NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0161n.06
No. 15-6042
FILED
UNITED STATES COURT OF APPEALS Mar 22, 2016
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
ON APPEAL FROM THE
v. UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
DJELIMADOU DIABATE,
Defendant-Appellant. OPINION
__________________________
Before: KETHLEDGE, DONALD, and ROTH,* Circuit Judges.
JANE R. ROTH, Circuit Judge.
Djelimadou Diabate, a native of Mali, appeals his conviction of hampering removal in
violation of 8 U.S.C. § 1253(a)(1)(C). Diabate argues the district court erred in (1) denying his
motion to dismiss the indictment, and (2) refusing his request to instruct the jury regarding the
justification defense. For the reasons that follow, we affirm the conviction.
I. Background
In 1998, Diabate legally entered the United States on a B-1 Visitor Visa, valid for ninety
days. He failed to depart after the period expired. In 2005, Diabate applied for asylum, using the
identity of a Mauritanian national, and based his application on violence and terrorism in
Mauritania. The Immigration Judge denied Diabate’s petition and ordered his removal. Diabate
*
The Honorable Jane R. Roth, Senior Circuit Judge for the United States Court of Appeals for
the Third Circuit, sitting by designation.
No. 15-6042, United States v. Diabate
appealed and the Board of Immigration Appeals (BIA) dismissed the appeal. Diabate again did
not depart. In 2011, Diabate, using his own identity, applied for lawful permanent residency and
requested a stay of the removal order. Both petitions were denied. In 2012 the Immigration and
Naturalization Service issued Diabate a warning for failure to depart that set forth penalties of
noncompliance. Diabate signed the form acknowledging service. In 2013, the government
issued four more warnings for failure to depart that also specified penalties for noncompliance.
Diabate refused to acknowledge service of those warnings. Later in 2013, Diabate, using his
own identity, petitioned the BIA to reopen the proceeding that resulted in the removal order,
acknowledging he had used the identity of another individual in that proceeding. This time, he
based his asylum application on the threat of terrorism and the potential Ebola virus outbreak in
Mali. The BIA denied his petition.
In 2014, federal agents took Diabate to the Cincinnati airport to board a flight to Mali.
Diabate refused to board and struggled with agents at the gate. Subsequently, Diabate was
indicted and convicted by a jury of hampering his departure following a removal order, in
violation of 8 U.S.C. § 1253(a)(1)(C). The district court sentenced him to fifteen months of
imprisonment. Diabate appeals.
II. Discussion
Diabate challenges his conviction on two grounds. First, he argues the district court erred
in denying his motion to dismiss the indictment because the Immigration Judge did not provide
notice of penalties for noncompliance. Second, he contends the district court erred in refusing
his request to instruct the jury regarding the justification defense. We have jurisdiction over this
appeal under 28 U.S.C. § 1291.
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A. Denial of Motion to Dismiss the Indictment
The offense of hampering removal criminalizes conduct directed at preventing or
hampering departure pursuant to a removal order. 8 U.S.C. § 1253(a)(1)(C). Because a removal
order underlies the offense of hampering removal, an alien charged with hampering removal may
challenge the validity of the removal order. 8 U.S.C. § 1252(b)(7)(A). If the removal order is
found to be invalid, the court must dismiss the indictment. 8 U.S.C. § 1252(b)(7)(C). Diabate
argues that his removal order was invalid because the Immigration Judge failed to notify him of
the civil and criminal consequences of noncompliance with the order. We review de novo a
district court’s denial of a motion to dismiss the indictment based on a collateral attack on a prior
removal order. See United States v. Martinez-Rocha, 337 F.3d 566, 569 (6th Cir. 2003); In re
Ford, 987 F.2d 334, 339 (6th Cir. 1992) (reviewing de novo a district court’s denial of a motion
to dismiss an indictment on grounds that involve questions of law).
