Motion to terminate removal proceeding, Sham marriage No. 08-1512. SURGANOVA v. HOLDER US 7th Circuit

Posted on July 24, 2010 by Mike Baker

In a petition for review of the BIA’s order denying petitioner’s motion to terminate her removal proceedings and concluding that she was removable because her marriage was a sham, the petition is denied where: 1) the account she presented bore more than one reasonable interpretation, and the immigration judge did not adopt the one that she preferred; and 2) even if petitioner could show that the Immigration and Customs Enforcement agents’ recollections were at times imperfect, it is unlikely that this would have called into question the validity of an agent’s sworn statement.

Antonina SURGANOVA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent. No. 08-1512.

Argued Oct. 6, 2009. — July 20, 2010 Before BAUER, WOOD, and WILLIAMS, Circuit Judges.

“Beginning in the late 1990’s, an unlikely cast of characters assembled in Northwest Chicago and played out a tumultuous drama, which culminated in the Department of Homeland Security’s initiation of removal proceedings against Antonina Surganova in 2004. Surganova, a 58-year-old Lithuanian native and Ukrainian citizen, had succeeded in changing her immigration status to that of a lawful permanent resident upon her marriage to Joseph Beaudion, a U.S. citizen, in April 2001. But, the government learned, things were not as they seemed. Working on a tip from Surganova’s former son-in-law, Department of Homeland Security (“DHS”) charged Surganova with removability on the ground that she had procured the adjustment in her immigration status through marriage fraud. See 8 U .S.C. §§ 1182(a)(6)(C)(I) and 1277(a)(1)(A).

After a full hearing, the Immigration Judge (“IJ”) denied Surganova’s motion to terminate the proceedings and concluded that she was removable because her marriage was a sham. On January 31, 2009, the Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision. Surganova now petitions for review of the BIA’s decision. Bearing in mind the deferential standard of review that applies here, we see no error in the BIA’s conclusions. Nor do we find support for Surganova’s assertion that her statutory and constitutional rights were violated during the removal proceedings. We therefore deny her petition.

I

Surganova traveled to the United States in 1997 to see her daughter Tatiana. During this visit, she met Beaudion and his roommate, Dr. Patrick Russo, who were neighbors of Tatiana and her husband Andrew Fleming. Surganova and Beaudion enjoyed each other’s company and spent a great deal of time together. Although Surganova had to return to Ukraine, she came back to the United States in April 2000 on a visitor’s visa to witness the birth of her granddaughter, Emily. Over the course of the next year, Surganova and Beaudion reestablished their relationship. (We are not concerned with the legality, or lack thereof, of this portion of her stay here.) Some time around April 9, 2001, Surganova was divorced from her second husband, Volodimir Volodimirovich Surganov. Two days later, Surganova and Beaudion announced their engagement to their family and friends at an Easter brunch; they married two weeks later in a simple civil ceremony. In November 2003, Surganova had her immigration status adjusted based upon her marriage to Beaudion.

The marriage had little effect on Surganova’s living arrangements. She and Beaudion continued living in separate apartments. Surganova lived in a basement room in the apartment she shared with her daughter’s family, while Beaudion and Russo, who had been roommates since 1992, resided in a nearby condo that Russo owned. Beaudion spent between two to four nights a week at Surganova’s apartment.

Things went smoothly until Tatiana and Fleming went through a nasty divorce in the summer of 2004. Tatiana and Fleming traded allegations of adultery and abuse, and then, escalating the stakes, Fleming evicted Tatiana and Surganova from the apartment, wrote to DHS, and asserted that Surganova’s marriage was a sham. On August 6, 2004, three Immigration and Customs Enforcement (“ICE”) agents went to Russo’s house to interview Beaudion. During the course of the interview, Beaudion signed a sworn statement admitting that he had agreed to marry Surganova only so that she could stay in the United States. Soon thereafter, DHS initiated removal proceedings against Surganova.

Before the IJ, Surganova presented a large number of witnesses who all testified that they believed that she had entered into her marriage with Beaudion in good faith. Beaudion tried to retract his damaging statement, testifying that he had been under duress during his interview with the ICE agents. The IJ found Beaudion’s first story more convincing, especially in light of the ICE agents’ testimony that Beaudion appeared calm and composed during the interview. In concluding that Surganova entered into a sham marriage, the IJ placed significant weight on Beaudion’s sworn statement and the fact that the couple had never lived together.

The BIA found ample support in the record for the IJ’s conclusions and affirmed his decision. It rejected Surganova’s contention that the IJ had erred in denying her request to obtain additional evidence from the ICE agents. In response to Surganova’s argument that her counsel was ineffective, the BIA pointed out that she failed to follow the well-established procedural requirements for raising this type of claim. Even if this procedural misstep were excused, Surganova’s claim still lacked merit, the BIA concluded, because she attacked her attorney only for making reasonable tactical decisions. Surganova then filed this timely petition for review, in which she challenges all of those rulings.

