Wednesday, March 3, 2004
En Banc Ninth Circuit Overturns Naturalization of Men in Bomb Plot
By a MetNews Staff Writer
A federal judge erred in naturalizing two local men who faced deportation for their involvement in a terrorist plot 20 years ago, an en banc panel of the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Judge Susan P. Graber, writing for herself and all 10 of her colleagues on the panel, praised Senior U.S. District Judge Mariana Pfaelzer of the Central District of California for having “dealt admirably with this complex case over a long period of time.” But Graber said Pfaelzer erred when she resentenced the two men, ordered the records of their convictions sealed, and enjoined the Immigration and Naturalization Service from relying on post-1985 changes in immigration law to deport them.
Pfaelzer ordered that both men be granted citizenship in 1999, 14 years after she sentenced them to federal prison camps for plotting to blow up the Turkish consulate in Philadelphia in 1982. Efforts to remove the two Lebanese citizens from this country were described by the judge during an earlier hearing as “nothing short of lunacy.”
The FBI linked the two to the Justice Commandos for the Armenian Genocide, which the bureau blamed for the killing of 21 Turkish diplomats, including the Turkish consul killed in Los Angeles in 1982.
The group advocated violence against Turks in retaliation for the killing of 1.5 million Armenians in the early part of the last century and the refusal of modern-day Turkey to accept responsibility. The Turkish government calls the figure “grossly erroneous” and attributes the deaths of Armenians in that period to “intercommunal” political, rather than ethnic and religious, conflict.
The bomb plot in which Viken Hovsepian and Viken Yacoubian were convicted was exposed after the U.S. Foreign Intelligence Surveillance Court issued a warrant to tap Hovsepian’s telephone.
A co-conspirator was able to get the bomb on board a Los Angeles to Boston flight in October 1982, but was arrested upon landing. The FBI, which seized the bomb, contended that had it been detonated, it would have likely killed thousands of people.
When the pair was sentenced, Pfaelzer said they were “basically of good character.” She rejected calls by federal prosecutors for lengthy sentences, and issued a “judicial recommendation against deportation” for both defendants, who are permanent U.S. residents.
Under pre-1990 immigration law, a JRAD, as it was known, constituted an absolute bar to deportation based on the underlying conviction. But the Ninth Circuit ruled in 1994 that a change in the law mandating deportation for certain offenses took precedence over the JRAD.
Pfaelzer then ordered the convictions expunged under the Federal Youth Corrections Act—which the judge found applicable because the men were less than 26 years of age when they committed the crimes—and granted them citizenship.
A divided three-judge panel ruled in 2002 that even if it was proper to resentence the men as youthful offenders at age 40, it was up to the INS, not the district judge, to determine whether they remained deportable.
The majority acknowledged that Hovsepian, who holds a USC doctoral degree in international relations and manages a hedge fund, and Yacoubian, the principal of a private Armenian school in East Hollywood, “have lived exemplary lives and have become pillars of their communities since their release from prison.” But it is not up to the courts to determine whether that outweighs the seriousness of their crimes, the court said.
Yesterday, the en banc panel disagreed, saying Pfaelzer had “exclusive jurisdiction” to decide whether the two should be naturalized. But Graber said the district judge could not ignore their criminal convictions in making that determination.
Pfaelzer lacked the authority to resentence Hovsepian, Graber said, noting the district judge had ruled her original sentence was based on a mistake of fact—her belief the JRAD would bar deportation. That error was not of “constitutional magnitude” and did not justify resentencing, Graber said.
The government did not challenge the resentencing of Yacoubian. But Graber said Pfaelzer exceeded her authority in ordering all records of his original conviction sealed and barring the INS from using them in arguing that he should be deported.
Even an expunged conviction is relevant to the “moral character” of an applicant for citizenship, Graber said.
There was no basis for the injunction Pfaelzer issued, under which the immigration status of the two men was to be determined under the law in effect at the time of their original convictions, since subsequent changes in immigration law applied retroactively to citizenship applications which were not yet final when the changes went into effect, Graber declared.
Graber said Pfaelzer should reconsider the men’s citizenship application after permitting the INS to introduce evidence relating to their crimes.
The en banc panel said it would retain jurisdiction over the case and gave Pfaelzer 120 days to take additional evidence and forward new factual findings and legal conclusions to the appellate court.
The case is United States v. Hovsepian, 99-50041.
Copyright 2004, Metropolitan News Company