grounds that Ahmed had abandoned his lawful permanent resident status during a nine-year absence from the United States. As a result of the abandonment, the BIA found, pursuant to Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(7)(A)(i)(I), that petitioner was excludable from the United States as an immigrant who did not possess a valid entry document.1 Ahmed argues on appeal (1) that the BIA erred in finding that he had abandoned his lawful permanent resident status and (2) that the court erred in refusing to consider his conduct subsequent to his return to the United States in 1991 as objective evidence corroborating his subjective intent to retain his lawful permanent resident status.

On petition for review of a BIA judgment, "findings of facts, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive." 8 U.S.C. § 1105a(a)(4) (1988); see also Osorio v. I.N.S., 18 F.3d 1017, 1022 (2d Cir.1994). To reverse under the substantial evidence standard, "we must find that the evidence not only supports that conclusion, but compels it." I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see Osorio, 18 F.3d at 1022.

Generally, in order to gain admission into the United States, an immigrant must present a valid, unexpired immigrant visa as well as a valid, unexpired passport or other travel document. 8 U.S.C. § 1181(a). If a person fails to produce such documents, § 1182(a)(7)(A)(i)(I) requires that he or she be excluded. An immigrant seeking admission who is a "returning resident," however, may be readmitted into the United States without entry documents. 8 U.S.C. § 1181(b). A returning resident is a lawful permanent resident returning from a "temporary visit abroad." 8 U.S.C. § 1101(a)(27)(A). The determinative issue here is whether the nine year period during which Ahmed lived and worked in Bahrain and Yemen after receiving lawful permanent resident status in the United States qualifies as a "temporary visit abroad."

Our cases establish that a temporary visit abroad requires that "the intention of the departing immigrant must be to return within a period relatively short, fixed by some early event." United States ex rel. Lesto v. Day, 21 F.2d 307, 308-09 (2d Cir.1927). When the length of the visit is not fixed by some early event but instead relies upon an event with a reasonable possibly of occurring within a short period of time, what constitutes a temporary visit "cannot be defined in terms of elapsed time alone." United States ex rel. Polymeris v. Trudell, 49 F.2d 730, 732 (2d Cir.1931). "Then the intention of the visitor, when it can be determined, will control." Id. In such a case, however, the intention of the visitor must still be "to return within a period relatively short, fixed by some early event." Id.

At the outset, we reject Ahmed's contention that the BIA's finding that Ahmed "probably never formed the subjective intent of abandoning his lawful permanent residence in the United States" precludes it, as a matter of law, from finding that he abandoned his lawful permanent resident status. The dispositive question in this case is whether Ahmed intended "to return within a period relatively short, fixed by some event," not whether he actually intended to abandon his status.

Turning to that dispositive question, we find that, despite Ahmed's application for a reentry permit prior to his departure from the United States in 1982 and his effort in 1983 to secure a duplicate copy of his reentry, and assuming arguendo that we should consider his conduct subsequent to reentering the United States in 1991, overwhelming evidence supports the BIA's decision that while Ahmed was abroad, he lacked the requisite intent to return to the United States within a relatively short period of time. Ahmed, a native of Yemen, left the United States in 1982, nearly three years after being laid off from work. He accepted a position with the Bahrain Police Department and kept this job for the next eight years. While abroad, Ahmed traveled a number of times to Yemen, where he has family, property, and business ties. During this time, Ahmed did not maintain ties with his relatives in the United States nor owned property or assets in this country. Finally, while Ahmed claims that his return to the United States was contingent upon being rehired by his former employer, this was not an event that was likely to occur within a reasonably short period of time. This fact along with the many indications of Ahmed's intended permanence abroad, make the BIA's finding that Ahmed lacked intent to return to the United States within a relatively short period unassailable. Accordingly, Ahmed is ineligible for relief as a returning resident.

Having reviewed all of petitioner's claims and finding them to be without merit, we DENY the petition for review of the judgment of the Board of Immigration Appeals ordering the petitioner deported but permitting his voluntary departure.


John Ashcroft became the United States Attorney General effective February 2001, to succeed Janet Reno. Under Fed.R.Civ.P. 25(d)(1), Ashcroft is automatically substituted as a defendant in this action

The Honorable Carol Bagley Amon of the United States District Court for the Eastern District of New York, sitting by designation

Ahmed's petition falls within former Section 106(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1105a(a), which was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, § 306(b), 110 Stat. 3009-546, 3009-612. Because Ahmed's deportation proceedings began before April 1, 1997 and his order of deportation became final after October 30, 1996, this case is governed by IIRIRA's transitional provisions. SeeHenderson v. I.N.S., 157 F.3d 106, 117 (2d Cir.1998). Under these provisions, this court has the authority to review final orders of deportation. See 8 U.S.C. § 1105a(a) (repealed 1996); IIRIRA § 309(c)(1)(B), 110 Stat. at 3009-625 ("proceedings (including judicial review thereof) shall continue to be conducted without regard to [the] amendments"); see also Yang v. McElroy, 277 F.3d 158, 160 n. 1 (2d Cir.2002). Deportation proceedings against Ahmed were commenced on December 8, 1995. The BIA rendered its final decision on February 20, 1998.

Saint Fort v. Ashcroft, 329 F.3d 191 - Indefinite detention of criminal deportees by Haitian authorities did not constitute torture within the meaning of the relevant regulations

Holding: CAT (Convention Against Torture) claim is denied. The indefinite detention of criminal deportees by Haitian authorities did not constitute torture within the meaning of the relevant regulations, 8 C.F.R. § 208.18(a) (2002), because there was no evidence that the authorities intentionally and deliberately detain deportees in order to inflict torture.
Compare with Jean-Pierre v. Atty. Gen. 9.19.07, 500 F.3d 1315 - 11 Cir. CAT granted for Haitian.

329 F.3d 191

Kelly SAINT FORT, Petitioner, Appellant,
John ASHCROFT, Attorney General, Respondent, Appellee.

No. 02-2451.

United States Court of Appeals, First Circuit.

Heard March 6, 2003.

Decided May 9, 2003.

Allan M. Tow for appellant.

Christopher C. Fuller, Senior Litigation Counsel, with whom Robert D. McCallum, Jr., Assistant Attorney General, Michael P. Lindemann, Assistant Director, and Janice R. Redfern, Attorney, Office of Immigration Litigation, were on brief for appellee.

Before LYNCH, Circuit Judge, CAMPBELL, Senior Circuit Judge, and HOWARD, Circuit Judge.

LYNCH, Circuit Judge.

Kelly Saint Fort, a Haitian and a legal permanent resident of the United States, committed an aggravated felony and so the Immigration and Naturalization Service initiated removal proceedings to deport him. Saint Fort claimed protection from deportation, "deferral of removal," under the United Nations Convention Against Torture ("CAT"), arguing he would be jailed and tortured if returned to Haiti. An Immigration Judge ("IJ") agreed; the Board of Immigration Appeals ("BIA"), on review, did not. Saint Fort seeks to have judicial review of his case; as a matter of statutory law, he may not petition for review in the court of appeals, given the nature of his claims. This left only habeas corpus jurisdiction, which he invoked in the district court. The district court dismissed the habeas petition for lack of jurisdiction, accepting the government's argument. The case is before us on appeal from that dismissal.

The respondent Attorney General argues that no court has jurisdiction, even under habeas, to review any aspect of the BIA's determination. The issue is one of first impression for this court. We reject that argument and hold that habeas jurisdiction remains available here. Reviewing Saint Fort's claims about the BIA's determination under the CAT, we reject his claim of denial of due process and so affirm, on that ground, the dismissal of his habeas petition.


Saint Fort, now 27 years old, entered the United States in 1988, at the age of 12, and settled in the Dorchester area of Boston as a lawful permanent resident. In 1999, Saint Fort was convicted in New Hampshire of second-degree assault and receiving stolen property, and was sentenced to concurrent prison terms of two to four years. Saint Fort v. Ashcroft, 223 F.Supp.2d 343, 343-44 (D.Mass.2002). Subsequently, removal proceedings were instituted against him as an aggravated felon. See Immigration and Nationality Act ("INA") § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (2000) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."); INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) (aggravated felonies include "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year").

Saint Fort responded by requesting asylum, withholding of deportation, and non-refoulement (non-return) under the CAT. Because of his status as an aggravated felon, he was ineligible for asylum and withholding of deportation. In a November 6, 2001 hearing before an IJ on his CAT claim, Saint Fort presented little evidence to substantiate his fear of torture. He informed the IJ that he had no family in Haiti, and that if he returned his life would be "over." He asserted that deportees were routinely tortured in Haiti. When cross-examined as to the basis for his belief, he said that at least a year earlier he had read an article in a newspaper he thought was called "U.S. Today" which said that deportees were being killed in Haiti. Saint Fort did not have a copy of this article at the hearing. Saint Fort also said that he had friends from the Dominican Republic who advised him to pray that he not be deported because, if he were, he would certainly be tortured. Saint Fort did not offer any testimony relating to himself or his family to explain why he might be targeted for mistreatment.1

In addition to his testimony, Saint Fort also submitted supporting documentation, including country reports on Haiti and a BIA decision on conditions in Haiti. That unpublished decision, In re Perez, was issued on October 22, 2001.2 In Perez, the BIA relied on the State Department's country report on Haiti, which noted in pertinent part that deportees are now being held indefinitely in Haitian prisons. Conditions in those prisons, the BIA stated, were "extremely poor, to the point that the health of detainees is severely compromised by lack of adequate food and medical attention. Moreover, ... police forces beat, torture, and otherwise mistreat detainees. As a direct result of these conditions, multiple detainees have died while in custody." The BIA concluded that it was "more likely than not" that the petitioner in Perez would "be subjected to torture by or with the acquiescence of a public official in Haiti." As a result, Perez was found to have met his burden of proof under the CAT, and he was granted deferral of removal to Haiti.

The IJ issued an oral decision in Saint Fort's case on the same day as the hearing. He found that, as an aggravated felon, Saint Fort was statutorily ineligible for asylum or withholding of removal, but eligible for deferred removal under the CAT. The IJ reviewed country reports on Haiti, the BIA's decision in Perez, and Saint Fort's hearing testimony. He noted Saint Fort's testimony that "he has no family in Haiti, and that he will be tortured if he returns to Haiti and [is] put in jail." The IJ concluded that it was more likely than not that Saint Fort would be imprisoned and tortured if returned to Haiti. The IJ reasoned,

The reports concerning the conditions of Haitian jails lead[ ] only to one conclusion, that the respondent's return to Haiti and being detained and placed in jail in Haiti, would subject him to torture, based on the conditions of jails in Haiti as stated in the documentation submitted ... and what is contained in [Perez].

