Ljutica v. Holder (2d Circuit December 3, 2009)
LEVAL, Jacobs, Sack
Plaintiff Rajko Ljutica, an LPR from Montenegro, appealed the SDNY's grant of summary judgment in favor of the government, which affirmed USCIS's denial of citizenship to him. Ljutica argued that USCIS erred in determining that his 1993 bank fraud conviction (in which the bank's money was wired into his account, but he was caught before he could withdraw it) was an aggravated felony which statutorily precluded him from establishing GMC as required for naturalization. He also argued that principles of res judicata prohibited the government from using his 1993 conviction against him, as he was granted 212(c) relief in 1996. The 2d Circuit rejected both arguments.
First, Ljutica argued that his crime was not aggravated felony because (1) he was convicted of bank fraud, not attempted bank fraud, since the crime was completed when the money was wired into his account (thus rendering inapplicable INA 101(a)(43)(U) regarding attempted crimes and intended loss), and (2) the bank suffered no actual loss, because he was caught before he could withdraw the money (thus rendering inapplicable INA 101(a)(43)(M)(i)). The 2d Circuit rejected these arguments, concluding based on the record of conviction (including the charge, plea, and judgment of conviction) that Ljutica was convicted of attempted bank fraud, regardless of whether the facts would also support a conviction for the completed crime. Because Ljutica was convicted of attempted bank fraud, section 101(a)(43)(U) applied, rendering his crime an aggravated felony even though there was no actual loss to the bank because the intended loss was greater than $10k.
The 2d Circuit also rejected Ljutica's argument that his prior deportation proceedings and 212(c) grant foreclose under res judicata a determiantion that he does not possess GMC because the gvt did not argue that he was an aggravated felon during his earlier deportation proceedings, and because his 212(c) waiver included a determination that he does have good moral character. The court noted that it had not yet considered whether res judicata bars the government from asserting, in a second immigration proceeding, grounds it could have asserted but did not in a prior proceedings. However, the point was moot here because the government could not have argued while he was in deportation proceedings that his crime was an aggravated felony, as IIRIRA's retroactive application of 101(a)(43)(M)(i) did not apply at that time. The court also rejected Ljutica's argument that his 212(c) waiver determined that he possessed GMC. While a factor in granting 212(c) waivers is evidence attesting to a respondent's good character, the court found that good moral character as defined in 101(f) is defined differently from "good character" in reference to a 212(c) waiver.
District court judgment affirmed.
Atty for Appellant: Walter Drobenko, Drobenko & Associates, P.C., Astoria, New York