The autocrats of the Muslim Middle East have looked at the new media of the blogosphere and are applying the same old oppression, not just in Moammar Qaddafi's Libya, but also in Hosni Mubarak's Egypt (embassies around the world).
The whereabouts of blogger Abdolkarim Nabil Seliman who was abducted from his home by Egyptian state security on Wednesday Oct. 26 is still not known. The police refused to answer questions by AP, the first wire to run the story. The last report about his whereabouts said he was on his way to an unknown detention center.
It was 3 a.m. when seven police officers took the 21 year old blogger away from his family home in Alexandria. His mother, Yousseira, says the house was searched; books and copies of Seliman's writings were confiscated.
His friends and family says Seliman was targeting radical Islam in his writings, despite his strong connections to the Muslim community. Seliman is a student of law at Al-Azhar, the world's highest seat of learning for Sunni Muslims. His pious Muslim family had returned from a pilgrimage to the holy city of Mecca just days before his arrests
By Egyptian law, freedom of speech is not a right when it comes to blasphemy of religions. And this is what Abdolkarim did a day after the events of Alexandria. He wrote a very harsh post that attacked Islam, he also published his writing at Civic Dialogue. On his blog, the post attracted many disapproving and angry comments.
The Azhar student has usually been very outspoken against Islam and this was not his first post with such opinions.
Yesterday, Malek, Mohammed and Haitham went to meet his family. Abdolkarim, has his photo, email, phone number and address publicly displayed on his blog. They mention that his family appears to be nonchalant about what happened and are expecting him to be out in few days. Yet they are not exactly sure where he might be at the moment and are reluctant to take any action. His brother thinks that he might have been tipped off by one of the local fundamentalists because of a post he wrote about one of their leaders and not because of the last post he made.
Abdolkarim, lives in the same neighborhood the violent riots of the 21st of October took place. He has troubled relations with some local Islamic fundamentals in his neighbourhood. One of those fundamentals might have a hand in the riots. They printed out what he writes and distributed it to enrage people against him.
Abdolkarim emailed another blogger (http://endehash.manalaa.net) telling him how he doesn't fear getting his name published in a survey, as he beleives that the sensitive posts about religion he writes about should not be behind red lines. He also said that he fears the consequences and that he was once attacked by some thugs hired who attemted to beat him.
Oh I see. An election. And an arrested blogger. Well well. Shadi Hamid discusses US silence:
The response (or lack thereof) to the upcoming elections (Egypt) - and the voter intimidation and detention of opposition activists which will surely take place - will tell us a great deal about the current thinking in the Bush administration. I can't say, however, that I'm particularly optimistic. more
Abdel Karim's writing, if you can't read arabic, is very very critical of Islam. So critical that Big Pharaoh is wondering if he was a convert to christianity or something.
Abdolkarim could be a convert to Christianity or someone who left the Muslim faith, and I was stunned when I saw that he posted his picture on his blog. Anyway, he will be in a very serious situation if a case was levied against him. If sent to court, the charge of "izderaa el adyaan" or "blaspheming religion" can be applied leading to his imprisonment.
What's interesting is that he went to Al Azhar University and lived in Alexandria, which could mean that the people who did file a report against him are islamists. If that were the case , given the upcoming elections, the recent riots and his connections to Copts-United, it's very well possible that they arrested him as a pre-emptive measure to stop another riot that could be started by the MB in Alex. The egyptian government would never take the side of Free speech against secterian relationships stability. Figuring it's safer to arrest just one blogger who the majority of egyptians would disagree with and with his writing, then to deal with another riot over his right to free speech, which doesn't exist in our country. It kind of makes sense for them to do it, for they have no shame or fixed morals or principles to stand by and defend, and the fact that, again, many egyptians wouldn't mind him getting punished for what he wrote. If you find this statetment to be harsh then please go over to the comments section in Alaa's post and see for yourself what some people had to say about his arrest. Hell, Alaa is being attacked in his comments section for starting the free Abdal Karim campaign.
This attitude that some people have drives me nuts, because this is about free speech and civil rights, not about who said what about Islam. We should support him, not because we agree with what he said, but because if we don't rally out and support those who get detained and arrested for writing what they believe in- no matter how unpopular their opinion may be- we will be the ones arrested next.
Libya has sent to prison for 18 months a blogger who criticized the government on the Internet, Human Rights Watch says in a report that inspired a series of Web tributes to the dissident Friday.
A Tripoli court convicted Abdel Raziq al-Mansuri of illegal possession of a handgun and sentenced him to 18 months' imprisonment on Oct. 19, the New York-based rights group said in an e-mail to The Associated Press in Cairo.
"The gun charges are a ruse," said the Middle Eastern director of HRW, Sarah Leah Whitson. "The authorities went after al-Mansuri because they did not like what he wrote."
The trial began in late summer, the family said, but was twice postponed. First, al-Mansuri's lawyer asked for an extension to prepare a defense. Then, the court postponed the trial because al-Mansuri was hospitalized for a broken pelvis he sustained after falling from his top bunk in prison.
On October 19, a Tripoli court sentenced al-Mansuri to one-and-a-half years in prison. According to the family, the court refused to give him credit for the four months of incommunicado detention by the Internal Security Agency.
His family said Libyan authorities have asked them to denounce al-Mansuri as mentally deranged. "If defending the right to free speech and asking for basic human rights is insane in our country, then welcome to a family that is, from its oldest to its youngest, insane," their letter said.
More credit where it's due: Arabic News is also carrying the full story from Human Rights Watch.
On 1/12/2005 men from Internal Security in Tubruk arrested our son at the family home on Palestine St. His brother `Ali `Abd al-Wanis al-Mansuri accompanied him to `Abd al-Raziq's residence where he lived to search [the premises]. When asked, they [I.S.] said that orders had come from the head administration in Tripoli to arrest `Abd al-Raziq for posting online. They searched the residence and confiscated his computer, CDs and any books in the house. `Abd al-Raziq's brother asked them to respect Libyan law and present a search warrant from the prosecutor allowing the search but they did not care and took the computer with them and a bunch of disks and a bunch of articles `Abd al-Raziq was writing. When they arrived at the IS building, they took `Abd al-Raziq for questioning. His bother who was accompanying him remained in the outside waiting room. After a long time, one of the security officers asked his brother to provide a bed for `Abd al-Raziq and to go home. The next morning, 1/13/2005, `Abd al-Raziq's brother returned to the IS building to ask about his brother and sat with those responsible for questioning him. They told him they had never seen someone with his confidence and had no trouble questioning him since he had confessed to the charges against him: writing numerous articles in which he criticizes the state of Libyan affairs posted on Akhbar-Libya online in his real name, leaving them no recourse to help him by denying the charges. They asked `Abd al-Raziq's brother to go with them to search the house again to look for more disks and, in fact, went to search `Abd al-Raziq's house. They began searching and collecting all the disks and papers they wanted. Just then, an officer came out of one of `Abd al-Raziq's rooms holding an old pistol with no clip belonging to `Abd al-Raziq's father from the 60s, usable and only kept as memorabilia, and bullets that `Abd al-Raziq's father found on one of the beaches during a fishing trip. It is known that Tubruk is a border area where one can find many weapons and ammunition.
The next day, 1/14/2005, `Abd al-Raziq's brother went to inquire about him and was told that he [`Abd al-Raziq] had been transferred to Tripoli. After almost two weeks `Abd al-Raziq's brother went to Tripoli to search for him. After great effort, he found the place where `Abd al-Raziq was arrested, which belonged to the IS, but was not allowed to see him or even to secure a lawyer. He brought `Abd al-Raziq clothes and a few personal items and delivered them to those in charge. Afterwards, he went to the Qadaffi Foundation for Human Rights and submitted a request to the organization to help him in securing his brother's safety. As of the writing of this statement, we have not received a reply from the above-mentioned organization.
The family's statement was originally posted at al-Mansuri's website, Akhbar Libya.
For anyone who loves freedom, and the expression thereof, the blog phenomenon is a grand and thrilling development. It's the ultimate vehicle for free exploration and exchange of ideas (not to mention dissent), and it's the ultimate crucible of peer-review to test ones honesty and credibility. This is why autocratic, theocratic, and other totalitarian regimes are deathly afraid of the blog. It's a powerful tool for freedom.
