Gertsenshteyn v. Mukasey, 2nd Cir. (9/25/08, case
nos. 07-1183-ag)
CALABRESI, B.D. Parker, Underhill
Petitioner, a citizen of Ukraine who was convicted of
violating and conspiring to violate 18 U.S.C. § 2422(a), prohibiting the
enticing of individuals to travel in interstate or foreign commerce to engage
in prostitution, filed PFR following BIA’s determination that he had been
convicted of an aggravated felony. In
order to constitute an ag fel under 8 U.S.C. § 1101(a)(43)(K)(ii), INA §
101(a)(43)(K)(ii), the crime of which he had been convicted had to have been
committed for commercial advantage. The
IJ, affirmed by the Board, held that his crime was an ag fel, relying on
evidence in the record along with petitioner’s testimony, to conclude that the
crime had been committed for commercial advantage, despite the absence of this
element from the criminal statute in question.
The 2d Circuit reversed, holding that the Board had erred in considering
evidence outside the record of conviction to find that petitioner had committed
his offense for commercial advantage and rejecting the Board’s reasoning and
gvt’s arguments that a new approach was warranted here. The court then remanded to the Board to
consider whether, within the legal framework that remained the law in the 2d
Circuit (i.e., following either the categorical approach or modified
categorical approach where the statute is divisible), petitioner’s conviction
was an ag fel.
Kawashima v. Mukasey (9th Cir. 7/2/08) (finding 10K loss in 101(a)(43)(M) is element and was not proven, with concurrence urging rejection of strict application of Taylor's categorical test to immigration law, and particularly regarding 101(a)(43)(M).)
Rajah v. Mukasey, 2nd Cir. (9/24/08, case nos.
06-3493-ag)
CALABRESI, Winter, Walker
Petitioner with pending labor cert challenged denial of
continuance by IJ, affirmed by the BIA.Petitioner, who is also a petitioner in the court’s other 9/24/08
decision regarding thelegality of the
NSEERS program, was placed into proceedings in April 2003, following his
registration with INS as part of the NSEERS program.An application for labor certification had
been filed on his behalf by his employer with the DOL in April 2001.This certification was finally approved
shortly before oral argument in this case, on July 11, 2007.
The court considered whether the denial of a continuance
constituted an abuse of discretion and ultimately concluded that this was a
case where remand to the Board was abuse or lack of abuse of discretion was
unclear and where clear standards, set by the BIA, would be extremely
helpful.The court thus vacated the
Board’s order and remanded to the BIA to come up with such standards.
Rajah et al v. Mukasey, 2nd Cir. (9/24/08, case nos. 06-3493-ag; 06-3811-ag; 06-4102-ag; 06-5390-ag)
WINTER, Walker, Calabresi
In consolidated case of 4 individuals placed in removal proceedings and ordered removed following their registration as part of the post-9/11 NSEERS (Special Registration) program, the Second Circuit rejected all of petitioners’ legal challenges to the NSEERS program and the deportation proceedings brought against them. In short, the court found (1) statutory authorization for NSEERS is found in the registration provisions of the INA (2) the gvt was not required to follow notice & comment as set forth in the APA because the foreign affairs exemption applied (3) the program passed rational basis scrutiny and thus did not violate equal protection (4) there was no 4th or 5th amendment violation requiring suppression of evidence (5) although regulatory violations did take place, these violations did not warrant invalidation of the deport orders, suppression of evidence, or termination without prejudice.
With the exception of petitioner Rajah, whose case was remanded according to Judge Calabresi’s separate opinion in case no. 06-3493-ag, the court denied the PFRs.
Petitioners filed PFR challenging BIA's order affirming IJ's denial of their motion to suppress statements obtained after immigration officials allegedly seized them on the basis of their race and nationality for questioning at the airport. The court affirmed the Board's order, finding that petitioners had not been seized within the meaning of the 4th Amendment b/c their encounters while disembarking from a plane from Guatemala with the agents had been consensual. In particular, the court focused on the fact that petitioners had not been physically restrained, ordered to stop, or otherwise coerced to answer questions, and that - as the agents were plainclothes officers who did not identify themselves as immigration officials - petitioners were not compelled to respond to an assertion of authority. This conclusion was bolstered by the fact that petitioners had testified that they did not know the persons approaching them were law enforcement officers.
Petitioners’ testimony before the IJ does not suggest that they were physically restrained, ordered to stop, or otherwise coerced to answer questions when the agents approached them. Nor can petitioners plausibly argue that they answered the agents’ questions in response to an assertion of authority. Petitioners testified that they were not aware that the persons approaching them were law enforcement officers. Indeed, the agents were not dressed in uniform, did not display their badges, or otherwise identify themselves as immigration officials.
Moreover, the court, relying on the Supreme Court's opinion in INS v. Delgado, 466 U.S. 210 (1984), concluded that the fact that the agents were blocking the ramp while petitioners disembarked from the plane did not make the encounter a stop or seizure meriting 4th Amendment protections. Just as Delgado had held that INS agents' presence at factory doors, in order to ensure that all persons inside the factories were questioned, was not a seizure, the agents' presence at the ramp here was not a seizure since the agents' conduct "should have given respondents no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer." Delgado at 218.
Although the court did not find a 4th Amendment violation in the case at hand, it did - citing its decision in Almeida-Amaral v. Gonzales, 461 F.3d 231 (2d Cir. 2006) - acknowledge that, under Lopez-Mendoza, exclusion of evidence would be appropriate if record evidence established an egregious violation that was fundamentally unfair or a violation that undermined the reliability of the evidence in dispute. The court also cited its decision earlier this year in Melnitsenko v. Mukasey, 517 F.3d 42 (2d Cir. 2008) for the proposition that a seizure that was not especially severe might nevertheless qualify as an egregious violation if the stop were based on race. The court left open the question of whether use of the INS Protocol in place - which used criteria including "Mestizo physical appearance" and choice of flight - would constitute an egregious violation warranting exclusion, declining to consider this question since petitioners had not been seized. The court noted:
In addition, although the IJ and IA both concluded that there was nothing unreasonable or egregious about the encounter between
petitioners and the immigration officials, the affidavit of the special agent in charge of the operation indicates that “[i]n determining who would be identified for questioning, the protocol dictated that
Agents look for passengers” who, inter alia, had a “Mestizo physical appearance.”
The 2nd Circuit considered this PFR in which petitioner argued that the procedure for reinstating a prior order of removal (1) is not authorized by statute, and (2) violated his right to due process. The court disposed of both claims, relying heavily on its decision earlier this year in Garcia-Villeda v. Mukasey, 531 F.3d 141 (2nd Cir. 2008). In addition to citing Garcia-Villeda, the court held that petitioner here, who had elected not to contest the predicate facts underlying the reinstatement order before the agency or in his petition (rather than conceding them as had the petitioner in Garcia-Villeda), could not claim that the procedures in place violated his due process rights. Petition for review denied.
Second Circuit 