II

This court reviews questions of law de novo. See Sosebee v.. Astrue, 494 F.3d 583, 589 (7th Cir.2007). In reviewing the BIA’s conclusion that Surganova’s marriage was fraudulent, we ask only whether the decision is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Sina v. Gonzales, 476 F.3d 459, 461 (7th Cir.2007). This court “will reverse only if the evidence compels a contrary conclusion.” Youkhana v. Gonzales, 460 F.3d 927, 931 (7th Cir.2006) (citations omitted). Since the BIA’s opinion adopts and supplements the IJ’s opinion, we review both. See Patel v. Holder, 581 F.3d 631, 634 (7th Cir.2009).

To show that Surganova was removable under 8 U.S.C. § 1227(a)(1)(A), the government had to prove by clear and convincing evidence that Surganova procured an adjustment in her immigration status through marriage fraud, in violation of 8 U.S.C. § 1182(a)(6)(C)(I). See Woodby v. INS, 385 U.S. 276, 285-86 (1966); Cordoba-Chaves v. INS, 946 F.2d 1244, 1249 (7th Cir.1991). In order to meet this burden, the government must demonstrate that the couple never intended to establish a life together. See King v. Holder, 570 F.3d 785, 788 (6th Cir.2009); cf. Aioub v. Mukasey, 540 F.3d 609, 612 (7th Cir.2008). When assessing the couple’s intent, courts look to both the period before and after the marriage. See Nikrodhanondha v. Reno, 202 F.3d 922, 925 (7th Cir.2000). The inquiry involves deeply personal questions, including those that probe the couple’s courtship, their shared experiences, their living arrangements after marriage, and the degree to which they share assets and liabilities. See id.; Aioub, 540 F.3d at 612.

According to Surganova, the IJ improperly concluded that Surganova’s and Beaudion’s separate living arrangements supported a finding of fraudulent marriage. In her view, the couple’s decision to reside in separate apartments can easily be explained. Both Surganova and Beaudion testified that they could not afford to rent a new place after they got married. While Surganova’s room was big enough for two people, Beaudion felt that he could not permanently leave his condo because he was serving as a caregiver for Russo. Beaudion also testified that he wanted to stay at his condo because Russo’s background as a podiatrist was helpful in dealing with Beaudion’s own recovery from quadruple bypass surgery. For her part, Surganova testified that she did not want to leave her apartment because she was helping take care of her granddaughter and did not think that Russo would allow her to move into his small apartment. Finally, Surganova argues that the judge failed to give proper weight to the evidence showing that Beaudion spent between two to four nights a week at Surganova’s apartment.

Surganova’s biggest problem is that the account she has presented bears more than one reasonable interpretation, and the IJ did not adopt the one that she prefers. The IJ found that the couple’s limited cohabitation after marriage weighed against a conclusion that the marriage was bona fide. He was unpersuaded that the size of Surganova’s bedroom precluded Beaudion from moving in. The IJ did not separately address Beaudion’s explanation for his continued stay at Russo’s apartment, but this would be a problem only if that explanation compelled a different result. But it does not. While Beaudion initially helped Russo with his neuropathy when he moved in, Russo testified that he had given up on treatments for the condition. Russo said that Beaudion helped him by opening jars, doing laundry, and cooking. Nothing indicates that Beaudion would have been unable to assist with these tasks if he lived elsewhere, or that no one else could have filled in. Even if Russo helped Beaudion recover from his surgery, there were periods of time before and after the operation during which Russo’s help may not have been necessary. Notably, Beaudion was apparently able to manage without Russo’s assistance during the days and nights he spent with Surganova.

As the IJ pointed out, Surganova did not help herself either when it emerged that she had lied about living at Russo’s apartment on a form she gave to DHS. Surganova counters that she provided this address only because she was having difficulty receiving mail at her apartment, but once again, the IJ was not required to accept that explanation. He was entitled instead to hold against her the fact that she did not give the agency her established address with her daughter.

We realize that in today’s world husbands and wives may live in separate locations, but in this case Surganova and Beaudion provided explanations for their decision to live apart that the IJ found hard to believe. Nothing in the record indicates that the IJ was using an inflexible rule under which a marriage could never be bona fide without cohabitation. All he did was permissibly weigh the couple’s living arrangement as one of several factors supporting his ultimate conclusion.

Another damaging piece of evidence was Beaudion’s sworn statement at the time of the initial investigation admitting that the marriage was a sham. As we noted, he attempted to recant at the hearing. Surganova has devoted considerable space in her argument to the details that support Beaudion’s alleged duress while the ICE agents interviewed him. She points to the early hour of the day (between 7:00 and 9:00 a.m.), his inexperience with government officials, his fear of going to jail, his delicate medical condition, and the fact that when the agents arrived he had not yet taken his medications. Russo corroborated Beaudion’s assertion that he was feeling ill and agitated during the interview.