For all the bitching and moaning I do about the politics and politicians of the United States, I never forget that this country affords me a lot of freedoms denied to most of the world. So I was ashamed and outraged when I heard that a blogger in Libya was arrested recently for writing about his dissatisfaction with his government.
Folks, the governments of the Middle East don't know how to conduct business in a free and open society. All they know is fascism. Islamofascism, if you want to be entirely correct. It's amazing to me that the groups in America who benefit the most from free speech and even abuse it are the ones who are violently against our attempts to bring freedom and democracy to that backward region.
The thing that worries the power structure about blogs is the fact that it is basically a pure meritocracy. I check the blogs that put out interesting and relevant stories. I have my pick. Also, blogs can be written by anyone from anywhere, so they're exceptionally hard to control. It is an extraordinarily democratic medium.
The religion ghosts are clashing, on both sides, but journalists hesitate to name or explain them. Has anyone out there seen a MSM story that really explains, for the average reader, the Sunni vs. Shiite vs. Kurd divisions in Iraq? Were reporters supposed to have explained that in each and every 700-word wire service report about the new Iraqi constitution?
Do we have too name the ghosts over and over? So a Palestinian bomber blows himself up at a sandwich stand in Israel and people are killed and injured. Was it just any old sandwich stand? Does the story have to tell us that it was a sandwich stand that is popular with Jews? Do we need to know the religious make-up of every victim list? Or have we reached the point where we are supposed to simply assume that we know?
Over the postwar years, France has locked its immigrants into enclaves and discouraged the immersion of one culture into the other. It built ready-made slums for their guest workers and made sure that their own insular Frenchness could not be penetrated by the people who helped to rebuild their country. The initial wave of workers did not mind the apartheid so much; it still gave them a large improvement in their standard of living, and allowed them to continue their own traditions. The second and third generations expect more, however, and the sense of the economic and social trap that the French created feeds their radicalism, and their turn towards Islamism as an answer.
Europe's angry Muslims enter the picture of domestic politics on a depressingly regular basis, and the inability of previously homo-ethnic European socieites to absorb such a huge influx of brown-skinned non-Christians is slowly bringing the continent to collapse.
Because of the decades (centuries?) of socialistic attitudes in France, the employment situation "ain't that great" for white citizens of France. In many cases, these immigrants gave up whatever they had in their home country to move and in the self-segregated enclaves, there are few job opportunities, rather just an ongoing atmosphere of self-defeat. Gee, that sounds like the UN set-up Palestinian refugee camps.
The schadenfreude is almost palpable and certainly exquisite. Race Riots across France on the watch of (presided over?) the US's would be tormenters De Villepin and Chirac. Makes New Orléans' so called race troubles a mere bagatelle.
It appears we may have jumped the gun when we called French riot police and government officials incompetent cowards with tiny balls, or something similar. The Parisian riots, now in their 8th day, seem to be a customary état de fait. Thankfully, Agence France Presse was prompt to correct our ignorance:
Small-scale suburban violence is a regular but unreported fact of life in many poor areas on the outskirts of major French cities. According to the police intelligence service, a total of 28,000 cars were burned across the country this year -- even before the latest outbreak.
So last night's 500 burnt cars (we cant' mention the shops and businesses torched down, that would make everyone with a position of authority in France seem powerless) basically represent five and half days worth of normal suburban French life.
While we await the inevitable surrender by the French government as well a plea for another Anglo-Saxon rescue, we'll ponder the "European lifestyle" so popular with Krugman and others who don't actually, you know, have to live there.
Finally, after all these years, Adolph gets an affirmative answer to his famous question, "Is Paris burning?"
According to the Brussels Journal, the French police are quite simply unequipped to enforce lawn order in Paris, or any other cities where areas have become de facto part of the ummah. This is evidently true not only in France but the rest of Europe, even including Great Britain: the typically unarmed and overawed police cannot make arrests, and the terrified firefighters cannot fight arson fires with the arsonists shooting at them.
Though usually referred to as "youths" and "immigrants" in the mainstream press, it appears that the rioters are mostly Muslims. That alone should raise some hackles and prompt Sarkozy to want to find out "why" as well as "by whom and how". Especially since there are riots happening simultaneously in Denmark (though very few English-language reports are available).
A growing problem in the West is not only our insane, suicidal embrace of "multiculturalism," but an inability to recognize that Islam is an enemy intent on destroying freedom wherever it exists. Those Muslim rioters in Paris, angry about being unemployed or whatever their excuse, need to be crushed.
Instead, authorities are apologizing for throwing tear gas into a mosque. They're smoking crack, right? If rioting thugs are hiding in mosques, why wouldn't you try to tear-gas them out? This is similar to the Guantanamo Bay Koran-flushing and don't-touch-the-temple memes that floated around.
The French make no effort to police the Muslim ghettoes; the "suburbs" to which these stories euphemistically refer are actually tenement houses and concrete apartment blocks. Police do not enter these neighborhoods without SWAT teams and riot gear. Outsiders are not welcome. In other words, these are islands of the Islamic world imported into France.
But the French will not speak of this openly. Hypocrisy is, after all, a French birthright. And the BBC will abet this lunacy by not mentioning the problems of race and religion -- for to admit their existence is to abandon one of the supposed superiorities of Europe to America. The brilliant Europeans have given themselves the worst possible situation -- a large immigrant population which has no ties to the state that feeds them -- and claims this is some sort of model for living in peace with Islam. And all of the problems of the policy can be ignored as long as we do not mention the race or religion of those involved in the riots.
The riots have also taken on an increasingly dangerous tone, with buckshot fired at riot squad vans -- and prosecutors revealing that a handicapped woman was deliberately set on fire the night before.
According to prosecutors Friday, November 4, the 56-year-old woman was unable to get off a bus targeted by a Molotov cocktail late Wednesday, November 2, in the northern Paris suburb of Sevran.
She was allegedly doused with petrol by one youth, then others threw a flaming rag on her. Rescued by the driver, she was taken to hospital with severe burns to 20 percent of her body.
The rioting -- sparked last week by the deaths by electrocution of two young immigrants who hid in an electrical sub-station in the northeast neighborhood of Clichy-sous-Bois to escape a police identity check, is the worst France has seen since the first troubles broke out in deprived high-immigration neighborhoods in the late 1980s.
Those responsible are sons of families from France's former Arab and African colonial territories, who have said in interviews that they are protesting economic misery, racial discrimination and provocative policing.
Since this poor woman was only "allegedly" dowsed with petrol, which presumably caused her "alleged burns," Islam Online sees fit to note the victims status and grievances of savages who tried to burn her to death.
Odd, Islam Online doesn't menton the religious affiliation of the assailants, but Al Jazeera has identical talking points about the Muslim rioters in general:
The country has 751 neighbourhoods officially classed as severely disadvantaged, housing a total of five million people, around 8% of the population.
Conditions are often dire with high-rise housing, unemployment at twice the national rate of 10% and per capita incomes 40% below the national average.
Many of France's estimated five million Muslims live in those suburbs.
The rioting was sparked by the accidental deaths last week of two teenagers who hid in an electrical sub-station to escape a police identity check.
It's the worst urban violence France has seen since rioting in deprived high-immigration neighbourhoods in the late 1980s.
Those responsible are groups of young Muslim men, the sons of families from France's former Arab and African colonial territories, who have said in interviews that they are protesting against economic misery, racial discrimination and provocative policing.
PARIS: Authorities in France struggled yesterday to bring order to rundown suburbs around Paris after a week of night-time rioting that has spread across the region and called into question the government's handling of the crisis. More than 1,000 police wielding shields and teargas grenades overnight battled stone- and bottle-throwing youths in at least nine suburbs, while cars went up in flames in 13 others to the north, east, west and south of Paris.
Four gunshots were fired at riot squads, but missed their targets, according to police, who used rubber bullets when they felt threatened by advancing mobs. Nine people were injured in the fighting.
In one northeastern suburb, Aulnay-sous-Bois, a police station was briefly taken over and ransacked by youths while a gymnasium and a Renault garage were set ablaze and a shopping centre vandalised.
South of Paris, in Antony, two firebombs were thrown at a police station.
