Selimi, Besem v. INS ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1608
BESEM SELIMI,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals
No. A 42 919 715
____________
ARGUED NOVEMBER 26, 2001—DECIDED DECEMBER 4, 2002
____________
Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
ROVNER, Circuit Judge. Besem Selimi petitions this
court to review an order of the Board of Immigration
Appeals (the “Board” or “BIA”) finding him excludable for
alien smuggling pursuant to 8 U.S.C. § 1182(a)(6)(E)(i) and
ineligible for the limited waiver of excludability set forth
in 8 U.S.C. § 1182(d)(11). Finding no merit in any of the
challenges that Selimi makes to the Board’s order, we
dismiss his petition for review.
2 No. 01-1608
I.
The United States admitted Selimi, a native and citizen
of the former Yugoslavia, to lawful permanent residence
in this country in 1991. Selimi lives in Madison, Wisconsin,
where he works as a cook and holds a partial ownership
interest in a restaurant. In May of 1993, Selimi returned
to the former Yugoslav Republic of Macedonia, where his
wife, Ajshe, and three daughters (Reshida, Kujtesa, and
Vjolka—ages four, three, and one) had continued to live
following his emigration to the United States. His family
members previously had been granted priority immigra-
tion status by the Immigration and Naturalization Ser-
vice (“INS”) but had not yet received visas permitting them
to enter the United States. Nonetheless, when Selimi flew
back to the United States four days later, his wife and
children traveled with him under falsified (photo-substi-
tuted) passports. Suzana Kuqo, his cousin, accompanied
them, also using a falsified passport. Kuqo’s passport listed
one of Selimi’s children as her own. A.R. 64.
When Selimi, his family, and his cousin debarked from
their trans-Atlantic flight at New York’s Kennedy Airport,
INS officials detained them for questioning and determined
that Selimi’s wife, children, and cousin had attempted to
enter this country illegally. Selimi gave a sworn state-
ment to an INS officer regarding his trip to Macedonia. In
that statement, Selimi indicated that he had traveled to
Macedonia in order to bring his family members back to
the United States, and that he had paid $5,000 in order to
obtain the falsified passports. A.R. 322.
Concluding that Selimi had attempted to smuggle
undocumented aliens into the United States, the INS
charged him with excludability pursuant to section 212
(a)(6)(E) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(6)(E). A.R. 392. Selimi moved for a change
of venue on this charge from New York to Chicago, which
No. 01-1608 3
was closer to home for both Selimi and his attorney, who
like Selimi lived in Madison. The INS opposed the motion
on the ground that its witnesses (the inspectors who had
detained Selimi and taken his sworn statement) were
located in New York. A.R. 285-87. An immigration judge
denied Selimi’s motion, reasoning that because he had
not conceded inadmissibility, the New York INS inspec-
tors would have to testify. A.R. 284. Selimi subsequently
renewed his change of venue motion, this time conced-
ing that he had violated section 212(a)(6)(E) and was
excludable on that basis. A.R. 275; see also A.R. 273 (cover
letter). He also sought relief under, inter alia, section
212(d)(11) of the INA, 8 U.S.C § 1252(d)(11). See A.R. 275.
In view of his concession, the INS withdrew its opposition
to the motion (A.R. 274, see also A.R. 283), and the immi-
gration judge granted his motion.
At his initial appearance in Chicago, Selimi, through his
counsel, confirmed his concession that he was excludable
pursuant to section 212(a)(6). A.R. 43-44. An immigra-
tion judge subsequently conducted an evidentiary hearing
on Selimi’s request for a waiver of excludability. A.R. 48.1
At that hearing, Selimi offered into evidence a written
statement from his wife representing that it was she
rather than Selimi who had paid for the falsified passports.
A.R. 194-96. Mrs. Selimi averred that she had paid $4,000
to Kuqo’s father for her passport and visa, which also
included two of their daughters. A.R. 195-96. Kuqo submit-
ted a statement likewise averring that Mrs. Selimi had
1
Selimi alternatively sought relief under sections 208(a) of the
INA, 8 U.S.C. § 1158(a) (asylum), and 243(h), 8 U.S.C. §1253(h)
(1994) (withholding of deportation). The IJ conducted a separate
evidentiary hearing on these requests (A.R. 89) and ultimately
denied Selimi relief (A.R. 31, 35-41). The denial of Selimi’s re-
quests for asylum and withholding of deportation are not at is-
sue in this appeal.