However Surganova tries to dress it up, this is nothing more than an attack on the IJ’s credibility finding. Surganova offers no reason why the IJ erred by crediting the testimony of ICE Agents Boris Baburich and Frank Romeo, who were the ones talking with Beaudion that morning, over Beaudion’s later account. The minor inconsistencies she points out between the agents’ account and Russo’s testimony about details like their exact time of arrival, who owned the condo, and which high school Russo attended do not carry the day for her. Agent Baburich testified that although Beaudion was agitated and concerned when initially confronted, he appeared calm and collected during most of the interview. Neither agent noticed that Beaudion was under any significant amount of stress or suffering from a medical ailment.

Lastly, Surganova devotes a great deal of time to an effort to undermine the testimony of the disgruntled ex-son-in-law, Andrew Fleming. Initially, Fleming was helping Surganova in her effort to stay in the United States. On November 18, 2003, he submitted a Form I864 with an affidavit to DHS as a co-sponsor for Surganova’s petition to change her immigration status based on her marriage to Beaudion. In his submission, Fleming swore that Surganova’s current address was Beaudion’s condominium on North Clinton street. Yet a mere seven months later, Fleming changed his tune when he sent a letter and affidavit to DHS alleging that their marriage was a fraud. Contrary to his representation in the Form I-864, Fleming told DHS that Surganova had never resided with Beaudion, which was what caused Fleming to form the impression that the marriage was a sham.

To reconcile these seemingly conflicting affidavits, Fleming testified that he did not have any reason to question the validity of Surganova’s marriage at the time he filed the Form I-864. Although this has little bearing on the ultimate outcome of Surganova’s petition, we find Fleming’s story hard to believe. The proof of Surganova’s fraudulent marriage that Fleming provided in 2004-Surganova’s and Beaudion’s separate residences-was apparent to him at all times, because Surganova was living in Fleming’s apartment for every minute of the relevant period. It is more likely that the true reason behind Fleming’s sudden change of heart was related to his divorce from Tatiana. Fleming reported Surganova to DHS only a month after he evicted Tatiana and Surganova from his apartment. He testified that Surganova was “very much involved in the failure of [his] marriage.” As further evidence of the bad blood between the two, he later obtained protective orders against Surganova and filed suit against her for infliction of emotional distress. But the question remains, when was Fleming telling the truth: back in 2003, when his marriage was intact and he was helping his mother-in-law, or in 2004, after he had turned angry and bitter? It is difficult to see how both affidavits can be true, although we do not rule it out, as this issue is not before us. But if Fleming in fact knowingly submitted a false affidavit, the wrongdoing would be particularly egregious given that he is a licensed attorney in Illinois.

III

Besides contesting the IJ’s final order of removal, Surganova contends that two additional rulings deprived her of the fair proceeding to which she is entitled under the statute: first, the IJ’s denial of her renewed “Motion for Issuance of Subpoenas for Officers’ Materials & to Recall Officers as Witnesses,” and second, his denial of her motion for a new trial based upon ineffective assistance of counsel. We are authorized to review her contention that the denial of these motions violated her rights under the Fifth Amendment; to the extent that she is complaining about the IJ’s failure to follow procedures spelled out in regulations, we review his decisions for abuse of discretion. See Kucana v. Holder, 130 S.Ct. 827 (2010).

Surganova first complains that the IJ violated her statutory right to present evidence in support of her case when he denied her motion to introduce additional evidence. See 8 U.S.C. § 1229a(b)(4)(B). In line with the plain language of the statute, this court has held that a petitioner must be given “a reasonable opportunity ․ to present evidence on [her] own behalf.” Rehman v. Gonzales, 441 F.3d 506, 509 (7th Cir.2006) (quoting 8 U.S.C. § 1229a(b)(4)(B)). Whether the IJ complied with this statutory mandate is a question of law. See, e.g., Figueras v. Holder, 574 F.3d 434, 437 (7th Cir.2009); Rapheal v. Mukasey, 533 F.3d 521, 532 (7th Cir.2008).

Though Surganova has a statutory right to present evidence to the IJ (and we have no reason to think that this statutory right gives less than the Fifth Amendment’s due process clause would demand), she can prevail only if she can demonstrate that the IJ’s decision to exclude evidence caused her prejudice. See Alimi v. Gonzales, 489 F.3d 829, 837 (7th Cir.2007); Zamora-Mallari v. Mukasey, 514 F.3d 679, 696 (7th Cir.2008). She might do so, for example, by showing that the IJ barred “complete chunks of oral testimony that would support [her] claims,” or “curtailed [her] testimony on matters that go to the heart of the claim,” or “where evidence excluded by the IJ ‘had the potential for affecting the outcome of the proceedings.’ “ Lopez-Monterroso v. Gonzales, 236 F. App’x 207, 212 (7th Cir.2007) (collecting cases); see also Chavez-Vasquez v. Mukasey, 548 F.3d 1115, 1118 (7th Cir.2008).