All of the areas are high-immigrant zones dominated by depressing public housing estates, where crime and gangs run rampant.
Gulf News of the United Arab Emirates equates rioting with protesting:
Bobigny, France: Rioters set fire to more than 500 cars overnight in an eight straight night of street violence in Paris where 78 people have been arrested, officials said on Friday.
Overnight rioting left also left a trail of burnt shops in northern and earstern parts of Paris as rioters, many of them Muslims of North African origin, protested against racial bias.
In continuing violence on Friday, fire bombings hit western Paris suburbs and similar areas near Rouen in northern France, Dijon in the east and Marseille in the south.
Arab News of Saudi Arabia had a surprising editorial:
Editorial: Trouble in Paris
President Chirac was quite right to warn yesterday that France faced a dangerous situation after a sixth night of rioting in Parisian suburbs largely inhabited by immigrants. Mercifully, no one has been killed in the disturbances but cars and buildings have been gutted and the already fragile relations between the police and the people have been further damaged.
Many different threads have come together to produce this knot of community tension. The immediate cause of the first riot, the electrocution of two North African youths allegedly fleeing police, unleashed wider grievances among immigrants who feel themselves disadvantaged and ignored by the French state. Poor schooling, bad housing and a lack of jobs create alienated youths and gang cultures where violence is never far from the surface.
Nevertheless, such difficult social circumstances are not unique to immigrant communities in Paris. Local leaders and the young people themselves must bear some responsibility for their hopeless lives. Certainly nothing can justify their going on destructive rampages.
See that? No justification for the riots. Wow.
But... wait for it... the all too predictable caveat:
That said, the French authorities seem to have inflamed rather than calmed tempers. The use of the CRS anti-riot police has clearly worsened the troubles. This force has been deployed because Interior Minister Nicolas Sarkozy is playing the "zero tolerance" card on public disorder. His pronouncements have been hardly less severe. He has called the rioters "scum." Unfortunately this approach also hits at perfectly law-abiding immigrants within the capital's grumbling suburbs and thus only adds another general sense of grievance.
Right. Using riot police against rioters is inflammatory. Perhaps when things calm down, Saudi security authorities can provide training for French LEOs in the restrained use of force.
PARIS - A square in central Paris on Monday was named after the Moroccan dissident Mehdi Ben Barka, at the spot where he was picked up by French police 40 years ago, never to be seen again.
Paris Mayor Bertrand Delanoe presided at the ceremony on the Boulevard Saint Germain, south of the Seine river in the city's sixth district, unveiling a plaque in Ben Barka's name in the presence of his widow and four children.
"Paris does itself justice when it manages to look back at its history with a concern for the truth," Delanoe said.
SBI will serve as the enforcement complement to the Temporary Worker Program that President Bush proposed last year. The Temporary Worker Program will have the effect of enabling migrants to pursue work in regulated, legal channels – and will increase safety and security by giving us a better idea of who is entering our country and for what purpose.
I propose a new temporary worker program that will match willing foreign workers with willing American employers, when no Americans can be found to fill the jobs. This program will offer legal status, as temporary workers, to the millions of undocumented men and women now employed in the United States, and to those in foreign countries who seek to participate in the program and have been offered employment here. This new system should be clear and efficient, so employers are able to find workers quickly and simply.
That passage followed what President Bush imagined to be a guiding principle of his:
Third, we should not give unfair rewards to illegal immigrants in the citizenship process or disadvantage those who came here lawfully, or hope to do so.
As I pointed out here, "contrary to Bushian rhetoric, these illegals would definitely be rewarded with legalization by virtue of their having taken cuts ahead of law-abiding 'willing workers' and finding their 'willing employers' when it was illegal to do so."
Bush's rewards for legalized guest workers would also redound to the citizenship process, because they'd be legalized and in line before non-illegals were even admitted.
Some temporary workers will make the decision to pursue American citizenship. Those who make this choice will be allowed to apply in the normal way. They will not be given unfair advantage over people who have followed legal procedures from the start. I oppose amnesty, placing undocumented workers on the automatic path to citizenship. Granting amnesty encourages the violation of our laws, and perpetuates illegal immigration. America is a welcoming country, but citizenship must not be the automatic reward for violating the laws of America. (Applause.)
The President is misrepresenting Amnesty as having to do with an "automatic path to citizenship." That's a false definition. The Reagan Amnesty didn't provide automatic paths to citizenship. Under that amnesty, illegals had to first apply for Lawful Temporary Resident (LTR) status, then wait eighteen months before applying for Lawful Permanent Resident status. Then, after five years, the amnestied illegals could apply for citizenship. Read:
Section 201 -- Legalization Of Status
a. Provides for the adjustment of status of illegal aliens to LTR if they:
Have entered the U.S. before January 1, 1982;
Have continuously resided in the U.S. unlawfully since that date;
Applied for adjustment of status during the 12-month period beginning on May 5, 1987; and
Meet admissibility criteria.
b. Provides for the subsequent adjustment of an alien in LTR status to that of an alien LAPR if they:
Apply for adjustment of status during the 1-year period beginning on the nineteenth month after LTR status was granted;
Have continuously resided in the U.S. since LTR status was granted;
d. Provides that during the 5-year period beginning on the date LTR status is granted, LTR's are ineligible for any Federal program of financial assistance.
e. Provides that the definition of Federal financial assistance does not include SSI. (LTR's are not precluded from filing for SSI.)
There was a path to citizenship, but it wasn't automatic. Also, as the above shows, the Reagan Amnesty clearly wasn't a blanket amnesty. Hairsplitting on the Bush Amnesty by the President, his aides, and his amnesty apologists has a strong tendency to fail when the dynamics of the Reagan Amnesty are properly understood.
Besides himself, who does the President think he's kidding?
Attorney General Alberto Gonzalez gave a speech yesterday at the Latino Leaders Luncheon , which included comments on the Bush Administration's Secure Borders Initiative (SBI) against illegal aliens.
In that context, as I did yesterday for Department of Homeland Security Michael Chertoff's SBI speech, I've excerpted some of Gonzalez' remarks for commentary:
I am Hispanic. I am Latino. I love my family; I believe in God; and I am grateful for my country, the United States of America, which has allowed me to live the American dream.
That American dream is the reason so many immigrants - millions every year - come to this country in search of a better life for their families.
Millions of immigrants come to this country every year to pursue the American dream? Not according to the DHS, not even close.
According to the DHS September 2005 pdf, Mapping trends in U.S. Legal Immigration, 1980 to 2003 , the this country issued 6,246,921 green cards from 1980 to 1989, 9,315,744 from 1990 to 1999, and 3,667,847 from 2000 to 2003. Green cards indicate Lawful Permanent Residence (LPR) status. Only LPRs can be considered immigrants. That's a total of 19,230,512 immigrants over a 24 year period, for an average of just over 800,000 per year. Even the most recent four years, 2000 to 2003, amount to an average of about 917,000 immigrants per year.
The DHS figures affirm America's tradition of welcoming new immigrants to our great nation, but there are simply not millions of immigrants coming to this country every year, unless Attorney General Gonzalez is counting illegal aliens. To do so, however, belies the idea promoted by the Bush Administration that illegals entering any "temporary worker" amnesty would be temporary; immigrants (LPRs) are permanent by definition.
Recently, the President reiterated his vision for a comprehensive immigration reform program. The President outlined a number of steps to strengthen security along our borders and to provide legal options for people who want to
stay in the United States to work temporarily.
When Gonzalez says "people who want to stay in the United States," he is referring to people who are already here but are without a legal option to work "temporarily." They could be foreign nationals here as students, tourists, or illegals.
I am a product - like virtually all of you - of the immigrant dream, so I understand how important it can be for people looking to provide for their families. The President understands that too. He knows, "Family values do not stop at the Rio Grande River."
Yeah, the President uses that Rio Grande line that a lot. Just last month, while signing the Homeland Security Appropriations Act, :
As a result of the bill I'm about to sign, we're going to add nearly 2,000 new beds to our detention facilities. That will bring the number of beds up to nearly 20,000. This will allow us to hold more non-Mexican illegal immigrants while we process them through a program we call "expedited removal." Putting more of these non-Mexican illegal immigrants through expedited removal is crucial to ending the problem of catch-and-release. As Secretary Chertoff told the Senate earlier this morning, our goal is clear: to return every single illegal entrant, with no exceptions. And this bill gets us on the way to do that.