The IJ granted Saint Fort's application for deferred removal under the CAT.

The INS appealed the IJ's decision to the BIA. The BIA reversed the IJ's decision, in reliance on an intervening published BIA decision and the absence of other evidence from Saint Fort. That published decision, In re J-E-, 23 I. & N. Dec. 291(BIA), available at 2002 WL 481156 (Mar. 22, 2002), reversed course and found that conditions in Haiti's jails did not constitute torture under the CAT. In J-E-, the BIA reviewed a case, similar to Perez, in which the petitioner argued — based on country condition reports, newspaper articles, and a letter from an official at the State Department — that prison conditions in Haiti amounted to torture. Id. at 293. In a reversal from Perez — but without citing Perez — the BIA concluded in J-E- that the indefinite detention of criminal deportees by Haitian authorities did not constitute torture within the meaning of the relevant regulations, 8 C.F.R. § 208.18(a) (2002), because there was no evidence that the authorities intentionally and deliberately detain deportees in order to inflict torture. 23 I. & N. Dec. at 299-302. Citing the decision in J-E-, the BIA dismissed Saint Fort's appeal and ordered him removed to Haiti.

Saint Fort did not timely apply for reconsideration by the BIA.3 He filed a petition for review of the BIA's decision in the court of appeals under 8 U.S.C. § 1252(b). This court questioned whether it had jurisdiction in the case because Saint Fort had been convicted of an aggravated felony, and there was no question as to that fact or the fact that he was not a U.S. citizen. See INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) ("[N]o court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense...."). Saint Fort then voluntarily dismissed the petition for review in the court of appeals and turned to the district court.

On June 27, 2002, Saint Fort filed a petition for habeas corpus with the district court. He alleged that the BIA's decision violated his statutory and regulatory rights under the INA and the Administrative Procedure Act, and his constitutional rights under the Due Process and Equal Protection Clauses, because (1) it denied him the opportunity to present evidence of the possibility he will be tortured in Haiti, (2) it upset settled expectations established by In re Perez, (3) the decision-making was arbitrary and inconsistent, and (4) the application of In re J-E- was impermissibly retroactive. The government responded that the district court lacked jurisdiction because Saint Fort had failed to exhaust his administrative remedies. Saint Fort, 223 F.Supp.2d at 343.

The district court expressed skepticism about Saint Fort's petition, noting that a motion to reopen on the basis of new evidence would be futile because Saint Fort had conceded that he had no new evidence, and also commenting that the debate over retroactivity was "somewhat besides the point" given that In re J-E did not announce a new rule. Id. at 345. Still, on September 30, 2002, the district court remanded the case to the BIA for clarification of the grounds of its denial and continued Saint Fort's stay of removal during that period. Id. at 346. The district court said it was troubled by the BIA's holding that Saint Fort had offered no evidence to the IJ that he would be tortured when, in fact, the IJ had both Saint Fort's documentary evidence and his testimony, and when the IJ had found Saint Fort credible. Id. at 345-46.

The government then filed a motion to reconsider, arguing (1) that the district court had erred in its reading of the BIA's decision, and (2) that the district court lacked subject matter jurisdiction to hear Saint Fort's claim because the CAT is not self-executing. It raised the lack of jurisdiction argument for the first time. Specifically, the government argued that Congress had authorized the Attorney General to promulgate regulations for implementing the CAT when it passed the Foreign Affairs Reform and Restructuring Act ("FARRA"), Pub.L. No. 105-227, Div. G., § 2242(b), 112 Stat. 2681-761, 2681-822 (1998). Congress also explicitly limited federal court jurisdiction to review any decision on a claim for protection under the CAT, by limiting jurisdiction "except as part of the review of a final order of removal pursuant to section 242 of the [INA]." Id. § 2242(d), 116 Stat. at 2681-822. Here, there was no review of a final order of removal because of Saint Fort's uncontested status as an aggravated felon; as a result, the government contended, there could be no jurisdiction over his claim under the CAT. The government attempted to distinguish INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), by arguing that, because the CAT is not a self-executing treaty, Congress never affirmatively granted such jurisdiction in the first place. On October 29, 2002, the district court allowed the motion to reconsider and dismissed Saint Fort's habeas petition. Saint Fort now appeals this ruling.

II. Background

A. Convention Against Torture

The United Nations Convention Against Torture and Other, Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984), 23 I.L.M. 1027 (1984), provides that "[n]o State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." Id. Art. 3, § 1.

The CAT was ratified by the United States Senate in 1990 and entered into force for the United States in November 1994. See Regulations Concerning the Convention Against Torture, 64 Fed.Reg. 8478, 8478 (Feb. 19, 1999) (background). In October 1998, Congress passed FARRA, which states:

It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture....

FARRA § 2242(a), 112 Stat. at 2681-822. FARRA also delegates the responsibility for "prescrib[ing] regulations to implement the obligations of the United States" under the CAT to "heads of the appropriate agencies." Id. § 2242(b).

FARRA also, under the title "Review and Construction," contains a jurisdiction-limiting provision and a "zipper clause."4

[N]o court shall have jurisdiction to review the regulations adopted to implement this section, and nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, or any other determination made with respect to the application of the policy set forth in subsection (a), except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U.S.C. [§] 1252).

Id. § 2242(d). The jurisdiction-limiting provision denies jurisdiction over review of the regulations, and the zipper clause purports to confine review of claims to the specific context of a review of a final order of deportation. Thus, for aliens like Saint Fort who have been convicted of aggravated felonies, the court of appeals' jurisdiction to engage in direct review is foreclosed because § 242 review is unavailable to such aliens. See Calcano-Martinez v. INS, 533 U.S. 348, 349-50, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001).

The Justice Department has promulgated a set of regulations implementing FARRA, in accordance with Congressional direction. See 64 Fed.Reg. 8478, codified at scattered sections of 8 C.F.R. Specifically, these regulations define torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ... when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." 8 C.F.R. § 208.18(a)(1). The burden of proof is on the applicant to show that he or she is more likely than not to be tortured if removed. Id. § 208.16(c)(2); see id. § 208.17(a) (application of standard to deferral of removal). The regulations instruct immigration officials to consider inter alia evidence of past torture inflicted on the applicant and evidence of "gross, flagrant or mass violations of human rights within the country of removal." Id. § 208.16(c)(3); see id. § 208.17(a) (application to deferral of removal).

B. Habeas Corpus Jurisdiction in Immigration Cases

The writ of habeas corpus has been employed by non-citizens for centuries in both the United States and Britain. See J.L. Hafetz, Note, The Untold Story of Non-criminal Habeas Corpus and the 1996 Immigration Acts, 107 Yale L.J. 2509, 2524 & n. 115 (1998) (citing eighteenth-century cases and noting that "aliens in the United States have ... been able to challenge their confinement through habeas corpus since the nation's founding"). "Even before the federal government took on the task of regulating immigration, federal courts employed the writ of habeas corpus to inquire into the lawfulness of the return of foreign sailors who had allegedly deserted their ships, extradition of aliens accused of crime, and detention of enemy aliens during the War of 1812." G.L. Neuman, Jurisdiction and the Rule of Law After the 1996 Immigration Act, 113 Harv. L.Rev. 1963, 1966 (2000).

Before 1996, aliens had a broad right to judicial review in the courts of appeal. Aliens facing deportation possessed a general right of appeal from final orders of the BIA to the court of appeals under the "old" INA.5 8 U.S.C. § 1105a(a)(7) (1994) (repealed 1996). Aliens also had two routes to challenge a final order of deportation through employing the writ of habeas corpus. First, "old" INA itself provided for specific habeas corpus review. 8 U.S.C. § 1105a(a)(10) (1994) (repealed 1996). Second, aliens could challenge a deportation order under the general habeas corpus statute, 28 U.S.C. § 2241 (2000), which provides habeas review for individuals "in custody in violation of the Constitution or laws or treaties of the United States." Id. § 2241(c)(3).

In 1996, Congress passed two laws that dramatically changed judicial review of immigration decisions. See generally Goncalves v. Reno, 144 F.3d 110 (1st Cir.1998), cert. denied 526 U.S. 1004, 119 S.Ct. 1140, 143 L.Ed.2d 208 (1999). The first of these was the Antiterrorism and Effective Death Penalty Act ("AEDPA"), enacted on April 24, 1996. Pub.L. No. 104-132, 110 Stat. 1214 (1996). AEDPA repealed "old" INA's habeas provision. Id. § 401(e), 110 Stat. at 1268. In its stead, AEDPA added a new provision reading, "Any final order of deportation against an alien who is deportable by reason of having committed [an enumerated crime] shall not be subject to review by any court." Id. § 440(a), 110 Stat. at 1276 (now codified at 8 U.S.C. § 1252(a)(2)(C)). As in the present case, aliens who had been convicted of a wide range of crimes were thereby barred from petitioning courts of appeal for direct judicial review of their final orders of deportation.

Then, on September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). Pub.L. No. 104-208, Div. C, 110 Stat. 3009-546 (1996). Under IIRIRA, deportation proceedings were restyled removal proceedings. IIRIRA provided for two sets of rules: "transitional" rules applicable to aliens whose deportation proceedings had commenced prior to April 1, 1997, but who had not received a final order until after October 30, 1996, and "permanent" rules applying to aliens whose deportation or removal proceeding commenced on or after April 1, 1997. Id. § 306(c), 110 Stat. at 3009-612; id. § 309, 110 Stat. at 3009-625. We have discussed IIRIRA's transitional rules elsewhere. See Goncalves, 144 F.3d at 116-18. The permanent rules govern this case.

Under the permanent rules, IIRIRA perpetuated AEDPA's jurisdictional ban prohibiting review "by any court" of an order of removal against an alien aggravated felon. IIRIRA § 306(a)(2), 110 Stat. at 3009-607 (relocating AEDPA's jurisdiction-limiting language to 8 U.S.C. § 1252). It provides, in 8 U.S.C. § 1252(a)(1), that "judicial review of a final order of removal... is governed only by" the procedures for review of agency orders in the court of appeals under 28 U.S.C. §§ 2341-2351. A section entitled "Consolidation of questions for judicial review" provides that "[j]udicial review of all questions of law and fact ... arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section." 8 U.S.C. § 1252(b)(9).

