U.S. v. Hovsepian
| Citation | 359 F.3d 1144 |
| Decision Date | 02 March 2004 |
| Docket Number | No. 99-50041.,No. 99-56922.,No. 00-55320.,No. 01-55247.,99-50041.,99-56922.,00-55320.,01-55247. |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Viken Hovsepian; Viken Yacoubian, Defendants-Appellees. Viken Hovsepian, Plaintiff-Appellee, v. United States Of America; John Ashcroft, Attorney General, United States Department of Justice, Defendants-Appellants. Viken Hovsepian; Viken Yacoubian, Plaintiffs-Appellees, v. United States Of America; John Ashcroft, Attorney General, United States Department of Justice, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Jean Rosenbluth, Assistant United States Attorney, Los Angeles, California; Lawrence E. Kole, Assistant United States Attorney, Santa Ana, California, for the plaintiff-appellant-defendants-appellants.
Michael J. Lightfoot, Talcott, Lightfoot, Vandevelde, Sadowsky, Medvene & Levine, Los Angeles, California; Paul J. Estuar and Barrett S. Litt, Litt & Marquez Associates, Los Angeles, California, Mathew L. Millen, Los Angeles, California, for the defendants-appellees-plaintiffs-appellees.
Appeals from the United States District Court for the Central District of California, Mariana R. Pfaelzer, District Judge, Presiding.
Before MARY M. SCHROEDER, Chief Judge, and DOROTHY W. NELSON, ANDREW J. KLEINFELD, MICHAEL DALY HAWKINS, SIDNEY R. THOMAS, SUSAN P. GRABER, M. MARGARET McKEOWN, RONALD M. GOULD, RICHARD A. PAEZ, MARSHA S. BERZON, and RICHARD R. CLIFTON, Circuit Judges.
Opinion by Judge Graber.
On August 18, 2000, the district court administered the oath of citizenship to Appellees Viken Hovsepian and Viken Yacoubian. That naturalization ceremony was the culmination of a 16-year struggle between Appellees and the Immigration and Naturalization Service ("INS"),1 which had sought to deport them. In this appeal, the INS argues that the district court's decision to naturalize Appellees was fundamentally flawed. The district court dealt admirably with this complex case over a long period of time. Because, however, the district court committed legal errors that caused it to analyze Appellees' naturalization applications incompletely, we must reverse and remand for further proceedings.
In 1982, the Federal Bureau of Investigation ("FBI") discovered, through intercepted telephone calls, that Appellees Viken Hovsepian and Viken Yacoubian were planning to bomb the offices of the Honorary Turkish Consul General in Philadelphia, Pennsylvania. Appellees allegedly were associated with the Justice Commandoes of the Armenian Genocide, an organization dedicated to exacting revenge against Turkey for atrocities committed against Armenians. Appellees had arranged for a coconspirator to transport the bomb on a commercial airliner from Los Angeles to Boston. Although the coconspirator managed to board a plane at Los Angeles International Airport, carrying the bomb in his checked baggage, the FBI arrested him and seized the bomb once the plane landed. The FBI later estimated that the bomb, if detonated, likely would have killed between 2,000 and 3,000 people.
Appellees were arrested and charged with (1) conspiracy to transport explosive materials in interstate commerce and to damage by explosives property engaged in interstate commerce, in violation of 18 U.S.C. § 371; (2) transporting explosives in interstate commerce with intent to cause injury or damage, in violation of 18 U.S.C. § 844(d); and (3) possessing an unregistered firearm (an improvised explosive device), in violation of 26 U.S.C. § 5861(d). After a bench trial in 1984, Appellees were convicted on all three counts of the indictment.
On January 25, 1985, the district court sentenced Hovsepian. Because Hovsepian was younger than 26 when he committed the offenses, the district court had the option of sentencing him under the Federal Youth Corrections Act ("FYCA"). However, both Hovsepian and the district judge agreed that he would not benefit from a sentence under FYCA. Accordingly, the court sentenced him as an adult to one five-year and two six-year terms of imprisonment, to be served concurrently. In conjunction with the sentence, the district court issued a Judicial Recommendation Against Deportation ("JRAD"), which barred the INS from deporting Hovsepian on the basis of his convictions.
