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Skurtu v. Mukasey

December 24, 2008

ALEKSANDR M. SKURTU, PETITIONER,
v.
MICHAEL MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals.

The opinion of the court was delivered by: Smith, Circuit Judge.

Submitted: September 26, 2008

Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.

An immigration judge (IJ) ordered Alexander M. Skurtu removed to Moldova and subsequently denied Skurtu's application for withholding of removal and Convention Against Torture (CAT) protection. The Board of Immigration Appeals (BIA) adopted and affirmed the IJ's decision. More than 30 days later, Skurtu initiated a separate action styled a "Complaint" in federal district court. Skurtu's "Complaint" alleged that the IJ committed numerous errors and that the removal proceedings violated Skurtu's Fifth Amendment due process rights. The district court*fn1 transferred the "Complaint" to this court, construing it as a petition for review under the REAL ID Act of 2005 ("Real ID Act"). For the reasons discussed below, we dismiss the "Complaint" for lack of subject matter jurisdiction.

I. Background

Skurtu, a native and citizen of Moldova, was served with a Notice to Appear (NTA), charging him as removable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(iii), for being convicted of an aggravated felony, and under § 237(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii), for being convicted of two crimes involving moral turpitude not arising out of the same scheme of criminal misconduct. At the beginning of the removal process, the IJ informed Skurtu that he had the right to retain private counsel and gave Skurtu a list of legal aid attorneys from which Skurtu might seek legal counsel for a reduced cost or pro bono. Skurtu subsequently informed the IJ that these attorneys declined to provide representation. The IJ reminded Skurtu that he still had the right to obtain a lawyer before the removal hearing. Skurtu, nonetheless, represented himself at the removal hearing, and the IJ found Skurtu removable.

After the finding of removability, Skurtu declined to designate a country for removal, so the IJ designated his country of nativity and citizenship-Moldova. Skurtu then applied for withholding of removal and CAT protection. Skurtu stated that he was seeking relief based on his nationality. In the application, he stated that he had never been harmed and that he did not fear harm if he were returned to Moldova. At the hearing, the IJ inquired whether Skurtu had any evidence that he might be tortured if returned to Moldova, to which Skurtu replied, "I have no evidence." The IJ then clarified with Skurtu that, in fact, he had no evidence, to which Skurtu replied, "No."

Skurtu also told the IJ, "When I tell I'm going to fear for my life, I will lie." In response to the IJ's subsequent questions, Skurtu replied that he had never been detained, interrogated, convicted, or sentenced in Moldova, nor had any of his family members.

Skurtu then called both of his parents to testify on his behalf. Skurtu asked the IJ if he could translate his father's testimony because his father does not speak fluent English; the IJ responded that Skurtu had not requested an interpreter and that one was not present. Skurtu then asked the IJ if Skurtu could translate if his father had a problem understanding, but the IJ instructed Skurtu that his father would have to speak in English. Skurtu's father testified that he did not know what would happen to Skurtu if he were returned to Moldova. Skurtu then questioned his mother, who also testified that she did not know what would happen to Skurtu if he were returned to Moldova.

In addition to Skurtu's and his parents' testimony, the IJ reviewed the State Department's Country Report on Human Rights Practices for Moldova and Skurtu's criminal record.

The IJ issued his oral decision on November 28, 2006. In his decision, the IJ noted that Skurtu bore the burden to prove that he was entitled to withholding of removal and CAT protection. The IJ found that Skurtu failed to present any evidence concerning past persecution, pointing out that he had specifically asked Skurtu "if in his native country either he or [his] family members were detained, interrogated, convicted, [or] sentenced to prison[,] and he said that they were not." The IJ also concluded that Skurtu failed to establish a well-founded fear of persecution, stating that "absolutely nothing in the record" supported a finding that Skurtu "faced any real problems based upon the five reasons given in the Act." The IJ also found that Skurtu failed to establish that it was more likely than not that he would be tortured if returned to Moldova. Accordingly, the IJ ordered that Skurtu be removed from the United States to Moldova.

Thereafter, Skurtu appealed the IJ's decision to the BIA, arguing that the IJ ignored evidence of past persecution that some of his relatives had suffered in Moldova. He also asserted that he had a right to appointed counsel before the IJ; that his Eighth Amendment rights would be violated if he were returned to Moldova; and that the Communist government of Moldova would persecute him upon his return. Finally, he maintained that the IJ did not take into account the hardships that he would face if returned to Moldova. On February 27, 2007, the BIA adopted and affirmed the IJ's decision.

On May 1, 2007, Skurtu mailed a pleading entitled "Complaint" to the United States District Court for the District of Columbia. The "Complaint" was received on May 17, 2007, and filed on June 26, 2007. Thus, Skurtu's "Complaint" was filed over 30 days after the BIA issued its decision. The "Complaint" was docketed as a habeas corpus petition pursuant to 28 U.S.C. § 2255. The "Complaint" alleged, inter alia, that the IJ failed to inquire about or take into consideration the "persecution, abuse, discrimination, torture, and any life threatening situations of Petitioner's parents, grandparents, and Petitioner's aunts and uncles [or] what they faced while they were in Moldova." In addition, the "Complaint" alleged that the IJ failed to note "any other reasons for this Petitioner's family members becoming refugees from Moldova" and failed to ask his mother or father "about any abuses while the[y] were on the stand and under oath." It also stated that the IJ made "erroneous findings" and failed to take into consideration Skurtu's age at the time that he entered the United States. In addition to these claims, the "Complaint" alleged that the IJ denied Skurtu his right to appointed counsel and his right to a fair hearing due to the IJ's failure to fully and fairly develop the record.

Thereafter, the United States District Court for the District of Columbia transferred the "Complaint" to the United States District Court for the Eastern District of Missouri. That court then transferred the ...


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