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Alien Barred From Collaterally Attacking Criminal Conviction

Al-Najar v. Mukasey, 515 F.3d 708 (C.A. 6, Jan. 31, 2008)

Conditional resident Gamil Al-Najar (“Al-Najar”) pled guilty to possession of a controlled substance under Michigan law, for which he successfully completed probation and paid a fine. As a result of his conviction, the Department of Homeland Security charged Al-Najar with removal. In response, Al-Najar filed an application for asylum, withholding of removal, relief under the Convention Against Torture (“CAT”) and, in the alternative, voluntary departure.

An Immigration Judge denied Al-Najar’s claims, a determination which the Bureau of Immigration Appeals upheld on appeal. During the pendency of his appeal, Al-Najar filed a motion to dismiss his criminal conviction with the Michigan trial court, based upon his successful completion of probation; the Michigan court granted Al-Najar’s motion. Al-Najar then filed this petition for review, which the Sixth Circuit denied.

Initially, Al-Najar argued that the substance involved in his possession conviction, khat, was not a controlled substance under the Controlled Substances Act (“CSA”), and thus could not serve as the basis for his removal. As this was a legal issue involving interpretation of the CSA, therefore falling outside of the BIA’s expertise, the Court ruled that it was unnecessary to remand the case to the BIA for this determination.

Furthermore, the Court noted that Al-Najar’s petition for review was an impermissible collateral attack on his Michigan criminal conviction, so remand was improper. In pleading guilty to possession of a controlled substance under Michigan law, Al-Najar admitted that khat was a controlled substance. As Al-Najar was not claiming that his plea was constitutionally invalid or the result of deprivation of counsel, he was not entitled to collaterally attack his Michigan criminal conviction.

The Court also rejected Al-Najar’s argument that because his Michigan criminal conviction had been vacated, the DHS could not use it as a basis for his removal. Since the Michigan court dismissed Al-Najar’s criminal conviction solely due to the successful completion of his probation requirements, the conviction could serve as the basis of his removal. Thus, the Court affirmed the BIA’s ruling that Al-Najar was removable.

Likewise, the Court rejected Al-Najar’s challenges to the IJ’s denial of his requests for a continuance and for voluntary departure. The Court concluded that the IJ did not abuse its discretion in denying the request, as the IJ had granted previous continuances, and, in fact, did permit Al-Najar a brief continuance in this instance. Moreover, pursuant to federal law, the Court had no jurisdiction to review the IJ’s denial of Al-Najar’s request for voluntary departure.

Finally, the Court acknowledged its lack of jurisdiction to review Al-Najar’s claim regarding the availability of relief under 8 U.S.C. §1182(h); nonetheless, the Court stated this claim was without merit due to Al-Najar’s criminal conviction.

The petition for review was denied.
 

 

Judge(s): James L. Ryan, Alice M. Batchelder, and Richard Allen Griffin, Circuit Judges
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
Petitioner Lawyer(s) Petitioner Law Firm(s)
Irena Karpinski The Law Office of Irena I. Karpinski

 
Respondent Lawyer(s) Respondent Law Firm(s)
Janice K. Redfern U.S. Department of Justice

 

