The Moebus Extradition Order INS Rules That Foreigners In US NOT PROTECTED UNDER US CONSTITUTION! 9/15/01 12:36:11 PM hendrikmoebus.com Legal Briefing -- [LSN Note: Evelyn Hill, webmaster for http://www.hendrikmoebus.com and former office manager for the National Alliance's Hillsboro compound, sent us several legal documents in the Hendrik Moebus case today. We will be presenting all of them, but we will start with the outrageous decision of the Executive Office for Immigration Review that free speech prosecutions in Germany do not constitute "persecution for political opinion."] ----- US Department of Justice Executive Office for Immigration Review Board of Immigration Appeals Office of the Clerk 5201 Leesburg Pike, Suite 1300 Falls Church, Virginia 22041 ----- SCHULTZ ERIC W [Moebus' attorney] 107 Delaware Avenue, Suite 1320 Buffalo, NY 14202-2993 ----- Office of the District Counsel/BT 130 Delaware Avenue, Room 203 Buffalo, NY 14202 Name: MOBUS, HENDRIK #A78-429807 Date of This Notice: 7/23/2001 Enclosed is a copy of the Board' decision and order in the above referenced case. Very Truly Yours, Lori Scialabba Acting Chairman Enclosure Panel Members [Note:Individuals Responsible for the Deportation] GUENDELSBERGER, JOHN MILLER, NEIL P MOSCATO, ANTHONY C [end cover sheet] ----- [page 2] US Department of Justice -- Decision of the Board of Immigration Appeals Executive Office for Immigration Review Falls Church, Virginia 22041 File: A78 429 807 -- Batavia Date: July 23rd, 2001 In re: HENDRIK MOBUS IN ASYLUM ONLY PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Eric W Schultz, Esquire ON BEHALF OF SERVICE: Denise C Hochul -- Assistant District Counsel APPLICATION: Asylum; withholding of removal; deferral of removal By decision dated March 5, 2001, the Immigration Judge found that the respondent, a 25-year old native and citizen of Germany, was subject to removal as charged. He also found that one of the respondent's prior criminal convictions barred him from eligibility for asylum and withholding of removal, and that even if not so barred, he had not established eligibility for either of these forms of relief, or the relief of deferral of removal under the Convention Against Torture. The respondent's appeal from that decision will be dismissed. The respondent's request for oral argument is denied. See 8 CFR section 3.1(e). We grant the respondent's appeal fee waiver request and consider this appeal without payment of free. See 8 CFR section 3.8(c). On February 9, 1994, when he was 17 years old, the respondent was convicted in the District Court of Mulhausen, Germany, for the offenses of conspiracy to commit murder in coincidence with conspricy to kidnap and conspiracy to assault in coincidene with conspiracy to attempted intimidation. [LSN Note: All conspiracy charges!] For these offenses, he was sentenced to a term of imprisonment for a period of 8 years. On August 25, 1998, his sentence was commuted to a term of probation extending until August 27, 2001. On July 14, 1999 he was convicted in the District Court of Eisenach, Germany, for the offense of use of symbols of organizations hostile to the Constitution of Germany and sentenced to a term of imprisonment of 8 months. Thereafter, the respondent was convicted in the District Court of Berlin-Tiergarten, Germany, for the offense of slanderng the memory of the decease and sentenced to a term of imprisonment for a period of 1 year and 6 months. [end page 2 -- start page 3] An applicant for asylum in the United States must establish that he or she is a refugee. Section 208(b) of the Immigration and Nationalist Act, 8 USC, section 1158(b). A refugee is defined in relevant part as, "any person who is outside of any country of such person's nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Section 101(a)(42)(A) of the Act, 8 USC section 1101(a)(42)(A). An applicant for asylum has the burden of establishing that he or she is a refugee as defined in section 101(a)(42) of the Act. To show a well-founded fear of persecution, an alien must show a "reasonable possibility" of suffering persecution if returned to the country in question. 8 CFR section 208.13(b)(2)(i)(B). To make such a showing, the alien must establihs that a reasonable person in his or her circumstances would fear persecution. Matter of Kasinga, 21 i & N Dec. 357(BIA 1996); Matter of Mogharrabi, 19 I&N Dec 439 (BIA 1987). See also INS v. Cardoza-Fonseca 480 US 421 (1987). The Immigration Judge found that the respondent was barred from eligbility for asylum and withholding of removal because of his conviction for conspiracy to committ murder, etc. However, the Immigration Judge also found that even if the bar did not apply, the respondent failed to establish that he meets the criteria for either of those forms of relieg. We agree. <b>The Government of Germany ha enacted laws to discourage the political activities of groups seen as sympathetic to or supportive of extremely Nationalistic of Nazi-like causes. It is the right of the German government to investigate violations of and enforce the las of that country. [footnote 1: <i>The respondent's arguments regarding the First Amendment of the United States Constitution are inapposite. Obviously, the laws of Germany are not required to comply with the Constitution of the United States.