IIRIRA also added a new subsection, entitled "Exclusive Jurisdiction," which removed jurisdiction from all courts to hear claims arising from the Attorney General's decision or action to commence proceedings, adjudicate cases, or execute removal orders. IIRIRA § 306(a)(2), 110 Stat. at 3009-612, (codified at 8 U.S.C. § 1252(g)). This provision had the effect of shielding certain of the Attorney General's exercises of discretion from judicial scrutiny. The Supreme Court has since been explicit that this limit on judicial scrutiny applies only to the three discrete actions described in § 1252(g). See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482-83, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999).

In the wake of AEDPA and IIRIRA, federal courts have recognized the redrawn contours of their jurisdiction. Because the principles developed in these cases control our interpretation of FARRA's jurisdiction-limiting provision and zipper clause, we review them briefly. In Goncalves, as here, there was no direct appeal to appellate courts for individuals like Goncalves (who had been convicted of crimes of moral turpitude). 144 F.3d at 117 & n. 6. We then turned to the question of habeas jurisdiction in the district courts. Relying on Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), we found it "clear that if Congress intends to repeal or restrict habeas jurisdiction under § 2241, it must say so explicitly. Thus, we will not find a repeal of § 2241 merely by implication, but only by express congressional command." Goncalves, 144 F.3d at 119. We concluded that there had been no express repeal of § 2241 under either AEDPA or IIRIRA, id. at 120, and that there was no implicit repeal in conjunction with AEDPA's repeal of habeas corpus jurisdiction under old INA, id. at 120-22. This holding avoided questions about the outer limits of Congress's power under Article III to control the jurisdiction of the federal courts. It also obviated the need to address possible Suspension Clause issues raised by Congress's actions. Id. at 122-23.

In Mahadeo v. Reno, 226 F.3d 3 (1st Cir.2000), this court extended Goncalves to the permanent rules under IIRIRA, and held that the jurisdiction-limiting provisions of IIRIRA precluded direct review in the court of appeals but did not divest district courts of their § 2241 habeas corpus jurisdiction.6 Without an express reference to § 2241, we held, there could be no repeal, id. at 12, particularly because Congress had been placed on notice by the decision in Felker, three months before IIRIRA was enacted, id. at 14. "Congress has shown in enacting IIRIRA that it knows how to use explicit language when it intends to place limitations on judicial review under particular statutes." Id. at 13-14. Mahadeo also rejected the argument that a zipper clause was meant to repeal habeas jurisdiction. Id. at 12.

Most importantly, the Supreme Court decided two cases in 2001 addressing the question of habeas corpus review after the 1996 legislation. In St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347, the Court considered the impact of AEDPA's jurisdiction-limiting provision, AEDPA § 401(e), as well as three provisions under the permanent rules in IIRIRA, including a zipper clause, 8 U.S.C. §§ 1252(a)(1), 1252(a)(2)(C), 1252(b)(9). The Court began with the "strong presumption in favor of judicial review of administrative action and the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction," 533 U.S. at 298, 121 S.Ct. 2271, and canons obligating avoidance of serious constitutional questions by an alternative construction, id. at 299-300, 121 S.Ct. 2271. It concluded that "a construction of the amendments at issue that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions." Id. at 300, 121 S.Ct. 2271.

Noting that "at the absolute minimum, the Suspension Clause protects the writ `as it existed in 1789,'" the St. Cyr Court then turned to historical evidence. Id. at 301, 121 S.Ct. 2271 (quoting Felker, 518 U.S. at 663-64, 116 S.Ct. 2333). It found that the "historical core" of the writ of habeas corpus has been review of the legality of executive detention, and "it is in that context that its protections have been strongest." Id. It also noted that "to conclude that the writ is no longer available in this context would represent a departure from historical practice in immigration law." Id. at 305, 121 S.Ct. 2271.

Examining the statutory provisions, the Court drew a distinction between "judicial review" and "habeas corpus." The term "judicial review" is the focus of each of the three IIRIRA jurisdiction-limiting provisions. In the immigration context, the Court reasoned, "judicial review" and "habeas corpus" "have historically distinct meanings." Id. at 311, 121 S.Ct. 2271 (citing Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972 (1953)). In Heikkila, the Court noted, preclusion of judicial review did not entail cessation of habeas review. Id. at 311-12, 121 S.Ct. 2271. As to the zipper clause, the Court held that it was an attempt to consolidate judicial review of immigration proceedings into one action, and did not bar habeas jurisdiction of orders not subject to judicial review. Id. at 313, 121 S.Ct. 2271. The absence of an alternative judicial forum also troubled the Court:

If it were clear that the question of law could be answered in another judicial forum, it might be permissible to accept the INS' reading of § 1252. But the absence of such a forum, coupled with the lack of a clear, unambiguous, and express statement of congressional intent to preclude judicial consideration on habeas of such an important question of law, strongly counsels against adopting a construction that would raise serious constitutional questions. Accordingly, we conclude that habeas jurisdiction under § 2241 was not repealed by AEDPA and IIRIRA.

Id. at 314, 121 S.Ct. 2271(citation omitted).

In a companion case issued the same day, the Court affirmed that criminal aliens were precluded from seeking direct review on questions of law in the court of appeals, and must therefore be able to proceed with their habeas petitions:

We agree with petitioners that leaving aliens without a forum for adjudicating claims such as those raised in this case would raise serious constitutional questions. We also agree ... that these concerns can best be alleviated by construing the jurisdiction-stripping provision of [IIRIRA] not to preclude aliens such as the petitioners from pursuing habeas relief pursuant to § 2241.

Calcano-Martinez, 533 U.S. at 351, 121 S.Ct. 2268; see also Zadvydas v. Davis, 533 U.S. 678, 687-88, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (§ 2241 habeas corpus jurisdiction not repealed by provisions of AEDPA and IIRIRA).

More recently, in Demore v. Kim, ___ U.S. ___, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), the Court rejected the argument that jurisdiction-limiting provisions of 8 U.S.C. § 1226(e) deprived federal courts of jurisdiction to entertain a habeas petition from a legal permanent resident detained without bail pending his removal proceeding. The Court examined the language of § 1226(e), which provides:

(e) Judicial review

The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.

It then found that the respondent's challenge to the statutory scheme was not an attack on a discretionary judgment by the Attorney General or on a decision made by the Attorney General regarding detention, and that habeas review was not barred under § 1226(e). The Court made three rulings significant for our purposes: (1) it emphasized that, where review of constitutional issues is said to be precluded, Congress must be clear in its intent, see Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988); (2) it reiterated its requirement in St. Cyr that any repeal of habeas review requires a particularly clear statement that such is Congress's intent; and (3) it read the jurisdiction-limiting provision in § 1226(e) as applying only to review of the Attorney General's discretionary judgment. Demore, ___ U.S. ___, 123 S.Ct. 1708, 1713-14, 155 L.Ed.2d 724, 2003 WL 1960607, at *5 (Rehnquist, C.J.).

III. Existence of Habeas Jurisdiction

The initial question presented is whether federal courts possess § 2241 habeas jurisdiction over claims that arise under the implementing legislation and regulations of the CAT, and that are asserted by aliens who are statutorily ineligible for judicial review of their final orders of removal because they have been convicted of aggravated felonies. This is a question of first impression for this circuit. The Supreme Court's decisions in St. Cyr and Demore mandate the conclusion that habeas jurisdiction has not been repealed in such cases, as do the controlling precedents in this circuit: Goncalves and Mahadeo. Here, there is no statement of congressional intent to preclude review of constitutional claims. There is the absence of explicit language by Congress repealing § 2241 jurisdiction. There is also implied congressional knowledge of judicial precedents interpreting similar provisions; the distinction between "judicial review" and "habeas corpus" in the immigration context; the weight of historical precedent supporting continued habeas review in immigration cases; the problem of lack of an alternative forum; and the importance of avoiding a construction of FARRA that would give rise to grave constitutional concerns. The Second Circuit has also concluded that habeas jurisdiction exists in these circumstances. Wang v. Ashcroft, 320 F.3d 130, 142 (2d Cir.2003).

FARRA's jurisdiction-limiting provision refers only to review of regulations; its zipper clause provides only that "nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, or any other determination made with respect to the application of the policy set forth" concerning the CAT. FARRA, § 2242(d), 112 Stat. at 2681-822. We read this section in terms of its language and no more broadly. See Demore, ___ U.S. ___ 123 S.Ct. 1708, 1713-14, 155 L.Ed.2d 724. FARRA does not expressly refer to 28 U.S.C. § 2241 or to habeas review and we would not imply an intent to repeal habeas jurisdiction from silence. See Demore, ___ U.S. ___, 123 S.Ct. 1708, 1713-14, 155 L.Ed.2d 724; Mahadeo, 226 F.3d at 11; Goncalves, 144 F.3d at 119.

Since no challenge is made in this case to the FARRA regulations, we assume the government is relying on the zipper clause. There are a number of problems with that reliance. First, it ignores the teaching set forth in St. Cyr and reinforced in Demore that "judicial review" and "habeas" are distinct processes. St. Cyr, 533 U.S. at 311, 121 S.Ct. 2271; see Demore ___ U.S. ___, 123 S.Ct. 1708, 1723-24, 155 L.Ed.2d 724 (O'Connor, J., concurring in part). Second, the zipper clause is a consolidation of statutory jurisdiction, not a repeal of habeas jurisdiction. Third, by its literal terms, the clause says it "does not provide" jurisdiction, not that it repeals jurisdiction.

In addition, the government's reading would leave no forum available to hear any CAT-based claims, a disfavored situation. See St. Cyr, 533 U.S. at 314, 121 S.Ct. 2271. The government apparently finds nothing troubling about this prospect. But it is easy to imagine a scenario in which problems in the BIA's review amounted to a constitutional violation — or, indeed, a scenario in which the BIA provided no review at all. Instead, by finding the existence of habeas review for claims arising under the implementing legislation of the CAT, we are able once again to avoid the pitfalls of a construction of the statute that would entirely preclude judicial review, giving rise to substantial constitutional questions.

