The defendants were an immigration attorney and his paralegal/wife, who had filed an I-589 and ETA-750s by signing on behalf of their clients (without consent, apparently) - the latter, on 4/30/01, just before 245(i). The CtApp found that the jury could reasonably have found Mr Phillips liable as an accomplice for his wife's actions, based on their more-than-paralegal relationship, his role as legal supervisor, and his involvement with one fake signature - but his status as solo practitioner would not have been enough.
However, counts charging forgery under 1546(a) were reversed, because 1546(a) doesn't apply to applications.
Section 1546(a) prohibits forgery of a document “prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States.” (emphasis added). As explained above, filling out the ETA-750 is the first out of three steps that must be completed before the alien can receive a visa under U.S.C. § 1182(a)(5)(A)(I). It is this visa, not the ETA-750, that has been prescribed for entry into, and stay or employment within, the United States. An alien seeking to cross the border or to prove eligibility for employment would get nowhere by flashing an ETA-750. An ETA-750 is no more a “document prescribed for entry . . . or as evidence of authorized stay or employment” than an application for a credit card is a credit card.
The 10th Cir is thus in disagreement with the 4th Cir, which ruled to the contrary. United States v. Ryan-Webster, 353 F.3d 353, 357 (4th Cir. 2003).
Servin-Acosta v. USA, No. 07-2228 (10th Cir.)(July 30, 2008)
HARTZ, McWilliams, Holmes
In Servin-Acosta v. USA, the Defendant challenged his sentence calculation for illegal reentry on two grounds: 1) that the government had failed to submit sufficient evidence to prove a prior California conviction for robbery and that in any event, 2) the robbery conviction was not a “crime of violence” such as to warrant a 16-level increase under the federal sentencing guidelines.
The Tenth Circuit first found that the evidence submitted by the government – a minute order from the California state court; a 1993 Form I-213, which led to the defendant’s deportation and the 2007 Form I-213 prepared following Mr. Servin-Acosta’s unlawful reentry into US – constituted sufficient evidence of his prior conviction.
The Court disagreed with the government’s position however, that the defendant’s California robbery conviction was a “crime of violence” under USSG § 2L1.2. While the definition of “crime of violence” under the federal sentencing guidelines includes robbery, the Tenth Circuit agreed with the defendant that the California robbery statute – which punishes “the use of force to effect an escape after a taking has occurred” - was broader in scope than the undefined offense of robbery under the guidelines, which the Court noted therefore encompasses only “generic” robbery. The Court reiterated its rejection of “the notion that whether a state conviction was for an enumerated but undefined crime ‘depends on how it is characterized under state law’,” citing US.v. Vazques-Flores, 265 F.3d 1122 (10th Cir. 2001), and restated its position that when interpreting the sentencing guidelines, the Court will adopt a uniform generic definition of the undefined offense at issue.
Hayrapetyan v. Mukasey, No. 06-9538 (10th Cir. 2008) July 28, 2008
Tymkovich, McKay, Seymour
Tenth Circuit Grants Petition for Review, Reverses IJ’s Findings As to Persecution on Account of Political Opinion and Reiterates its Definition of What Constitutes Persecution
In Hayrapetyan, the Tenth Circuit reversed the Immigration Judge’s denial of asylum to an Armenian journalist. Ms. Hayrapetyan had worked as a television reporter for a private television station in Armenia on stories that exposed the corruption and human rights abuses of the Armenian government under President Korcharian. On various occasions, officials of the Korcharian government had threatened or harmed Ms. Hayrapetyan and her family. The IJ denied asylum and the BIA summarily affirmed.
The Tenth Circuit found that 1) the IJ applied the wrong legal standard in finding that Ms. Hayrapetyan was not persecuted by government actors on account of her political opinion and that 2) the IJ erred in finding that the Ms. Hayrapetyan had not suffered past persecution. The Court noted that the IJ had overlooked crucial evidence that Ms. Hayrapetyan had been harmed by the Armenian government and groups within its control because of her investigative work, and not merely by “individuals whose corruption was aberrational.” (citing Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004)). The Court stated its concurrence with other circuits “…that official retaliation against one who threatens to expose governmental corruption may, in certain circumstances, amount to political persecution.” The Court also found that, when considered in its totality, the record evidence that Ms. Hayrapetan had been jailed on two occasions, once overnight; beaten; nearly run over by a car; lost her job; that her husband had been beaten twice, resulting in his hospitalization for 15 days after attempting to visit her in jail; and that government actors had attempted to kidnap her daughter did indeed amount to persecution. Kapcia v. INS, 944 F.2d 702 (10th Cir. 1991), distinguished.
In a Guatemalan asylum case, the 10th Cir applied In re T-Z-, 24 I. & N. Dec. 163 (BIA 2007), finding that it clarifies that the test in Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969) ("deliberate imposition of substantial economic disadvantage"), applies where the state takes away something economic, whereas the Acosta test (so severe as to constitute "threat to life or freedom") applies where the Govt keeps someone poor. Found Acosta test appropriate, and that indigenous Guatemalans do not suffer so severely as to be in danger of death. (In passing, noted that 10th Cir treats ultimate question of whether facts show withholding as a question of fact, not question of law, cf. Sun Wen Chen v. Att’y Gen., 491 F.3d 100, 109-10 (3d Cir. 2007); Mirzoyan v. Gonzales, 457 F.3d 217, 220 (2d Cir. 2006) (per curiam)).
Petitioner also argued a state-created danger theory, that it would violate substantive due process to return someone to a country where the US Govt created danger (in this case, see atrocities in Guatemala in 1980s). 10th Cir rejected without analysis, simply joining the 1st and 3d circuits. Accord, Enwonwu v. Gonzales, 438 F.3d 22, 29-31 (1st Cir. 2006); Kamara v. Att’y Gen., 420 F.3d 202, 216-18 (3d Cir. 2005).
The 10th Cir looked behind the BIA's stated review standard (using de novo review) to determine whether the Board had erroneously reversed the IJ by applying a lower standard than the "clear error" standard required by the regs. The 10th Cir found that where there are two permissible readings of the evidence, there cannot be clear error - and found that the IJ's finding of credibility was permissible.
Tenth Circuit 
