Graham v. Mukasey (6th Cir. 3/20/08)

DAUGHTREY Moore Merritt

In a 238(b) expedited removal, the 6th cir declined to address the procedural due process arguments, finding that restitution of 875K was sufficient to show that fraud conviction was over 10K, in the absence of plea agreement to the contrary.  The Court also rejected a (weak) Equal Protection against against 238(b) proceedings.

Read Opinion Here:

Facts: Non-LPR was charged under INA 238(b) as being deportable as an aggravated felon; he refused to sign the charging document.  Attorney asked to see the conviction documents before responding to the charging document.  ICE refused permission to see the conviction documents, ordered removal. 

Govt argued that (1) Petitioner waived his opportunity to respond by not responding at the agency level; (2) Petitioner waived by failing to contest the legality of the order in the opening brief, and (3) that the claim fails on the merits. 

1.  Court suggested that refusal to sign for receipt of the 238 order might constitute waiver.

   It is clear, for example, that when given the opportunity to raise a defense to removal when the notice of intent was served personally on the petitioner, Graham not only refused to sign the form but also failed to indicate on the list of options that he had any opposition to removal. Apparently the only objection raised at the agency level by his attorney concerned Graham’s status as an “aggravated felon” under the immigration statute. In this court, the objection concerns the process by which the petitioner’s removal was secured rather than to the validity of the order itself.

[Note: the 238 form actually contains no option for a pro se detainee to check off "crime not an aggravated felony"]

2.  Court notes that due process applies to individual within US, but also that prejudice must be shown.

   As to the procedural due process appeal raised here, it is clear that “[e]ven if an alien enters the United States illegally, he or she ‘may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.’” Warner v. Ashcroft, 381 F.3d 534, 538 (6th Cir. 2004) (quoting Shaughnessy v. United States ex. rel. Mezei, 345 U.S. 206, 212 (1953)). Graham contends that his expedited deportation violated the traditional standards of fairness guaranteed by the due process clause in various ways, such as: in failing to address the reasons given for his request for an extension before denying it; in failing to allow examination of the government’s evidence before issuing the final order; and in failing to provide him with the opportunity to rebut that evidence in a hearing before an immigration judge. Instead, he contends, there was a “rush to judgment” and his “right to counsel [was] swept under the rug.”

   However, in order to prevail on a procedural due process challenge, Graham must also show prejudice. Indeed, we need not address the merits of a claim if there is no demonstration of prejudice. See id. at 539 & n. 1. Moreover, to establish the requisite prejudice, he must show that the due process violations led to a substantially different outcome from that which would have occurred in the absence of those violations. See Garza-Moreno v. Gonzales, 489 F.3d 239, 241-242 (6th Cir. 2007) (alien must show that the absence of the due process violation “would have changed the outcome of the case.”).

3.  Where restitution of $875K was ordered, absence of an allegation of >10K loss in the conviction documents was irrelevant (distinguishing Chang v. I.N.S., 307 F.3d 1185 (9th Cir. 2002)).

   Graham has not even alleged, let alone provided documentation, that he was a party to a plea agreement that limited the loss caused by his convictions to less than the restitution amount or that the government is otherwise attempting to “sandbag” him with removal despite a prior agreement to the contrary. Without such limiting language or any other substantiated claim by Graham that the losses to his victims were less than $10,000, we are left to conclude that the restitution ordered in the sentencing order was either specifically tied to the counts of conviction or, as in Khalayleh, was the aggregate of loss from a “plan or scheme” alleged in the counts of conviction, both of which charged a conspiracy. Chang is not controlling, and we are satisfied that the record establishes losses to Graham’s victims well above the $10,000 minimum for purposes of finding that he was convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43). Consequently, Graham has failed to demonstrate the requisite prejudice necessary to sustain his due process claim.

4.  Upheld the use of expedited procedures under 238 against an Equal Protection challenge, using rational basis test.

   The petitioner argues that the Attorney General’s “unfettered discretion to choose between expedited removal procedure . . . and the general removal procedure . . . to effectuate the removal of an alien who is not a lawful permanent resident” violates the equal protection component of the Fifth Amendment’s due process clause because the government has provided no standards governing the exercise of this discretion. However, the petitioner concedes, as he must, that because no suspect class is involved, rational basis scrutiny applies to this claim. Of course, “[r]ational basis review begins with a strong presumption of constitutional validity,” and “[i]t is Petitioner’s burden to show that the law, as-applied, is arbitrary; and not the government’s to establish rationality.” Malagon de Fuentes v. Gonzales, 462 F.3d 498, 504 (5th Cir. 2006) (internal citations and quotation marks omitted). Moreover, “[u]nder rational basis review, differential treatment must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. (Internal citations and quotation marks omitted).

   Significantly, in this case the petitioner himself offers a rational basis for the expedited process, noting in his appellate brief that “the decision seemingly depends solely on how confident the ICE adjudicator is that [an] ‘aggravated felony’ has been committed.” Just so. An adjudicator’s assessment that a case is simple as opposed to complex is certainly a rational basis upon which to adopt expedited proceedings in preference to general proceedings, especially when considered in conjunction with Congress’s purpose in passing 8 U.S.C. § 1228(b), i.e., “to expedite the removal of criminal aliens” who are not lawful permanent residents, along with the administrative constraints of providing all such aliens with full hearings. See United States v. Hernandez-Vermudez, 356 F.3d 1011, 1014 (9th Cir. 2004) (discussing the legislative history of 8 U.S.C. § 1228(b)). Given the utterly straightforward nature of the government’s case against the petitioner, and the obvious rationality of the decision to proceed with expedition in his removal, we find no violation of Graham’s right to equal protection on this record.

Atty: Brian Lerner

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Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.