Wednesday, June 8, 2005
Ninth Circuit Upholds Deportation of Croatian Activist, Says Anti-Terror Law Does Not Allow Waivers
By KENNETH OFGANG , Staff Writer/Appellate Courts
The Ninth U.S. Circuit Court of Appeals yesterday upheld an order for the deportation of a Croatian activist convicted 25 years ago of participating in a hostage-taking incident at the German consulate in Chicago.
Bozo Kelava did not contest the Board of Immigration Appeals finding that he was deportable for having engaged in terrorist activity. But he contended that he was entitled to seek a discretionary waiver of deportation.
The Ninth Circuit rejected his claim in an opinion by Judge Michael Daly Hawkins, who said that a 1996 law barring terrorists from seeking waivers applies without regard to when the terrorist activity occurred.
Kelava, a fervent anti-Communist linked to the Croatian People’s Resistance—which sought the independence of Croatia from what was then Yugoslavia—was one of two gunmen arrested after seizing the consulate in 1978.
Witnesses testified that the men demanded to communicate with Stjepan Bilandzic, a Croatian being held in Cologne, West Germany. They eventually were able to talk to Bilandzic on the telephone and ended the siege after 10 hours.
A news account of the incident said the men told Bilandzic they were prepared to throw the hostages out the window. Kelava was originally charged with kidnapping, was but was convicted of the lesser charge of imprisonment of a foreign national, specifically the vice consul.
Kelava was sentenced to 30 months imprisonment. He subsequently sought naturalization, only to have the INS commence deportation proceedings 20 years after his trial. An immigration judge found that he was deportable as an aggravated felon and a terrorist, and that he was ineligible for a discretionary waiver, known as a Sec. 212 waiver for the section of the Immigration and Nationality Act that formerly authorized the attorney general to grant it.
The BIA, addressing only the terrorism issue, upheld the deportation order and ruled that under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, a person found deportable due to terrorist activity could not qualify for a Sec. 212 waiver.
In concluding that the BIA was correct, Hawkins distinguished Immigration and Naturalization Service v. St. Cyr(2001) 533 U.S. 289.
St. Cyr dealt with a similar IIRIRA provision, precluding Sec. 212 waivers for persons convicted of aggravated felonies. The high court ruled that waivers could still be granted to those whose aggravated felony convictions were based on pre-AEDPA plea agreements.
The high court reasoned that application of the new law would alter the expectations that a defendant had at the time he or she entered into the plea agreement, and would thus constitute a retroactive application of the statute. Since Congress did not express an intent to apply the law retroactively, the justices said, the presumption against statutory retroactivity applied.
Hawkins, writing yesterday for the Ninth Circuit, noted that St. Cyr did not resolve the question of whether Sec. 212 waivers were available to defendants convicted of aggravated felonies after trial, prior to IIRIRA. But the Ninth Circuit, the judge noted, has answered that question in the negative, reasoning that the availability of a Sec. 212 waiver, or the lack thereof, could not have impacted the defendant’s decision to commit the crime or the vigor of his or her defense.
“It is just that sort of argument that Kelava would have to make...he would have to assert that he would not have committed the terrorist activity in 1978 if he had known that he might become ineligible for discretionary relief from removal,” Hawkins explained.
Judges Andrew J. Kleinfeld and Susan P. Graber concurred in the opinion.
The case is Kelava v. Gonzalez, 03-73689.
Copyright 2005, Metropolitan News Company