</i>]</b> The respondent has been convicted for breaking these laws. [footnote 2: The respondent makes various arguments regarding the legitimacy of his criminal convictions in Germany. For example, her argues that he was not wearing a swastika, but instead only an image that resembled a swastika. In any case, we cannot go behind a criminal conviction to reassess the respondent's guilt. See generally matter of C-, 20 I &N Dec. 529, 532 (BIA 1992)(citations ommitted).] When such violations occurred, the respondent was afforded due process, access to the court system, and legal representation. An arrest and prosecution for breaking the law cannot form a legitimate basis for an asylum claim. See Matter of H-M- 20 I&N Dec 683, 691 (BIA 1993) (noting that where an asylum applicant violates a law which a government has a legitimate right to enforce, and suffers harsh treatment as a result, the applicant must show that the government in question has punished him "on account of" his political opinion and not for violating the law). Therefore, we agree with the Immigration Judge that the respondent has not established past persecution or well-founded fear of persecution, and that he is therefore not eligible for asylum, nor has he met the higher burden of proving eligibility for withholding of removal. Because he has not established eligibility for one of these forms of relief, we need not reach the issue of whether his criminal conduct while in Germany bars him from eligibility for such relief. Even if the respondent's criminal conduct did bar him from relief of asylum and withholding of removal, he would remain eligible for deferral of removal of removal pursuant to the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment of Punishment. GA Res 39/46, Annex, 39 UN GAOR Supp No 51 at 197, UN Doc A/39/51 (1984). [Footnote 3: An alien who qualifies for relief under the Convention Against Torture, but has been convicted of a particularly serious crime, is ineligible for removal under the Convention Against Torture. See 8 CFR section 208.16(c)(2). However, 8 CFR section 208.17 (a) provides that an alien who has been found under section 208.16(c)(3) to be entitled to protection under the Convention Against Torture, and who, like the respondent in this case, is subject to the provisions of mandatory denial of withholding of removal under section 208.16(d)(2) or (d)(3), shall be granted deferral of removal to the country where he or she is more likely than not to be tortured.] In considering an application for withholding or deferral of removal under the Convention Against Torture, the Immigration Judge must "first determined whether the alien is more likely than not to be tirtured in the country of removal." 8 CFR section 208.16(c)(4). Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspcted or having committed, or intimidating or coercing him or her or a third person, or for any reson based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiesence of a public official or other person acting in an official capacity. 8 CFR section 208.18(a)(1). The respondent bears the burden of proof in such claims. 8 CFR section 208.16(b). We agree with the Immigration Judge that there is absolutely nothing in the record to establish that the respondent is likely to be subject to torture in Germany at the hands of the German government opr with the consent or acquiesence of a public official in Germany. The respondents has run afoul of the criminal laws of Germany. When this happened he was afforded due process and access to the German legal system. There is nothing to suggest that he will face torture in Germany even if he continues to break the laws of that country. For these reasons, because we agree with the Immigration Judge's decision, and because we are not persuaded by any of the arguments offered by the respondent on appeal, the following order shall be entered. ORDER: The appeal is dismissed. [signed] Anthony C Moscato FOR THE BOARD Libertarian Socialist News Post Office Box 12244 Silver Spring, MD 20908 http://www.overthrow.com (check out our messageboards -- discuss this story on-line!) (Formerly http://www.libertariansocialist.com)