You see, we got people sneaking into our country to work. They want to provide for their families. Family values do not stop at the Rio Grande River. People are coming to put food on the table. But because there is no legal way for them to do so, through a temporary worker program, they're putting pressure on our border.
Note the illegal alien context of the President's Rio Grande/family values schtick, as well as the President's emphasis (also by Chertoff that day) on the expedited removal of non-Mexican illegals.
Do non-Mexican family values stop at the Rio Grande, Mr. President? Mr. Chertoff?
But the President and I both are from Texas, and we know that the security of our citizens depends, in part, on our ability to control the border. With a
temporary worker program, fewer people will try to sneak in illegally to work and that means our enforcement efforts can focus on catching drug smugglers, terrorists, and gunrunners.
Today, Homeland Security Secretary Michael Chertoff is announcing a new Secure Borders Initiative. In fact, he's making the announcement right now in my hometown of Houston.
The Secure Borders Initiative is going to increase our ability to gain what Secretary Chertoff calls "operational control" on our borders. This new
program - which provides additional resources and technologies at our borders - will make our country safer from the threat of terrorism.
The Secure Border Initiative will also work hand in hand with a temporary worker program - again, with the goal of curbing illegal criminal activity and clearing a path for legal work in the United States.
Thus far there is no indication that the SBI would enforce the removal of illegals in the American interior who've violated immigration laws, worked illegally, and in many cases committed document fraud and filed perjurious IRS forms. Both President Bush and DHS Secretary Chertoff have emphasized the repatriation of illegal alien "entrants" apprehended "at the border" and"criminal aliens" convicted of offenses other than violations of immigration law.
Both in signing the giant Homeland Security spending bill and his Saturday radio broadcast, Bush, for the first time, gave us some tough talk about getting "control of our borders." But tucked at the end of his border-security rhetoric was a renewed demand that we offer U.S. jobs to "willing workers from foreign countries." The most accurate way to describe his salestalk is bait-and-switch.
The past context of the President's "willing worker" rhetoric has always been with the understanding that illegal aliens who've taken illegal employment would be welcomed into the pool of "willing workers." Contrary to Bushian rhetoric, these illegals would definitely be rewarded with legalization by virtue of their having taken cuts ahead of law-abiding "willing workers" and finding their "willing employers" when it was illegal to do so, and that's amnesty.
Homeland Security Secretary Michael Chertoff said Tuesday that securing the border is a big challenge for the government.
"We are not in control," said Chertoff, who capped a tour of the El Paso border region with a nighttime news conference at Tom Lea Park in West El Paso.
Chertoff also said immigration policy should incorporate undocumented immigrants who contribute to the U.S. economy "into a system that is legal and regulated," so law enforcement can focus more on known security threats.
It's not a complete quote, but it has the gist of the "let's legalize illegals to get out of the problem caused by legalizing illegals in 1986" approach we've come to expect from the Bush Administration.
Homeland Security chief Michael Chertoff said Tuesday following an evening tour of the Mexico-U.S. border that solutions to illegal immigration problems won't come easily.
"It's not going to be solved in a day, or a week, or a month," Chertoff said at an El Paso park overlooking the city and neighboring Ciudad Juarez, Mexico. "It's been building for a long time."
Following his first nighttime tour of the border in El Paso, the Homeland Security secretary said a host of solutions, including temporary work programs, should and will be looked at in trying to solve a problem that he said has gotten out of control.
Department of Homeland Security Secretary held a press conference in Houston today, outlining some new initiatives from the Bush Administration against the growing national problem of illegal aliens.
These proposals would have earned an A- had the President sought them in the aftermath of the attacks September 11th, 2001. It's now November of 2005. While the proposals are still a good, if very late start, the Administration has a long way to go to restore the trust of most Americans and conservatives in the President's seriousness in addressing the problem in ways that don't reward illegal aliens. As it stands, Chertoff earns a C+, in pencil, for a decent press conference.
Here are a few highlights and observations:
Today I want to lay out a plan for where DHS is going – a Secure Border Initiative that will ultimately represent a transformational approach to securing our borders from terrorism and reducing illegal migration.
But before I outline our vision, I want everyone in this room to know how committed the President is to solving this problem. Just a few days ago, when he signed the DHS appropriations bill, he said that it is his Administration's goal to catch and remove every single illegal entrant caught at the border – with no exceptions.
This is a nice goal, but why is there an emphasis on "illegal entrant(s) caught at the border?" What about the illegal aliens that live care-free lives in the American interior?
Those were carefully chosen words and the President meant each one of them.
You can bet "the jobs Americans won't do" they were carefully chosen. If I was a skeptic, I might think that Chertoff and the President are telling illegals who've been here a while to "hang tight, help is on the way."
Sorta reminds me of the time that President Bush said "I did not have Amnesty with that illegal alien, not a single time, never," or something like that, many times before.
First, we must address the issue of personnel and ensure we have enough boots on the ground to carry out our security plans and enforce our policies. Last night, I went on patrol with some of the brave agents in the El Paso sector. Theirs is dangerous and difficult work. We must provide the manpower and resources they need to carry out their duties, and we are working hard to make sure they get them. I place special emphasis on the need to give them the means to protect themselves against violence from criminal traffickers.
We have already made progress. Since 9/11, yearly spending on border security has increased by $2.8 billion (60 percent). Recently, the President signed the DHS Appropriations bill which included more than $7 billion for Customs and Border Protection – the DHS agency responsible for the frontline of our borders. I thank Congress for its swift action.
With that money and other funds appropriated by Congress earlier this year, we have begun to recruit, hire and graduate 1,500 new Border Patrol agents. And with these new hires, we are on track to have increased our Border Patrol force by nearly 30 percent, close to 3,000 agents since 9/11. Later today, I will be addressing some of these new agents at their training academy in New Mexico.
One example. Building on the success of a recent pilot program, we recently obtained a Predator B Unmanned Aerial Vehicle to enhance our ability to secure the southwest border. Furthermore, we are taking opportunities to partner with the Department of Defense to adapt advanced but proven military technologies to help us with our mission.
This pilotless pilot program was remarkably successful in several ways. As noted here, "1,252 of the 853,000 observed illegal aliens were successfully apprehended, or less than two tenths of 1%." We detected a lot of illegals, and we detected how bad a job we were doing of apprehending them.
Let me be clear – we will not build a giant wall across our borders. But in areas where it makes sense to do so, we will look at physical infrastructure and technology improvements to deter illegal border crossings.
Second, we cannot have an effective border or interior enforcement strategy without an efficient detention and quick removal system. Our efforts to add border patrol agents and catch more migrants will be undercut if we turn around and release them.
Today, apprehensions of illegal migrants strain our capacity to detain and ultimately remove these individuals. As a result, those we apprehend have a good chance of being released with a notice to appear in court at some point in the future. Yet, once released many fail to appear when their court date arrives.
Through the Secure Border Initiative, we are tackling this problem by moving aggressively to re-engineer the removal process – a key enabler for greater border control. Let me give you an example. In FY 05 the Border Patrol apprehended about 160,000 non-Mexican illegal aliens along the southwest border. Because of strained capacity and inefficiencies in the removal process, 120,000 of these aliens were released with a notice to appear at court in the future. This "catch and release" process must change and it will. DHS has already begun implementing immediate actions to transform this from "catch and release" to "catch and return."
For example, we have substantially expanded our detention capacity. The Homeland Security Appropriations Act for 2006 contained funds that will enable us to add nearly 2,000 new beds, bringing the total number of beds to about 20,000. This action alone, by enabling us to detain more aliens until removed, will allow us to remove thousands of illegal immigrants from our country.
I have also directed the expanded use of Expedited Removal to all Border Patrol sectors along the southwest border. This allows us to remove, quickly, eligible aliens, reducing the time required in detention prior to removal. We are working to reduce the processing time for aliens in Expedited Removal from roughly 30 days to 15 days.
Well, I'm all for giving credit where it's due. Who gets the credit for waiting four years to do what should have been done about four days after September 11th, 2001?