4 No. 01-1608
paid $4,000 for her passport and visa and adding that
Kuqo’s father had paid $1,000 for Kuqo’s passport and visa,
which included the Selimis’ third daughter. A.R. 197.2
Selimi himself took the witness stand and testified that
his wife had obtained the falsified passports through
Kuqo’s father “on her own.” A. 56-57. Selimi acknowledged
that he had been aware of his family’s wish to join him
in the United States and that he had traveled to Mace-
donia to bring his family back to the United States with
him. A.R. 56, 62. Selimi explained, however, that his wife
had led him to believe that she had obtained a legitimate
passport and visa entitling her and their children to
enter the United States and had asked him to fly to Mace-
donia in order to accompany them to the U.S.; she was
afraid to make the trip by herself. A.R. 56, 62. Only after
he arrived in Macedonia did he learn that she had ob-
tained falsified passports and visas for herself and the
children. A.R. 56, 62-63. He acceded to his wife’s plan to
enter the U.S. illegally because he was under “high pres-
sure” from her not to leave her in Macedonia. A.R. 63; see
also A.R. 59, 75.3 “I had no other avenue but to go along
with the arrangement,” he testified. A.R. 75. He therefore
accompanied his wife, children, and cousin on the return
trip to the United States knowing that they were travel-
ing under false documents. A.R. 63. Selimi denied that he
had had anything to do with his cousin’s effort to enter
this country. A.R. 78. He admitted, however, that his
2
According to Selimi, Kuqo’s father had been unable to obtain
a passport for Mrs. Selimi that included all three of her children;
consequently, the third daughter was added to Kuqo’s passport.
A.R. 203.
3
Aside from the continuing turmoil in nearby Bosnia-
Herzegovina, security officials, according to Mrs. Selimi, had been
visiting their home to search the premises and to check on
Selimi’s whereabouts. Ar. 57-58.
No. 01-1608 5
cousin’s father had procured the passports for his wife
and children as well as for his cousin. A.R. 57. He also
admitted that he knew that his cousin’s passport falsely
identified one of his own children as her child and that
he had paid in part for that child’s passport. A.R. 78; see
also A.R. 203. Selimi suggested that his prior statement to
the INS inspector in New York, which indicated that
he rather than his wife had paid for the false documenta-
tion, was inaccurate, pointing out that the INS inspector
had prepared the statement and that he had not had
the benefit of an interpreter during the interview that
culminated in that statement. A.R. 75-78.
In the course of the evidentiary hearing the IJ sug-
gested that it “could be argued” that Selimi had done
nothing to aid the illegal entry of his wife, children, and
cousin simply by traveling with them and that therefore
he was not excludable for alien smuggling under section
212(a)(6)(E) of the INA notwithstanding his concession to
that effect. A.R. 65. On several occasions, the IJ asked
the INS’s counsel to make a proffer of the evidence that
the INS might present in order to establish Selimi’s
excludability. E.g., A.R. 66, 72. Counsel repeatedly de-
murred, however, noting that Selimi had conceded the
issue of his excludability. E.g., A.R. 65-67, 72-73. Counsel
also announced that if the IJ intended to look behind
that concession or to allow Selimi to withdraw it, the
INS would seek to have the case returned to New York so
that the inspectors who interviewed Selimi and his family
could testify. A.R. 65-66, 70-73. The INS’s counsel rejected
the IJ’s suggestion that the officers could testify by tele-
phone. A.R. 66. In the end, Selimi did not seek leave to
withdraw his concession of excludability.
After hearing the evidence, the IJ found Selimi statutorily
ineligible for a waiver of his excludability under section
212(d)(11) of the INA. A.R. 35. The judge pointed out that
eligibility for the waiver is limited to an alien who has
6 No. 01-1608
knowingly aided, encouraged, or abetted his own spouse,
parent, or child to enter the United States illegally. Id.
