Case: 11-16557    01/06/2012   ID: 8022767   DktEntry: 20   Page: 1 of 18                     UNITED STATES COURT OF APPEA...
Case: 11-16557             01/06/2012          ID: 8022767          DktEntry: 20         Page: 2 of 18                    ...
Case: 11-16557          01/06/2012         ID: 8022767         DktEntry: 20       Page: 3 of 18                           ...
Case: 11-16557           01/06/2012        ID: 8022767         DktEntry: 20        Page: 4 of 18STATUTES, RULES AND REGULA...
Case: 11-16557    01/06/2012    ID: 8022767   DktEntry: 20   Page: 5 of 18Stephen Shaiken, Esq.LAW OFFICES OF STEPHEN SHAI...
Case: 11-16557     01/06/2012   ID: 8022767    DktEntry: 20   Page: 6 of 18                    IN THE UNITED STATES COURT ...
Case: 11-16557     01/06/2012     ID: 8022767    DktEntry: 20    Page: 7 of 18former §212( c ) of the Act.      Appellant ...
Case: 11-16557        01/06/2012   ID: 8022767    DktEntry: 20    Page: 8 of 18argument contrary to his potion, and that i...
Case: 11-16557     01/06/2012     ID: 8022767     DktEntry: 20    Page: 9 of 18OVERCOMES THE PERMANENT BAR TO NATURALIZATI...
Case: 11-16557     01/06/2012    ID: 8022767    DktEntry: 20    Page: 10 of 18      Appellees further argue that since IIR...
Case: 11-16557     01/06/2012     ID: 8022767     DktEntry: 20   Page: 11 of 18was not an aggravated felony at the time of...
Case: 11-16557     01/06/2012     ID: 8022767    DktEntry: 20    Page: 12 of 18immigration consequences, and denial of nat...
Case: 11-16557      01/06/2012      ID: 8022767   DktEntry: 20   Page: 13 of 18convictions, should the alien commit a new ...
Case: 11-16557     01/06/2012    ID: 8022767    DktEntry: 20    Page: 14 of 18waive a 2004 drug possession conviction. The...
Case: 11-16557    01/06/2012    ID: 8022767    DktEntry: 20   Page: 15 of 18factors relevant to the issue of waiver. Judul...
Case: 11-16557     01/06/2012    ID: 8022767    DktEntry: 20   Page: 16 of 18      The orders entering judgment in favor o...
Case: 11-16557    01/06/2012     ID: 8022767   DktEntry: 20   Page: 17 of 18                            CERTIFICATE OF SER...
Case: 11-16557    01/06/2012   ID: 8022767   DktEntry: 20   Page: 18 of 18  Executed January 6, 2012  /”s”/          s/ssh...
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Alocozy reply brief to USCIS in 9th Circuit Natz GMC Agg Felony

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Alocozy reply brief to USCIS in 9th Circuit Natz GMC Agg Felony

  1. 1. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 1 of 18 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITABDUL H. ALOCOZY ) ) CASE NO. 11-16557 ) D.C. No. 2:10-cv-01597-JAM-KJN Petitioner-Appellant, ) vs. ) Eastern District ofUNITED STATES CITIZENSHIP ) California, SacramentoAND IMMIGRATION SERVICES, )ALEJANDRO MAYORKAS, )Director, United States Citizenship ) NON DETAINEDand Immigration Services, MICHAEL)C. BIGGS, Field Office Director, )United States Citizenship Services, )JANET NAPOLITANO, Secretary, )Department of Homeland Security ) Respondent-Appellees ) ) Appeal from the Decision of the Hon. John A. Mendez, Granting Appellees Motion for Summary Judgment, Denying Appellant’s Motion for Summary Judgment, and Entering Judgement in Favor of Appellees on a Petition for Review from Denial of a Naturalization Petition APPELLANT’S REPLY BRIEF Stephen Shaiken, Esq. LAW OFFICES OF STEPHEN SHAIKEN 170 Columbus Avenue, Suite 100 San Francisco, California 94133 Telephone: (415) 248-1012 Fax: (415) 248-0019 Attorney for Petitioner-Appellant
  2. 2. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 2 of 18 TABLE OF CONTENTSTABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iiSTATEMENT OF DETENTION STATUS . . . . . . . . . . . . . . . . . . . . . . . . . . . .ivSTATEMENT OF REPLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1ARGUMENT IN REPLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 I. Contrary To Appellee’s Argument, The Grant Of Relief Overcomes The Permanent Bar To Naturalization For Aggravated Felons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3,4Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10,11 i
