Petition for Review of an Order of the Board of Immigration Appeals No. A 42 919 715
Before Rovner, Diane P. Wood, and Williams, Circuit
The opinion of the court was delivered by: 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.
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 immigration status by the Immigration and Naturalization Service ("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-substituted) 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 statement 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 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 inspectors would have to testify. A.R. 284. Selimi subsequently renewed his change of venue motion, this time conceding 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 immigration 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 immigration judge subsequently conducted an evidentiary hearing on Selimi's request for a waiver of excludability. A.R. 48. *fn1 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 submitted a statement likewise averring that Mrs. Selimi had 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. *fn2 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 Macedonia 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 Macedonia 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 obtained 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 pressure" from her not to leave her in Macedonia. A.R. 63; see also A.R. 59, 75. *fn3 "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 traveling 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 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 documentation, 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 suggested 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 demurred, 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 telephone. 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 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 attempted 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 under the statute, the applicant does not qualify for a waiver of his excludability inasmuch as he also encouraged, 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 relying 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 suggestions 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 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 excludable, 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 subsequently returned to the United States ...