Arguelles v. U.S. Attorney Gen.
| Decision Date | 23 November 2016 |
| Docket Number | No. 15-13706,No. 15-15481,15-13706,15-15481 |
| Parties | FREDDY JOSE ARGUELLES, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Petitions for Review of a Decision of the Board of Immigration Appeals
Before HULL and MARTIN, Circuit Judges, and WRIGHT,* District Judge.
Freddy Jose Arguelles, a native and citizen of Venezuela and former Venezuelan Air Force pilot, has filed a petition for review of the Immigration Judge's and Board of Immigration Appeals' ("BIA") denial of his applications for asylum, withholding of removal, adjustment of status, and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"). After the BIA ruled, Arguelles sought reopening of his case from the BIA, which was denied. Arguelles filed a separate petition for review of the BIA's denial of reopening. This Court has consolidated his two petitions.
After careful review of the record and the parties' briefs, and with the benefit of oral argument, we deny Arguelles's petitions for review, affirm the BIA's July 23, 2015 final order of removal to Venezuela, and affirm the BIA's December 7, 2015 denial of reopening.
In March 2004, Arguelles entered the United States on a nonimmigrant visitor's visa. Arguelles is a former Venezuelan Air Force pilot. In July 2004, the Department of Homeland Security ("DHS") granted him asylum on the basis that he would be persecuted in Venezuela due to his 2002-2003 participation in demonstrations against President Hugo Chavez and membership in the groupMilitares Democraticos. In 2006, Arguelles's status was adjusted to lawful permanent resident ("LPR").
In the 1980's the United States sold F-16 airplanes to Venezuela, but sales of the parts for those airplanes are now restricted. On June 25, 2012, Arguelles was indicted for knowingly and willfully conspiring to export defense articles, including F-16 parts, designated on the United States Munitions List (the "Munitions List") in violation of the Arms Export Control Act (AECA) in 22 U.S.C. § 2778(b)(2), without first obtaining the required license or written approval from the United States Department of State (the "State Department"). Section 2778 permits the President to designate defense articles and services to the Munitions List and prohibits the export of those items without a license. 22 U.S.C. § 2778(a)(1), (b)(2).
On October 5, 2012, Arguelles pleaded guilty to conspiracy to export defense articles in violation of the AECA, 22 U.S.C. § 2778(b)(2), and 18 U.S.C. § 371. The district court sentenced Arguelles to 23 months' imprisonment. The "stipulated factual basis" accompanying Arguelles's plea agreement contains the following facts.
Arguelles admitted that he, a former military pilot, and Alberto Pichardo, another former Venezuelan Air Force officer living in the United States,knowingly and willfully conspired, from January 2009 until February 2010, to procure and supply to the Venezuelan Air Force defense articles designated on the Munitions List. Arguelles and Pichardo did not obtain a license or written approval from the State Department to make such sales.
Co-conspirators from outside the United States informed Arguelles and Pichardo that the Venezuelan Air Force wished to purchase certain defense articles. Arguelles and Pichardo attempted to procure the requested items from Phillip Klokke, a government informant.1 Pichardo sent these five emails to Klokke regarding items on the Munitions List: (1) on or about January 23, 2009, discussing F-16 ejection seats and F-16 munitions, including AIM-9 Sidewinder missiles, Python-4 missiles, rocket launchers, 250-pound bombs, 500-pound bombs, Paveway laser-guided bomb kits, .50 caliber ammunition for Gatling guns, AMRAAM missiles, and AGM-54 missiles; (2) on or about February 23, 2009, seeking aircraft parts, including Cartridge Assemblies, Detonation Transfer Assemblies, and Initiators; (3) on or about March 27, 2009, resending the February 23 list; (4) on or about August 4, 2009, listing F-16 aircraft parts such as Rocket Motor Canopy Jettisons, Cartridge Assemblies, Drive Shafts, Bulkheads, LPRF Radars, XMTR Radars, Radar Antennas, and Oxygen Mask Facepieces; and (5) on or about October 23, 2009, discussing other F-16 parts, including radar equipment.