Third, while a more robust detention and removal system, increased border patrol agents and better technology and infrastructure will mean greater border control, apprehension of illegal entrants is just the first step. As the President said, our goal is to remove every single illegal entrant - without exception. Through SBI, we will implement robust interior enforcement to uphold the rule of law and punish illegal workers and employers who hire them.
Though a large part of our interior enforcement strategy involves worksite enforcement, it is not limited to that. It includes more focused efforts that locate and remove criminal aliens, dismantle human trafficking and smuggling operations, all in addition to reducing document fraud at the worksite.
Where there's smoke, there's a gun. Notice again the focus on removing "every single illegal entrant - without exception." Then the emphasis on interior enforcement against "criminal aliens."
Chertoff and the President are dancing all around the bulk of the problem, which is the "illegal aliens" who are trespassing here with little fear of removal by the Bush Administration.
I am committed to promoting border enforcement task forces and to expanding the use of our existing legal authorities to train state law enforcement personnel. We have already begun to use our legal authorities to authorize state corrections officers to identify, process, and begin removal procedures on incarcerated criminals before they are released. This means that convicted illegal migrants can be deported directly from state prisons without delay in processing. We will build on successful pilot programs in Alabama, Florida, and Arizona to enable us to get convicted criminals out of this country as soon as their sentences end.
Wow, President Bush has been in office almost five years, and Chertoff boasts that they're just now getting started on removing convicted criminal illegals as they're released.
How about updating the national sex offender registries so that they indicate how many illegal alien predators have been released into our communities to the indifference, thus far, of the federal authorities?
Working with the Secretary of State, we are in the process of streamlining internal U.S. government procedures to cut days from escorted deportation. Because an overwhelmed removal pipeline is our most immediate problem – cutting even a few days from the average deportation will allow us to increase removals by thousands a year.
Again, welcome to the party, Mr. Chertoff. Glad you found the time.
In the coming months, you will hear from us with a range of specific proposals – some that generate headlines and others that won't – to put flesh on the bones of the Secure Border Initiative.
"If an employer has a job that no American is willing to take, we need to find a way to fill that demand by matching willing employers with willing workers from foreign countries on a temporary and legal basis. I'll work with members of Congress to create a program that will provide for our economy's labor needs without harming American workers, and without granting amnesty, and that will relieve pressure on our borders."
It would be a lot easier to believe the President didn't want amnesty for illegals if he wasn't always looking for ways to legalize them. All of this new enforcement will be a welcome relief, but the President's omissions in his radio address regarding illegal aliens in the interior, and Chertoff's similar omissions in his press conference today, make it pretty obvious that another disingenuous amnesty proposal is on the way "in the coming months."
Without doubt, this initiative requires a concerted effort to get all of the pieces moving in the right direction. To ensure that these efforts are well coordinated, we have set up a special task force in a Secure Border Initiative Program Office – integrating experts and resources from across the Department of Homeland Security to focus on this important challenge. This effort will result in unprecedented unity of command and unity of purpose in looking systemically at the problems of our borders and in measuring our progress toward solving them. This effort will report to me through our new policy office – ensuring that it receives the full attention of the highest levels of the Department.
Our borders represent an enormous security challenge – as well as a vital economic lifeline. Securing them in the most effective and efficient manner possible is our goal. We know of the very real frustration that people in Texas and other border states have expressed about the state of border security. We have listened, we are responding, and we will do everything in our power to get the job done.
Well, it all sounds great, but tough talk has been cheap on illegals where the Bush Administration has been concerned.
Strict constructionists take notice: Judge Alito isn't easy to pigeonhole in abortion cases.
From today's New York Times:
The Board of Immigration Appeals ruled in 1997 that husbands were eligible for asylum based on their wives' forced abortions. Last year, Judge Alito, writing for a unanimous three-judge panel, declined to extend that decision to boyfriends and fiancés.
The petitioner in the case, Cai Luan Chen, argued that he would have married his fiancée but for, as Judge Alito's decision put it, "China's inflated minimum marriage age requirement, which was instituted as part of the country's oppressive population control program." (The minimum age for men to marry in China is 22.)
Judge Alito expressed some sympathy for the argument but concluded that marriage was a categorical status that was easily applied to particular cases and was central to many distinctions made in the law.
The United States Court of Appeals for the Ninth Circuit in San Francisco reached a contrary conclusion in an asylum case last year, saying "husbands whose marriages would be legally recognized but for China's coercive family planning policies" could be entitled to asylum.
When two federal appeals courts issue flatly differing decisions on a decisive legal question, the Supreme Court often agrees to hear a case presenting the question to resolve the difference.
Judge Alito has rejected asylum applications involving abortion in other cases as well.
While abortion is a tragedy and China's population policy is one of the more barbaric examples of totalitarianism imaginable, neither issue was in Alito's purview in considering Cai's petition for asylum, so he ruled accordingly.
In a stunning blow to the National Organization for Women, research suggests that a woman's attractiveness rises and sets with her perceived femininity, which ebbs or flows with the tides of her 'oestrogen' levels (estrogen for Yanks).
Miriam Law Smith and colleagues photographed 59 women, aged between 18 and 25, every week for six weeks. On each occasion, they provided a urine sample for hormone analysis and gave information on where they were in their menstrual cycle. None of the women wore make-up, nor were they taking the contraceptive pill.
The researchers then selected the photograph of each woman that had been taken at the time of her highest urine-oestrogen level. As expected, this correlated to the point of ovulation in the women's menstrual cycles. These photographs were rated by 14 men and 15 women, also aged 18 to 25, for attractiveness, health and femininity.
The group also rated two composite face images. One composite was an amalgamation of the 10 women with the lowest peak-oestrogen levels, while the other image was a combination of the 10 women with the highest levels.
"There was a very strong and direct correlation between the level of each woman's oestrogen and how attractive, healthy and feminine they were found to be, showing that fertility is related to attractiveness," Law Smith told New Scientist. The faces considered most healthy and feminine were also deemed the most attractive.
"It is likely that those women with higher hormone levels also had increased levels of oestrogen during puberty – the time when the hormone has a crucial role in determining facial appearance," she suggests.
Liberal observers of the Court immediately pointed to a handful of Judge Alito's opinions on the Third Circuit as indications of just how conservative they expect him to be. Among those cited, for example, by americanprogress.org were these: 1991, supporting abortion restrictions, in the Planned Parenthood v. Casey decision that later went to the Supreme Court and led to the partial reaffirmation of Roe v. Wade; in 1997, in Bray v. Marriott Hotels, seeming to endorse a limited view of minorities' job rights; in 1991, in Nathanson v. Medical College, appearing to embrace tougher standard for asserting disability rights; in 2000, in Chittister v. Department of Community and Economic Development, finding that Congress had gone too far in passing the Family and Medical Leave Act; in 2004, in Doe v. Groody, embracing broader police search power, including strip searches; and in 2004, Dia v. Ashcroft and Ki Se Lee v. Ashcroft, taking a hard line against immigrants' rights.
The petitioners in Lee had lived in the United States for about twenty years and had grown children who were U.S. citizens. They were convicted of filing false tax returns and sentenced to probation, community service and repayment to the IRS. The INS then started deportation proceedings against them based on a section of the Immigration and Naturaliization Act that allows immigrants who haved committed "aggravatyed felonies" to be deported. The IJ found the petitioners to be removable and the BIA affirmed.On appeal, the Third Circuit considered whether filing a false tax return constituted an aggravated felony, concluded that it did not, and vacated the BIA's ruling. The majority found Congress clearly only intended tax evasion to be a deportable offense under the section. Id. at 225. The majority countered that the court "must interpret what it has written by well-recognized rules of statutory construction, unaided by speculation." Id. at 225 n.11.
If Lee v. Aschroft is available anywhere on the net in anything other than a doggone pdf, I didn't find it, so I'll post it here to make things easy for any lawyers in the gallery. Any mistakes are probably the fault of this layman:
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
KI SE LEE; HYANG MAHN YANG,
JOHN ASHCROFT, Attorney General of the United States,
ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS (Nos. A38 656 406, A36 775 995)
Argued: December 5, 2003
Before: SLOVITER and ALITO, Circuit Judges, and OBERDORFER, * District Judge
(Opinion Filed: May 19, 2004)
OPINION OF THE COURT
OBERDORFER, Senior District Judge:
In this appeal we consider the question of whether a conviction for filing a false tax return, in violation of 26 U.S.C. § 7206(1) of the Internal Revenue Code, is an "aggravated felony" as defined by section 101(a)(43)(M)(i) of the Immigration and Naturalization Act, 8
* The Honorable Louis F. Oberdorfer, Senior District Judge for the District of Columbia, sitting by designation.