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to review . . . any judgment regarding the granting of relief under . . . [8 u.s.c. 1229c]"); see also failed to meet his burden of proof for establishing eligibility for asylum, withholding of removal, nevertheless, despite the bia's error, we hold that the government has met its burden in this case. collaterally attack a criminal conviction that serves as the basis for the dhs's initiation of removal michael mukasey, attorney general of the united substance under the controlled substances act ("csa"). al-najar timely petitioned this court for may consider his claim. even assuming that he did not exhaust his administrative remedies by failing to present this respondent. - al-najar's conviction for possession of khat constitutes possession of a controlled substance. in the these removal proceedings because it has been vacated. we hold that the government has met its title 21), other than a single offense involving possession for one's own use of 30 review. persecuted on account of their membership in the family. the supreme court summarily reversed may not have been as lengthy as al-najar preferred, the ij nevertheless did grant petitioner's for these reasons, we deny the petition for review. the reference to m.c.r. 2.612(c)(1)(e), along with the absence of any substantive legal basis cited - waiver under this subsection." 8 u.s.c. 1182(h). moreover, 8 u.s.c. 1252(a)(2)(b)(i) strips jurisdiction to consider al-najar's requests for continuance and voluntary departure; the ij did not or a foreign country relating to a controlled substance (as defined in section 802 of subsequently arrested by any authority for any other violations of criminal law . . . ." in light of al- united states v. johnson, 430 f.3d 383, 397 (6th cir. 2005)). was qualified for asylum, withholding of removal, and withholding under the convention against opinion id. at 16-17. failure to obey a police officer, and he had failed to establish that he had suffered any past government has to present "direct evidence" to demonstrate that the original court quashed the i. conviction in these removal proceedings, absent any claim that his plea was constitutionally invalid conviction in a habeas petition against the ins under 2241"); abimbola v. ashcroft, 378 f.3d 173, in pickering v. gonzales (amended opinion), 465 f.3d 263 (6th cir. 2006), we explained that breached a duty to inform al-najar that he was eligible for relief under immigration nationality act review. quoting from matter of pickering, 23 i & n dec. 621 (bia 2003), also rejected petitioner's city ordinance 14-157; argument before the ij, the government did not argue failure to exhaust on appeal. see badwan v. gonzales, 494 f.3d or that he was deprived of counsel. see bonds, 48 f.3d at 186. because neither exception applies, alien may not collaterally attack an otherwise valid state court conviction, or go behind the judicial ii. in light of ventura." id. at 185-86 (quotation omitted). alternative, the government argues that al-najar may not collaterally attack his state conviction; the pursuant to sixth circuit rule 206 and protection under the convention against torture, and holding that al-najar was eligible for grams or less of marijuana, is deportable. that remand is necessary where the bia fails to consider a petitioner's claim under the immigration sufficiently consistent and credible testimony that it is more likely than not that he would be on review. see patel v. ashcroft, 401 f.3d 400, 407 (6th cir. 2005) (explaining that "the bia's next, al-najar argues that his michigan state conviction should not be used against him in voluntary departure pursuant to 8 u.s.c. 1229c. novo inquiry into the matter being reviewed and to reach its own conclusions based on such an after a hearing on his asylum petition, the ij rejected al-najar's claim, finding that his - particular family is considered membership in a "particular social group" are ones within the explaining that al-najar had not "demonstrated whether his plea of guilty was vacated for `reasons four years later, in gonzales v. thomas, 547 u.s. 183 (2006), the supreme court again held no. a45 767 812. a controlled substance under the csa, and therefore he is not removable under 1227(a)(2)(b)(i).2 - persecuted on account of a protected ground," and that al-najar "failed to meet his burden of proof request for voluntary departure is not properly before this court. vacated solely for rehabilitative purposes. as pickering makes clear, this is an insufficient basis to government's argument in its disposition of the alien's petition. for petitioner. janice k. redfern, united states department of justice, washington, provides. . . . of this title." in any event, al-najar is not eligible for relief under 1182(h), which applies to the class of deportable aliens, including: on august 27, 2003, the former immigration and naturalization service, now the burden of proof to show that al-najar's conviction was vacated because of al-najar's fulfillment request. in any event, al-najar presents no basis upon which an additional continuance could have cir. 2007) (observing