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Muratoski v. Holder

September 20, 2010

ADIL MURATOSKI, PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petition for Review of a Final Order of the Board of Immigration Appeals. A027 615 649.

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

ARGUED APRIL 6, 2010

Before KANNE, ROVNER and TINDER, Circuit Judges.

Adil Muratoski petitions for review of a decision of the Board of Immigration Appeals ("BIA" or "Board"). The BIA denied Muratoski's Motion to Reconsider its earlier decision dismissing his appeal of an Immigration Judge's ("IJ") decision. The IJ denied Muratoski's application for cancellation of removal because he lacked good moral character. Because Muratoski did not preserve the issue he now asks us to review, we deny his petition.

I.

Adil Muratoski is a native and citizen of Macedonia who entered the United States in August 1986. Shortly thereafter, the former Immigration and Naturalization Service ("INS") served Muratoski with an Order to Show Cause, commenced deportation proceedings against him, and charged him with being deportable from the United States as an alien who entered without inspection. During deportation proceedings held later that year, Muratoski admitted he was deportable as charged. He applied for asylum and withholding of deportation. On May 4, 1987, an IJ entered an order*fn1 finding Muratoski deportable and denying his applications for asylum and withholding of deportation. The IJ granted Muratoski the privilege of voluntary departure, with the warning that the voluntary departure would ripen into an order of deportation if Muratoski failed to depart in the time allotted. The BIA dismissed Muratoski's appeal on December 8, 1992, granting him thirty days to depart voluntarily. Muratoski failed to heed that order, and on March 10, 1993, the INS sent Muratoski a letter ordering him to report for deportation.

Unbeknownst to the INS, Muratoski had been working another angle in his bid to stay in the United States. In September 1992, while his case was on appeal with the Board, he met an immigration attorney at a restaurant. The attorney, whose name Muratoski no longer recalls, offered to help Muratoski become a citizen for a $3500 fee. Muratoski paid the fee and signed papers prepared by his new lawyer. The attorney accompanied him to the post office where he applied for a United States passport using a falsified birth certificate purporting that he had been born in Chicago. After his passport arrived in the mail, Muratoski continued to live in the United States for another thirteen or fourteen years without detection. During that time, he used the passport to depart and re-enter the United States multiple times, even renewing the passport after it expired.

In December 2006, Immigration and Customs Enforcement ("ICE") apprehended Muratoski at his home in Arlington Heights, Illinois. ICE officials served Muratoski with a Notice to Appear ("Notice"), placing him in removal proceedings. They later served him an amended Notice ("Amended Notice") which charged new grounds of removability. The Amended Notice charged that Muratoski had been granted voluntary departure in 1992 but failed to voluntarily depart within the time allotted. It also charged that Muratoski effectively deported himself when he left the United States subsequent to his deportation. He then erroneously was admitted to the United States in 2002 based on the fraudulently obtained passport. The Amended Notice charged he was removable under 8 U.S.C. § 1227(a)(1)(A) because, at the time of his 2002 entry, he was inadmissible for making a false claim of citizenship, see 8 U.S.C. § 1182(a)(6)(C)(ii), and because he sought admission in 2002 after having been deported, see 8 U.S.C. § 1182(a)(9)(A)(ii). ICE also asserted that Muratoski was removable under 8 U.S.C. § 1227(a)(3)(D), as an alien who falsely represented himself to be a citizen. On February 15, 2007, Muratoski admitted the factual allegations against him in the Amended Notice and conceded removability. Five days later, as we will discuss below, he applied for cancellation of removal.

Continuing his strategy of fighting removal on multiple fronts, on January 8, 2007, Muratoski moved to reopen the 1992 deportation order with the BIA. In that motion, Muratoski asserted that an attorney obtained the passport for him and that he was unaware of the fraudulent nature of the passport. He also maintained that he was eligible for cancellation of removal. The BIA denied the motion to reopen on March 2, 2007, finding that it was unsupported by any evidence. The BIA also found that Muratoski's February 15, 2007 admission of the allegations listed in the Notice to Appear undercut his claim that he believed his passport was genuine.

Returning to the other path to relief that Muratoski pursued, on February 20, 2007, he applied for cancellation of removal. In general, the Attorney General may cancel removal of an alien who is inadmissible or deportable from the United States if the alien, among other things, has "been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date" of an application for cancellation of removal; and "has been a person of good moral character during such period." 8 U.S.C. § 1229b(b)(1)(A)-(B). Section 1101(f) provides a list of persons who are per se excluded from receiving a finding of good moral character. Among the categories excluded are drunkards, gamblers, aggravated felons and persons who assisted Nazi persecutions. Section 1101(f) also contains a "catch-all" provision as well as an exclusion to the catch-all:

The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character. In the case of an alien who makes a false statement or claim of citizenship, or who registers to vote or votes in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of such registration or voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such statement, claim, or violation that he or she was a citizen, no finding that the alien is, or was, not of good moral character may be made based on it.

8 U.S.C. § 1101(f). Under this provision, the fact that a person is not in one of the listed categories does not preclude a finding that the person lacked good moral character. But if a person makes a false claim of citizen-ship, and that person meets the other criteria listed (having U.S. citizen parents, residing in the United States prior to age 16, a reasonable belief that he or she was a citizen at the time the claim was made), then a finding of lack of good moral character may not be based on that false claim of citizenship. Other false claims of citizenship may be the basis of a finding of lack of good moral character. See Guadarrama de Contreras, 24 I. & N. Dec. 625, 627 (BIA 2008) (a person "who has made a false claim of United States citizenship may be considered a person who is not of good moral character," but Section 1101(f) of the Act "does not, however, mandate such an outcome.").

The IJ held a hearing on Muratoski's February 20, 2007 application for cancellation of removal. Muratoski testified that he obtained his passport with the assistance of the unnamed attorney. Muratoski also admitted he had used the passport to travel to and from the United States multiple times between 1992 and 2006. He confirmed that during his 1986 and 1987 deportation hearings, he had conceded that he was a citizen of the former Yugoslavia. He conceded that, although he thought at one time he was a United States citizen, he came to realize he had been mistaken. He testified that he paid the unnamed attorney $3500, signed some papers, and filed them at the post office with the attorney's assistance. After his passport arrived in the mail several weeks later, the attorney told Muratoski he was a United States citizen.

But among the papers he submitted with his passport application was a birth certificate purporting that he had been born in Chicago. Nonetheless, he testified that, at the time, he did not know the document was a birth certificate or that it was false. The IJ apparently did not believe Muratoski's claim of ignorance about the false nature of the documents supplied to gain the passport. He found Muratoski was not eligible for cancellation of removal because he lacked good moral character. See 8 U.S.C. § 1229b(b)(1). The IJ, citing 8 U.S.C. § 1101(f), based ...


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