United States Court of Appeals
For the First Circuit
No. 04-2206
ALI ABDUL KARIM,
Petitioner,
v.
ALBERTO GONZÁLES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Lipez and Howard, Circuit Judges.
William P. Joyce and Joyce & Zerola, P.C. on brief for
petitioner.
Thankful T. Vanderstar, Office of Immigration Litigation,
Department of Justice, Peter D. Keisler, Assistant Attorney
General, Civil Division, and Linda S. Wernery, Senior Litigation
Counsel, Office of Immigration Litigation, on brief for respondent.
September 22, 2005
BOUDIN, Chief Judge. Ali Abdul Karim, petitioner in this
court, is a native of Lebanon. He was admitted to the United
States on April 16, 1993, as a tourist authorized to stay for one
month, but he did not depart or secure any change of status and
remains in the United States today. In January 2003, he was called
for an interview with the Department of Homeland Security ("DHS")
pursuant to its "special registration" program for nationals of
certain designated countries. Thereafter, the Immigration and
Naturalization Service ("INS") began removal proceedings against
Karim.
At the initial hearing in April 2003, Karim appeared with
counsel, which he had not had at the DHS meeting, and conceded
removability. At the next hearing in June 2003, his new counsel,
from the same law firm, asked for a postponement so he could
explore whether Karim was perhaps a citizen of Liberia, where he
had lived for a time with his family.
At the deferred hearing held in July 2003, his counsel
first said that he would like to file and brief a motion to
suppress on the ground that the DHS interview had "tainted" the
process; to this the judge replied that removability had already
been conceded at the initial hearing. Counsel then asked to amend
the earlier answer by denying removability, but he gave no clear
basis for his motion nor any basis for establishing that Karim was
not removable.
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The immigration judge denied the request to amend, noting
that removability had been conceded, and found that Karim was
removable. The judge also denied a request for voluntary departure
because Karim had no valid travel document, as his passport had
expired. Karim appealed to the Board of Immigration Appeals
("BIA"), arguing that he should have been given leave to amend his
pleadings and more time to develop an asylum claim, that the
special registration program was unconstitutional, and--as to
voluntary departure--that he had no travel document because DHS had
seized his passport.
In a brief per curiam order, the BIA rejected the appeal.
It said that Karim had had over three months between his notice to
appear in the removal proceeding and the filing of his original
pleadings, which was time enough to develop his objections to
removal; that he had furnished no reason for the later request to
amend his admission of removability; that his passport had expired
so voluntary departure was not permitted; and that the INS had no
authority over the special registration program whose
constitutionality was being challenged. Karim has now sought
review in this court.
Much of Karim's brief on appeal is general rhetoric about
the need for reasoned agency decisionmaking. In fact, it is fairly
easy to follow the reasoning of both the immigration judge and the
BIA. That both decisions were short is largely a result of the
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fact that Karim admitted removability at the outset and gave the
immigration judge no good reason for allowing Karim to revisit that
concession (which was made through counsel). As to voluntary
departure, the main argument now pressed was not made to the
immigration judge.
Turning to substance, Karim argues that the immigration
judge failed to articulate and then apply the various factors that
bear on whether to allow an amendment of the pleading. The
obligation to explain and articulate depends importantly on the
strength of the position being urged. Where no plausible reason is
offered for a request, the word "no" is plainly sufficient. Even
now, the brief provides no adequate explanation as to why Karim
should have been allowed to withdraw his concession nor any reason
to doubt that the concession was correct.
Karim says that the immigration judge and the BIA failed
to consider an (alleged) lack of prejudice in granting a
postponement. There is obvious prejudice to the hard-pressed
immigration process in deferring for yet a third time an already
twice-postponed proceeding and then using resources to conduct a
full-fledged proceeding in the absence of any indication that the
admission was mistaken. In any event, the failure to give an
adequate reason for a postponement or amendment dooms it regardless
of whether allowance would cause prejudice to the adversary.
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Karim says that he did explain to the immigration judge
that he wanted more time to investigate whether he was a citizen of
Lebanon or Liberia. That is not accurate. Counsel told the
immigration judge at the July hearing that the earlier postponement
had been secured to investigate that issue and continued: "And, as
I looked into that further, there is an association with Lebanon,
so that this whole Liberia theory went out the door."
Next, Karim's brief criticizes the BIA because, in
reviewing the denial of the request for voluntary departure, it
ignored the fact that DHS had seized Karim's passport. The
immigration judge was indeed told about the seizure but was also
told that the passport had expired in 1994. Karim did not, so far
as we can tell, urge the immigration judge to give him time to
secure and renew the passport. In any event, by statute, this
court lacks authority to review a refusal to allow voluntary
departure. 8 U.S.C. § 1229c(f) (2000).
Finally, Karim says that the immigration judge failed to
address his claim, by motion to suppress, that the removal
proceeding was tainted by the fact that DHS had conducted an
interview with Karim and secured admissions from him in the absence
of counsel. A reading of the transcript raises doubts whether
counsel properly preserved the claim at all, but that is beside the
point. Any attack on the DHS interview was mooted by Karim's
decision at the initial proceeding to concede removability.
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Conceivably, although there is no proof or proffer to
that effect, that concession may have been prompted by admissions
made in the DHS interview; if so, the time to raise the issue (by
motion to suppress or otherwise) was before making the concession.
Otherwise, Karim's position is no better than that of a defendant
who pleads guilty without reserving a Fourth Amendment claim and
then argues that his plea was prompted by an unlawful seizure of
evidence. The law is well settled that the unqualified guilty plea
waives such objections to antecedent events. United States v.
Cordero, 42 F.3d 697, 699 (1st Cir. 1994).
We add, merely to avoid unwarranted assumptions, that it
is far from clear that any flaws in the DHS interview would have
precluded use of the information there obtained. See INS v. Lopez-
Mendoza, 468 U.S. 1032, 1050 (1984) (holding that the exclusionary
rule does not typically apply in deportation proceedings). Nor is
it clear why any admissions made there mattered: Karim does not
claim to have American citizenship or any authorization to remain
in this country past 1994, and one would expect that untainted
government records could easily establish both points--the first by
reference to his admission to the country as a visitor and the
second by the usual "negative" search.
In closing, we add that there is no indication in this
record that Karim ever had any valid defense to removability. This
is not a case where obviously promising objections were forfeit or
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waived or where there is any indication of a miscarriage of
justice.
The petition for review is denied.
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