that "it is a settled appellate rule that issues adverted to in a perfunctory conviction at sentencing"); united states v. bonds, 48 f.3d 184, 186 (6th cir. 1995) (same). petitioner, v. manner, unaccompanied by some effort at developed argumentation, are deemed waived") (quoting requirement with jurisdictional limitations, explaining that "[e]xhaustion is a condition to success in court but not a limit for the reasons stated below, we hold that a remand is unnecessary because al-najar's penalty, or restraint on the alien's liberty to be imposed. or `catha edulis,' is a shrub which grows wild and as a cash crop in kenya, somalia, yemen, and other countries in any alien who at any time after admission has been convicted of a violation of (or it is here, on review from a decision of the bia. see taylor v. united states, 396 f.3d 1322, 1330 expertise, and its interpretation of the statute would ordinarily not be given deference by this court within the meaning of 1227(a)(2)(a)(iii) is reviewed de novo because such a conclusion depends f.3d 603, 611 (6th cir. 2006) (observing that, in criminal sentencing proceedings, "unless the prior address al-najar's argument, raised in an august 12, 2005, motion for leave to file supplemental any explanation by the canadian court for its vacatur, we held that we could not assume that the under the cat. al-najar opposes a remand. - n of probationary rehabilitation requirements.4 because al-najar presents no other claims that would entitle him to relief, we deny the petition for (11th cir. 2005) (observing that "an alien may not collaterally attack a state court conviction in the motion was granted without explanation on june 15, 2005. al-najar argues that his guilty plea to possessing khat was akin to pleading guilty to conviction was vacated solely for rehabilitative purposes. although al-najar now argues that khat department of justice, washington, d.c., for respondent. _________________ solely related to rehabilitation or immigration hardships' or `on the basis of a procedural or applying sanusi, we hold that the government has met its burden to show that al-najar's 5. that grounds for holding defendant guilty of violating dearborn city petitioners' claim based upon membership in a particular social group, the petitioners had as a predicate offense for al-najar's removal. voluntary departure. 8 u.s.c. 1252(a)(2)(b)(i) (declaring that "no court shall have jurisdiction was no "evidence from which it may be reasonably inferred that the writ of coram nobis was granted before the state court contained no legal basis to set aside his conviction, we concluded that there with removability, pursuant to 8 u.s.c. 1227(a)(2)(b)(i), based on his controlled substance file name: 08a0058p.06 probationary requirements, and his case was dismissed. presented no such claim in his motion for withdrawal of guilty plea. rather, his motion invoked in sanusi v. gonzales, 474 f.3d 341 (6th cir. 2007), we distinguished pickering and held we conclude that ventura and thomas do not compel a remand in this case. the questions al-najar filed a motion for withdrawal of guilty plea, for new trial, and for dismissal of charges 8 u.s.c. 1101(a)(48)(a). in fact grant al-najar's request for a continuance. as al-najar concedes in his brief, the ij controlled substance and because his plea of guilty was withdrawn and his conviction vacated. al- criminal law; been vacated solely for immigration purposes. although the state court in sanusi did not provide x the law's ordinary remand requirement does so here. the agency can bring its "[t]hese reasons alone provide sufficient basis for this court to find that the ij did not abuse her their kinship with a white south african racist who had mistreated black workers that he supervised - ties' that constitute[s] a `particular social group'" was legally erroneous "and that error is obvious guilty, which he moves to withdraw forthwith; help a court later determine whether its decision exceeds the leeway that the law determination; and, in doing so, it can, through informed discussion and analysis, record to determine, in immigration proceedings, the guilt or innocence of the alien."); brown v. compelled remand to the bia: thebiaupheldtheij'sdecision,agreeingthatal-najaris"statutorilyineligible for asylum" no. 05-4448 al-najar v. mukasey page 5 successfully shown that their family qualified as such a social group, and the petitioners had been brief, that his conviction for possessing khat was not a violation of any law relating to a controlled the charge listed above, it is therefore not equitable that the judgment should departure. as the government argues correctly, we lack jurisdiction to review the ij's denial of argues that he is not subject to removal because his prior conviction did not in fact involve a rescheduled al-najar's hearing from may 7, 2004, until june 18, 2004. although this continuance on march 31, 2000, as a conditional resident because of his marriage to an american citizen. on substance. the ina defines "conviction" as: in ventura, the government raised this issue before the bia, but the bia failed to comment upon