This is a standard that Surganova has not met. She wanted, through her renewed motion, to obtain the ICE agents’ I-213 investigative report and their notes detailing the August 2004 interview with Beaudion. She also wanted to call ICE Agents Baburich and Romeo back to the stand to testify. The IJ saw this as an attempt by Surganova’s newly appointed counsel to change strategy midway through the proceedings. Prior counsel, in the judge’s view, had already conducted a full and adequate cross-examination of the government’s witnesses. In addition, the judge concluded, the evidence was largely peripheral. Surganova wanted to use the I-213 investigative report to show that it did not record the time the agents arrived at Russo’s condo. But nothing turned on this; the earliest possible time, 7:00 a.m., would not have been unreasonably early. Surganova also speculated that the I-213 and the agents’ notes might have been inconsistent with their testimony, but this is wishful thinking. Even if Surganova could show that the agents’ recollections were at times imperfect, it is unlikely that this would have called into question the validity of Beaudion’s sworn statement. In short, the IJ’s ruling on this point was an acceptable exercise of his authority to manage the hearing.

Surganova’s ineffective assistance of counsel contention fails for similar reasons. Although aliens do not possess a Sixth Amendment right to counsel, we have recognized that the denial of effective assistance of counsel may under certain circumstances violate the due process guarantee of the Fifth Amendment. See Jezierski v. Mukasey, 543 F.3d 886, 888 (7th Cir.2008) (citing Kay v. Ashcroft, 387 F.3d 664, 676-77 (7th Cir.2004)). But see Patel v. Gonzales, 496 F.3d 829, 831 (7th Cir.2007) (“[A]liens do not have a constitutional right to effective counsel.”). In Kay, we expressed grave doubts about the attorney’s performance, since he had mislabeled motions and ignored a “wealth of corroborative evidence in the record.” Kay, 387 F.3d at 676.

In addition to the constitutional claim, Surganova also asserts that the IJ misapplied the procedural requirements for an ineffective assistance claim when it denied her motion for a new trial. The problem for Surganova is that the BIA hedged in its opinion, explaining that even if Surganova had complied with the requirements set forth in Matter of Lozada, 19 I & N Dec. 637, 639 (BIA 1988), her claim would still fail because she had not shown that her counsel’s actions had prejudiced her case. We note that the legal standards that the BIA wishes to follow for these claims has been in a state of flux. In early 2009, the Board abrogated Lozada, in Matter of Compean, 24 I & N Dec. 710 (BIA 2009). Later that year, the Attorney General withdrew the Compean decision, 25 I & N Dec. 1 (AG 2009), and ordered the Executive Office of Immigration Review to go back to the Lozada standards pending a comprehensive review of the rules in this area. To our knowledge, that review is still ongoing. Even if it ends up as favorably as possible for petitioners like Surganova, however, it would still be necessary for them to demonstrate prejudice resulting from the attorney’s substandard performance. (Indeed, prejudice is a critical element even for cases involving the Sixth Amendment right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984).)

Surganova asserts only that her lawyer was ineffective because the lawyer should have obtained the I-213 investigative report and should have objected to the ICE agents’ testifying from their memory of the relevant events. We have already explained why it is unlikely that either the report or the challenge to the testimony would have made a difference. This is enough to put to rest Surganova’s complaint about the effectiveness of the legal assistance she received.

* * *

We Deny Surganova’s petition for review.”

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Immigration Marriage Fraud Amendments Act of 1986 | Leave a comment

Matter of Fidel Antonio SANCHEZ-CORNEJO 25 I&N Dec. 273 (BIA 2010) Interim Decision #3686

Posted on July 7, 2010 by Mike Baker

The offense of delivery of a simulated controlled substance in violation
of Texas law is not an aggravated felony, as defined by section
101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(B) (2006), but it is a violation of a law relating to a
controlled substance under former section 241(a)(2)(B)(i) of the Act, 8
U.S.C. § 1251(a)(2)(B)(i) (1994).

http://www.justice.gov/eoir/vll/intdec/vol25/3686.pdf

 #3686 File A026 419303 – Houston, Texas Decided July 7, 2010 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

Posted in BIA, Board of Immigration Appeals, Deportation for Drug Crimes | Leave a comment

BIA Finds § 236(a)(2)(B) Conditional Parole Is Not Parole into the U.S. for AOS Purposes: Matter of Luis CASTILLO-PADILLA

Posted on June 29, 2010 by Mike Baker

(1) Conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2006), is a distinct and different procedure from parole under section 212(d)(5)(A) of the Act, 8 U.S.C. § 1182(d)(5)(A) (2006).

(2) An alien who was released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006).

Matter of Luis CASTILLO-PADILLA, Respondent
Cite as 25 I&N Dec. 257 (BIA 2010) Interim Decision #3683
Decided June 18, 2010

The issue in this case is whether an alien who has been released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act, 8 U.S.C. § 1226(a) (2006), has been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act.

