Tuesday, October 1, 2002
Ninth Circuit Overturns Ruling Granting Citizenship to Armenians Involved in Consulate Bomb Plot
By KENNETH OFGANG, Staff Writer/Appellate Courts
A federal judge should not have granted citizenship to two local men in an effort to prevent the government from deporting them for their involvement in a terrorist plot 20 years ago, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Senior U.S. District Judge Mariana Pfaelzer abused her discretion by granting naturalization petitions by Viken Hovsepian and Viken Yacoubian, Judge Diarmuid F. O’Scannlain wrote for the court, without requiring them to exhaust administrative remedies. Judge Andrew Kleinfeld concurred, but Senior Judge Dorothy W. Nelson dissented.
O’Scannlain 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, he said.
“Judicial sympathy only functions within prescribed parameters of the law,” he said.
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 of which Hovsepian and 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.
Pfaelzer expressed some sympathy for the defendants at the time of sentencing, saying that while their crimes were serious and merited incarceration, the men 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 Congress provided in Sec. 602(c) of the Immigration Act of 1990 that aliens convicted of certain offenses, including unlawful possession of a destructive defense, were deportable even if “the facts…occurred before the date of the enactment of this Act.”
That section did not specifically refer to JRADs, and Yacoubian sought to enjoin his deportation on the ground that the JRAD remained a bar. Pfaelzer agreed, but the Ninth Circuit reversed in 1994.
Both men sought to block deportation through a variety of civil, criminal and administrative proceedings, including motions to vacate or “correct” their underlying sentences. Pfaelzer agreed that the new immigration law rendered the original sentences unjust, and ordered the men resentenced and their 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.
The appellate panel, however, ruled that Hovsepian could not be resentenced under the FYCA because the judge made a specific finding at the time of sentencing that youthful offender treatment was not appropriate. And while the government conceded that Yacoubian’s conviction could be expunged because no such finding was made as to him, the court held that it was not up to the district judge to determine whether the expunged conviction may be used as a basis for deportation.
That issue could be addressed by the INS on remand, the judge suggested in a footnote.
Nelson, dissenting, said the majority “did not make sense” in concluding that the district judge lacked discretion to grant the naturalization petitions. Since the INS did not rule on the applications within 120 days of the initial interviews, she said, the operative statute left it up to Pfaelzer to decide whether to rule on the petitions in the first instance or remand to the INS.
O’Scannlain acknowledged that the INS had breached the 120-day limit. But judicial discretion in such cases is not unlimited, he said, concluding that remand is required because the agency’s delay in ruling was not of undue length and was due largely to the reluctance of the applicants to answer questions about their activities since release from prison and the pendency of the other legal proceedings.
The case is United States v. Hovsepian, 99-50041.
Copyright 2002, Metropolitan News Company