  3. 3. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 3 of 18 TABLE OF AUTHORITIESCASES PAGESAragon-Ayon v. INS, 206 F.3d 849 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6Becker v. Gonzalez, 473 F.3d 1003 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8Chan v. Gantner, 464 F.3d, 289, 294 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . .6INS v. St. Cyr 533 U.S. 289 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5,6,7,10Judulang v. Holder, -U.S.-131 S. Ct. 2949 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10,11Molina-Amazcua v. INS, 6 F.3d 646 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 8,9Sarravia-Paguada v. Gonzalez, 488 F.3d 1122 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Toia v. Fasano, 334 F.3d (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 ii
  4. 4. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 4 of 18STATUTES, RULES AND REGULATIONSSection 101 (a)(43)(a) of the Immigration and Nationality Act. . . . . . . . . .1Section 212(c) of the Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,3,4,6,7,8,9,10Section 240(a) of the Immigration and Nationality Act . . . . . . . . . . . . . . .88 U.S.C. Section 1101 (f)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48 U.S.C. Section 1229 (c)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 U.S.C. Section 1427 (a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 iii
  5. 5. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 5 of 18Stephen Shaiken, Esq.LAW OFFICES OF STEPHEN SHAIKEN100 Columbus Avenue, Suite 100San Francisco, California 94133Telephone: (415) 3248-1012 Fax: (415) 248-0019Attorney for Petitioner-Appellant IN THE UNITED STATES COURT OF APPEAL IN AND FOR THE NINTH CIRCUITABDUL H. ALOCOZY ) Case No: 11-16557 ) ) Petitioner-Appellant, ) ) STATEMENT OFvs. ) DETENTION STATUS )UNITED STATES CITIZENSHIP )AND IMMIGRATION SERVICES, )et. al, ) Respondents-Appellees ) ) Petitioner-Appellant is not detained.Dated: January 5, 2012 at San Francisco, California Respectfully submitted, THE LAW OFFICES OF STEPHEN SHAIKEN By: s/sshaikenesq Stephen Shaiken, Esq. iv
  6. 6. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 6 of 18 IN THE UNITED STATES COURT OF APPEAL IN AND FOR THE NINTH CIRCUITABDUL H. ALOCOZY ) ) NO. 11-16557 Petitioner-Appellant, )vs. ) )UNITED STATES CITIZENSHIP AND )IMMIGRATION SERVICES, et. al, ) ) Respondents-Appellees, ) ) STATEMENT OF REPLY Appellant is a citizen and national of Afghanistan who entered the UnitedStates as a refugee on June 28, 1983, and who adjusted his status to that of lawfulpermanent resident on January 15, 1984. On January 21, 1991, he plead guilty inthe Alameda County Superior Court to violating California Penal Code § 220(assault to commit rape), and was sentenced to one year in couthy jail. He wasplaced into removal proceedings on March 2, 1999 The charge of removability wasaggravated felony, under §101(a))43)(a) of the Immigration and Nationality Act.(The Act). On May 27, 2004, he was granted relief by the immigration judge under 1
  7. 7. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 7 of 18former §212( c ) of the Act. Appellant filed an N-400 Petition for Naturalization with the United StatesCitizenship and Immigration Service (USCIS) on October 5, 2004. USCIS deniedthe petition on September 28, 2005 on the grounds that under the law, as anaggravated felon, Appellant could not prove the requisite good moral character, andon November 8, 2005, Appellant filed a timely administrative appeal on a Form N-336 . The N-336 was denied on June 16, 2009. Appellant filed a petition for reviewwith the district court on June 24, 2010. The district court ordered the parties to filemotions for summary judgment. The district court granted the Appellees’ motion, denied Appellant’s motion,entered judgment in favor of the Appellees, and closed the case. On appeal, appellant argued that his grant of 212 ( c ) relief overcame thepermanent bar to a finding of good moral character which is necessary fornaturalization and that the USCIS could not invoke that bar. Appellant argued thatwhen he entered his plea, the law did not hold otherwise, his expectation wasreasonable under the existing state of the law, and in addition, his convictionoccurred before the specific offense was listed as an aggravated felony. Appellantargued that it was not until 1993, two years after his plea, that there was any 2