Selimi, the IJ found, was involved not only with the at-
tempted entry of his wife and children into this country, but
with that of his cousin as well. Id.
The facts reveal that the applicant traveled to the
United States not only with his wife and children but
also his cousin. The applicant was well aware of the
fact that his cousin’s false passport listed his own child
as her child. The applicant was seeking to have his
child admitted to the United States with his cousin
under a false passport. I find on these facts that un-
der the statute, the applicant does not qualify for a
waiver of his excludability inasmuch as he also en-
couraged, induced, or aided in his cousin’s attempted
entry.
Id.
Selimi appealed the IJ’s adverse determination to the
BIA, but the Board dismissed the appeal. A.R. 2. The Board
rejected Selimi’s threshold contention that the New York
IJ had coerced him into conceding his excludability by
denying his motion for a change of venue from New York
to Chicago so long as he contested his excludability. In
the Board’s view, it was reasonable for the IJ to think
that a hearing on the question of excludability should take
place at the point of Selimi’s entrance into the United
States, where government witnesses to his entry would
be available to testify. A.R. 2-3. The Board also rejected
Selimi’s argument that the Chicago IJ had erred in rely-
ing on Selimi’s concession of excludability and by not
allowing him to withdraw that concession. The BIA noted
that although the IJ had “inexplicably offered sugges-
tions as to how the Judge thought that the applicant
might have argued that he is not excludable,” at no time
during the evidentiary hearing had Selimi attempted to
No. 01-1608 7
retract his concession. A.R. 3. Having conceded before the
IJ that he was excludable as charged, Selimi could not
turn around and argue on appeal that he was not ex-
cludable, the BIA reasoned. A.R. 3. Finally, the BIA
sustained the IJ’s determination that Selimi was not
eligible for a section 212(d)(11) waiver of excludability. The
Board noted that Selimi admitted that he had traveled
to Macedonia in 1993 in response to his wife’s entreaties
that he bring her to the United States, that he had sub-
sequently returned to the United States in the company
of his cousin as well as his wife and children, and that
he knew his cousin’s falsified passport listed one of his
children as her own. In view of that evidence, the Board
concluded, the IJ correctly found that Selimi had at-
tempted to assist his cousin’s unlawful entry into the
United States and that he was therefore ineligible for
relief under section 212(d)(11). A.R. 3.
II.
On review of the BIA’s order, Selimi makes four prin-
cipal arguments. First, Selimi contends that as a lawful
permanent resident of the United States, he should have
been placed in deportation rather than exclusion pro-
ceedings. He next contends that he was deprived of due
process because the government never established by
clear, convincing, and unequivocal evidence that he was
excludable. He goes on to suggest that he was coerced
into conceding his excludability by the INS. Finally, he
contends that the Board improperly denied him a waiver
of excludability.
Selimi first suggests that the INS should have placed him
in deportation rather than exclusion proceedings. Prior
to the Immigrant Reform and Responsibility Act of 1996,
there was a long-recognized distinction between exclusion
8 No. 01-1608
proceedings, which concerned aliens who were seeking
entry into the United States, and deportation proceed-
ings, which dealt with aliens already present in this
country. See Landon v. Plasencia, 459 U.S. 21, 25, 103 S.
Ct. 321, 325 (1982). Aliens in deportation proceedings
enjoyed a variety of procedural protections that those in
exclusion proceedings did not. Id. at 25-27, 103 S. Ct. at
325-26.
The INS placed Selimi in exclusion proceedings because
although he had been admitted to lawful permanent
residency in the United States, he had left the country for
purposes of the visit to Macedonia and was seeking to re-
enter the United States when he was detained for ap-
parent alien-smuggling. As applicable to this case, the
INA defines an “entry” as
. . . any coming of an alien into the United States, from
a foreign port or place or from an outlying possession,
whether voluntarily or otherwise, except that an
alien having a lawful permanent residence in the
United States shall not be regarded as making an entry
into the United States for the purposes of the immigra-
tion laws if the alien proves to the satisfaction of the
Attorney General that his departure . . . was not
intended or reasonably to be expected by him or his
presence in a foreign port or place or in an outlying
possession was not voluntary . . . .