The district court granted Yacoubian a new trial on the ground that he had lacked an adequate opportunity to cross-examine some of the INS's witnesses. This court reversed, however. United States v. Yacoubian, 857 F.2d 1480 (9th Cir.1988) (unpublished disposition). After our remand, the district court sentenced Yacoubian on October 30, 1989. Although he, too, was eligible for a sentence under FYCA, the district court made no findings with respect to whether Yacoubian would benefit from a youth sentence. Instead, the court simply sentenced him as an adult to two concurrent three-year terms of imprisonment and an additional year of probation with a condition of 1,000 hours of community service. The court also issued a JRAD for Yacoubian, prohibiting the INS from deporting him because of his convictions.
Appellees served their full prison terms. After being released from prison, both have led exemplary lives.
Viken Hovsepian earned a Ph.D. in international relations from the University of Southern California and manages a hedge fund in Southern California. He resides with his wife of many years, and their daughter, in Santa Monica. Dr. Hovsepian is viewed as a leader of the Armenian community in the Los Angeles area and has played an active role in serving his church.
Viken Yacoubian earned a master's degree in psychology from Loyola Marymount University and enrolled in a doctoral program in counseling and psychology at the University of Southern California. He serves as the principal of the Rose and Alex Pilibos Armenian High School in Los Angeles, a program praised for its rigorous preparation of students bound for college, and is an adjunct professor at Woodbury University. He volunteers his time to work with children in the Armenian community in Los Angeles. Mr. Yacoubian, too, has been married for many years, and he resides in Glendale with his wife.
When the district court sentenced Hovsepian and Yacoubian, there was no deportation provision relevant to them. There is no dispute that Hovsepian and Yacoubian were convicted of a crime that qualified as a crime of moral turpitude as defined by the immigration law at the time of the criminal proceedings. However, under the former immigration scheme, when a lawful permanent resident committed a crime of moral turpitude, he or she became deportable if he or she committed the crime within five years of entry or committed two crimes of moral turpitude at any time. See 8 U.S.C. § 1251(a)(4) (1985) (now codified at 8 U.S.C. § 1227(a)(2)(A)(I) & (ii)). Because Hovsepian and Yacoubian had been lawful permanent residents for more than five years at the time of the offense, and because neither had a prior record, their convictions did not constitute deportable offenses under the operative immigration laws.
Nonetheless, as noted above, Hovsepian and Yacoubian sought, and the district court granted, their requests for issuance of a JRAD. If Hovsepian or Yacoubian had been convicted of another crime, the JRAD would have prevented the first conviction from serving as one of the two predicate crimes that were required to constitute a ground of deportability. See 8 U.S.C. § 1251(b)(2) (repealed 1990).
In 1988, Congress amended the immigration laws to render deportable any alien who had been convicted of possessing an unlawful destructive device or other firearm. Pub.L. No. 100-690, § 7348(b), 102 Stat. 4181, 4473 (1988). In 1990, Congress made this ground for deportation retroactive. Pub.L. No. 101-649, § 602(c), 104 Stat. 4978, 5081-82 (1990). Under those amendments, both Hovsepian and Yacoubian were subject to deportation because they had been convicted of possession of an unlawful destructive device. See 8 U.S.C. § 1227(a)(2)(c).
The INS placed a detainer on Yacoubian in May 1991 as a prelude to deporting him. In response, Yacoubian moved the district court for an injunction preventing his deportation, claiming that the JRAD that the court had issued in 1989 protected him from deportation on the basis of his 1984 convictions.
The district court issued an injunction, but this court reversed. United States v. Yacoubian, 24 F.3d 1 (9th Cir.1994). We held that Congress' amendment of the immigration laws provided a new ground for deporting Yacoubian that was not covered by the JRAD. Id. at 7, 10. Further, we held that Congress' retroactive amendment of the immigration laws did not violate due process, separation of powers, or the ex post facto clause. Id. at 7-10. Accordingly, we held that Yacoubian was deportable despite the district court's issuance of a JRAD at the time he was sentenced. Id. at 10.2
On August 12, 1997, the district director of the INS signed formal charging documents for removal proceedings, known as Notices to Appear, against Appellees. The INS also signed arrest warrants naming Appellees. However, the INS did not file those documents with the immigration court.
On June 3, 1997, the INS filed a motion pursuant to Federal Rule of Criminal Procedure 36, seeking to correct typographical errors in Hovsepian's and Yacoubian's criminal judgments and commitment orders. The INS conceded that the purpose of the motion was to facilitate the initiation of deportation proceedings against Hovsepian and Yacoubian. On June 29, 1998, the district court denied the INS's...
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