the failed to meet its burden, we relied heavily on a restriction in canadian law (where the petitioner's underlying drug offense originated), that allowed for the vacatur of a conviction only when there for the lower appellate court to address, without first allowing the bia to consider, the government's claim, it is without merit. petition was meritless because al-najar lacked credibility due to his failure to disclose an arrest for 8 u.s.c. 1227(a)(2)(b)(i). "changed circumstances" issue. and every consideration that classically supports he pleaded iii. july 1st, 2003; 4 566, 571 (6th cir. 2007); see also korsunskiy v. gonzales, 461 f.3d 847, 849 (7th cir. 2006) (contrasting exhaustion possessed on december 14, 2001, was a controlled substance. he cannot now collaterally attack that ultimate conclusion that a particular state conviction amounts to an aggravated felony conviction - bia found correctly that petitioner's conviction applied for immigration purposes; this court lacks argument that the june 15, 2005, vacatur of his conviction rendered him ineligible for removal, arguments on petitioner's behalf." regardless of the quality of al-najar's representation before the v. has been withheld, where (i) a judge or jury has found the alien guilty or the alien waive or forfeit the exhaustion issue, something that it could not do for a genuinely `jurisdictional' limit"). persecution while he lived in yemen. finally, the ij found that al-najar did not show that it was has entered a plea of guilty or nolo contendere or has admitted sufficient facts to 3. that defendant pled guilty on advice of his then counsel and received concluded that the appellate court "committed clear error" by "disregard[ing] the agency's legally- recommended for full-text publication no. 05-4448 al-najar v. mukasey page 2 furthermore, the ij concluded even assuming that al-najar's petition was timely that al-najar's immigration consequences of his conviction. id. at 347. because the alien's request for vacatur legitimacy of criminal convictions in removal proceedings). see also united states v. paige, 470 removal due to a 2002 michigan state conviction for possession of a controlled substance. al-najar claim that the petitioner did not qualify for asylum because conditions in his home country had a conspiracy or attempt to violate) any law or regulation of a state, the united states, "[n]o court shall have jurisdiction to review a decision of the attorney general to grant or deny a abu-khaliel v. gonzales, 436 f.3d 627, 630-31 (6th cir. 2006). thus, the ij's denial of al-najar's , 537 u.s. 12 (2002) (per curiam) for support. in ventura, the supreme court held that it was error 4. that defendant has complied with all the conditions set by this court and has was a procedural or substantive defect in the underlying conviction. id. at 269. in the absence of december 14, 2001, al-najar was arrested in dearborn, michigan for possession of a controlled karpinski, washington, d.c., for petitioner. janice k. redfern, united states remand, the bia here would be charged with interpreting the csa, which falls outside of its to a law that allows it to act based only on the merits of the underlying position, it is presumed not 952, 961 (9th cir. 2005) (holding that alien petitioner "may not collaterally attack his state petition challenging a bia removal order); palmer v. ins, 4 f.3d 482, 489 (7th cir. 1993) ("an conviction. al-najar responded by requesting asylum pursuant to 8 u.s.c. 1158, withholding of as al-najar notes correctly, the bia appeared to improperly place the burden on the petitioner to prove that for the sixth circuit 2 petition was untimely because it was filed more than one year after his arrival to the united states. substantive defect in the underlying criminal proceedings.'" the bia further rejected al-najar's northeastern africa." it is "known to contain the psychoactive chemical cathinone, a stimulant . . . listed as a schedule have prospective application. > possession of a controlled substance, al-najar remains "convicted" of a law relating to a controlled al-najar also asserts that the ij erred in failing to inform al-najar of the availability of relief abu-khaliel, 436 f.3d at 634-35 (affirming denial of continuance where ij had previously granted al-najar's collateral attack on his michigan state conviction is foreclosed. duties delegated by the attorney general). we review the denial of a continuance for an abuse of najar argues further that the ij abused its discretion in declining to continue al-najar's case, the ij therefore, we conclude that the conviction may serve however, we have jurisdiction to consider al-najar's request for a continuance. abu- improved to the point where no threat of persecution existed currently. id. at 13.3 no. 05-4448 al-najar v. mukasey page 4 vi. ordinance 14-157 do not otherwise exist independent of defendant's plea of decision of a matter that statutes place primarily in agency hands. this principle has al-najar appealed the ij's decision to the bia. while his appeal was pending, counsel for under 8 u.s.c. 1182(h), contending that, although al-najar was represented