U.S. Rmmigration and Customs Enforcement
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qf!ice o/the Chie/Counsel U.S. Department ofHomeland S{~curity 970 Broad SLn~et, Room II 04B Newark, N.J. 07102 Tel. No. (973) 645·2318 Fax No. (973) 622-7997 u.s. rmmigration and Customs Enforcement July 29, 2008 Immigration Judge Riefkohl 970 Broad Street, Room 1135 Newark, NJ 07102 Re: Mohammad Qatanani A76-133-969 Dear Immigration Judge Riefkohl: Attached please find a copy ofthe Department ofHomeland Security's trial brief(Tab A). Also, as you will recall, at the individual hearing, you requested a copy ofthe report prepared by FBI Special Agent Alicea following his February 7, 2005 interview ofthe respondent. Unfortunately, I was not able to secure that document, but I was able to obtain Special Agent Philpott's report ofthe same interview, and it is attached hereto (Tab B). ;p:~ Alan Wolf Senior Attorney www.dhs.gov Qf}7ce o/the Chie/Counsel U.S. Department ofHomelllnd S(~c!lrity 970 Broad SLn:et. Room II 04B Newark, N.J. 07]02 Tel. No. (973) 645-23] 8 Fax: No. (973) 622-7997 u.s. rmmigration and Customs Enforcement July 29, 2008 Immigration Judge Riefkohl 970 Broad Street, Room 1135 Newark, NJ 07102 Re: Mohammad Qatanani A76-133-969 Dear Immigration Judge Riefkohl: Attached please find a copy ofthe Department ofHomeland Security's trial brief(Tab A). Also, as you will recall, at the individual hearing, you requested a copy ofthe report prepared by FBI Special Agent Alicea following his February 7, 2005 interview ofthe respondent. Unfortunately, I was not able to secure that document, but I was able to obtain Special Agent Philpott's report ofthe same interview, and it is attached hereto (Tab B). ~w Alan Wolf Senior Attorney www.dhs.goY { Index ofAttachments A- DHS Trial Brief Pages 1-21 B- Special Agent Philpott's Report ofInvestigation Pages 22-29 www.dhs.gov UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT: NEWARK, NEW JERSEY ------------------------------------------------------------------------X IN THE MATTER OF MOHAMMAD QATANANI, A76-133-969 IN REMOVAL PROCEEDINGS. ------------------------------------------------------------------------X DRS TRIAL BRIEF The Department of Homeland Security (DHS) respectfully submits this brief in support of its position that the respondent is ineligible for adjustment of status under INA §245. The status of an alien who has been inspected and admitted or paroled may be adjusted to that of an alien lawfully admitted for permanent residence ifthe alien makes an application for such adjustment, the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and an immigrant visa is immediately available to him at the time his application is filed. INA §245(a). The respondent is ineligible for adjustment of status because he is not admissible to the United States. The respondent is not admissible because: 1) he has by fraud or willfully misrepresenting a material fact, sought to procure a visa, other documentation, or admission into the United States or other benefit provided under the Immigration and Nationality Act, see INA §212(a)(6)(C)(i), and 2) because he has engaged in terrorist activity, see INA §212(a)(3)(B)(i)(I). The fact that the respondent has not been charged with being being deportable from the United States pursuant to INA §237(a)(4)(B) is ofno consequence to his inadmissibility under INA §212(a)(3)(B)(i)(I), since deportability has been established as charged in the Notice to Appear, and therefore the respondent bears the burden ofproof as to eligibility for the requested relief. See 8 C.F.R. 1240.8(d). In addition to the two above grounds of inadmissibility, the respondent is ineligible for adjustment of status because he is deportable under INA §237(a)(4)(B). See INA §245(c)(6). An alien is deportable under INA §237(a)(4)(B), inter alia, if he is described in INA §2l2(a)(3)(B). The respondent is further ineligible for adjustment ofstatus because he has been employed in the United States without the authorization of the DHS. See 8 CFR l245(b)(1 0). These grounds of inadmissibility and ineligibility will be further addressed below. The respondent shall have the burden of establishing that he or she is eligible for any requested benefit or privilege and that it should be granted in the exercise ofdiscretion. If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance ofthe evidence that such grounds do not apply. 8 CFR §l240.8(d). DHS further submits that even if the Court were to determine that the respondent was eligible for adjustment of status, his application should nevertheless be denied as a matter ofdiscretion. This position will also be further discussed below. 