The Board of Immigration Appeals (BIA or Board) in Matter of Castillo-Padilla, 25 I. & N. Dec. 257 (B.I.A. June 18, 2010), held that (1) conditional parole under INA § 236(a)(2)(B) [8 USCA § 1226(a)(2)(B)] (2006) is a distinct and different procedure from parole under INA § 212(d)(5)(A) [8 USCA § 1182(d)(5)(A)] (2006) and (2) an alien who was released from custody on conditional parole pursuant to INA § 236(a)(2)(B) has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status (AOS) under INA § 245(a) [8 USCA § 1255(a)] (2006).

The respondent, a native and citizen of Mexico, entered the U.S. on or about October 15, 1999, without being “admitted or paroled after inspection by an Immigration Officer.” The respondent was charged under INA § 212(a)(6)(A)(i) [8 USCA § 1182(a)(6)(A)(i)] (2006) as an alien present in the U.S. without being admitted or paroled. The respondent was detained at the Krome Service Processing Center and was released by the Department of Homeland Security (DHS) on a $12,000 cash bond on November 9, 2006. He was issued a Form I-94 (Arrival-Departure Record) with a stamp indicating that he was released after posting the bond. Before the immigration judge (IJ), the respondent conceded that he was removable as charged but sought to apply for AOS under INA § 245(a) based on his marriage to a U.S. citizen. The IJ denied the respondent’s application for relief, finding that, although he was released from custody and given a Form I-94, he had not been “paroled into the United States” as required by INA § 245(a) to establish eligibility for AOS. The IJ also concluded that the respondent was ineligible to adjust his status under INA § 245(i) because of the filing date of his visa petition. The respondent appealed to the BIA, arguing on appeal and at oral argument that he received “conditional parole” under § 236(a)(2)(B) and thus is eligible to adjust status under § 245(a).

INA § 212(d)(5)(A) provides:

The Attorney General may, except as provided in subparagraph (B) or in section 214(f), in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

INA § 236(a) provides: On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General–

(1) may continue to detain the arrested alien; and

(2) may release the alien on–

(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or

(B) conditional parole …

Posted in Adjustment of Status, BIA, Board of Immigration Appeals | 1 Comment

Illinois Supreme Court OK’s taking driver’s license for underage drinking

Posted on June 25, 2010 by Mike Baker

People v. Boeckmann

Direct appeal from the circuit court of Clinton County.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Chief Justice Fitzgerald concurred in the judgment and opinion.
Justice Garman specially concurred, with opinion, joined by Justice
Thomas.
Justice Freeman dissented, with opinion, joined by Justice Burke.
Justice Karmeier took no part in the decision.

These consolidated appeals involve individuals charged with underage drinking who pled guilty to that offense. No vehicles were involved. The trial court placed each on court supervision for 90 days and then entered an order declaring unconstitutional as applied the statute requiring suspension of a driver’s license on receipt of court supervision for underage drinking, even where no vehicle is involved. It found a due process violation. The Secretary of State brought this direct from the finding of statutory unconstitutionality.

In 1989, the Illinois Supreme Court had held unconstitutional a statutory provision calling for revocation of a driver’s license on conviction of certain sex offenses. There, as here, there was no use of a vehicle. In this decision, the supreme court distinguished its earlier ruling, noting that, here, the legislature may have believed that a young person who consumes alcohol illegally may take the additional step of driving after consuming alcohol, and it is reasonable to believe that a young person disobeying the law against underage consumption may also lack the judgment to decline to drive after drinking. Preventing young people from driving after consuming alcohol is unquestionably in the public interest.

The supreme court also held that the obligation imposed here on the Secretary of State to suspend a driver’s license is mandatory, rather than discretionary.

The circuit court’s holding of statutory unconstitutionality was reversed.

These consolidated cases involved a constitutional challenge to Section 6-206(a)(43) of the Illinois Vehicle Code, the statutory provision which requires suspension of driving privileges for 90 days for any person receiving court supervision for unlawful consumption of alcohol under 21 years of age.

The circuit court held that the statute, as applied, violated due process because a vehicle was not involved in the commission of the offense. The Supreme Court disagreed.

The purpose of 6-206(a)(43) is to “promote the safe and legal operation and ownership of motor vehicles.” Suspension of driving privileges bears a rational relationship to that purpose because “young people who have a driver’s license and consume alcohol illegally may also drive after consuming alcohol regardless of whether a motor vehicle is involved.” And, the suspension of driving privileges is a reasonable method of furthering the public interest in safe and legal operation of motor vehicles, despite the absence of a vehicle or any plan to drive. So, for persons under 21, it doesn’t matter if a vehicle is involved in the commission of the offense of unlawful consumption of alcohol. It doesn’t even matter if a person under 21 who commits the offense of unlawful consumption of alcohol contemplates driving or not. Suspension of driving privileges for anyone receiving supervision for that offense is proper.

Nos. 108289, 108290 cons.

People v. Maschoff

Opinion 108289 (PDF)
http://www.illinoislawyernow.com/wp-content/uploads/2010/06/108289.pdf

Posted in Index | Leave a comment

Troubling reality of the expedited removal procedure: 7th Circuit 09-3825 Faisal Khan v. Eric Holder, Jr.