  8. 8. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 8 of 18argument contrary to his potion, and that it was not until 2006 that a circuit courtruled contrary to his position. This Circuit has not yet decided the question. Appellees responded by arguing that naturalization is different thandeportation and that it was not reasonable that an alien in 1991 would have thoughtthat there was relief through 212 ( c ) which would negate the permanent bar tonaturalization based on lack of good moral character due to conviction of anaggravated felony. The government argued that while the 1990 law which createdthe naturalization bar, IMMAT, was not retroactive, the 1996 law known asIIRAIRA was retroactive and therefore once this specific conviction was designatedan aggravated felony, the bar is indisputable. The government also argued that whilethere is no Ninth Circuit case addressing the specific issue raised herein, virtually allother courts have decided as the government urges and that there is a body of NinthCircuit law which would lead to the conclusion that this Court would decide as thedistrict court decided. The arguments of the government are countered below. ARGUMENT IN REPLY ICONTRARY TO APPELLEE’S ARGUMENT, THE GRANT OF RELIEF 3
  9. 9. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 9 of 18OVERCOMES THE PERMANENT BAR TO NATURALIZATION FORAGGRAVATED FELONS Appellees’1 central argument is that the conviction for attempted rape is anaggravated felony, and that since 8 U.S.C. § 1427(a)(3) requires a finding of goodmoral character for five years preceding a naturalization application, and 8 U.S.C.§ 1101(f)(8) creates a permanent bar to such finding in the case of an aggravatedfelon, appellant is ineligible for naturalization despite the grant of 212 ( c ) relief.(GB 5-6)2 Appellees also argue that the grant of relief does not overcome the bar to goodmoral character, and that reliance upon INS v. St. Cyr, 533 U.S. 289 (2000) ismisplaced, as naturalization is different than deportation, and a alien could notreasonably be expected to consider naturalization issues in deciding whether to pleadto an offense. (GB 6-7)1. Throughout this brief, the Petitioner-Appellant is referred to as “Appellant” and Respondent-Appellees are referred to as either “Appellees” or “The Government”2. Throughout this brief the designation GB refers to appellees’ brief, standing for Government Brief. 4
  10. 10. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 10 of 18 Appellees further argue that since IIRIRA3 is retroactive, the subsequentdesignation of attempted rape as an aggravated felony is not an issue here. (GB) For the reasons set forth herein, appellees are incorrect. First, the Government concedes that when appellant entered his plea, hisconviction offense was not an aggravated felony. (GB 5-6). They acknowledge thatthis Court has held that IMMAT, the 1990 statute which created a permanent bar tonaturalization, is not retroactive. (Sarravia-Paguada v. Gonzalez, 488 F.3d 1122 (9thcir. 2007), cited by Appellees at page 9 of GB). Therefore, the question which isprompted by their citation is: if IMMAT 1990 is not retroactive, then how can thesubsequent designation of attempted rape as an aggravated felony overcome dueprocess law regarding retroactivity as was set forth in St. Cyr, supra; it cannot bedisputed that St. Cyr establishes the principle that an alien may rely upon the stateof the law at the time they plead to a crime. The Government attempts to circumvent this by arguing that IIRIRA has beenheld to be retroactive, and that there is no violation of due process in allowing analien to be placed into removal proceedings based upon an aggravated felony which 3. IIRIRA stands for the Illegal Immigration Reform and Immigrant Responsibility Act, enacted September 30, 1996; this law designated the instant offense to be an aggravated felony. 5