Moreover, the consequences of finding that there was no habeas review available in Saint Fort's case would run contrary to a long history of use of habeas by aliens to challenge confinement in violation of treaty obligations. See, e.g., Mali v. Keeper of the Common Jail (Wildenhus's Case), 120 U.S. 1, 7 S.Ct. 385, 30 L.Ed. 565 (1887) (petition for habeas pursuant to consular agreement between the United States and Belgium). American courts have exercised habeas review over claims of aliens based on treaty obligations since the earliest days of the republic. See W.F. Duker, A Constitutional History of Habeas Corpus 200-01 (1980); Brief Amici Curiae of Legal Historians in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 16 Geo. Immigr. L.J. 465, 482 (2002) (listing cases considering habeas petitions from deserting sailors pursuant to treaty and federal legislation). History is important here because the Suspension Clause's protections are at their greatest height when guarding usages of the writ that date to the founding. See St. Cyr, 533 U.S. at 300-02, 121 S.Ct. 2271.

The Attorney General argues that the issue presented here is qualitatively different. He contends that St. Cyr and the other earlier cases are distinguishable because the CAT is not a self-executing treaty, and so it does not create in any individual a right to bring a cause of action in federal court unless and until Congress expressly grants jurisdiction for the courts to hear such a claim. This argument misses the point in several ways. As framed by the Attorney General, the real question is not one of a grant of jurisdiction (habeas jurisdiction exists), but whether there is some sort of right actionable under existing grants of jurisdiction. The CAT — considered in isolation — clearly is not a self-executing treaty. See Wang, 320 F.3d at 140. And it is also true that treaties that are not self-executing "could not therefore give rise to privately enforceable rights under United States law." Igartua de la Rosa v. United States, 32 F.3d 8, 10 n. 1 (1st Cir.1994) (per curiam).

But this case is not a question of a claim simply arising under treaty that is not self-executing. The CAT has been implemented in the United States through FARRA and the subsequent regulations. FARRA gives the CAT domestic effect. FARRA and the regulations are now the positive law of the United States, and, as such, are cognizable under habeas. "When the stipulations [of a treaty] are not self-executing they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress as legislation upon any other subject." Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 31 L.Ed. 386 (1888); see also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C.Cir.1984) (Bork, J., concurring) ("Absent authorizing legislation, an individual has access to courts for enforcement of a treaty's provisions only when the treaty is self-executing, that is, when it expressly or impliedly provides a private right of action.") (citing Head Money Cases, 112 U.S. 580, 5 S.Ct. 247, 28 L.Ed. 798 (1884)).

Here, authorizing legislation and implementing regulations have been enacted. Saint Fort's claims do not rest solely on a treaty that is not self-executing; they rest on the CAT through the FARRA and the regulations, and on a claim of violation of constitutional rights. See Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1011 n. 6 (9th Cir.2000) ("Because Congress passed legislation implementing Article 3 of the Torture Convention in the extradition context, we need not reach the issue of whether that portion of the treaty is self-executing."); see also Wang, 320 F.3d at 141 n. 17 ("Once Congress created rights under CAT by enacting FARRA, § 2241 necessarily became a proper avenue of relief for individuals in custody in violation of FARRA and its implementing regulations.").

For these reasons, we find that the district court had jurisdiction over Saint Fort's habeas petition, and that we have jurisdiction to review the denial of that petition.


Our review of the district court's denial of a habeas petition is de novo. Nadeau v. Matesanz, 289 F.3d 13, 15 (1st Cir.2002). As petitioner says, "the claim that Mr. Saint Fort is making [is] a legal claim that the BIA deprived him of due process by retroactively applying Matter of J-E-."7

The scope of habeas review is not the same as the scope of statutory judicial review in the courts of appeal. Heikkila, 345 U.S. at 236, 73 S.Ct. 603. At a minimum, habeas review encompasses constitutional claims that are at least colorable. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268, 74 S.Ct. 499, 98 L.Ed. 681 (1954). This includes an assessment of whether a particular set of facts amounts to a constitutional violation. E.g., Zadvydas, 533 U.S. at 699, 121 S.Ct. 2491. Habeas also encompasses colorable claims that an alien's statutory rights have been violated. Id. at 688, 121 S.Ct. 2491; Carranza, 277 F.3d at 71. Included in this category are issues of the proper construction of a statute, which is an issue of law. Goncalves, 144 F.3d at 124-25. As a result, if a statute makes an alien eligible to be considered for a certain form of relief, he may raise on habeas the refusal of the agency to even consider him. But he may not challenge the agency's decision to exercise or not exercise its discretion to grant relief. Carranza, 277 F.3d at 71 (citing Goncalves, 144 F.3d at 125).

We have also said generally that "pure issue[s] of law" may be raised in habeas. Goncalves, 144 F.3d at 113; see also Ruckbi v. INS, 285 F.3d 120, 124 n. 6 (1st Cir.2002); Carranza, 277 F.3d at 72. The entire content of that phrase has not been worked out. In St. Cyr, the Supreme Court referred to the use of habeas to correct "errors of law, including the erroneous application ... of statutes." 533 U.S. at 302, 121 S.Ct. 2271. In Demore, the Court upheld the use of habeas to challenge on constitutional grounds "the statutory framework" permitting detention without bail. ___ U.S. ___, 123 S.Ct. 1708, 1713-14, 155 L.Ed.2d 724. The Second Circuit in Wang has suggested that habeas jurisdiction encompasses at least the situation in which what is at stake is the BIA's application of legal principles to undisputed facts. 320 F.3d at 143. See also 8 C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law and Procedure § 104.04[4][b], at 104-48.9 to 48.10 (2003) (collecting variety of situations in which courts have found jurisdiction under § 2241). We need not reach that issue because it is not presented by the claim here, which is a constitutional one.

Saint Fort's claims boil down to an argument that his constitutional rights to due process have been violated by the retroactive application of In re J-E-. This retroactive application, Saint Fort argues, disrupted his settled expectations, was arbitrary, and denied him the opportunity to be heard, all in violation of due process.

This is not a question of whether, as in St. Cyr, a statute is to be given retroactive effect. It is quite clear that decisions of the Supreme Court apply to all cases then pending before the courts on direct appeal, see Harper v. Va. Dept. of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993), and the same rule is permissible for administrative agencies.8

We understand Saint Fort's due process argument to have two prongs. The first is that an agency may not simply reverse course and depart from its prior precedent; such an action may be arbitrary and may violate due process. That is true up to a point. "Agencies do have leeway to change their interpretations of laws, as well as of their own regulations, provided they explain the reasons for such change and provided that those reasons meet the applicable standard of review." Harrington v. Chao, 280 F.3d 50, 59 (1st Cir.2002). We have applied this rule to the BIA. See, e.g., Davila-Bardales v. INS, 27 F.3d 1, 5 (1st Cir.1994).9 Here, there is an ample explanation for the position taken in In re J-E-. There is no claim that the new position violates the statute.

It is true that In re J-E- does not reference Perez, but J-E- contains a full explanation for the rule it adopts. Had the Perez approach been embodied in a formal rule of the BIA, the burden of explaining that the BIA was making an "avowed alteration" of the Perez approach might be greater, in order to avoid a finding that the shift in direction was arbitrary. See INS v. Yang, 519 U.S. 26, 32, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996); Johnson v. Ashcroft, 286 F.3d 696, 705 (3d Cir.2002). But here, the fact that the overruling of an unpublished opinion was done sub silentio does not make the change in approach arbitrary where there is a full explanation of the reasons for the new approach. See generally 8 C.F.R. § 3.1(g).

Alternatively, there might be an argument that Saint Fort relied on the rule as set forth in Perez and did not produce evidence he would otherwise have produced. Cf. Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) ("[R]etroactivity is a matter on which judges tend to have `sound instincts' and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.") (citation omitted). Whether failure to put on evidence in reliance on an unpublished opinion, said by the agency to have no precedential value, could ever raise an independent due process claim is doubtful. Still, the BIA has itself recognized on occasion that a change in its approach may cause unfairness and has allowed reopening of proceedings to pursue asylum claims. In re G-C-L-, 23 I. & N. Dec. 359, 362(BIA), 2002 WL 1001051 (Apr. 10, 2002); In re X-G-W-, 22 I. & N. Dec. 71(BIA), 1998 WL 378104 (June 25, 1998). But the BIA has chosen not to do so here of its own accord. The facts here do not present the question of whether the due process clause requires a court to order the BIA to reopen here. Saint Fort admits that he has no further evidence to put in, and he did not rely on Perez in that sense.

There being no due process violation, we affirm the denial of the writ of habeas corpus.


In his initial claim for asylum, Saint Fort wrote that his grandfather had been active in the Tonton Macoutes, and that he would be tortured as a result. The Tonton Macoutes were the personal police force of Haitian dictator Francois (Papa Doc) Duvalier, and served his son Jean-Claude (Baby Doc) Duvalier until Jean-Claude's overthrow in 1986. At the IJ hearing on his CAT claim, Saint Fort did not return to this argument

As an unpublished decision, it does not "serve as precedent[ ] in all proceedings involving the same issue or issues." 8 C.F.R. § 3.1(g) (2002)

Saint Fort did submit a motion to reconsider, but it was filed one day after the 30-day deadline. The BIA accordingly rejected the motion as untimely

A zipper clause "consolidates or `zips' `judicial review' of immigration proceedings into one action in the court of appeals."Mahadeo v. Reno, 226 F.3d 3, 12 (1st Cir.2000).

"Old" INA refers to the Immigration and Nationality Act as of March 1996, before the changes promulgated by the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), and the Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. No. 104-208, Div. C, 110 Stat. 3009-546 (Sept. 30, 1996)

We have previously held that the court of appeals maintains a very limited jurisdiction to determine its own jurisdiction in cases where direct review is precluded because of the alien's status as an aggravated felonMahadeo, 226 F.3d at 9-10 ("We agree that § 242(a)(2)(C) would not preclude us from reviewing that provision's applicability to Mahadeo — i.e., whether Mahadeo is an alien, removable, and removable because of a conviction for a qualifying crime."); see, e.g., Emile v. INS, 244 F.3d 183 (1st Cir.2001) (examining whether an alien's crimes met the definition of an aggravated felony despite statutory ineligibility for direct review); see also Sousa v. INS, 226 F.3d 28, 31 (1st Cir.2000). See generally 8 C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law and Procedure § 104.13[3][c], at 104-181 to 104-182 (2003) ("Courts have jurisdiction to determine if they have jurisdiction.").

There is no colorable equal protection claim here

Saint Fort relies heavily onChevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), a case which "the Supreme Court has largely rejected." Herman v. Hector I. Nieves Transport, Inc., 244 F.3d 32, 37 (1st Cir.2001).