8 U.S.C. § 1101(a)(13) (1994).
In Rosenberg v. Fleuti, 374 U.S. 449, 462, 83 S. Ct. 1804,
1812 (1963), the Supreme Court concluded that an alien’s
“innocent, casual and brief” absence from this country
did not necessarily qualify as a meaningful departure
such that his return to the United States would constitute
an “entry” for purposes of the statute. Selimi likens his
four-day trip to Macedonia to the petitioner’s brief trip
across the border in Fleuti. However, Fleuti itself recog-
No. 01-1608 9
nized that when a resident alien leaves the United States
for a reason that is inconsistent with the policies re-
flected in this country’s immigration laws, the “interrup-
tion of residence thereby occurring would properly be
regarded as meaningful.” Id. at 462, 83 S. Ct. at 1812.
This court’s opinions in Leal-Rodriguez v. INS, 990 F.2d
939, 944 (7th Cir. 1993), and Lozano-Giron v. INS, 506 F.2d
1073, 1078-79 (7th Cir. 1974), make clear that even if a
resident alien leaves the United States for an innocent
reason, the purpose of his trip may nonetheless be deemed
improper (and thus meaningfully interruptive of his
permanent residence in this country) when before return-
ing to the United States he forms an intent to commit
an illegal act. Thus, we may accept Selimi’s contention
that when he left the United States for Macedonia, he
believed that his wife had lawfully obtained the requisite
documentation to enter this country and that he had
no intent to aid or encourage his family to enter the
United States illegally. Yet, upon his arrival in Mace-
donia, Selimi learned the truth about the passports and
visas his wife and cousin had obtained and accompanied
them back to the United States knowing that they were
attempting to enter the country illegally. If, as the IJ and
the BIA determined, Selimi intended to encourage or
facilitate their attempt in some way, then the BIA could
reasonably conclude that the purpose of Selimi’s trip
abroad was improper even if his culpable intent was not
formed until after he had already departed the United
States. Leal-Rodriguez, 990 F.2d at 944; Lozano-Giron, 506
F.2d at 1078-79. Selimi’s departure from the United States
consequently was not “innocent.” The INS correctly treated
the interruption in his residence as meaningful and, upon
Selimi’s attempted entry into the United States with his
family, properly placed him in exclusion rather than
deportation proceedings.
10 No. 01-1608
Selimi argues that he was deprived of due process
because the INS failed to prove that he was excludable
under section 212(a)(6)(E) by clear, convincing, and un-
equivocal evidence, including in particular evidence that
he acted with the requisite knowledge and intent in ac-
companying his wife, children, and cousin back to the
United States. But Selimi relieved the INS of that bur-
den when, through his attorney, he conceded his ex-
cludability. Concessions of this sort, often motivated by
tactical and pragmatic considerations, are routinely made
in immigration proceedings. See, e.g., Reyes-Hernandez v.
INS, 89 F.3d 490, 492 (7th Cir. 1996). Selimi suggests that
because his attorney simply conceded excludability gen-
erally, without admitting any facts that would establish
his excludability, the INS remained obligated to prove,
and the Immigration Judge was still required to find, that
he was excludable. But the concession that Selimi’s at-
torney made was in the nature of a judicial admission,
and such an admission has the effect of withdrawing
an issue from controversy. See, e.g., Solon v. Gary Com-
munity School Corp., 180 F.3d 844, 858 (7th Cir. 1999).
Having formally conceded that he was excludable, Selimi
may not now contend that the INS’s proof of excludabil-
ity was insufficient. Cf. Arreola-Arellano v. INS, 223 F.3d
653, 656 (7th Cir. 2000) (“we need not speculate as to how
the INS could have proven deportability, because [peti-
tioner] conceded that he was deportable at his deporta-
tion hearing”).
Selimi contends that the INS coerced him into making
this concession, but we find no merit in this contention.