U.S.C. § 1101(a)(43)(M)(i). We conclude that it is not, and, therefore, that the petitioners' convictions do not render them removable. Accordingly, we will grant the Petition for Review of the decision and vacate the order of removal against the petitioners.
The relevant facts are not complicated. The petitioners, Ki Se Lee and Hyang Mahn Yang, are husband and wife. They are both natives and citizens of Korea, but they have resided in the United States as lawful permanent residents since the 1980s. 1 They have grown children who are United States citizens.
For many years, the petitioners operated a dry cleaning business in Philadelphia. In May 1997, they pled guilty to a three-count information, which charged them with filing false income tax returns for 1989, 1990 and 1991, all in violation of 26 U.S.C. § 7206(1). 2 The information further alleged that, in the three tax years at issue, petitioners understated their income by $112,453, causing a tax deficiency of $55,811. Departing downward substantially, each petitioner was sentenced to three years probation, a condition of which was three months home confinement, with permission to leave for work, medical services, etc., one hundred hours of community service, and the payment of all taxes, interest and penalties due to the IRS.3 AR 110.
Thereafter, in November 1997, the
1 Petitioner Yang entered the United States in 1980; petitioner Lee entered in 1984.
2 In relevant part, section 7206 provides that
any person who . . . (1) . . .Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter. . .
shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 3 years, or both, together with the costs of prosecution. 26 U.S.C. § 7206.
3 The petitioners' Sentencing Guideline range was 4 to 10 months confinement, one year supervised release, and a $1,000 to $10,000 fine.
INS charged petitioners with being removable for having been convicted of an "aggravated felony," as defined by section 101(a)(43)(M)(i) and (ii) of the Immigration and Naturalization Act. See 8 U.S.C. § 1101(a)(43)(M). Section 101(a)(43)(M) includes in the felonies classified as "aggravated" for purposes of deportation:
An offense that –
(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or
(ii) is described in § 7201 of the Internal Revenue Code of 1986 (related to tax evasion) in which the revenue loss to the Government exceeds $10,000; . . .
8 U.S.C. § 1101(a)(43)(M)(i) & (ii). The petitioners moved to terminate removal proceedings on the ground that a conviction for violating section 7206(1) of the Internal Revenue Code was not an aggravated felony under either subsection (M)(i) or (M)(ii). The immigration judge denied their motion, ruling in July 1998 thatpetitioners'convictionsrendered them removable under either subsection. App. 47. He ordered each petitioner "removed to the Republic of (South) Korea." App. 48.
On December 2, 2002, the Board of Immigration Appeals affirmed the immigration judge's decision without opinion, making it the final agency decision. See 8 C.F.R. § 1003.1(e)(4). The petitioners seek review.
On appeal,the petitioners challenge the immigration judge's order of removal on the ground that their convictions for violating 8 U.S.C. § 7206(1) do notqualify as aggravated felonies under either 8 U.S.C. § 1101(a)(43)(M)(i) or (ii), and, therefore, that they are not removable
4 In relevant part, section 7201 provides: Attempt to evade or defeat tax.
Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution.
26 U.S.C. § 7201.
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). 5 As the government now concedes that subsection (M)(ii) does not apply, we need only consider whether the petitioners' convictions meet the definition of aggravated felony in subsection (M)(i).
As an initial matter, we consider the government's contention that under 8 U.S.C. § 1252(a)(2)(C) we lack jurisdiction to review the petitioners' order of removal. That provision states that "no court shall have jurisdiction to review any finalorder of removal against an alien who is removable by reason of having committed a criminal offense covered in section . . . 1227(a)(2)(A)(iii)." As recently explained, however, this jurisdiction-stripping provision comes into play only when two facts exist: "(1) the petitioner is an alien (2) who is deportable by reason of having been convicted of one of the enumerated offenses." Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001). We necessarily have jurisdiction "to determine whether these jurisdictional facts are present." Id.; see Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002). We are thus not precluded from reviewing the petitioners' argument that they have not been convicted of an "enumerated offense." If the petitioners are right, judicial review of the removal orders is not precluded, and they will be vacated for failing to allege a removable offense. If the petitioners are wrong, we lack jurisdiction to inquire any further into the merits, and the removal order will stand.
B. Have the Petitioners Been Convicted of an Aggravated Felony?
The petitioners argue that no conviction under section 7206(1) for filing false tax returns can satisfy the definition of aggravated felony in 8 U.S.C. § 1101(a)(43)(M)(i). We apply de novo review to this purely legal question of statutory interpretation that governs our own jurisdiction. See Valansi, 278 F.3d at 207.
"The first step in interpreting a statute is to determine 'whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.'" Id. at 209 (quoting Marshak v. Treadwell, 240 F.3d 184, 192 (3d Cir. 2001)). If the statutory meaning is clear, our inquiry is at an end. Id. If the statutory meaning is not clear, we must try to discern Congress' intent using the ordinary tools of statutory co n s t r u ct i o n . S e e I N S v . Cardoza-Fonseca, 480 U.S. 421, 447-48 (1987). "If, by employing traditional tools of statutory construction, we determine that Congress' intent is clear, that is the end of the matter." Valansi, 278 F.3d at 208 (quoting Bell v. Reno, 218 F.3d 86,90 (2d Cir. 2000)). If we are unable to discern Congress' intent using the normal tools of statutory construction, we will
5 In relevant part, section 1227(a)(2)(A)(iii) provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii).
generally give deference to the Board's interpretation, so long as it is reasonable. Id.
We thus begin our analysis with the statutory language of subsection (M)(i). It may be argued that the petitioners' convictions under section 7206(1) for filing false tax returns clearly involve "fraud and deceit," as required by subsection (M)(i), and that we need look no further. However, the precise question before us is whether the statutory language makes it plain and unambiguous that subsection (M)(i) covers convictions for violating section 7206(1). This question cannot be answered solely by looking at "the language itself"; we must also be cognizant of "the specific context in which that language is used, and the broader context of the statute as a whole." Id. at 209; cf. United States Nat'l Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 454-55 (1993)("A statute's plain meaning must be enforced, of course, and the meaning of a statute will typically heed the commands of its punctuation. But a purported plain-meaning analysis based only on punctuation is necessarily incomplete and runs the risk of distorting a statute's true meaning. Along with punctuation, text consists of words living 'a communal existence,' in Judge Learned Hand's phrase, the meaning of each word informing the others and all in their aggregate tak[ing] their purport from the setting in which they are used. Over and over we have stressed that [i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.") (internal citations and quotations omitted).
Here, these broader considerations, specifically the presence of subsection (M)(ii), preclude a conclusion that the statutory language of subsection (M)(i) clearly and unambiguously covers a section 7206(1) conviction. Subsections (M)(i) and (M)(ii) were enacted simultaneously in 1996. Subsection (M)(i) has a general application – the gamut of state and federal crimes involving fraud and deceit causing losses over $10,000. Subsection (M)(ii) zeroes in on the crime of federal tax evasion, as described in section 7201 of the Internal Revenue Code, 26 U.S.C. § 7201; it is silent about any other criminal tax offenses. Gross examination of (M) leaves obvious questions: Why does subsection (M) include both a general provision encompassing "fraud and deceit" and specific provision directed solely at the offense of federal tax evasion? If subsection M(i) applies to tax offenses, what is the purpose of subsection (M)(ii)? Does the juxtaposition of subsections (M)(i) and (M)(ii) signal an intent to exclude other tax offenses from the definitionof aggravated felonies in (M)(i)? That subsection (M)(i) raises these questions demonstrates that its language does not have a plain and unambiguous meaning, at least not as applied to a conviction under section 7206(1) of the
Internal Revenue Code. 6 Therefore, we must turn to the traditional tools of statutory construction to see if they assist in discerning Congress' intent.