by counsel in front _____________ opportunity to apply for a waiver of inadmissability pursuant to 8 u.s.c. 1182. the bia did not canadian court had vacated the conviction for any improper reason: "when a court acts pursuant - al-najar next challenges the ij's denial of his requests for a continuance and for voluntary conviction qualifies him for removal, relying on the supreme court's decision in ins v. ventura, d.c., for respondent. on brief: irena i. karpinski, the law office of irena i. filed before the state court, which was based solely on a request for mercy from the harsh to overcome a presumption of future persecution and thomas whether membership in a warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, at issue in ventura whether circumstances had changed in the petitioner's home country enough claim that the ij erred in failing to continue his proceedings and that the ij erred in denying him the ins, 856 f.2d 728, 731 (5th cir. 1988) (holding that petitioner may not collaterally attack the conviction for immigration or rehabilitative reasons, or present evidence "from which one could i controlled substance under ohio [and federal] law. khat also contains the less potent stimulant, cathine, a schedule sugar. rather, he pleaded guilty to possession of a controlled substance, in violation of mich. _________________ finally, al-najar argues that the bia erred in denying his petition for asylum, withholding infer and conclude" that the original court acted to affect the alien's immigration status or in and nationality act ("ina"). in thomas, the petitioners sought asylum on the basis, inter alia, that probation for 9 months and was successfully discharged from probation on on petition for review from a decision proceedings in which he was participating and lacked the legal knowledge to make important that the government had met its burden to show that the petitioner's prior state court conviction had on a futile collateral attack on his michigan state conviction. an alien petitioner may not 2.612(c)(1)(e) and (f), stated, in pertinent part: counsel iv. "complied with all the conditions set by [the state's nineteenth district court] and ha[d] not been waived review of the denial of his petition for asylum, withholding of removal, and withholding to have acted contrary to that law, solely to enable the petitioner to avoid adverse immigration iv controlled substance under ohio [and federal] law." more likely than not that he would be tortured upon his return to yemen. felony convictions have previously been ruled invalid or were obtained without attorney benefitted him, inasmuch as he had been convicted of a state crime, rendering him ineligible for moreimportantly,however,aremandisunnecessarybecauseal-najar'spetition is premised must uphold bia's determination if it is supported by "substantial evidence"). in contrast, on the government urges us to remand to the bia so that the agency may determine whether on any recognized legal ground." id. najar's requests for continuances, and this reason alone is a sufficient basis to affirm the ij. see to establish that it is more likely than not that he would be tortured if returned to yemen." the bia, court of appeals, the ninth circuit held that the bia had failed to adequately consider the guilty to the charge on july 31, 2002, and received a sentence of probation and a fine of $300. al- courts of jurisdiction to review "any judgment regarding the granting of relief under section 1182(h) [a] formal judgment of guilt of the alien entered by a court or, if adjudication of guilt in order to show that a vacated conviction nevertheless applies for immigration purposes, the expertise to bear upon the matter; it can evaluate the evidence; it can make an initial of possession of a controlled substance, an apparent violation of dearborn argued: irena i. karpinski, the law office of irena i. karpinski, washington, d.c., disregard al-najar's conviction for possession of a controlled substance in these removal of immigration appeals ("bia") affirming the immigration judge's ("ij") opinion that al-najar 1 torture ("cat"). 1 before: ryan, batchelder, and griffin, circuit judges. no. 05-4448 3 comp. laws 333.7411. by entering his plea of guilty, al-najar admitted that the substance he possessing sugar, in that neither substance is listed as a controlled substance under the csa. but alien's requests for continuance and the alien had violated the laws of the united states, holding that on the government to show that a vacated conviction remains valid for immigration purposes. 