  11. 11. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 11 of 18was not an aggravated felony at the time of the plea. See GB at p 11, citing Aragon-Ayon v. INS, 206 F.3d 849 (9th Cir. 2000). This argument is effectively mixing theproverbial appellees and oranges, as the issue here is not whether respondent wasproperly placed into removal proceedings , but rather, the scope of relief granted inremoval proceedings. IF IIRIRA was retroactive, it was only to the extent that analien could be placed in removal proceedings based on a ground which did not existwhen that alien plead guilty, but St. Cyr made it crystal clear that the alien stillretained all procedural rights, including relief, which existed at the time of the plea.Since there was no legal authority in support of the Government’s argument that 212( c ) did not waive the naturalization bar when Appellant plead in 1991, then whenrespondent is entitle to rely on that as the state of law when he plead. The fact thatthe former INS first raised this issue in 1993 and no legal authority was publisheduntil Chan v. Gantner, 464 F.3d, 289, 294 (2d Cir. 2006) demonstrates this fact. Appellees fall-back argument is that despite the lack of any authority that agrant of 212 ( c ) relief did not waive the naturalization bar, no reasonable alienwould ever think of naturalization consequences in taking a plea. This is clearlyincorrect, as California Penal Code § 1016.5, which was in effect at the time of thisplea, requires the court taking the plea to admonish all defendants of potential 6
  12. 12. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 12 of 18immigration consequences, and denial of naturalization is one of the requiredadvisements. In view of St. Cyr not requiring a showing of what a defendant was toldby counsel, courts must presume that the defendants relied upon the state of the lawat the time of th plea. Here, there was no legal authority which would enable anattorney to conclude that a grant of 212 ( c ) relief did not waive this naturalizationbar. This is especially true since the courts and the agency had expanded the plainlanguage of the law, which mentioned only people seeking admission, to those indeportation proceedings. (See Appellant’s Opening Brief at pp ) The Government offers no authority at all for their contention that aliens donot reasonably consider naturalization consequences when they plead to crimes. Asnoted above, the authority relating to pleas in California requires such consideration. In the absence of any authority in this circuit which would support thegovernment’s position, appellees argue that by extrapolating the principles of othercases, their contention must be correct. However, these cases do not address theissue before this court. For example, the government cites Molina Amezcua v. INS, 6 F.3d 646 (9thCir. 1993). That case had absolutely nothing to do with the scope of relief. Rather,it held that when an alien is granted relief from removal based on criminal 7
  13. 13. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 13 of 18convictions, should the alien commit a new crime, the prior conviction may be usedto create the a new and different removal ground of multiple conviction for crimesinvolving moral turpitude. In other words, if an alien received a waiver for onecrime of moral turpitude, and then commits a seconds, that alien may be placed intoremoval proceedings as an alien convicted of two or more such crimes, and thepreviously waived conviction may be counted as one of these multiple crimes despitethe prior grant of 212 ( c ) relief. This holding is unrelated to the issues her. Appellant is not arguing that if hecommits a new crime his waived offenses may not be counted towards the multipleconvictions of moral turpitude offenses needed for that removal ground. As opposedto the alien in Molina, who committed an entirely new act which triggered entirelynew immigration consequences, this appellant is not alleged to have done anythingafter his conviction in 1991 which created a completely new ground of removal orwhich created a new and separate basis for statutory ineligibility for naturalization. The government also cites the case of Becker v. Gonzalez, 473 F.3d 1003 (9thCir. 2007) (RB p. 13-14). In that case, the alien contended that he could rely upon212 ( c ) relief to waive a 1978 drug trafficking conviction and then rely uponcancellation of removal under § 240A(a) of the Immigration and Nationality Act to 8