We start with the principle that if at all possible, we should adopt a construction which recognizes each element of the statute. See Acceptance Ins. Co. v. Sloan, 263 F.3d 278, 283 (3d Cir. 2001) (recognizing that it is an "axiom of statutory construction that whenever possible each word in a statutory provision is to be given meaning and not to be treated as surplusage") (internal quotations omitted).
The only construction that satisfies this principle is the one suggested by the petitioners: that subsection (M)(i) does not apply to tax offenses. If the government's proposed construction were adopted, and we were to hold that any tax offense involving fraud and deceit over $10,000 was an aggravated felony under subsection (M)(i), subsection (M)(ii) would be mere surplusage. We have considered the government's contention that there could be a case where a conviction for tax evasion would not involve fraud or deceit, in which case subsection (M)(ii) would exist simply to catch any cases not covered by subsection (M)(i), but the government has not identified, and we are unable to envision, what that case might be. Indeed, in addressing what conduct might constitute tax evasion under section 7201, the Supreme Court has stated that an "affirmative willful attempt[to evade]may be inferred from . . . any conduct, the likely effect of which would be to mislead or to conceal." Spies v. United States, 317 U.S. 492, 499 (1943) (emphasis added). Accordingly, the goal of avoiding surplusage in construing a statute is satisfied only if subsection (M)(i) does not apply to tax offenses.
Another "commonplace [rule] of statutory construction" is that the "specific governs the general." Doe v. National Bd. of Medical Examiners, 199 F.3d 146, 154- 55 (3d Cir. 1999) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)); see also Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228 (1957) ("The law is settled that however inclusive may be the general language of a statute, it will not be held to apply to a matter specifically dealt with in another part of the same enactment."), quoted in Doe v. National Bd. of Medical Examiners, 199 F.3d at 155. As explained by the Supreme Court, "where Congress includes particular language in one section of the statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Cardoza-Fonseca, 480 U.S. at 447-48; see also Albright v. Oliver, 510 U.S. 266, 273 (1994). Moreover, "[t]his principle has special force when Congress has targeted specific problems with specific solutions in the context of a general statute." Doe v. National Bd. of Medical Examiners, 199 F.3d at 155. And
6 But see Abreu-Reyes v. INS, 292 F.3d 1029, 1037 (9th Cir. 2002) (denying petition for review), withdrawn on other grounds, 350 F.3d 966 (9th Cir. 2003).
it applies "particularly when the two [provisions] are interrelated and closely positioned, both in fact being parts of the same statutory scheme." Id. (internal quotations omitted).
The statutory section at issue here is a perfect example of this phenomenon. Subsections (M)(i) and (M)(ii) were adopted at the same time, appear adjacent to each other, and are the only two parts of subsection (M), within a statute with many, many subsections. Subsection (M)(i) is a general provision covering "fraud and deceit"; subsection (M)(ii) is a very specific provision that only applies to federal tax evasion. Accordingly, the principle that the specific governs the general also favors the interpretation that subsection (M)(ii) identifies the only removable tax offense, tax evasion, while subsection (M)(i) does not apply to tax offenses. 7
While the legislative history of the Immigration and Naturalization Act offers no help in discerning Congress' intent in enacting subsection (M)(i), 8the history and structure of the criminal tax laws persuade us that in enacting subsection (M)(ii), Congress intended to single out tax evasion as the only tax crime that is a removable offense. See United States Nat'l Bank of Or. v. Indep. Ins. Agents of America, Inc., 508 U.S. 439, 455 (1993) ("Statutory construction is a holistic endeavor and, ata minimum, must account for a statute's full text, language[,] as well as punctuation, structure, and subject matter.") (internal quotations and citations omitted), quoted in Tineo v. Ashcroft, 350 F.3d 382, 391 (3d Cir 2003).
As the Supreme Court explained many years ago, tax "evasion" is the "capstone" of tax law violations. See Spies, 317 U.S. at 497. A felony since at least 1903, it has long been recognized as "the gravest of offenses against the revenues." Id. at 499. In his opinion for the Court in Spies, Justice Robert Jackson (a former General Counsel for the Bureau of Internal Revenue, Assistant Attorney General for the Tax Division, Solicitor General, and Attorney General), after
7 See also Abreu-Reyes, 292 F.3d at 1037 (Paez, J., dissenting) ("That Congress included a separate statutory provision for tax evasion demonstrates that it did not intend to include tax offenses within the "fraud or deceit" text. Rather, as the statute reflects, Congress drew a distinction between tax offenses and other crimes involving fraud and deceit. Congress then targeted only the more egregious act of tax evasion, and only when the loss to the government exceeds $10,000, as sufficiently serious to warrant removal.")
8 In 1996, Congress vastly expanded the number and types of offenses that qualified as aggravated felonies. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009 (1996). For the most part, these changes were adopted without any discussion of their particular purpose.
outlining the then civil and criminal "penalties imposed by Congress to enforce the tax laws," 9 id. at 495, concluded that "[t]he climax of this variety of sanctions is the serious and inclusive felony, defined to consist of a willful attempt in any manner to evade or defeat the tax," id. at 497 (emphasis added). Thus, for Congress to select tax evasion as the "aggravated" tax felony, justifying removal of an alien who committed it, while sparing lesser tax felons, is thoroughly consistent with the history and structure of criminal tax offenses.
In the end, afterconsidering various tools of statutory construction, we believe that Congress' intent is clear: in enacting subsection (M)(ii), it intended to specify tax evasion as the only deportable tax offense; it follows that it did not intend subsection (M)(i) to cover tax offenses. 10
To the extent that any ambiguity lingers, we note that there is a "longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien." INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (principle is a corollary to the rule of lenity that applies in construing criminal statutes); see also INS v. St. Cyr, 533 U.S. 289 (2001); see also Valansi ("This rule of construction . . . may be applied as a canon of last resort to determine the intent of Congress on an ambiguous issue."). The facts of the present case highlight the reason this principle exists: it is a plain fact that in reality neither the prosecution, nor the sentencing judge involved in the prosecution, plea and sentencing of petitioners, treated their offense as "aggravated." The prosecution acquiesced in, if it did not negotiate, a plea agreement, and the judge imposed a sentence characteristic of a misdemeanor, not a felony – much less an "aggravated one" (however it be defined). See Francis v. Reno, 269 F.3d 162, 170-71 (3d Cir. 2001) (noting that the importance of this principle is highlighted "giventhe changes in immigration law effectuated by the [1996 amendments to the Immigration and
9 These sanctions ranged from civil delinquency penalties ranging from 5 to 25 percent to criminal penalties calibrated from misdemeanors (e.g. former § 145(a)) to tax evasion, punishable as a felony and carrying a maximum penalty of 5 years confinement and a $5,000 fine (former § 145(b), now § 7201).
10 We note that if we had not reached this conclusion, we would confront the question of whether we should defer to the Board's interpretation in a situation where the Board itself has not ruled on the issue before us, see 8 C.F.R. 1003.1(e)(4) (affirmance without opinion indicates only approval of the outcome, not the immigration judge's reasoning), and where the meaning of the statutory provision depends, in part, on an understanding of the Internal Revenue Code, a subject on which the Board has no expertise.
Nationality Act])." 11
Accordingly, we conclude that the petitioners' conviction for violating section 7206(1) of the Internal Revenue Code is not a removable offense under 8 U.S.C.§ 1101(a)(43)(M)(i). That decision makes it unnecessary to consider the petitioners' argument that the record does not establish a loss of $10,000.
The Petition for Review of the decision of the BIA approving the removal order of the IJ is granted with directions to vacate the removal orders with respect to the petitioners.
11 Our dissenting colleague speculates that "If Congress had not wanted subsection M(i) to apply to 'tax offenses,' Congress surely would have included some language in that provision to signal that intention." But Congress is chargeable with knowledge of the same well-established principles of statutory construction which we feel compelled to apply. If Congress had not intended us to apply them, it surely would have signaled to that effect.
Further, our colleague also speculates that Congress may have enacted M(ii) "simply to make certain even at the risk of redundancy that tax evasion qualifies as an 'aggravated felony.'" It may be that Congress will wish to broaden the categories of aggravated felony to include other or all tax felonies. But we must interpret what it has written by well-recognized rules of statutory construction, unaided by speculation.