In this circuit, the fact that the prior BIA precedent was unpublished does not remove it from review for arbitrariness when the agency changes course. InDavila-Bardales, we noted that "we see no earthly reason why the mere fact of nonpublication should permit an agency to take a view of the law in one case that is flatly contrary to the view it set out in the earlier ... cases, without explaining why it is doing so." 27 F.3d at 5-6.

Saturday, October 24, 2009

Richards v. Ashcroft, 400 F3d 125 - Connecticut General Statute 53a-139 - Forgery 2nd Degree is an Aggravated Felony for Immigration Purposes

Holding: Connecticut General Statute 53a-139 - Forgery 2nd Degree is an Aggravated Felony for Immigration Purposes

400 F.3d 125

Mark RICHARDS, Petitioner-appellant,
John ASHCROFT, Respondent-appellee.

Docket No. 03-2503.

United States Court of Appeals, Second Circuit.

Argued: October 22, 2004.

Decided: March 3, 2005.

Roberto Tschudin Lucheme, Glastonbury, CT, for petitioner-appellant.

Patrick F. Caruso, Assistant United States Attorney (Kevin J. O'Connor, United States Attorney, Jeffrey A. Meyer, Assistant United States Attorney, on the brief), Hartford, CT, for respondent-appellee.

Before: JACOBS, SOTOMAYOR and HALL, Circuit Judges.

SOTOMAYOR, Circuit Judge:

Petitioner Mark Richards ("Richards") appeals from a judgment of the United States District Court for the District of Connecticut (Hall, J.), entered on July 23, 2003, denying his petition pursuant to 28 U.S.C. § 2241 to vacate an order of removal. Richards asserts that he is entitled to § 2241 relief because an Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") erroneously concluded that he had been convicted of an "aggravated felony," specifically, "an offense relating to ... forgery," 8 U.S.C. § 1101(a)(43)(R). Richards argues that his 2001 conviction for second-degree forgery under Connecticut General Statute § 53a-139 did not constitute "an offense relating to ... forgery" because the Connecticut statute criminalizes mere possession of a forged document. We conclude that possession of a forged document with intent to defraud, deceive or injure is "an offense relating to ... forgery" within the meaning of § 1101(a)(43)(R), and affirm the judgment of the district court.


Richards, a citizen of Jamaica, entered the United States on March 13, 1981. On April 2, 2001, Richards was issued a notice of removal proceedings charging him with removability based on a 1995 conviction under Connecticut law for third-degree assault, which the INS alleged constituted an aggravated felony as defined by subparagraph (F) of the aggravated felony definition of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43). On April 26, 2001, Richards was convicted in Connecticut Superior Court of second-degree forgery under Connecticut General Statute § 53a-139 and sentenced to two years imprisonment. The INS subsequently amended the charge of removability to include the forgery conviction as an additional aggravated felony under subparagraph (R) of § 1101(a)(43).

On January 9, 2003, IJ Michael W. Straus determined that both the assault and the forgery conviction were removable offenses. The IJ found, in relevant part, that second degree forgery under Connecticut General Statute § 53a-139 is an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(R). On April 10, 2003, the BIA dismissed Richards' appeal, finding, without further elaboration, that the IJ "correctly concluded that the respondent is removable as an alien convicted of an aggravated felony" based on both of his convictions. Richards filed a habeas petition in the United States District Court for the District of Connecticut on May 2, 2003, asserting in relevant part that the forgery conviction was not an aggravated felony.1 That petition was denied on July 22, 2003. This appeal timely followed.


I. Jurisdiction and standard of review

The district court had subject matter jurisdiction over Richards' habeas petition under 28 U.S.C. § 2241.2 This Court has appellate jurisdiction over the denial of that petition pursuant to 28 U.S.C. §§ 1291 and 2253(a).

On appeal from a denial of a habeas corpus petition, we review the petition de novo. Evangelista v. Ashcroft, 359 F.3d 145, 150 (2d Cir.2004). To the extent that this review involves interpretation of the INA, "we accord considerable deference to the BIA's interpretation of ambiguous provisions" of the statute. Kamagate v. Ashcroft, 385 F.3d 144, 151 (2d Cir.2004). In contrast, we do not defer to the BIA's interpretation of state law or of federal criminal laws, which the BIA does not administer. See Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir.2004); Evangelista, 359 F.3d at 150. Thus, to the extent a determination of whether a given criminal conviction falls within the INA's definition of "aggravated felony" turns on the meaning of state or federal criminal law, we review the BIA's determination de novo. See Kamagate, 385 F.3d at 151; Sui v. INS, 250 F.3d 105, 112-13 (2d Cir.2001).

II. Connecticut second-degree forgery is an "offense relating to ... forgery" under the INA

Section 237 of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), authorizes the removal of aliens who have committed an "aggravated felony," as defined at 8 U.S.C. § 1101(a)(43). Subparagraph (R) of § 1101(a)(43) includes any "offense relating to ... forgery ... for which the term of imprisonment is at least one year." In determining whether a given state conviction constitutes an aggravated felony under the INA, we do not look to the facts surrounding the particular conviction, but rather take a "categorical approach," examining the generic elements of the offense of conviction to determine whether it is "any broader than an offense defined as an `aggravated felony' under federal law." Gousse v. Ashcroft, 339 F.3d 91, 95-96 (2d Cir.2003) (some internal quotation marks omitted); see also Jobson v. Ashcroft, 326 F.3d 367, 371-72 (2d Cir.2003). If the criminal statute punishes conduct that falls outside the INA's definition, then the crime does not constitute an aggravated felony. Gousse, 339 F.3d at 96. Applying this categorical approach, Richards argues that Connecticut General Statute § 53a-139 is broader than the federal definition of "forgery" because it penalizes the mere possession, as opposed to the making or uttering, of a forged instrument.

Section 53a-139 provides, in relevant part, that "[a] person is guilty of forgery in the second degree when, with intent to defraud, deceive, or injure another, he falsely makes, completes or alters a [specified] written instrument or issues or possesses any [such] written instrument which he knows to be forged." Conn. Gen.Stat. § 53a-139. The fact that Connecticut punishes a given act under the rubric of "forgery" is not dispositive of whether a conviction under that statute is "an offense relating to ... forgery" under the federal definition; absent clear evidence to the contrary, we presume that Congress did not intend the meaning of the INA to hinge on state law. See Sui, 250 F.3d at 114 (citing Drakes v. Zimski, 240 F.3d 246, 248 (3d Cir.2001)) (holding that "[t]he language of [the INA] must be construed to have the meaning intended by Congress, not the [state] legislature"). There is no readily available federal definition of "forgery" or an offense "relating to ... forgery," however. The terms are not defined at § 1101(a)(43)(R) or elsewhere in the INA; so far as we are aware, the BIA has not settled on a general interpretation of either of these terms as employed at § 1101(a)(43).3 Nor, as the Third Circuit observed in Drakes, has Congress defined the term "forgery" in any of the numerous criminal statutes in which the term appears. See Drakes, 240 F.3d at 249 (reviewing federal statutes addressing forgery).

In general, when a federal statute uses, but does not define, a term of art that carries an established common law meaning, we will give that term its common law definition (unless, again, Congress has clearly evinced intent to the contrary). Moskal v. United States, 498 U.S. 103, 114, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990); Gilbert v. United States, 370 U.S. 650, 655, 82 S.Ct. 1399, 8 L.Ed.2d 750 (1962); see, e.g., Drakes, 240 F.3d at 249 (examining common law definition of forgery for the purpose of determining whether Delaware statute constituted "an offense relating to ... forgery" under § 1101(a)(43)(R)). The sparse case law discussing the scope of forgery at common law tends to support Richards' contention that forgery itself requires a "false making." Gilbert, 370 U.S. at 656, 82 S.Ct. 1399 (internal quotation and citation omitted); see also United States v. McGovern, 661 F.2d 27, 29 (3d Cir.1981) ("Common law forgery has three elements: (a) The false making or material alteration (b) with intent to defraud (c) of a writing which, if genuine, might be of legal efficacy."); United States v. Maybury, 274 F.2d 899, 903 (2d Cir.1960) (noting that "an essential element of the crime of forgery is making the false writing"); accord 36 Am.Jur.2d Forgery § 1 (2001) (defining forgery as "the fraudulent making or alteration of a writing to the prejudice of another's rights"); 37 C.J.S. Forgery § 2 (1997) (defining forgery as the "false making or materially altering ... of any writing"). In addition, the Model Penal Code, to which we have also referred for definitions of terms that the INA does not define, see Sui, 250 F.3d at 115, does not define "forgery" to include possessory offenses. Model Penal Code § 224.1 (1980).

Thus, if subparagraph (R) defined "aggravated felony" to include only "forgery" offenses, Richards' argument would present a close question. But the aggravated felony definition encompasses "offense[s] relating to ... forgery." 8 U.S.C. § 1101(a)(43)(R). In Kamagate v. Ashcroft, decided subsequent to the district court's decision and the briefing of this appeal, we considered whether conviction under a federal counterfeiting statute for possession of counterfeit securities was "an offense relating to counterfeiting" under subparagraph (R). 385 F.3d at 153-56. In holding that § 1101(a)(43)(R) encompassed the possessory crime, we rejected a narrow interpretation of the term "relating to" under which it would reach only crimes involving counterfeiting itself. Id. In particular, we relied on the Supreme Court's analysis of the term "relating to" in Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), in which the Court observed that Black's Law Dictionary defines the words expansively: "`to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.'" Kamagate, 385 F.3d at 154 (quoting Morales, 504 U.S. at 383, 112 S.Ct. 2031 (quoting Black's Law Dictionary 1158 (5th ed.1979)) (further internal quotation marks omitted)). We also looked to the BIA's interpretation of the phrase "relating to a controlled substance" in the predecessor statute to 8 U.S.C. § 1227(a)(2)(B)(I). Id. (citing In re Beltran, 20 I. & N. Dec. 521, 525-26 (BIA 1992) ("[T]he phrase `relating to' ... has long been construed to have broad coverage.... Congress intended to give inclusive meaning in the immigration laws to the phrase `relating to.'")). Finally, we indicated our agreement with the Ninth Circuit's conclusion in Albillo-Figueroa v. INS, 221 F.3d 1070, 1073 (9th Cir.2000), that the inclusion of the term "relating to" in subsection (R) "`necessarily' signaled Congress's intent to cover `a range of activities beyond those of counterfeiting or forgery itself,'" including those activities made illegal in order to discourage counterfeiting or forgery "`through the criminalization of the use of [their] end product [s].'" Kamagate, 385 F.3d at 155 (quoting Albillo-Figueroa, 221 F.3d at 1073).

