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Ghani v. Holder

March 9, 2009

ANWER M. GHANI AND SHABBIR ANWER, PETITIONERS,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petition for Review of Orders of the Board of Immigration Appeals. Nos. A22-685-870, A76-77-825.

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

SUBMITTED JANUARY 24, 2008

Before POSNER, RIPPLE and TINDER, Circuit Judges.

Anwer M. Ghani and his son, Shabbir Anwer, were issued separate notices to appear in immigration court to face charges of removability.*fn1 An immigration judge determined that both men were subject to removal because they had overstayed their visas. The immigration judge also found that neither of the men was eligible for cancellation of removal and, therefore, entered orders of removal. Mr. Ghani's application for voluntary departure was denied; Mr. Anwer's application was granted. The Board of Immigration Appeals affirmed the immigration judge's decisions without opinion. Mr. Ghani and Mr. Anwer timely petitioned this court for review. For the reasons explained below, we deny their petitions.

I. BACKGROUND

A.

Anwer M. Ghani and his now-adult son, Shabbir Anwer, are natives and citizens of Pakistan. On October 5, 1991, they were admitted to the United States as non-immigrant visitors with permission to remain until April 4, 1992. They overstayed their visitor visas and, on February 13, 2003, they were issued separate notices to appear in immigration court to face charges of removability. Mr. Ghani was released on a $5000 bond; Mr. Anwer was released on his own recognizance.

Mr. Ghani had attempted to enter or to remain unlawfully in the United States on two previous occasions. On October 1, 1978, Mr. Ghani entered the United States on a non-immigrant visa. He overstayed that visa; after he was apprehended, he departed on August 20, 1984, on a grant of voluntary departure.

On March 3, 1988, Mr. Ghani was caught attempting to enter the United States at Seattle International Airport using an altered passport bearing the name "Abdul Ghaffar." He pleaded guilty to making a false statement in violation of 18 U.S.C. § 1001. He was ordered removed to Pakistan on April 29, 1988. Mr. Ghani did not disclose this conviction when he re-entered the United States in 1991.

B.

The removal proceedings in the present case began on April 11, 2003. Before the immigration judge ("IJ"), Mr. Ghani conceded the first four of the seven factual allegations against him: that he is not a native and citizen of the United States; that he is a native and citizen of Pakistan; that he was admitted to the United States on October 5, 1991, as a non-immigrant visitor; and that he overstayed his visa without INS authorization. Mr. Ghani denied the last three allegations: that he previously was ordered removed in 1988; that he was removed or that he departed pursuant to that order on April 29, 1988; and that he was convicted of making false statements under 18 U.S.C. § 1001. Mr. Ghani also admitted the Government's first charge of removability: that he overstayed his visa. He denied the Government's other two charges: that he previously had been removed and that he was convicted of a crime involving moral turpitude. Mr. Anwer admitted that he was subject to removal because he had overstayed his visa. Both men also indicated to the IJ that they would seek relief in the form of cancellation of removal under section 240A(b) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229b(b), with Mr. Anwer's eligiblity for relief contingent upon a grant of relief to Mr. Ghani.

The IJ determined that the first charge against Mr. Ghani, based on the overstayed visa, had been proved by clear and convincing evidence. The judge did not sustain the second charge, based on Mr. Ghani's previous removal, because that removal was the result of exclusion proceedings rather than removal proceedings. The IJ concluded that the third charge, based upon Mr. Ghani's previous conviction, could not be sustained because Mr. Ghani already had been deported for that conviction.

The IJ further determined that Mr. Ghani was not eligible to apply for cancellation of removal under INA section 240A(b), 8 U.S.C. § 1229b(b), because his conviction for making false statements in violation of 18 U.S.C. § 1001 was for a crime involving moral turpitude.*fn2 The IJ also denied Mr. Ghani's request for voluntary departure because he found that Mr. Ghani had "disregarded the immigration laws of the United States." A.R. 37. The IJ based this finding on two grounds: (1) Mr. Ghani's failure to mention, in his most recent application for a B-1 visa, that he had been convicted of an offense; and (2) Mr. Ghani's repeated attempts to enter or to remain illegally in the United States.

Regarding Mr. Anwer, the IJ found that the charge against him had been proved by clear and convincing evidence. The IJ denied his application for cancellation of removal because he had no "qualifying relative" under INA section 240A(b)(1)(D), 8 U.S.C. ยง 1229b(b)(1)(D). ...


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