Posted on June 18, 2010 by Mike Baker

WOOD, Circuit Judge. “Petitioner Faisal Khan and his sister Mona Khan, citizens of Pakistan, obtained B1/B2 nonimmigrant visitor’s visas to travel to the United States, purportedly for a two-month visit with their brother and his wife, whom they had not yet met. Immediately upon the arrival of the Khans and their parents at Chicago’s O’Hare Airport, Faisal and Mona were detained by the Department of Homeland Security. (The status of the parents is not before us.) Faisal and Mona were placed in expedited removal proceedings and ordered to return immediately to Pakistan. Each filed a petition for review from the removal order and a motion to stay removal pending resolution of the petition. We conclude that the government’s motions to dismiss the petitions for review for lack of jurisdiction must be granted.

At the time counsel for the petitioners filed the petition for review from Faisal’s removal order and the motion to stay his removal, counsel had almost no information regarding the removal proceedings, because neither counsel nor Faisal’s family members had been permitted to speak to him. Counsel had been unable to obtain even a copy of the removal order. According to the information counsel had received, Faisal was scheduled to be removed on a flight that evening. With little information about why Faisal, who had a valid passport and a valid visitor’s visa, was being removed, we ordered a temporary stay of his removal and ordered the government to respond. One week later, Mona, who had been paroled into the United States for a total of seven days to obtain medical care, was ordered removed, and she filed a petition for review and motion to stay her imminent removal. We again temporarily stayed her removal in order to obtain a response and additional information.

The government has responded to the motions to stay removal and has furnished the expedited removal orders and related documents. These materials explain why the Khans were not admitted at O’Hare, even though the government concedes that they had valid, unexpired passports and valid, unexpired B1/B2 non-immigrant visitor’s visas. At O’Hare, a United States Customs and Border Protection (“CBP”) investigating officer determined that the Khans actually intended to immigrate to the United States from Pakistan rather than temporarily visit, and they lacked the necessary documentation to immigrate. A different visa is needed for an alien who intends to immigrate than for an alien who has a residence in a foreign country that he has no intention of abandoning and who is visiting the United States temporarily for business or pleasure. 8 U.S.C. § 1101(a)(15)(B). Based on the examination at the border, CBP charged the Khans as inadmissible because they were attempting to immigrate without immigrant visas, in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I), and it processed them for expedited removal under 8 U.S.C. § 1225(b)(1)(A)(i). In short order, they were served with a Notice and Order of Expedited Removal and found removable as charged; the order was then approved by a CBP Chief. See 8 C.F.R. § 1235.3(b)(2), (7).

The government has called our attention to a number of factors that support its determination that Faisal intended to immigrate. Although we lack jurisdiction to review the merits of the question whether the CBP officer correctly initiated expedited removal proceedings, we note some of the contested factors only to highlight a few of the concerns with the expedited removal procedure that the petitioners are attempting to raise. Perhaps what initially aroused the CBP officer’s suspicions was Faisal’s return airline ticket for August 2010, seven months later than it should have been under his stated travel plans for a two-month visit. Faisal also had $7,800 in cash, his resume translated into English, and blank letterhead from his current employer in Pakistan. The government has also given us a 5-page transcript from Faisal’s interview with the CBP officer. It believes that the transcript supports the conclusion that Faisal intended to immigrate to the United States.

We are not so sure. Some of the answers are inconsistent and could support Faisal’s argument that he was confused and needed a translator. Faisal also protests that the interview lasted for hours and the 5-page document could not possibly be a full transcript. He maintains that the questions and answers the government has selected were taken out of context. He answered “yes” to the question whether he “planned on seeking employment during this entry” but only one page earlier he explained that he brought his documents because “I thought that it would prove I am going back to my job in Pakistan.” Faisal also said, “We are coming just to visit, but if the opportunity came for me to get a job then we would stay.”

Toward the end of the questioning, Faisal answered “yes” to the question whether he had been untruthful, and when asked why he had been untruthful, Faisal responded “I did a big stupid thing.” The officer then asked three separate questions whether he, his parents, and his sister were “immigrating to the United States on their B1/B2 visas, and he said “yes” to each. But when the officer repeated, “You, your sister and parents were attempting to immigrate to the United States today, is that correct?,” Faisal responded, “What does that mean?” Faisal refused to sign the record of his statement or any other documents because he did not believe they were correct. In his petition before this court, he has tendered an affidavit that he says he would offer if the case were remanded for further proceedings and he could submit his own evidence. He says that he repeatedly told the officer that he was employed in Pakistan, that he was not lying, and that he had come to visit his brother and vacation with his family. Faisal asserts that the officer said that Pakistanis and Muslims “always come to the United States to marry or to get a job. She also said that we always lie and that this is what I was doing.”