The analysis in Kamagate controls the result here: Criminalization of possession of forged instruments with the intent to deceive, defraud or injure, like possession of counterfeit instruments with similar intent, discourages the underlying crime. Cf. 18 U.S.C. §§ 477, 480 (criminalizing possession of specified forged instruments); Cal.Penal Code § 475 (same); Del.Code Ann. tit. 11, § 861 (same); Idaho Code § 18-3603 (same); Me.Rev.Stat. Ann. tit. 17-A § 703 (same). Even if possession of a forged instrument with intent to defraud, deceive or injure is not "forgery" as defined at common law, it is unarguably an offense "relating to" forgery within the broad construction we have given that term.4 See Kamagate, 385 F.3d at 154-56; see also Drakes, 240 F.3d at 250 (reaching the same conclusion with respect to a materially identical Delaware statute). We therefore hold that Connecticut General Statute § 53a-139 punishes only conduct that is covered by 8 U.S.C. § 1101(a)(43)(R), and that a conviction under this statute for which a sentence of one year or more is imposed constitutes an aggravated felony.


For the foregoing reasons, the judgment of the district court is AFFIRMED.


Richards also contested the BIA's determination that he was removable for the assault conviction. The government conceded that the assault conviction no longer constituted a ground for removal under this Court's opinion inChrzanoski v. Ashcroft, 327 F.3d 188, 197 (2d Cir.2003). Thus, the district court focused exclusively on whether Richards was subject to removal for the forgery conviction. That is the only issue presented in this appeal.

Although federal courts lack jurisdiction directly to review final removal orders entered on the basis of conviction for an aggravated felony, they retain jurisdiction under § 2241 to review whether an alien has, as a matter of law, committed such an aggravated felonyKamagate v. Ashcroft, 385 F.3d 144, 149 (2d Cir.2004); Kuhali v. Reno, 266 F.3d 93, 99 (2d Cir.2001); see 8 U.S.C. § 1252(a)(2)(C).

In both the instant case and inIn re Aldabesheh, 22 I. & N. Dec. 983, 987 (1999), the BIA determined that a given state offense met the definition of an "offense relating to ... forgery" without elaborating in any way on the meaning of that term.

As the district court correctly found, Richards' contention that conviction under § 53a-139 requires only knowing possession of forged instruments is a patent misreading of the statute. The phrase "with intent to defraud, deceive or injure" in § 53a-139 modifies both the "make [ ], complete[] or alter[ ]" clause and the "possess[ ]" clauseSee State v. DeCaro, 252 Conn. 229, 745 A.2d 800, 811 (2000) (noting that "[a] defendant may be found guilty of forgery in the second degree ... if the state establishes that the defendant, with intent to deceive another, falsely made, possessed or altered a written instrument that he knew to be forged" (emphasis added)); State v. Henderson, 47 Conn.App. 542, 706 A.2d 480 (1998) (squarely so holding); cf. State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995) (so holding with respect to materially identical third-degree forgery statute). We express no view on the considerably more difficult question of whether a statute that punished mere knowing possession of a forged instrument would be an offense "relating to ... forgery."

Friday, October 23, 2009

Detainee passes away at Boston hospital

October 20, 2009

Detainee passes away at Boston hospital

BOSTON - On Oct. 19, Pedro Juan Tavarez, a 49-year-old national of the Dominican Republic being held on immigration violations, passed away at Brigham and Women's Hospital in Boston, Mass.

On October 16, The Suffolk County House of Correction, where he was detained by ICE, transported Tavarez to the hospital after medical staff suggested possible pneumonia. The hospital diagnosed him with heart and respiratory conditions for which he was being treated.

Tavarez's family was at the hospital with him when he passed away and was able to consult with medical staff on decisions concerning his medical treatment. U.S. Immigration and Customs Enforcement (ICE) notified the Consulate General of the Dominican Republic of Tavarez's passing. Additionally, the appropriate state health authorities have been notified. The medical examiner's office has not determined an official cause of death and will determine if an autopsy is necessary.

Philadelphia man sentenced for immigration fraud and other federal crimes

October 21, 2009

Philadelphia man sentenced for immigration fraud and other federal crimes

PHILADELPHIA - A man from Willistown Township, Pa., was sentenced to 18 months in federal prison on Oct. 21 after pleading guilty to three counts of immigration fraud, one count of illegally possessing a firearm silencer without a serial number, and one count of conspiracy to commit tax fraud. The case was investigated by U.S. Immigration and Customs Enforcement (ICE).

Sean O'Neill, 49, pleaded guilty to the charges on April 16. During the proceeding, O'Neill admitted he fraudulently obtained U.S. permanent residence status by lying about his criminal record, his marriage and his membership in a prohibited organization. In his application for U.S. permanent residence, O'Neill denied having any prior arrests or criminal convictions when, in fact, he had four prior convictions in the United Kingdom. One of his arrests occurred when he was a member in the Fianna na h'Eireann, an organization dedicated to the violent overthrow of British rule in Northern Ireland.

"This case reinforces ICE's commitment to enforcing our nation's immigration laws," said Andrew M. McLees, acting special agent in charge of the ICE Office of Investigations in Philadelphia. "We will continue to aggressively investigate immigration fraud and shut down vulnerabilities that pose a threat to our national security."

O'Neill admitted to various charges, including the following: falsely claiming he was a U.S. citizen during a judicial proceeding; possessing a foreign-manufactured silencer that without a serial number; and engaging in a conspiracy over more than 10-years to defraud the Internal Revenue Service of federal taxes. O'Neill owns a construction company, a restaurant and bar, and a property development business. During the conspiracy against the IRS, he paid some of his employees in cash to avoid paying the required federal payroll taxes to the IRS.

In addition to the imposed prison term, U.S. District Court Judge William H. Yohn Jr. ordered O'Neill to make restitution to the IRS in the amount of $395,000, and pay a $60,000 fine. According to court documents, O'Neill also agreed to voluntarily leave the United States by stipulating to an order of removal, and agreeing not to fight his removal proceedings in immigration court.

The agencies assisting in the ICE investigation included: the FBI; the Bureau of Alcohol, Tobacco, Firearms and Explosives; the Internal Revenue Service; and the Pennsylvania State Police. Assistant U.S. Attorneys Nancy Beam Winter and Alexander T.H. Nguyen, Eastern District of Pennsylvania, prosecuted this case.

Immigration fraud poses a severe threat to national security and public safety because it creates a vulnerability that may enable terrorists, criminals, and illegal aliens to gain entry to and remain in the United States. ICE uproots the infrastructure of illegal immigration by detecting and deterring immigration fraud.

Individuals and criminal enterprises often use fraudulent documents to obtain driver's licenses and social security cards. Traffickers and alien smugglers use these documents to facilitate movement into and within the United States; and they are also used to shield illegal aliens from detection within our society. Fraudulent documents may be used to illegally obtain government financial benefits and entitlements intended for U.S. citizens or U.S. permanent residents, and to obtain unauthorized employment.

Thursday, October 15, 2009

Momeni v. Chertoff, 521 F.3d 1094 C.A.9 (Cal.),2008 - Adjustment of Status for Overstay Visa Waiver Program Alien

Filing for an adjustment of status based on marriage by an overstay alien who came under Visa Waiver Program does not stop removal proceedings.

United States Department of
Homeland Security; JULIE L.
MYERS, Assistant Secretary for US
Immigration and Customs No. 07-55018
Enforcement, United States
Department of Homeland Security; D.C. No. JOHN P. TORRES, Acting Director, CV-06-05675-SGL
Office of Detention and Removal, OPINION
US Immigration and Customs
Enforcement; JAMES T. HAYES,
District Director, Los Angeles
District Office, Detention and
Removal Operations, US
Immigration and Customs
Enforcement; KENNETH COX,
Respondents-Appellees. 
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted
July 12, 2007—Pasadena, California
Filed March 31, 2008
Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld,
and Richard C. Tallman, Circuit Judges.
Opinion by Judge Kleinfeld
Lori B. Schoenberg, Reeves and Associates, A PLC, Pasadena,
California, for the appellant.
Thomas K. Buck, Assistant U.S. Attorney, Los Angeles, California,
for the appellees.

KLEINFELD, Circuit Judge:

We consider whether a traveler to the United States under the Visa Waiver Program may contest deportation pending an application for adjustment of status. Momeni argues that under Freeman v. Gonzales1 the “no contest” provision2 of the 90-day tourist program does not apply to him, because he has since filed (and has pending) an application for adjustment of status, based on his marriage to a United States citizen. 1444 F.3d 1031 (9th Cir. 2006). 28 U.S.C. § 1187(b).


Momeni is a German citizen. He came to the United States as a tourist on November 30, 2005. Under a pilot program that Congress created, citizens of certain countries can come to the United States as tourists for 90 days or less without visas.3 Various conditions have to be satisfied by the country (e.g., a reciprocal program4) and the tourist (e.g., a round-trip ticket5). To get the government waiver of the usual visa requirement, the tourist has to sign a waiver of his or her own right to contest removal other than on the basis of asylum.6 Momeni did not go back to Germany by March 1, which was 90 days after he entered the United States. On April 11, 2006, he married a United States citizen. In July, Momeni was taken into custody for violating the conditions of his admission under the Visa Waiver Program, and given notice that he was to be removed. In September, Momeni and his wife applied to adjust Momeni’s status. His removal has been stayed pending disposition of this case. Because there are no administrative proceedings available for entrants under the Visa Waiver Program except on the basis of asylum, he sought none, and instead petitioned for a writ of habeas corpus in district court. The district court dismissed the petition on the ground that it lacked jurisdiction, and he appealed.

3See 8 U.S.C. § 1187.
4See 8 U.S.C. § 1187(a)(2).
5See 8 U.S.C. § 1187(a)(8).
6See 8 U.S.C. § 1187(b).

Under the Visa Waiver Program, an alien may enter the United States without a visa for a period of 90 days. An alien who enters under this program waives any right “(1) to review or appeal under this [Act] of an immigration officer’s determination as to the admissibility of the alien at the port of entry into the United States, or (2) to contest, other than on the basis of an application for asylum, any action for removal.” Id.