465 f.3d at 269 n.4. states, the court 8 u.s.c. 1227(a)(2)(b)(i). al-najar spends the bulk of his brief on appeal arguing that khat is not decided and filed: january 31, 2008 voluntary departure. discretion. id. at 634. united states court of appeals 181 (2d cir. 2004) (stating that aliens may not collaterally attack state convictions through habeas najar was discharged from probation on july 1, 2003, for the successful completion of his the dhs charged al-najar with removability pursuant to 8 u.s.c. 1227, which sets out proceedings. we therefore affirm the bia's ruling that al-najar is subject to removal pursuant to deportation proceedings or petitions for review of bia decisions"); resendiz v. kovensky, 416 f.3d as their foreman. the ij rejected their claim, and the bia summarily affirmed. on review to the upon interpreting state statutes and federal statutes unrelated to immigration"). generally speaking, a court of appeals should remand a case to an agency for the government urges us to remand to the bia so it may determine whether al-najar's the determinative question is whether, despite the vacatur of his state court conviction for err in failing to provide petitioner the opportunity to apply for a 212(h) waiver; and al-najar has of the ij, "it is clear that the attorney representative did not fully understand the intricacies of the discretion in denying petitioner a further continuance."). second, and more importantly, the ij did khaliel, 436 f.3d at 633-34 (distinguishing between duties conferred to ij by statute as opposed to of the board of immigration appeals. griffin, circuit judge. petitioner gamil al-najar appeals from a decision of the board the lower appellate court, holding that the court's failure to remand the case to the bia so that the substance, after having been found selling khat at a dearborn area convenience store.1 petitioner gamil al-najar, a native and citizen of yemen, was admitted to the united states satisfied, released, or discharged." al-najar's motion was thus predicated on his claim that he had najar's discharge from probation because of his completion of his probationary requirements and his state court conviction was quashed for non-rehabilitative reasons. as we made clear in pickering, the burden rests gamil al-najar, no. 05-4448 al-najar v. mukasey page 3 m.c.r. 2.612(c)(1)(e), which allows for the relief of a judgment where the "judgment has been as we explained in samatar v. clarridge, 225 f. app'x 366, 368 (6th cir. 2007) (citations omitted), "khat, al-najar did not plead guilty to possessing khat any more than he pleaded guilty to possessing argued: december 5, 2007 of removal, and withholding under the cat. his argument is made without citation to either the mandated role," and observed that "[a] court of appeals is not generally empowered to conduct a de inquiry." id. at 16 (internal quotation omitted). the supreme court explained the rationale that marijuana . . . ." 8 u.s.c. 1182(h). thus, even assuming we have jurisdiction to consider this obvious importance in the immigration context. the bia has not yet considered the recognition of the alien's rehabilitation. pickering, 465 f.3d at 270. in holding that the government because of his untimely application, that petitioner "failed to meet his burden to establish by 212(h), 8 u.s.c. 1182, he was entitled to voluntary departure, and he had demonstrated that he _________________ any explanation for its vacatur, we relied significantly on the alien's petition for writ of coram nobis 6. that insofar as there are no other grounds for holding defend[ant] guilty of bia's expertise. thus, the bia's resolutions of these issues are generally given deference by a court removal pursuant to 8 u.s.c. 1231(b)(3), protection under the cat, and, in the alternative, department of homeland security ("dhs"), served al-najar with a notice to appear, charging him ij, we do not have jurisdiction over al-najar's claim. section 1182(h) concludes by providing that although al-najar raised this argument for the first time in a supplemental brief to the bia, we nevertheless not been subsequently arrested by any authority for any other violations of consequences." id. at 269 n.4. in his motion to withdraw, the only reasonable inference to draw is that al-najar's conviction was representation, a defendant may not collaterally attack the constitutional validity of a prior with the dearborn trial court. the motion, which was premised explicitly on m.c.r. on the set of cases that the judiciary has been assigned to resolve" and observing that the government on appeal "may we conclude that the ij did not abuse its discretion. first, the ij had previously granted al- proceedings against the alien, regardless of whether the attack is raised in a habeas petition or, as no. 05-4448 al-najar v. mukasey page 7 no. 05-4448 al-najar v. mukasey page 8 of appeals. see mostafa v. ashcroft, 395 f.3d 622, 624 (6th cir. 2005) (explaining that this court is not a controlled substance as defined in either the csa or mich. comp. laws 333.7411, he they feared persecution on account of their membership in a particular social group specifically, challenge to his michigan state court conviction constitutes an impermissible collateral attack. bia could first consider the petitioners' claim that the aliens' family "presents the kind of `kinship aliens who are removable due to a "single offense of simple possession of 30 grams or less of record or to any case law and is therefore waived. united states v. villareal, 491 f.3d 605, 611 (6th no. 05-4448 al-najar v. mukasey page 6 2. that on july 31, 2002, defendant gamil al-najar pled guilty to the charge


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