  14. 14. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 14 of 18waive a 2004 drug possession conviction. The Court held that he could not, whichis unsurprising as the Act precludes using more than one grant of relief under 212( c) or cancellation. (See 8 U.S.C. § 1229 (c)(6) . Since 212 ( c ) could only applyto the 1978 case and cancellation could only waive the 2004 case, the alien waswithout relief from removal as no matter which relief he sought he would be onlyable to waive one of the two convictions, either of which would result in removal.Again, the issue as in Molina was prospectivity, not retroactivity. The case that does apply is Toia v. Fasano, 334 F.3d (9th Cir. 2003). In thatcase, the Court held that the 1990 IMMAT changes to 212 ( c ), which precludedrelief where a term of five years or more was actually served, did not apply to analien who plead to such a sentence in 1988, before the change to the law. This caseis akin to appellant’s situation, in that the government seeks to retroactively imposesanctions on an alien who entered a plea when these sanctions were not clearlyapplicable to him. Finally, it should be noted that the United States Supreme Court recently heldthat in adjudicating waivers, the government must not act in an arbitrary andcapricious manner, and that a reviewing court should look at the reasons underlyingthe agency’s application of a waiver statute, and the reasons must be supported by 9
  15. 15. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 15 of 18factors relevant to the issue of waiver. Judulang v. Holder, -U.S.-, 131 S.Ct. 2949(2011). In Judulang, the court examined the Board of immigration appeals holdingwhich required an applicant to show that the ground of removal for which they sougha waiver under former section 212 ( c ) was a “comparable ground” to grounds ofinadmissibility. The Board’s approach would allow the government to determine theavailability of a waiver based on how they charged the alien. While this case doesnot address comparable grounds, as the government never appealed the grant of 212( c ) RELIEF, nor do they now allege that it was not properly granted, but theJudulang holding is highly relevant as it requires agencies to apply waiver statutesin a manner that comports with fundamental fairness and due process. In view of theSupreme court holding in St. Cyr, and this Court’s holding in Toia, supra, theagency’s application of the waiver in this case does not meet that standard. CONCLUSION The decision of the district court granting Appellees’ motion for summaryjudgment should be reversed. The order of the district court denying Appellant’s motion for summaryjudgment should be reversed. 10
  16. 16. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 16 of 18 The orders entering judgment in favor of appellees and closing the case shouldbe reversed. The matter should be remanded to the district court with orders to grantappellant’s motion for summary judgment and to grant his petition for review fromthe denial of his naturalization, and the district court should further be ordered toremand the matter to USCIS with an order to grant naturalization to appellant. In the alternative, the matter should be remanded to the district court todetermine whether the agency’s the Supreme Court holding in JudulangDated: January 5, 2012 , at San Francisco, California Respectfully submitted, LAW OFFICES OF STEPHEN SHAIKEN By: s/sshaikenesq Stephen Shaiken, Esq. 11
  17. 17. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 17 of 18 CERTIFICATE OF SERVICE I, the undersigned, declare: That, I Stephen Shaiken, Esq., CA BAR No. 90915 am an attorney of the: LAW OFFICE OF STEPHEN SHAIKEN 170 Columbus Ave., Suite 100 San Francisco, CA 94133 Tel: (415) 248-1012 Fax: (415) 248-0019 which represents the Appellant in this matter and that, I hereby certify that on January 6, 2012 I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system in the matter of: Petitioner-Appellant’s Reply Brief in the matter of Abdul H. Alocozy v USCIS et al, Ninth circuit Case. No. 11-16557 I certify that all participants in the case are registered CMECF users and that service will be accomplished by the appellate CM/ECF system. ATTORNEYS FOR APPELLEES: Aram A. Gavoor Trial Attorney, District Court Section U.S. Department of Justice Office of Immigration Litigation P.O. BOX 878, Ben Franklin Station Washington, D.C. 20044 Audrey B. Hemeseth Assistant United States Attorney 501 I Street, Ste. 10-100 Sacramento, CA 95814 12
  18. 18. Case: 11-16557 01/06/2012 ID: 8022767 DktEntry: 20 Page: 18 of 18 Executed January 6, 2012 /”s”/ s/sshaikenesq Stephen Shaiken, Esq. Attorney for Appellant 13

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