Wednesday, September 6, 2005
Court Allows Two Convicted in Bomb Plot to Keep Citizenship
By KENNETH OFGANG, Staff Writer/Appellate Courts
A federal judge did not commit clear error when she allowed two local men who faced deportation for their involvement in a terrorist plot more than 20 years ago to become naturalized citizens, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In a unanimous en banc decision, the court—which last year reversed Senior U.S. District Judge Mariana R. Pfaelzer’s ruling in favor of Viken Hovsepian and Viken Yacoubian and ordered the judge to hear additional evidence—said the government failed to show that any of Pfaelzer’s factual findings on remand were erroneous.
Pfaelzer swore the two men in as citizens in August 2000, months after ordering that the records of their convictions be sealed, that the Immigration and Naturalization Service be enjoined from relying on post-1985 changes in immigration law to deport them.
That order came 14 years after Pfaelzer sentenced the pair 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 for which the two men 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 Actówhich the judge found applicable because the men were less than 26 years of age when they committed the crimesóand granted them citizenship.
That ruling was reversed in 2002 by a divided three-judge panel.
That court 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 the panel said it was up to the INS, not the district judge, to determine whether they remained deportable.
Last year, the en banc panel disagreed in part, saying Pfaelzer had “exclusive jurisdiction” to decide whether the two should be naturalized. But Judge Susan Graber, who authored that decision as well as the one handed down yesterday, said the district judge could not ignore their criminal convictions in making that determination.
Even an expunged conviction is relevant to the “moral character” of an applicant for citizenship, Graber said. She also concluded that the judge could not ignore changes in the applicable law, but noted that Congress expressly excluded pre-1990 convictions from the provision making an aggravated felony conviction an absolute bar to naturalization.
The en banc panel retained jurisdiction over the case and gave Pfaelzer 120 days to take additional evidence and make new findings. In doing so, she again found that the men possessed good moral character, citing their years of law-abiding activity, the respect they enjoyed in the community, and their renunciation of violence and advocacy of Armenian democracy and Armenian-Turkish dialogue.
Graber said yesterday that those findings are entitled to deference under the “clearly erroneous” standard, which generally governs findings of fact by district judges under the Federal Rules of Civil Procedure, and are consistent with congressional intent that a felony conviction not preclude a finding of good moral character in all circumstances.
The case is United States v. Hovsepian, 99-50041.
Copyright 2005, Metropolitan News Company