Mona’s removal proceedings were conducted through an interpreter, but she was not provided an interpreter during her initial questioning the prior week. Although the statute does not require it, regulations issued by the Department of Homeland Security provide that during the interview process, “[i]nterpretive assistance shall be used if necessary to communicate with the alien.” 8 C.F.R. § 235.3(b)(2)(i). The officer in the removal proceedings referred back to Mona’s answers during the earlier questioning and refused to re-interview her on matters related to the initial interview. When asked what the purpose of her visit was, she responded, “I am here to visit my brother and my new sister-in-law and vacation.” She agreed that she had told an officer during the initial interview that she would attend school or marry someone in the United States if that is what her family told her to do because she willingly allows her family to make her life decisions. Mona admitted that she brought her school transcripts and diplomas with her.

The government moves to dismiss the petitions under 8 U.S.C. § 1252(a)(2)(A), which provides that “no court shall have jurisdiction to review” an order of expedited removal under § 1225(b)(1). Although § 1252(e)(2) contains a limited exception permitting review of specific determinations by habeas corpus petitions, the Khans do not argue that subsection (e) applies here. Instead, they assert only that this court may have jurisdiction under a “safety valve” established for substantial constitutional questions, when review would otherwise be barred by § 1252, “to enable judicial correction of bizarre miscarriages of justice.” LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th Cir. 1998). See also Singh v. Reno, 182 F.3d 504, 510 (7th Cir. 1999). This is such a case, they say, in light of the government’s position, which Faisal characterizes as: “even if no power has been conveyed by the legislative to the executive branch to enter the removal order at issue herein, even if the order is legally flawed, notwithstanding that the Petitioner was questioned for seven hours in the dead of night without any interpreter despite the agency’s own regulations calling for one, no court has the power to consider the legality of the agency’s actions.” They opine that this is a proposition of frightening breadth.

The government responds that this court’s cases establishing a safety valve are distinguishable because they did not involve the same jurisdictional bar that governs this case. The review-limiting provisions in those cases, which involved § 1252(a)(2)(C) and § 1252(g), left open the opportunity for aliens (who could have filed habeas corpus petitions in the district courts prior to the 1996 Amendments to the Immigration and Naturalization Act) to bring constitutional issues directly before the courts of appeals. See Morales-Ramirez v. Reno, 209 F.3d 977 (7th Cir. 2000); Singh, 182 F.3d 504; LaGuerre, 164 F.3d 1035. Moreover, section 1252(a)(2)(D) specifically provides that “Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law.” Section 1252(a)(2)(A), however, is not mentioned in § 1252(a)(2)(D) as leaving open such an opportunity; to the contrary, it expressly prohibits aliens from raising such claims before the court of appeals. See Hussain v. Keisler, 505 F.3d 779, 784 (7th Cir. 2007) (“Section 1252(a)(2)(D) plainly states that other limitations on judicial review in ‘this section’— that is, section 1252—still apply.”). Other circuits have held that constitutional and statutory claims arising in expedited removal proceedings are not reviewable. Garcia de Rincon v. DHS, 539 F.3d 1133, 1138-39 (9th Cir. 2008)

(Section 1252(a)(2)(D) does not apply to the jurisdictional limitations in § 1252(a)(2)(A)); Turgerael v. Mukasey, 513 F.3d 1202, 1205-06 (10th Cir. 2008) (Section 1252(a)(2)(D) preserves the jurisdictional bar of § 1252(a)(2)(A)). While the Khans attempt to distinguish these cases because they involved collateral attacks to expedited removal in the context of reinstatement of removal, the language of the cases is not so limited, and nearly all of the cases addressing the expedited removal statute arise in the reinstatement context.

The Khans acknowledge that this court’s cases recognizing a safety valve involved § 1252(a)(2)(C), whereas they were at the point of initial entry where their constitutional rights were at their lowest ebb. They protest, nevertheless, that the purpose of the “safety valve” theory is that some limited jurisdictional review must be available despite congressional attempts to bar review. Cf. INS v. St. Cyr, 533 U.S. 289, 304-05 (2001) (determining that some jurisdiction must continue to exist over pure questions of law and constitutional questions but noting the absence of any express repeal of § 2241 habeas corpus jurisdiction). Here, the Khans acknowledge that there has been an express repeal of jurisdiction. They nonetheless assume that the court may somehow disregard the jurisdiction-stripping statute and reach their constitutional issues under the safety valve. Indeed, they go on to suggest that it would be anomalous for the court to refuse to consider statutory arguments since courts prefer to decide a case on legal grounds rather than constitutional grounds. They make the specific argument that the applicable regulation, 8 C.F.R. § 235.3, is invalid because it grants the government agents the power to order removal without basing any factual findings on clear, convincing, and unequivocal evidence. They argue that there is nothing in § 1225(b)(1) to indicate that Congress intended to modify the rule from Woodby v. INS, 385 U.S. 276, 286 (1966), that no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true. They believe that doubtful cases should be referred to an immigration judge, giving effect to the statutory provisions whereby applicants for admission who are not “clearly and beyond a doubt entitled to be admitted” be referred to an immigration judge for a hearing. 8 U.S.C. § 1225(b)(2)(A). Finally, they point out that the removal orders do not charge that they engaged in fraud in violation of 8 U.S.C. § 1182(a)(6)(C), and without fraud, there is no support that they lacked valid visas.