I. Jurisdiction
[1] The district court correctly ruled that it did not have jurisdiction. In Iasu v. Smith,7 we held that, for habeas petitions filed after the effective date of the REAL ID Act, a “district court plainly lack[s] habeas jurisdiction” over challenges to removal orders.8 Congress amended 8 U.S.C. § 1252(a)(5) in the REAL ID Act to provide that “a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this [Act].” The scope of our own jurisdiction is arguable, but in order to avoid the constitutional argument raised by Momeni that the REAL ID act could not deprive the courts of habeas jurisdiction without violating the Suspension Clause,9 we assume for purposes of this decision that we have jurisdiction.10

II. Merits
[2] Momeni entered the United States under the Visa Waiver Program, a special program for tourists from 27 countries. 11 The Visa Waiver Program allows tourists to enter the United States “for 90 days or less” from the designated countries without visas.12 To do so, they must waive “any right . . . to contest, other than on the basis of an application for asylum, any action for removal.”13 Momeni has not sought asylum from Germany. That, basically, is the end of the case.
In Freeman, the alien married the United States citizen before entering the Visa Waiver Program and sought an adjustment of status within the 90 days she could stay. But she was thwarted from adjusting her status by the subsequent death of her husband in a car accident, shortly before their first wedding anniversary. We noted that there are “likely to be a small percentage of VWP entrants in Mrs. Freeman’s position,” 14 a very sympathetic one, and held that in that case the adjustment of status statute superseded the no contest provision. 15
[3] None of the relevant circumstances of Freeman pertain here. Freeman married before the 90 days expired (and before the particular trip to the United States), whereas Momeni married after his 90 days expired; Freeman applied for adjustment of status during the 90 days, whereas Momeni applied after the 90 days expired. These distinctions disqualify Momeni from circumventing the Visa Waiver Program’s no contest clause by means of adjustment of status.
We characterized this no contest clause in Handa v. Clark16 as “the linchpin of the [Visa Waiver] program, which assures that a person who comes here with a VWP visa will leave on time and will not raise a host of legal and factual claims to impede removal if he overstays.”17 Freeman was an exception because she was eligible to adjust her status at time she arrived, under 8 U.S.C. § 1254, she applied within her 90 days, and she would have obtained her adjustment of status but for her husband’s death. Momeni, though, doesn’t fall within this narrow exception.
[4] If a Visa Waiver Program entrant does not leave when the 90 days expires, life in the United States goes on. It may go on for many years before the alien comes to the government’s attention. There are legal means by which aliens may marry United States citizens, obtain visas, and obtain adjustment of status, but overstaying the 90 days for tourists in the Visa Waiver Program is not among them. If it were, our comment in Freeman that there are “likely to be a small percentage of VWP entrants in Mrs. Freeman’s position”18 would not be correct.

We agree with the Tenth Circuit in Schmitt v. Maurer,19 that to allow an adjustment of status petition after the 90 days has expired would create an avoidable conflict between the adjustment of status statute and the no contest statute. Where an appellate court can construe two statutes so that they conflict, or so that they can be reconciled and both can be applied, it is obliged to reconcile them.20 An alien who comes to the United States under the Visa Waiver Program generally cannot avoid his or her waiver of the right to contest removal (other than on the basis of asylum). Freeman is a narrow exception to the rule, but Momeni doesn’t fall within this exception


7511 F.3d 881 (9th Cir. 2007).
8Id. at 888.
9U.S. Const. art I, § 9, cl. 2.
10See, e.g., INS v. St. Cyr, 533 U.S. 289 (2001).
11Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. See 8 C.F.R. § 217.2.
128 U.S.C. § 1187(a).
138 U.S.C. § 1187(b).
14Freeman, 444 F.3d at 1036 n.9.
15Id. at 1037.
16401 F.3d 1129 (9th Cir. 2005).
17Handa v. Clark, 401 F.3d 1129, 1135 (9th Cir. 2005).
18Freeman, 444 F.3d at 1036 n.9.
19451 F.3d 1092 (10th Cir. 2006).
20See, e.g., Cal. ex rel. Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1012 (9th Cir. 2000) (“Of course, it is a well established axiom of statutory construction that, whenever possible, a court should interpret two seemingly inconsistent statutes to avoid a potential conflict.”).

Monday, October 12, 2009

Matter of Biebl - Recognition of foreign divorces - Litvaitis v. Litvaitis

Interim Decision #2672

Matter of Biebl

In Visa Petition Proceedings
Decided by Board September 13, 1978

(1) Under law of Connecticut at least one of the spouses must establish a domicile in the jurisdiction in which a foreign divorce decree is sought in order to give a court jurisdiction to grant a divorce. Litvaitis v. Litvaitis, 162 Conn. 540, 295 A.2d 519 (1972).
(2) Under law of Connecticut, for purposes of establishing the jurisdiction of a court to grant a decree of dissolution of marriage, "domicile" is that place where a person has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home, Spaulding v. Spaulding, 177 Conn. 220, 368 A.2d 14 (1976).
(3) Where petitioner and his first spouse were domiciled in New York at the time they
obtained a divorce decree in the Dominican Republic according to the Dominican Republic law, dissolution of prior marriage not recognized for immediate relative
benefits under section 201(b) of the Act, 8 U.S.C. 1151(b); hence, a second marriage; in Connecticut, will not support a visa petition.

ON BEHALF OF PBTmONER: Joseph Abrams, Esquire
Abrams and Abrams
One Perm Plaza
New York, New York 10001
BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members

The United States citizen petitioner submitted on November 28, 1977, Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa on behalf of his stepdaughter under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. 1151(b), In his decision dated April 25, 1978, the Acting District Director denied the petition. The petitioner has appealed. The appeal will be dismissed.

The petitioner, a 57-year-old male, married the beneficiary's mother in Connecticut on November 5, 1977. The 15-year-old beneficiary is a native and citizen of Germany, born on September 6, 1963.

In visa petition proceedings, the burden of establishing the claimed, relationship is upon the petitioner. Matter of Brantigan, 111. & N. Dec. 493 (BIA 1966). In order to qualify as a "stepchild" the beneficiary must also have qualified as the "child" of the petitioner under section 101(b)(1) of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1). Nazareno v. Attorney General, 512 F.2d 936 (D.C, Cir. 1975), cert,
denied, 432 U.S. 832 (1975).

The only subdivision of section 101(b)(1) which may possibly be relevant to this case is (E) which provides:
(1) The term "child" means an unmarried person under twenty-one years of age who is—
(B) a stepchild, whether or not born out of wedlock^ provided the child had not reached the age of eighteen years at the time the marriage creating the status of
stepchild occurred; ....
The marriage between the petitioner and the beneficiary's mother which took place in Connecticut on November 5, 1977, is the second marriage for each. The first marriage of the beneficiary's mother was dissolved on July 11,1972, in Germany. The dissolution of that marriage is not in question.

The petitioner's first marriage was dissolved on May 23, 1977, in the Dominican Republic. Contained in the record is a certificate of the Court of First Instance of Judicial District of Santo Dominican showing: that Guenther L. Kuehl personally appeared before that Court; that Gisela Kuehl appeared before that court by her attorney in fact; that both parties were domiciled at 507 Crotón Avenue, Peekskill, New York.
The validity Of a marriage generally is determined according to the law of the place of celebration. Matter of Gomero, 14 I. & N. Dec. 674 (BIA 1974); Matter of Levine, 131. & N. Dec. 244 (BIA 1969); Matter of P—, 4 L & N. Dee. 610 (BIA 1952, A.G. 1952). Thus, the validity of the petitioner's present marriage to the beneficiary's mother depends upon whether Connecticut would recognize the Dominican Republic divorce decree purportedly terminating the petitioner's prior marriage.

The Supreme Court of Connecticut has held that at least one of the spouses must establish a domicile in the jurisdiction in which a foreign divorce decree is sought in order to give a court jurisdiction to grant a divorce; that principle has been held to apply to divorce decrees granted in foreign jurisdictions, even though a domicile is not required by the laws of the foreign jurisdiction. Litvaitis v. Litvaitis, 162 Conn. 540,295 A.2d 519 (1972).

Subsequently, the Supreme Court of Connecticut held, for purposes of establishing the jurisdiction of a court to grant a decree of dissolution of marriage, "domicile" is that place where a person has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home. Spaulding v. Spaulding, 171 Conn. 220,
368 A.2d 14 (1976).

Inasmuch as the certified Dominican Republic divorce decree contained in the record shows that both the petitioner and his first spouse were domiciled in New York on May 23,1977, neither spouse has met the domiciliary requirement set out in Connecticut law. The petitioner's divorce is not entitled to recognition under Connecticut law. See Litvaitis v. Litvaitis, supra; Spaulding v. Spaulding, supra.

Accordingly, as the petitioner's prior marriage was not dissolved as a result of the decree rendered on May 23, 1977, the petitioner was not free to marry the beneficiary's mother on November 5, 1977. Consequently, the "stepchild" relationship for immigration purposes was not established between the petitioner and the beneficiary.

The decision of the Acting District Director was correct. Accordingly,
the appeal will be dismissed.

ORDER: The appeal is dismissed.

Matter of Revelo - Recognition of Foreign Divorce under CT law - Litvaitis v. Litvaitis

Interim Decision #2691

Matter of Revelo

In Visa Petition Proceedings
Decided by Board March 7,1979

(1) Under Connecticut law, a bona fide domicile by at least one of the parties to a foreign divorce in the country where the divorce took place is required for recognition, whether the divorce is ex parte or by mutual consent. Matter of Biebl, Interim Decision 2672(BIA 1978); Litvatis v. Litvaitis, 162 Conn. 540, 295 A.2d 519 (1972); Gildersleeve v. Gildersleeve, 88 Conn. 689, 92 A. 684 (1914).
(2) A party must have a legally protected interest in order to participate in a judicial proceeding so that the legal questions are framed with the necessary specificity and the issues contested with the necessary adverseness and vigor. Flast v. Cohen, 392 U.S. 83(1S68).
(3) In a Visa petition proceeding the District Director Is an adjudicator, not an adversary win needs standing to participate, therefore, the term «standing" has no relevance to his role.
(4) The Immigration and Naturalization Service has the power to contest the validity of a foreign divorce in visa petition proceedings.

