In re Luis-Rodriguez
| Decision Date | 26 May 1999 |
| Docket Number | Interim Decision No. 3395.,File A26 173 250. |
| Citation | 22 I&N Dec. 747 |
| Parties | In re Jorge LUIS-Rodriguez, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
Before: Board En Banc: DUNNE, Vice Chairman; HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, JONES, and GRANT, Board Members. Concurring and Dissenting Opinion: GUENDELSBERGER, Board Member, joined by SCHMIDT, Chairman. Dissenting Opinion: VACCA, Board Member, joined by ROSENBERG, Board Member.
HEILMAN, Board Member.
In a decision dated November 25, 1996, an Immigration Judge terminated deportation proceedings against the respondent, finding that the Immigration and Naturalization Service had failed to meet its burden of proving the respondent's deportability on the charges against him. The Service has appealed from that decision, challenging only the Immigration Judge's finding as to the respondent's deportability under section 241(a)(4)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4)(A)(i) (1994). The appeal will be sustained, and the record will be remanded to the Immigration Court for further proceedings consistent with this decision.
The respondent is a 55-year-old native and citizen of Cuba who is a known agent of the Cuban Intelligence Service ("CUIS"). The respondent entered the United States on September 3, 1983, as the beneficiary of a fiancé immigrant visa petition. On December 12, 1983, the respondent adjusted his status to that of a lawful permanent resident on the basis of his marriage to a United States citizen.
On April 23, 1996, the Service issued an Order to Show Cause and Notice of Hearing (Form I-221), charging the respondent with deportability under section 241(a)(4)(A)(i) of the Act, as an alien who after entry has engaged in "any activity to violate any law of the United States relating to espionage.'1 Specifically, the Service asserts that the respondent violated 50 U.S.C. § 851 (1994). This registration statute provides as follows:
Except as provided in section 852 of this title,2, every person who has knowledge of, or has received instruction or assignment in, the espionage, counter-espionage, or sabotage service or tactics of a government of a foreign country or of a foreign political party, shall register with the Attorney General by filing with the Attorney General a registration statement in duplicate, under oath, prepared and filed in such manner and form, and containing such statements, information, or documents pertinent to the purposes and objectives of this subchapter as the Attorney General, having due regard for the national security and the public interest, by regulations prescribes.
50 U.S.C. § 851.
The central facts of this case are not in dispute. On April 1, 1996, special agents of the Federal Bureau of Investigation and the Service—from a joint task force on foreign counterintelligence in South Florida—interdicted a clandestine meeting between the respondent and another CUIS agent in Miami. The record reflects that the respondent has served the CUIS as an "agent handler" who receives instructions from senior CUIS agents via telephone and "dead drops," surreptitiously relays further instructions to other CUIS agents, and then receives intelligence gathered by CUIS agents and furnishes the intelligence back to the senior CUIS agents.
When approached and interviewed by the FBI and the Service, the respondent had in his possession several items of "spy trade-craft." Contained in a concealed compartment in his billfold were four sheets of water soluble paper on which particular CUIS instructions were written detailing a specific intelligence gathering mission that the respondent was to relay to the Miami CUIS agent. The instructions listed several names of Cuban exiles who are members of an anti-Castro paramilitary organization, the Partido de Unidad Nacional Democratico ("PUND"), operating in South Florida. In addition, at the time of the apprehension, the respondent was in possession of two audio tape recorders to record the meeting with the other CUIS agent in Miami.
During his subsequent interviews with the FBI and Service agents in Miami and New York City, the respondent admitted that he was a CUIS agent. He related that he had received the instructions for the Miami mission via a "dead drop" site in Central Park in New York. Accompanying the instructions was $700 in cash to facilitate the mission. The respondent produced his airline ticket which showed that he had flown from New York to Miami the preceding day and that he had a return flight on April 2, 1996. The respondent also produced his billfold, which contained five $100 bills. Hidden in a secret compartment within the wallet, which the respondent showed the agents how to open, were four water soluble sheets of paper. These papers contained the questions from the CUIS which the respondent was directed to ask the other agent. The respondent stated that he never read the questions, but immediately secreted them until he was in the area to conduct the intelligence-gathering.
The object of the respondent's mission was to tape-record an interview with the other CUIS agent and return the tapes to his CUIS handlers. The respondent would use the two tape recorders, one micro cassette recorder and a standard size recorder, to tape his interview with the other CUIS agent, then return the tapes as part of his reporting for CUIS. The respondent and the other agent would go to a hotel room where he would conduct the debriefing. He would then stay in the hotel overnight and depart the next day. Upon returning to New York he would secrete the audio tapes in a dead drop at a predetermined location in New York City. The respondent also had in his possession several credit cards, a padlock, and various business cards. In addition, the respondent informed the FBI that he possessed a radio used exclusively for receiving radio communications from Cuba.
The respondent denied having received training from the CUIS and stated that he had not returned to Cuba since arriving in the United States. An FBI counterintelligence expert, however, testified below that in his opinion, the respondent had received training from the CUIS and that the respondent "had knowledge of the tactics of the [CUIS]."
In his defense, the respondent asserted that the target of his information gathering were members of PUND. The respondent presented various news articles and human rights reports, in addition to the testimony of expert witnesses, which demonstrated that paramilitary groups and terrorism exist in the Cuban-American community. The respondent's witnesses attested that these groups are comprised of either persons who were disaffected by the Castro regime or who have been trained by the United States Government to invade Cuba. According to the witnesses, PUND has engaged in violent activities both in the United States and abroad against those who allegedly support Cuba and the Castro regime and, in fact, has been prosecuted by the United States Government for violations of the Neutrality Act.
The Immigration Judge held that the Service did not sustain its burden of demonstrating by clear, unequivocal, and convincing evidence that the respondent had violated 50 U.S.C. § 851 and was therefore deportable under section 241(a)(4)(A)(i) of the Act. The Immigration Judge ruled that while 50 U.S.C. § 851 is a law "relating to espionage" for purposes of section 241(a)(4)(A)(i), the record did not clearly show that the respondent necessarily was engaged in "espionage."
In reaching this conclusion, the Immigration Judge relied to a great degree on the traditional definition of "espionage" which the courts, beginning with Gorin v. United States, 312 U.S. 19 (1941), have developed in construing various statutes aimed at preserving our national security. To be considered to have been in violation of 50 U.S.C. § 851, the Immigration Judge held, the Service was obliged to show that the respondent was secretly gathering or obtaining sensitive defense-related or classified information from the United States Government with the intent of injuring the United States or benefiting a foreign nation. In the Immigration Judge's view, the respondent was gathering information concerning PUND and other paramilitary, anti-Castro organizations in South Florida, not sensitive or classified information directly related to the national defense of the United States. Accordingly, the Immigration Judge terminated deportation proceedings.
The threshold issue before us is whether the Service's appeal has been rendered moot or effectively withdrawn by the respondent's departure from the United States to Cuba during the pendency of the appeal. The record reflects that on December 6, 1996, the respondent filed a Petition for Writ of Habeas Corpus with the United States District Court for the Southern District of Florida. On January 27, 1997, the district court indicated that it would be granting the petition for habeas corpus and directed the parties to discuss...
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