516 F. App'x 894
11th Cir.2013Background
- Song challenges a DHS FARO under INA after a conviction under 8 U.S.C. §1324(a)(1)(A)(iv) and 18 U.S.C. §371 plus aggravated identity theft.
- Conviction involved conspiracy to encourage/induce aliens to reside in the United States and produced false Georgia driver’s licenses.
- INA §1101(a)(43)(N) defines aggravated felony to include offenses described in §1324(a); Song’s conviction falls within this scope.
- DHS began expedited removal despite Song’s pending adjustment of status; the court has jurisdiction to review the legality of the decision.
- Song alleges due process violation for not timely providing government evidence under 8 C.F.R. §238.1; record shows limited prejudice and that he could respond.
- Detention challenge under Zadvydas framework; removal period rules apply; petition to review detention is premature at the time of decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Song’s §1324(a)(1)(A)(iv) conviction an aggravated felony? | Song argues it isn’t related to alien smuggling. | DHS contends it falls within the “relating to alien smuggling” scope of §1101(a)(43)(N). | Yes, it is an aggravated felony. |
| Was expedited removal proper with a pending adjustment of status? | Song argues improper to commence expedited removal. | DHS had authority to commence expedited removal despite pending relief application. | DHS did not err; authority exists. |
| Did DHS violate due process by not providing evidence timely under §238.1(c)(1)? | Non-compliance deprived him of a full hearing. | Non-prejudicial under record; he could still respond. | No due process violation; no substantial prejudice. |
| Is Song’s detention beyond the removal period reviewable or premature? | Detention beyond 90 days after removal violates due process. | Detention can occur; petition challenging detention is appropriate. | Challenge to detention is premature; six-month framework not exceeded at filing. |
Key Cases Cited
- Balogun v. U.S. Att’y Gen., 425 F.3d 1356 (11th Cir. 2005) (agency decisions on aggravated felonies reviewed de novo)
- Accardo v. U.S. Att’y Gen., 634 F.3d 1333 (11th Cir. 2011) (aggravated felony determinations reviewed de novo)
- Patel v. Ashcroft, 294 F.3d 465 (3d Cir. 2002) (‘relating to alien smuggling’ is a shorthand for §1324(a) offenses)
- United States v. Galindo-Gallegos, 244 F.3d 728 (9th Cir. 2001) (interpretation of ‘relating to alien smuggling’ broadly includes offenses transporting aliens)
- United States v. Salas-Mendoza, 237 F.3d 1246 (10th Cir. 2001) (scope of aggravated felony under §1101(a)(43)(N))
- United States v. Monjaras-Castaneda, 190 F.3d 326 (5th Cir. 1999) (‘relating to alien smuggling’ phrase encompasses §1324(a) offenses)
- Lonyem v. U.S. Att’y Gen., 352 F.3d 1338 (11th Cir. 2003) (due process requires substantial prejudice in removal proceedings)
- Lapaix v. U.S. Att’y Gen., 605 F.3d 1138 (11th Cir. 2010) (explanation of substantial prejudice standard in removal)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (six-month reasonable removal period for post-removal detention)
- Akinwale v. Ashcroft, 287 F.3d 1050 (11th Cir. 2002) (tolled detention period when alien acts to prevent removal)
- Ibrahim v. U.S. INS, 821 F.2d 1547 (11th Cir. 1987) (due process in deportation hearings)
- Fonseca-Sanchez v. Gonzales, 484 F.3d 439 (7th Cir. 2007) (agency discretion to stay proceedings not mandated)