The troubling reality of the expedited removal procedure is that a CBP officer can create the § 1182(a)(7) charge by deciding to convert the person’s status from a non-immigrant with valid papers to an intending immigrant without the proper papers, and then that same officer, free from the risk of judicial oversight, can confirm his or her suspicions of the person’s intentions and find the person guilty of that charge. The entire process—from the initial decision to convert the person’s status to removal—can happen without any check on whether the person understood the proceedings, had an interpreter, or enjoyed any other safeguards. To say that this procedure is fraught with risk of arbitrary, mistaken, or discriminatory behavior (suppose a particular CBP officer decides that enough visitors from Africa have already entered the United States) is not, however, to say that courts are free to disregard jurisdictional limitations. They are not, and we thus must align ourselves with the courts that have considered the issue and hold that we lack jurisdiction to inquire whether the expedited removal procedure to which the Khans were subjected was properly invoked. Brumme v. INS, 275 F.3d 443 (5th Cir. 2001); Li v. Eddy, 259 F.3d 1132, 1134 (9th Cir. 2001), opinion vacated as moot, 324 F.3d 1109 (9th Cir. 2003) (“On its face, subsection (e)(2) does not appear to permit the court to inquire into whether section 1225(b)(1) was properly invoked, but only whether it was invoked at all.”). Under § 1252(e), which sets forth the limited exceptions to the jurisdictional bar, a court has jurisdiction to inquire only “whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal.” 8 U.S.C. § 1252(e)(5).

In a similar situation, the Fifth Circuit affirmed a district court’s dismissal for lack of jurisdiction of a habeas corpus petition challenging an expedited removal order. Brumme v. INS, 275 F.3d 443 (5th Cir. 2001). The petitioner was a native and citizen of Germany, but she made frequent trips to the United States, owned a home in Tucson, and had a visitor’s visa valid through 2005. In March 2000, she and her husband returned to the United States and received entry permits valid through August 2000. In July 2000, the petitioner went to Germany for 10 days to visit her mother and attempted to re-enter the United States to return to her husband, who was being treated here for cancer. The INS inspector determined that she intended to become an immigrant and did not possess a valid immigrant visa, and she was ordered removed under § 1182(a)(7). The district court concluded that it lacked jurisdiction under § 1252(e)(5) to decide the real issues the petitioner was trying to raise—whether she was admissible or entitled to relief from removal Finally, the Khans have attempted to challenge the regulations under which their case has been processed. But that is nothing but a thinly disguised challenge to the validity of the expedited removal system and is untimely under § 1252(e)(3), which permitted a judicial review in an action instituted in the United States District Court for the District of Columbia no later than 60 days after it was first implemented. In fact, such a challenge was brought, and the District Court for the District of Columbia upheld the regulations as written against challenges to: (1) the ban on aliens’ communicating with family, friends and counsel during secondary inspection; (2) the failure to provide adequate language interpretation at secondary inspection; (3) the failure to provide adequate access to and participation of counsel prior to and during the secondary inspection; (4) the failure to provide adequate information on charges and procedures, the opportunity to contest those charges, and the failure to provide for review of removal orders; and (5) the application of these procedures to individuals with facially valid documents. American Immigration Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38, 53-57 (D.D.C. 1998), aff’d, 199 F.3d 1352 (D.C. Cir. 2000).

As relevant here, the district court rejected the plaintiffs’ argument that expedited removal procedures should apply only to aliens whose travel documents are facially invalid and that aliens found inadmissible under § 1182(a)(6)(C) or (a)(7) based on other factors should be referred to an immigration judge. 18 F. Supp. 2d at 56. The court held that the plain language of the statute provides that inadmissibility under these provisions can arise for reasons other than facially invalid or absent papers. Id. “Thus, an inspecting officer can and must refuse admission if a visa holder fails to establish to the inspector’s own satisfaction that the visa holder fulfills the requirements for the classification which his visa bears. Contrary to plaintiffs’ apparent belief, the inspector is not statutorily limited to ascertaining that the ‘face’ of the visa indicates that a consular officer has found the alien admissible; rather, the inspector undertakes an independent admissibility determination himself.” Id. at 57. Finally, the district court ruled that § 1252(e)(3)(A)(ii) permitted it to review only the regulations as written, not as applied and not for the agency’s alleged failure to follow its own regulations. Id. at 58. The court acknowledged concern, as we do, with the effects of Congress’s decision to bar the unwritten actions of the agency from judicial review, particularly where individual CBP agents are given so much discretion and are subjected only to a supervisor’s review of their decisions. Id.

We nonetheless conclude that we are required by law to GRANT the government’s motions to dismiss and DISMISS the petitions for review for lack of jurisdiction. The motions to stay removal pending resolution of the petitions for review are DENIED.”

06/11/2010 Opinion (WOOD)

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