Joseph N. Tauber, Esquire George I^cato
29 Hoyt Street Appellate Trial Attorney
Stamford, Connecticut 06995
BY; Milhollan, Chairman; Mariatis, Appleman, Maguire, and Farb, Board Members
This case presents an appeal from the decision of the Acting District
Director dated June 12,1978, denying a visa petition filed on behalf of the
beneficiary as the spouse of the petitioner pursuant to section 203(a)(2)
of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). The appeal
will be dismissed.
The petitioner is a native and citizen of Ecuador who was admitted as a lawful permanent resident of the United States at New York on April 9, 1974. The beneficiary is a native and citizen of Colombia. On December 18, 1976, the parties married in Stamford, Connecticut, after each had obtained Dominican divorces from their previous spouses in 1975.

The Acting District Director denied the visa petition concluding that the parties' marriage subsequent to the Dominican divorces was invalid under Connecticut law, and, thus, the beneficiary was not entitled to preference immigration status through the petitioner. His conclusion was based on the Connecticut Supreme Court's decision in Litvaitis v. Litvaitis, 162 Conn. 540,295 A.2d 519 (1972), where the court ruled that an order for a foreign divorce to be recognized in Connecticut, at least one of the parties must be a good faith domiciliary of ťhe foreign country where the divorce was obtained. Since the petitioner was a lawful permanent resident of the United States when the divorce took place and there was no record of the beneficiary having been in the Dominican Republic, the Acting District Director concluded that neither party was a Dominican domiciliary and the divorce would not be recognized under Connecticut law.

The legal validity of a marriage is generally determined by the place of celebration. Matter of Levine, 13 I. & N. Dec. 244 (BIA 1969); Matter of Freeman, 11 I. & N. Dec. 482 (BIA 1966). In the present case, Connecticut is the place of the marriage celebration, thus, we must evaluate the marriage's validity under Connecticut law.

In Matter of Biebl, Interim Decision 2672 (BIA 1978), we examined the law of Connecticut and concluded that a bona fide domicile by at least one of the parties to the divorce in the country where the divorce took place was required in order to recognize it. 8 C.F.E. 204.2(c)(2)specifically requires a petitioner to establish the validity of a claimed divorce. Since the petitioner has not submitted any evidence to prove that any of the parties to the two divorces was a Dominican domiciliary, the petitioner has not met his burden of proving that he is entitled to the immigration benefits sought. Matter of Brantigan, 111. & N. Dec 4S3
(EIA 1966).
However, the petitioner at oral argument has attempted to distinguish the facts in the present case from those considered by the Connecticut court in Litvaitis v. LitvaitUs, supra. He points out that Litvaitis dealt with an er parte divorce unlike the mutual consent divorce which the petitioner and beneficiary in the present case obtained.

Although we agree with the petitioner's contention that Litvaitis was not a mutual consent divorce, that difference does not require a different result from the Acting District Director's conclusion. In Litvaitis the Connecticut Supreme Court was not stating a rule limited to ex parte divorces. Rather, the court in Litvaitis was restating its previous holdings in other cases involving bilateral divorces, that a bona fide domicile by at least one of the parties was a requirement for recognition under Connecticut law. See Gilder sleeve v. Gildersleeve, 88 Conn. 689, 92 A. 684 (1914); Rice v. Rice, 134 Conn. 440, 58 A.2d 523 (19483; State v.Cooke, 110 Conn. 348,148 A. 385 (1930). The rationale for the Connecticut rule is that the divorcing court must have personal jurisdiction and also res jurisdiction over the marriage which is the res in divorce proceeding: See Gildersleeve v. Gildersleeve, 92 A. at 685.

We also reject the petitioner's contention that the Acting District Director lacks standing under Connecticut law to challenge the validity of the Dominican divorces. The word "standing" is a legal term intimately related to a court's jurisdiction. The courts must ascertain that a party has a legally protested interest in order to allow him to participate in a judicial proceeding so that the legal questions will be framed with the necessary specificity and the issues contested with the necessary adverseness and vigor. See Flast v. Cohen, 392 U.S. 83,106 (1968).

In a visa petition proceeding the Acting District Director is not an adversary who needs standing to participate. 8 C.F.R. 103.1(n) grants the District Director the power to adjudicate the visa petition. Thus, the District Director's role is that of an adjudicator and not an adversary in visa petition proceedings. The term "standing" has therefore no relevance with regards to the Acting District Director's role in adjudicating a visa petition. We impliedly held that the Service has the power to contest the validity of a foreign divorce in visa petition proceedings. See e.g. Matter of Guzman, Interim Decision 2484 (BIA 1976); Matter of Darwish, 141. & N. Dec. 307 (BIA 1973); Matter of Atwater, 141. & N. Dec. 410 (BIA 1973). Thus, the petitioner's contention is without merit and the appeal will be dismissed.

ORDER: The appeal is dismissed

Wednesday, October 7, 2009

Parents charged in diabetes death They didn't get medical help for sick daughter, 11 - Praying does not make one a doctor

Parents charged in diabetes death
They didn't get medical help for sick daughter, 11

By Bill Glauber and Bill Glauber of the Journal Sentinel

Posted: April 29, 2008

Even as her 11-year-old daughter lay dying on a mattress on the floor of the family dining room on Easter Sunday, Leilani Neumann never wavered in her belief in the power of prayer.

"We just thought it was a spiritual attack and we prayed for her," Neumann said, according to a police report. "My husband, Dale, was crying and mentioned taking Kara to the doctor, and I said the Lord's going to heal her and we continued to pray."

Prayer didn't save Madeline Kara Neumann, who died of untreated diabetes March 23.

And now, the law is poised to come down hard on the girl's parents, Leilani and Dale Neumann, who were both charged with second-degree reckless homicide Monday by Marathon County District Attorney Jill Falstad.

If convicted, the parents face maximum sentences of 25 years in prison and a $100,000 fine.

The parents are scheduled to make their first court appearance Wednesday in Marathon County Circuit Court.

The Neumanns, of Weston, could not be reached for comment. Their attorney, Gene Linehan, also declined comment, according to a receptionist at his Wausau office.

Prosecutors said they looked at the "progression of the illness" as they weighed charges in the case.

"By that Saturday (the day before the girl's death) you had an 11-year-old child who wasn't eating, so she wasn't getting any nourishment, she wasn't taking in any fluids, she wasn't walking, she was struggling to get to the bathroom," Falstad said. "She really was very vulnerable and helpless. And it seemed apparent that everybody knew that. As her illness progressed to the next morning being comatose . . . it just is very, very surprising, shocking that she wasn't allowed medical prevention (attention).

"She had a disease that was treatable and her death could have been prevented," Falstad said.

The Neumanns, who own a coffee shop in Weston, have three other children who are living with relatives in the area under an agreement with authorities.
'People of faith'

The Neumanns have said they don't believe in any organized religion or faith but believe that healing comes through prayer.

During an interview with Everest Metro Police, Dale Neumann said he and his family are "people of faith." According to one family member interviewed by police, the Neumanns are Pentecostal and were starting a small ministry at their coffee shop.

According to the police report, made available with the charging documents, Dale Neumann said "throughout the interview that he and his family do not need any traditional medical intervention nor do they 'believe' in it."

The document also states: "Neumann said his family never gets sick and if they would, prayer and God would heal them."

The Neumanns both said they noticed a change in Kara's health around two weeks before her death.

"(Dale) Neumann said that he really didn't think she was ill but rather said that he thought her symptoms were due to Madeline's reaching puberty," the document said. The family called their daughter Kara, although authorities also refer to her as Madeline in documents.

Dale Neumann said on the Friday before his daughter died he noticed she was "a little more tired," but that she ate a McDonald's meal without any problems. By Saturday he noted the girl "seemed to act like she had a fever" while her breathing seemed a little labored.

Meanwhile, Leilani Neumann told police that by Saturday, "Kara was laying on the couch. Her legs looked skinny and blue. I didn't realize how skinny she was. We took her to my bed where I got her warm. I thought it was a spiritual attack. We stayed by her side nonstop and we prayed.

"I asked Kara if she loved Jesus and she shook her head yes."

Later Saturday, "Kara got up to go to the bathroom and fell off the toilet," Leilani Neumann told police.

Dale Neumann told police he thought his daughter was getting better on Sunday but that at one point he tried to sit her up but she was unable to remain up.

The investigator said he used the term "unconscious" to describe the girl's condition, according to the report, while Dale Neumann "preferred to say that she was 'in sleep mode.' "

Dale Neumann said Kara couldn't communicate and wasn't taking any water.

By noon, the family contacted another couple, Randall and Althea Wormgoor.

The Wormgoors had followed the Neumanns from California to Wisconsin, a relationship apparently stoked by religious as well as potential business ties. There was talk of opening a second coffee shop in the area that the Wormgoors would operate, the police report says.

The Wormgoors arrived at the home 30 minutes before Kara stopped breathing, Dale Neumann said.

Randall Wormgoor encouraged Dale Neumann to call for medical help but the father "said he remained confident and steadfast in his belief that prayer would heal Madeline," according to an interview Dale Neumann gave to police.

Dale Neumann said he heard a "commotion" coming from the room where his daughter was lying down and that he began CPR efforts. One of the Wormgoors called 911.

Dale Neumann told investigators that "given the same set of circumstances with another child, he would not waiver in his faith and confidence in the healing power of prayer," according to the interview statement.

Police also said an e-mail Dale Neumann sent at 4:58 p.m. on March 22, the day before Kara's death, showed that the parents were aware their daughter was very ill.

The subject line of the email was: "Help our daughter needs emergency prayer!!!!" The e-mail was send to AmericasLastDays, an online ministry run by David Eells.
Case could set precedent

Falstad, the district attorney, said the case is likely to be precedent-setting in Wisconsin.

"There has been a great deal of discussion regarding the availability of a 'religious defense' in this case," Falstad said in a prepared statement to announce the charges. "In our nation, we have a constitutional guarantee of freedom of religion. We also give parents leeway in matters of child rearing. However, neither is absolute. In this case, it was necessary to weigh freedom of religion and parenting rights against the state's interests in protecting children."

Wisconsin state law appears to allow an exemption from child abuse charges for parents who engage in treatment by spiritual means through prayer. But the exemption applies only if the use of prayer alone is the basis for charges.

Prosecutors say that exemption does not extend to homicide cases.

Shawn F. Peters, a University of Wisconsin-Madison teacher and author of "When Prayer Fails: Faith Healing, Children and the Law," said the exemption for prayer could still impact the case.

"I think the prosecutor did the best she could with the law she has," he said.