Monday, April 12, 2010

Third Circuit partially overturns Matter of V-K-, 24 I&N Dec. 500 (BIA 2008)

 "We hold that the BIA erred in reviewing the finding of a probability of torture de novo; it was required to review the factual aspects of that inquiry for clear error, and it was entitled to review only the legal aspects of the inquiry de novo."

"Petitioner Vadim Kaplun, a citizen of the Ukraine, petitions for review of four decisions of the Board of Immigration Appeals resulting in a final order of removal that designated him removable for having committed an aggravated felony, denied him withholding of removal by virtue of having committed a particularly serious crime, and reviewed de novo and reversed the Immigration Judge’s finding of a clear probability of future torture if Kaplun were removed. He contends that the Government did not prove he committed an aggravated felony by clear and convincing evidence; as a non- violent, white collar offense, his offense was not a particularly serious crime; and the BIA applied an improper de novo standard of review to the IJ’s finding that Kaplun’s torture if removed would be probable. We conclude that the BIA was correct on the first two issues, but applied an incorrect standard of review on the third. Accordingly, we deny the petition for review on the first two claims, and grant it on the third claim.

Kaplun is a native of the Ukraine who was admitted to the United States in 1977 as a seven-year-old refugee. He later became a legal permanent resident. In 1997 and 1998 he was charged and convicted in two federal criminal proceedings based on his participation in fraudulent stock schemes.

For reasons desribed below, only the 1998 conviction is at issue here. Kaplun there pled guilty to an information1 alleging securities fraud with losses of nearly $900,000 under 15 U.S.C. §§ 77q, 77x, and 18 U.S.C. § 2. Per the pre-sentence investigation report (PSR), the total loss for the 1998 offense was described as “at least $700,000 and less than $1,000,000.” The $700,000 figure was used twice more in the PSR to calculate the specific offense level2 and to calculate the maximum fine. Defense counsel made no objection to the PSR. After the District Court adopted the PSR (save for two exceptions not relevant here) and granted a downward departure, the undisputed Guideline range was 51–63 months’ imprisonment. Kaplun was sentenced to 56 months’ imprisonment for the 1998 conviction, but a fine was waived because of his inability to pay.

The Government began removal proceedings against Kaplun in 2001 based on the 1997 and 1998 convictions. He denied removability and later submitted an application for asylum. The Government produced the judgment of conviction, the PSR, and the information to establish the 1998 conviction and its surrounding facts. No plea colloquy was produced, though Kaplun does not deny that he pled guilty to the single- count information.

In his application for asylum, Kaplun claimed that, as a Jewish refugee, he would be subjected to persecution and torture if he were removed to the Ukraine. In support of his claims, he procured an expert witness to give testimony on anti-Semitism in the Ukraine. This expert gave detailed testimony on the situation and voiced disagreement with various Government reports on the extent of anti-Semitism in that country. He also testified that Kaplun would be unable to gain citizenship, get a job, rent an apartment, or even buy a train ticket. It was his expert opinion that Kaplun would be living on the street, destitute, and would be targeted for extortion and torture.

In an April 2004 ruling, the IJ found Kaplun removable based on his prior convictions (though it was unclear which of the two convictions qualified), but granted withholding of removal and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading  Treatment or Punishment (“CAT”),3 crediting the testimony of Kaplun’s expert. Despite this, Kaplun appealed the part of the ruling that found him removable. The Government cross- appealed the part of the ruling granting withholding of removal.

Third Circuit partially overturns Matter of V-K-, 24 I&N Dec. 500 (BIA 2008)
(Opinion filed: April 9, 2010)

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