1. THE RESPONDENT IS INADMISSIBLE PURSUANT TO INA §2l2(a)(6)(C)(i). The respondent is inadmissible to the United States pursuant to INA §2l2(a)(6)(C)(i) because he has by fraud or willfully misrepresenting a material fact sought to procure a visa, other documentation, or admission into the United States or other benefit 2 provided under the Immigration and Nationality Act. The respondent willfully made at least two material fraudulent misrepresentations on his application for adjustment of status (I-485) which he signed on March 25, 1999, and which was filed with the Immigration and Naturalization Service in April 1999. The application directs the applicant, in relevant part, to: Please answer the following questions. (Ifyour answer is "Yes" on anyone ofthese questions, explain on a separate piece of paper. Answering "Yes" does not necessarily mean that you are not entitled to register for permanent residence or adjust status.) 1. Have you ever, in or outside the U.S.: b. been arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations? 4. Have you ever engaged in, conspired to engage in, or do you intend to engage in, or have you ever solicited membership or funds for, or have you through any means ever assisted or provided any type ofmaterial support to, any person or organization that has been engaged or conspired to engage, in sabotage, kidnapping, political assassination, hijacking, or any other form of terrorist activity? The respondent answered "no" to both questions. Additionally, the DHS submits that the respondent made further material misrepresentations at his May 16, 2006, adjustment of status interview before U.S. Citizenship and Immigration Services (USCIS). The misrepresentations made at the USCIS interview were detailed in the September 11, 2007, affidavit from Professor Amos Guiora, and in his testimony before the Court. A. Contrary to Respondent's 1-485 assertion, he was arrested, indicted, and imprisoned. 3 The DHS has submitted evidence that establishes that on December 12, 1993, in the Shechem Military Court, in the West Bank, the respondent was convicted of 1) Membership in an Illegal Association, to wit, Hamas, in violation of Regulation 85(1) of the Defense (Emergency) Regulations, 1945, and 2) Performing a Service for an Unlawful Association, also in violation of Regulation 85(1) ofthe Defense (Emergency) Regulations, 1945. DHS submitted 3 documents establishing the respondent's criminal conviction in the military court system. These documents are 1) the May 3, 2005 letter from Osnat Hershler addressed to the Federal Bureau of Investigation, 2) the verdict and criminal record, and 3) the Indictment and Protocol. 1. May 3, 2005 Letter In his May 3, 2005 letter, with the Subject being noted at top as being "Mohamed Qatanani," Osnat HersWer, Superintendent Liaison Officer with the Israel Police Intelligence Department Special Operations Division stated, "Please be informed that the aim subject is in possession of ID. Nr. 995600459. In 1993 he was convicted for membership in an illegal organization and sentenced to 3 months imprisonment, 12 months imprisonment suspended for 3 years." U.S. Department of State Officer Thomas Rhodes certified the authenticity ofthis letter on February 15, 2007. This letter reasonably indicates the existence of a criminal conviction. See 8 CFR §1003.41 (d). In the first instance, it should be noted that the ID Number noted in the letter, 4 995600459, is the same as that on the Identification Card that the respondent produced in Court during cross-examination on June 2, 2008, and which he submitted to the Court by cover letter dated June 13, 2008. The reliability of the letter's information is further buttressed by the fact that the Department of State authenticated the letter. Moreover, /J Professor Guiora testified that the Israeli National Police is charged with maintaining // criminal history information. 2. Verdict and Criminal Record With respect to the verdict and criminal record, Chief Inspector Liat Lev-Ary certified these documents on September 7, 2005. Ms. Lev-Ary attested that she is authorized by the laws of Israel to attest to the records, that the records are true copies of original official records which are recorded or filed with the Israel National Police and which set forth matters required by law to be recorded or filed and reported. U.S. Department of State Foreign Service Officer Tom Rhodes verified Ms. Lev-Ary's attestation on October 12, 2007. The documents have been certified in accordance with 8 CFR §1287.6(b), which specifies that: (1) In any proceeding under this chapter, an official record or entry therein, when admissible for any purpose, shall be evidenced by an official publication thereof, or by a copy attested by an officer so authorized. This attested copy in turn may but need not be certified by any authorized foreign officer both as to the genuineness of the signature of the attesting officer and as to hislher official position.