U.S. v. Jang (5th Cir. 6/30/09)
HAYNES, Davis, Owen
Jang was ordered removed to South Korea in 2003. After failing to complete a visa application, the government indicted him under 8 U.S.C. § 1253(a)(1)(B), which criminalizes willful failure or refusal “to make timely application in good faith for travel or other documents necessary to the alien’s departure.” Jang was convicted and sentenced to 33 months imprisonment and 2 years supervised release. His supervision carried the additional requirement that he comply with all immigration laws, that he sign the INS Form I-229, and that he complete a South Korean visa application.
Jang was transferred to ICE custody in June 2007, but again refused to sign the I-229 or fill out the visa application. His probation officer then filed a Petition for Offender Under Supervision with the District Court. Appearing before the District Court, Jang finally agreed to complete all the necessary documents for his removal. However, South Korea requires that its citizens repatriate on a voluntary basis. During his interview with the consulate, Jang candidly told the consulate that he hadn’t filled out his visa application voluntarily, and that he didn’t really wish to return to South Korea. After the consulate refused to issue a travel document, the Government sought once again to revoke his supervision. The District Court sentenced Jang to another 24 months imprisonment.
While before the District Court, Jang failed to make objections to the actual conviction, only his sentence. On appeal, Jang contended that plain error review was inapplicable, since both the Government’s Petition and the District Court’s oral decision did not cite a specific immigration statute that he’d violated. However, an ICE agent had mentioned § 1253 in his testimony before the District Court, and this was good enough for the Fifth Circuit to maintain plain error review. Further hurting Jang, the Government is only held to a preponderance standard in proceedings to revoke supervision.
Jang raised three specific arguments on appeal, two of which the Fifth Circuit inexplicably failed to address. First, he argued that the South Korea’s voluntary repatriation requirement was an international immigration procedure, and thus outside the scope of his supervision requirements. Second, he pointed out that the District Court was effectively requiring him to lie to the South Korean consulate. Third, he challenged the sufficiency of the evidence. The Fifth Circuit merely concluded it was reasonable for the District Court to find that Jang’s comments to the consulate were designed to prevent his departure, thus violating 8 U.S.C. § 1253(a)(1)(C). Judgment affirmed.
Comments
- The dystopian overtone of requiring someone to lie in order to maintain his freedom does not appear to have struck the District Court or the Fifth Circuit. Then again, perhaps this did occur to the District Court, which was punishing Jang into subjectively desiring to leave the country.
- Criminally prosecuting this case seems excessively cruel. The Government could have easily achieved the same objective by leaving Jang in ICE custody, and refusing to release him on an Order of Supervision. Jang might have soon changed his mind and expressed a desire to leave to the South Korean consulate. But now, regardless of whether Jang changes his mind, he is forced to sit in prison for another two years. Prosecutorial discretion appears to be a dead art in the Northern District of Texas.
- It seems quite possible that Jang was unaware of South Korea's indiosyncratic requirement for repatriation. Reasonable mistake of fact defense, anyone?