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Bakarian v. Mukasey

September 4, 2008

ARTHUR G. BAKARIAN, PETITIONER,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals. No. A43 003 461.

The opinion of the court was delivered by: Manion, Circuit Judge.

ARGUED MAY 29, 2008

Before FLAUM, MANION, and EVANS, Circuit Judges.

Arthur Bakarian, a native of the former Soviet Union, was charged with being removable as having been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct under Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"). Bakarian filed for cancellation of removal and waiver of inadmissibility.

The Immigration Judge ("IJ") denied Bakarian's application, and the Board of Immigration Appeals ("BIA") affirmed. Bakarian petitions this court for review, and we DENY his petition for review.

I.

On June 9, 2005, the Department of Homeland Security ("DHS") initiated removal proceedings against Bakarian by filing a Notice to Appear in immigration court, charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. The Notice alleged that Bakarian was a native and citizen of Ukraine who was admitted to the United States on or about May 25, 1993, as an immi-grant. The Notice continued to list four separate convictions for forgery, intimidation of a victim, and two thefts of property, noting that those "crimes did not arise out of a single scheme of criminal misconduct."

Bakarian appeared before the IJ on September 6, 2005, and admitted, while under oath, the allegations set forth in the Notice. Bakarian stated that he first came to the United States in 1989, then went back to Moscow to study, and received his permanent resident visa in 1993. The IJ then went through each of the four convictions listed on the notice. The first was a forgery conviction from a Wisconsin state court on November 13, 2003, and Bakarian explained that this offense involved a stolen check. The second was a November 13, 2003, Wisconsin state court conviction for the offense of "Intimidate Victim/Dissuade Reporting," which Bakarian stated occurred while he was out on bond on the forgery charge. He violated one of the conditions of his bond, which was not to have contact with the victims. The third conviction was a September 25, 1996, conviction from the municipal court in Los Angeles County, California for theft on September 18, 1996. The final conviction was also a Los Angeles County theft conviction for a theft on August 3, 1996. Regarding the first of these thefts, Bakarian stated that he had left his father's house and was hungry so he stole some meat, and the second theft he stole vodka. In an attempt to ascertain whether Bakarian was eligible for cancellation of removal as a permanent resident, the IJ questioned Bakarian about when he entered the country. The IJ gave Bakarian an application to file for cancellation of removal and directed Bakarian to fill out the application and bring it back to the IJ on September 14, 2005. The IJ also requested from DHS a copy of Bakarian's immigrant visas, evidence showing that Bakarian was first here in 1989, and the government's position on whether Bakarian was eligible for cancellation of removal. The IJ continued the hearing until September 14, 2005.

On September 14, 2005, Bakarian again appeared before the IJ, and this time he submitted an application for cancellation of removal. According to his application for cancellation of removal, Bakarian entered the United States on November 15, 1987, as a B-2 visitor, and left that same year to return to the Soviet Union. Bakarian also stated on his application that he came back to the United States on August 20, 1989, as a lawful permanent resident. However, documentary evidence from DHS established that he did not come back into this country until March 5, 1990. In response to the IJ's inquiry, the government stated that it had no record of Bakarian obtaining residency in 1989. Despite the 1990 date on his immigrant visa and no documentation of an entry into the United States in 1989, Bakarian insisted to the IJ that his first entry into the United States as a lawful permanent resident took place in 1989. At some point after attaining lawful permanent residence status, Bakarian testified that he returned to Moscow, where his passport had been stolen. Bakarian testified that he got his replacement green card in 1992 and returned to the United States in 1993. Towards the end of the hearing, Bakarian requested that his case be transferred to Los Angeles, California, where he stated his father was in the hospital, paralyzed after a heart attack. The IJ responded:

Sir, here's the difficulty you face. In order to be eligible for cancellation of removal, you have to have resided in the United States for seven years after a lawful admission and prior to committing any deportable offenses. Now, if you got your resident status in 1989, you would have to show that you have a clean record for seven years after that even to apply for cancellation of removal. The Government attorney is contending that you didn't get your resident status until 1990, and your conviction records show that you were convicted of theft in August of '96 and September of '06, and you would not have accumulated the seven years necessary to apply for cancellation of removal. So it's very critical to try to come up with some evidence to show whether you really got your visa in 1989 or was it the year [1990], because the Government records that they have submitted to the Court today show that you got your residence in 1990.

The IJ had found that Bakarian was deportable because of his criminal record, and told Bakarian that he "thought you might be eligible to apply for cancellation of your removal, and that's why I provided you that application, but if you don't have seven years in the United States prior to commission of your criminal offense, then you would not be eligible for cancellation of removal, and the record shows that you do not have seven years." The IJ asked Bakarian if he had an attorney, and Bakarian responded that he did not and was not eligible for representation from legal aid. The IJ then stated,

What I'm going to do is find that you're not eligible to apply for cancellation of removal, because you can't meet the requirements for that benefit. And what I'll do is I'll just dictate a decision. I'm going to have the officer fax your application to your Court. And then you will decide whether or not you want to appeal my decision or not. Now, you get to designate to which country you would be deported to, but if that country won't accept you, then alternatively you will be deported to the Ukraine.

The IJ then notified Bakarian of various options that he might pursue to seek a waiver of removal. The IJ set the next hearing for September 27, 2005, on Bakarian's application to transfer his case to Los Angeles, his eligibility for waiver of removal under Section 212(c) of the INA, and whether his eligibility for cancellation of removal "is going to be held."

On September 27, 2005, the IJ reconvened Bakarian's hearing. The IJ noted that the government had presented two immigrant visas for Bakarian: one dated March 5, 1990, and a second dated May 25, 1993. Bakarian stated that he got a stamp in his passport from the United States embassy in Moscow in August 1989 and that passport had been stolen. In response to the IJ's query, Bakarian stated that he did not remember when he came into the United States. Bakarian did acknowledge that the document stating that the first time he entered the United States in 1990 was right, but stated that he came as a visitor in 1987 staying for six or seven months. Bakarian testified that he then went back to the Soviet Union to finish some business there for two months and then returned to the United States as a visitor for another six months. (He had not testified to these departures at the prior hearing nor listed them on his application for cancellation of ...


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