Lee v. Ashcroft
ALITO, Circuit Judge, dissenting I must respectfully dissent because I believe that the offense of filing a false tax return and thereby causing a tax loss of more than $10,000 falls squarely within the definition of an "aggravated felony" in 8 U.S.C. § 1101(a)(43)(M)(i). Accord Abreu-Reyes v. INS, 292 F.3d 1029 (9 th Cir. 2002), withdrawn on other ground, 350 F.3d 966 (9 th Cir. 2003).
The term "aggravated felony" is defined to include:
(M) an offense that –
(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or
(ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000 . . . .
8 U.S.C. § 1101(43)(M)(emphasis added). Thus, subsection (M)(i)sets outtwo requirements. First, the offense must "involve fraud or deceit." This means that the offense must include "fraud or deceit as a necessary component or element." Valansi v. Ashcroft, 278 F.3d 203, 210 (3d Cir. 2002). Second, "the loss to the victim or victims" must exceed $10,000.
The offense of filing a false tax return and causing a tax loss of more than $10,000 satisfies these elements. "Fraud" or "deceit" is a necessary element of 26 U.S.C. § 7206(1), which makes it a crime to make or subscribe "any return, statement, or other document" that the defendant "does not believe to be true and correct as to every material matter." In addition, causing a tax loss of more than $10,000 results in a qualifying "loss to the victim," i.e., the United States Treasury.
Despite the clarity of subsection M(i), the majority concludes that this provision does not apply to tax offenses. Invoking two venerable canons of statutory interpretation (viz., that statutes should be read if possible to avoid surplusage and that the specific should take precedence over the general), the majorityreasons as follows. The provision thatdirectly follows subsection (M)(i),i.e., 8 U.S.C. §1101(43)(M)(ii), specifically provides that the offense of tax evasion (26 U.S.C. § 7201) is an aggravated felony. This specific provision would not have been needed if (M)(i) applied to tax offenses, because tax evasion is an offense that involves fraud or deceit. Therefore, Congress must have intended that (M)(i) not apply to "tax offenses."
I must disagree with this analysis for two reasons. First and most important, this analysis fails to account for the language of subsection M(i). If Congress had not wanted subsection M(i) to apply to "tax offenses," Congress surely would have included some language in that provision to signal that intention. As
adopted, however, subsection M(i) contains no such hint. In order to argue that the filing of a false tax return does not come within the language of subsection M(i), one would have to argue either that the term "victim" was not meant to apply to the Treasury or that the term "loss" does not include a tax loss. However, both of these arguments fail to comport with ordinary usage. See United States v. Fleming, 128 F.3d 285, 288 (6 th Cir. 1997)("In tax fraud cases, we consider the United States Treasury the victim."); U.S.S.G. § 2T4.1 ("Tax Loss" table).
Second, the majority errs in inferring from subsection M(ii) that Congress believed that subsection M(i) did not reach tax offenses. Subsection M(ii) may have been enacted simply to make certain – even at the risk of redundancy – that tax evasion qualifies as an aggravated felony. While good statutory draftsmanship seeks to avoid surplusage, other goals, such as certainty and the avoidance of litigation, are sometimes more important. Here, those responsible for drafting the provisions in question may have had a measure of doubt that subsection M(i) would be interpreted as covering all (or any) evasion cases, and subsection M(ii) may have been added to dispel any such uncertainty.
The tax evasion statute provides in relevant part as follows:
Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony . . . .
26 U.S.C. § 7201.
This offense has three elements: "1) the existence of a tax deficiency, 2) an affirmative act constituting an attempt to evade or defeat payment of the tax, and 3) willfulness." United State v. McGill, 964 F.2d 222, 229 (3d Cir.), cert. denied, 506 U.S. 1023 (1992). See also United States v. Voigt, 89 F.3d 1050, 1089 (3d Cir. 1996). In this context, willfulness requires proof that the defendant knew that his or her conduct was unlawful. Cheek v. United States, 498 U.S. 192, 201 (1991).
Neither "fraud" nor "deceit" is mentioned in the statute as a necessary element of tax evasion. The statute applies to the willful attempt "in any manner to evade or defeat any tax imposed by this title or the payment thereof." 26 U.S.C. § 7201 (emphasis added). Likewise, leading cases interpreting this language do not hold that fraud or deceit is an element of the offense. In Spies v. United States, 317 U.S. 492 (1943), the Supreme Court emphasized the breadth of the statutory language:
Congress did not define or limit the methods by which a willful attempt to defeat and evade might be accomplished and perhaps did not define lest its effort to do so result in some unexpected limitation. Nor would we by definition constrict the scope of the Congressional provision that it may be accomplished "in any manner." Id. at 499. 12
In light of the statutory language and the case law, cautious drafters might have concluded that it was prudent to add subsection M(ii) for at least two reasons. First, even if the drafters, like the majority in this case (see Maj. Op. at 9-10), could not think of an evasion case that did not involve fraudulent or deceitful conduct, the drafters might not have trusted their ability to anticipate every possible variety of evasion case and might have added subsection M(ii) just to be sure that no evasion case fell outside the definition. Second, even if the drafters were certain that no defendant would ever be convicted of tax evasion without proof of fraudulent or deceitful conduct, the drafters might have been concerned that some courts would hold that tax evasion falls outside the scope of subsection M(i) because neither "fraud" nor "deceit" is a formal element of the offense. See Valansi, 278 F.3d at 210 (in determining whether an offense involves" fraud or deceit," we look to the necessary elements of the offense of conviction).
Thus, given the choice between (a) the risk that some or all tax evasion cases would not be covered and (b) the inclusion of a potentially redundant statutory provision, the drafters might have selected the latter option. For these reasons, I think that it is unwarranted to infer from subsection M(ii) that subsection M(i) was not intended to reach "tax offenses." I would heed the clear language of subsection M(i) 13 and
12 Although the Court went on to provide a list of deceitful activities from which an "affirmative willful attempt" could be inferred, the Court took pains to note that this list was furnished "[b]y way of illustration, and not by way of limitation." 317 U.S. at 499.
13 Even if the statutory language were ambiguous, I would defer to the BIA's reasonable interpretation that § 7206(1) is an aggravated felony. See I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999)("Because the Court of Appeals confronted questions implicating '[the BIA's] construction of the statute which it administers,' the court should have applied the principles of deference described in Chevron"); Valansi, 278 F.3d at 208 ("Despite our exercise of de novo review, we will give deference to the agency's interpretation of the aggravated felony definition if
hold that the offense of filing of a false tax return and causing a tax loss of more than $10,000 is an aggravated felony.
Congress's intent is unclear"); Lukwago v. Ashcroft, 329 F.3d 157, 166 (3d Cir. 2003)("We must review the BIA's statutory interpretation of the INA under the deferential standard of Chevron."). Appellants argue that when the INA is ambiguous we should invoke the rule of lenity and find in the alien's favor. See, e.g., I.N.S. v. Cardoza- Fonseca, 480 U.S., 421, 449 (1987); I.N.S. v. St. Cyr, 533 U.S. 289, 320 (2001). The rule of lenity, however, is reserved for situations in which the normal rules of statutory interpretation are unhelpful. See St. Cyr, 533 U.S. at 320, n. 45 ("[T]he cases and rules cited by Petitioner are distinguishable because '[w]e only defer, however, to agency interpretations of statutes that, applying the normal "tools of statutory construction," are ambiguous.'")
Looks like a contest to see which lines are the best to read between. Let the laywers have at it, I'm just wondering if President Bush knows that Judge Alito wanted to deport someone for not paying their taxes. What kind of signal is that to send to people who just want to do the jobs we lazy Americans won't do?
Alito's record speaks for itself, and people have the right to debate it now if they wish. For their part, the Senators should focus on those qualifications instead of Alito's politics, just as they did with Stephen Breyer and Ruth Bader Ginsberg, and allow the elected President to seat the well-qualified nominee of his choice. None of the three mention that Alito won unanimous approval from Democratic-controlled Senates to his last two positions, and that nothing he's done in the fifteen years since has done anything but add to his resume and qualifications to rise to the Supreme Court.
That may be the most germane point of all -- and it's telling that all three completely ignored it.