Although § 1252(b)(7)(A) provides for judicial review of the validity of removal orders,
the provision does not specify a standard of review. Some courts have adopted the due process
analysis used when reviewing a collateral attack of a removal order. Under that standard, an
alien may establish a due process violation in connection with a removal order by demonstrating
prejudice. See, e.g., United States v. Ayeni, 66 F. Supp. 2d 617, 621 (M.D. Pa. 1999) (quoting
United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998)), aff’d, 254 F.3d 1079 (3d
Cir. 2001). Another approach is to apply a reasonable doubt standard, consistent with the
principle that in a criminal trial no person is guilty until each fact alleged against him or her is
proven beyond a reasonable doubt. United States v. Miszczuk, 847 F. Supp. 2d 227, 232-33 n. 6
(D. Mass. 2012) (citing In re Winship, 397 U.S. 358, 363, (1970)). Here, the district court
properly concluded, under either standard, the removal order was valid.
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To be valid, a removal order must be “based upon reasonable, substantial, and probative
evidence” that the alien is deportable. 8 U.S.C. § 1229a(c)(3)(A). As relevant to the instant
petition, the statute designates as deportable those aliens who were inadmissible at the time of
entry. 8 U.S.C. § 1227(a)(1)(A). Diabate conceded at his removal hearing that at the time of
entry, he was inadmissible because he entered the United States without proper documentation.
However, Diabate contends that the removal order was invalid because the Immigration Judge
did not warn him of the consequences of failing to depart, as required by statute. 8 U.S.C.
§ 1229a(c)(5). Even though the Immigration Judge did not inform Diabate of those
consequences at the removal hearing or in his decision, the government served Diabate with five
written warnings that specified the penalties of noncompliance. Furthermore, the statute makes
clear that a removal order is valid if based on “reasonable, substantial, and probative evidence”
that the alien is deportable, and does not condition validity on notice of consequences of
noncompliance. See 8 U.S.C. § 1229a(c)(3)(A). Therefore, we hold the removal order is valid
and reject Diabate’s arguments to the contrary.
B. Denial of a Request for Jury Instruction
Diabate argues that the district court improperly refused to give the jury a proffered
instruction on the justification defense, which “allows a defendant to escape responsibility
despite proof that his actions encompassed all the elements of a criminal offense.” United States
v. Kemp, 546 F.3d 759, 765 (6th Cir. 2008) (internal quotations omitted). This Court reviews de
novo the district court’s determination that Diabate failed to established a prima facie case of
justification, an issue of law. United States v. Ridner, 512 F.3d 846, 849 (6th Cir. 2008).
To be entitled to a justification instruction, a defendant must establish that (1) he was
under an unlawful and imminent threat of death or serious bodily injury; (2) he had not
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No. 15-6042, United States v. Diabate
recklessly or negligently placed himself in the situation; (3) he had no reasonable, legal
alternative to violating the law; (4) a direct causal relationship may be reasonably anticipated
between the criminal action and avoidance of the threatened harm; and (5) he did not maintain
the illegal conduct longer than necessary. United States v. Singleton, 902 F.2d 471, 472 (6th Cir.
1990). Although the burden in establishing these elements “is not a heavy one,” the evidence
must not be speculative. Ridner, 512 F.3d at 849-850 (quoting United States v. Riffe, 28 F.3d
565, 569 (6th Cir. 1994)); United States v. Newcomb, 6 F.3d 1129, 1132 (6th Cir. 1993). Diabate
claims he feared being killed by Al-Qaeda members in Mali and contracting Ebola, pointing to
country reports of Mali from 2013 and 2014 and travel warnings. However, those threats apply
generally to anyone traveling in Mali, and a mere generalized fear of harm is insufficient to
demonstrate imminence or immediacy. See United States v. Campbell, 675 F.2d 815, 821 (6th
Cir. 1982); United States v. Sixty Acres, 930 F.2d 857, 860-61 (11th Cir. 1991). Diabate’s
assertion that two of his Malian friends who had returned from France might have been killed by
the terrorist group is based on speculation. Equally unsupported is his claim that, if returned to
Mali, he would be targeted because he would be perceived as wealthy for having lived in the
United States. Accordingly, because Diabate failed to make out a prima facie case of
justification, the district court properly omitted the instruction.
III. Conclusion
For the foregoing reasons, we affirm Diabate’s conviction.
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