Selimi points out that the INS successfully opposed his
initial request to transfer the proceedings from New York
to Chicago on the ground that resolution of his excludabil-
ity would require the testimony of officers stationed in
New York; only after Selimi conceded his excludability
was his renewed transfer motion granted. He goes on to
No. 01-1608 11
note that when the IJ in Chicago began to look behind
Selimi’s concession and raised the possibility that he might
allow Selimi to withdraw it (see A.R. 72-73), the INS’s
counsel suggested that if this came to pass the INS would
seek to have the case returned to New York in order to
obtain the testimony of the inspecting agents familiar
with the circumstances of Selimi’s return to the United
States. A.R. 65-66, 70-73. The attorney also refused to
agree to have the agents testify by telephone instead. A.R.
66. In this way, Selimi argues, the INS wrested the con-
cession of excludability from him and prevented him from
withdrawing it.
This vastly overdramatizes the record, however. Given
that its witnesses on the subject of Selimi’s excludability
were in New York, the INS had a plausible basis to argue
that any hearing on that subject should take place in
New York, and the IJ in New York expressly agreed
with that argument when he denied Selimi’s initial re-
quest for change of venue. A.R. 284. Selimi and his attor-
ney then made a calculated decision to concede his ex-
cludability, which paved the way for transfer of the case
to Chicago, and later not to request leave from the Chi-
cago IJ to withdraw that concession. The INS’s avowed
intent to ask that the case be returned to New York
if Selimi withdrew his concession does not strike us as
a particularly lethal threat. Even assuming that the
Chicago IJ was likely to grant such a request, the record
gives us no reason to believe that the prospect of litigat-
ing his excludability in New York rather than Chicago
was so onerous as to render involuntary his decision not
to contest his excludability.
Finally, Selimi contends that the Board improperly
denied his request for a waiver of excludability pursuant
to section 212(d)(11). That provision grants the Attor-
ney General discretion to waive an alien who is excludable
for alien smuggling pursuant to section 212(a)(6)(E)(i)
12 No. 01-1608
so long as “the alien has encouraged, induced, assisted,
abetted, or aided only . . . the alien’s spouse, parent, son,
or daughter (and no other individual) to enter the United
States in violation of law.” 8 U.S.C. § 1182(d)(11) (emphasis
added). As we noted above, both the IJ and the Board
concluded that Selimi was not qualified for the waiver
because he had aided the attempted entry of his cousin
as well as his wife and children. Selimi suggests that
because his primary objective was to assist the entry
of his wife and children, he should remain eligible for
the waiver notwithstanding the fact that his cousin at-
tempted to gain entry into the United States along with
his immediate family. To the extent that the IJ and the
Board deemed whatever incidental aid and assistance he
may have provided to his cousin disqualifying, they com-
mitted legal error, in Selimi’s view, by interpreting sec-
tion 212(d)(11) too rigidly.
However, the plain terms of section 212(d)(11) render
an alien ineligible for a waiver of excludability if he
has aided someone other than his spouse, parent, son, or
daughter. Indeed, the statute’s use of the limiting term
“only,” which it reinforces with the parenthetical “and no
other individual,” leaves no doubt that the alien cannot
have aided anyone but a parent, spouse, or child in order
to be eligible for the waiver. Furthermore, the statute
draws no distinction between an alien’s principal and lesser
objectives in helping a group of individuals to enter the
country, nor does it differentiate among degrees of as-
sistance. Here, the IJ specifically found that Selimi had
encouraged and assisted his cousin’s attempted entry
along with that of his wife and children, and the Board
sustained that finding. A.R. 3, 35. Our review of that
factual finding is deferential: we will uphold the BIA’s
determination so long as it has the support of “ ‘reasonable,
substantial, and probative evidence on the record con-
sidered as a whole.’ ” INS v. Elias-Zacarias, 502 U.S.
No. 01-1608 13
478, 481, 112 S. Ct. 812, 815 (1992), quoting 8 U.S.C.
§ 1105a(a)(4) (repealed). In view of the evidence, which
reveals not only that Suzana Kuqo traveled with Selimi
and his family but did so using a passport that listed one
of Selimi’s daughters as her own child, the Board’s find-
ing was amply justified and we are not at liberty to dis-
turb it.
III.
For all of these reasons, we dismiss Selimi’s petition for
review of the Board’s order.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-4-02