On or about September 22, 2009, Arguelles, Pichardo, and a co-conspirator, "K.L.,"2 attended a meeting with Klokke and discussed the sale of F-16 parts requested by the Venezuelan Air Force. On or about October 26, 2009, Arguelles met again with Pichardo and Klokke and discussed the F-16 parts as well as the sale of unmanned aerial vehicle engines to Venezuela. Also on or about October 26, 2009, Arguelles had a telephone conversation with Klokke regarding the sale of the unmanned aerial vehicle parts. On or about November 12, 2009, Arguelles, Pichardo, and Lezama met with Klokke and discussed the sale of the F-16 parts and unmanned aerial vehicle engines to Venezuela.
The government had copies or transcripts of emails, text messages, phone calls, and meetings of Arguelles and his co-conspirators regarding the purchase and delivery of the defense articles to Venezuela. The co-conspirators' activities occurred from January 2009 to February 2010.
During the government's investigation, Arguelles admitted to his "knowing and willful participation" in the conspiracy, that he was aware that his actions were illegal, and that he participated in the enterprise "for the money." Arguelles stipulated that his conduct "was harmful to the security and foreign policy interests of the United States."
Based on Arguelles's criminal conviction, DHS served him with a notice to appear ("NTA") on June 5, 2014. The NTA alleged that Arguelles was removable under 8 U.S.C. § 1227(a)(4)(A)(i) because he engaged "in any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information." (emphasis added); see Immigration and Nationality Act ("INA") § 237(a)(4)(A)(i), 8 U.S.C. § 1227(a)(4)(A)(i). The NTA recounted Arguelles's guilty plea, sentence, and factual stipulation to having knowingly and willfully conspired to export defense articles on the Munitions List to Venezuela without approval from the State Department.
At his hearing on July 2, 2014, Arguelles denied that his conviction was for a crime of espionage or sabotage and that he was removable. He argued that his conviction was for violating an export law and was more akin to a regulatory violation than a crime and thus was not a particularly serious crime or a crime of moral turpitude. The immigration judge ("IJ") disagreed and, relying on the judgment and factual information from his criminal case, found Arguelles removable by clear and convincing evidence.
The IJ's written decision stated that the IJ "sustained the charge of removability under section 237(a)(4)(A)(i)," which is 8 U.S.C. § 1227(a)(4)(A)(i).That section makes removable "any alien who has engaged" in "any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information." 8 U.S.C. § 1227(a)(4)(A)(i). Based on the guilty plea and stipulated facts, the IJ concluded that Arguelles had engaged in an activity that violated United States export laws.
Subsequently, Arguelles filed an application for asylum, withholding of removal, and CAT relief. Arguelles's application claimed that he feared persecution because of his political opinion and membership in a particular social group. He explained that he was a member of an elite unit of the Venezuelan Air Force and an opponent of the Chavez government. Arguelles focused on events that occurred back in 2002 to 2004. In 2002, Arguelles and his fellow officers protested in Plaza Francia in the Altamira neighborhood of Caracas. They became known as "the group of Altamira" and remained in the Plaza for over a year. The organizations involved in the protest, of which Arguelles was a member, were formally known as the Military for Democracy and the Institutional Military Front.
On December 6, 2002, a shooter with ties to President Chavez's administration killed 3 demonstrators and injured 20 more. The Venezuelan government jailed and killed some of the other participants over the course of theyear. Arguelles was discharged from the Air Force and stripped of his benefits. While other participants were jailed or killed, Arguelles received asylum in the United States.
In 2004, the Venezuelan government charged Arguelles with a crime based on his peaceful protest activities. Arguelles claimed that if he returned to Venezuela, he would be incarcerated and tortured because the charges against him are still pending and there is an outstanding warrant for his arrest. Arguelles stated that he was a prominent member of the protest group and still opposes the communist government, which is now run by President Nicolas Maduro. Arguelles claimed that one of his friends and mentors in the Air Force was arrested in 2014 for allegedly plotting a coup, which demonstrates that the government is still suspicious of the Air Force. Lastly, Arguelles alleged that his wife, who is a U.S. citizen, would be in danger in Venezuela because she was one of the attorneys who represented the group of Altamira.
Later in August 2014, Arguelles filed an application for (1) adjustment of status and (2) a waiver of his ground of inadmissibility based on hardships to his family if he returned to Venezuela. Arguelles again contended that his...
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