Petition for Writ of Certiorari — Udarbe v. Gonzales

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the BIA subsequently denied his motion to reconsider.

Petitioner, the government and the Seventh Circuit all

agreed that this Court’s decision in INS v. Stone was

applicable in having jurisdiction to determine Udarbe's

appeal.

Since this Court’s decision in Stone, the 104th Con-

gress in 1996, however, passed the Illegal Immigration

Reform and Immigrant Responsibility Act (IDRAIRA).

Since the enactment of that law, immigration law in the

United States has changed dramatically, and several

Circuits, including the Ninth Circuit, have ruled that

motions like the one Udarbe filed have changed since the

passage of IIRAIRA, specifically that they now take on

statutory rather than constitutional framework.

SUMMARY OF ARGUMENT

This Court should vacate the Seventh Circuit’s order

below and direct the Seventh Circuit to exercise jurisdic-

tion over Mr. Udarbe’s petition for review and vacate the

removal order in this matter. The Court should take this

action because 8 U.S.C. § 1101(a)(43) violates the equal

protection principles embodied in the Fifth Amendment of

the Constitution. As applied, it treats a legal permanent

resident (LPR) convicted of an “aggravated felony” in

Indiana differently than it treats a legal permanent

resident convicted of an “aggravated felony” in Illinois. An

LPR convicted under a misdemeanor offense of battery in

the State of Indiana, is an aggravated felony under

8 U.S.C. § 1101(aX43) and he would be subject to re-

moval by the Department of Homeland Security (“DHS”

formerly INS). However, an LPR convicted for the same

actions under a misdemeanor offense of battery in the

state of Illinois would not be an “aggravated felony” under

8 U.S.C. §1101(aX43) and he would not be subject to

removal by the DHS.

Lastly, a LPR is placed in deportation proceedings

if he is convicted of an aggravated felony. 8 U.S.C.

§ 1227(a\2\iii) (2004). However, the same is not true for a

non-legal permanent resident (non-LPR) convicted of an

aggravated felony. A non-LPR aggravated felon may seek

an adjustment of s’ tus and remain in the United States

by receiving an INA §212(h) discretionary waiver. 8

U.S.C. § 1182(h) (2004).

The Illegal Immigration Reform and Immigrant

Responsibility Act (ITRIRA) clearly bars discretionary

cancellations of deportation to lawful permanent residents

convicted of aggravated felonies while permitting these

discretionary waivers for illegal aliens convicted of the

same underlying offenses. This disparate treatment of

similarly situated individuals violates the due process

clause of the Fifth Amendment on equal protection

grounds.

Without question, the timely filing of a petition for

review is a mandatory prerequisite to a circuit court’s

exercise of jurisdiction. In Stone v. INS, 514 U.S. 386

(1995), this Court held that pending motions for reconsid-

eration do not toll the finality of a BLA deportation order.

Id. at 405. In so helding, it also stated that motions for

reconsideration are separate, final agency orders, and

indicated that the proper procedure for appealing both a

deportation order and a subsequent denial of a motion for

reconsideration is to file two separate petitions for review

which may be consolidated for review. See id. at 395

(“Upon denial of reconsideration, the petitioner would file

a separate petition to review that second final order.”).

Because petitioner here did file a petition for review

within the prescribed time after the BIA’s disposition of

his motion for reconsideration, despite not filing a petition

for review of the BIA order dismissing Udarbe’s immigra-

tion appeal, the Seventh Circuit Court nevertheless could

have reviewed his arguments. Moreover, since the 104th

Congress in 1996 passed the Illegal Immigration Reform

and Immigrant Responsibility Act (ITRAIRA), motions to

reconsider no longer are regulatory in nature, but statu-

tory. As the nature of such motions have changed, so too,

does the effect of said motion change and therefore the

reviewing authority of the court has changed by act of

Congress. Stone should only apply to pre-ITRAIRA cases,

not cases wherein the legal effect of motions to reopen fall

within the scope of ITRAIRA. With the enactment of

IIRIRA, motions to reopen and reconsider were trans-

formed from a regulatory to a statutory form of relief and

Petitioner’s timely filed motion for reconsideration was

reviewable by the Seventh Circuit Court of Appeals.

Finally, the Seventh Circuit failed to discuss whether

Petitioner enjoyed certain rights of equitable tolling of the

issue raised in his motion to reconsider before it denied his

petition for review on jurisdiction reasons. Other circuits

have ruled that non-citizens like Udarbe enjoy the right of

review before the court of appeals.

For all of these reasons, petitioner respectfully re-

quests this Court to vacate the order of the Seventh

Circuit and to direct the Seventh Circuit to exercise

jurisdiction over the petition for review and vacate the

removal order against petitioner.

ARGUMENT

THE DISPARATE TREATMENT OF PETITIONER

FROM OTHERS SIMILARLY SITUATED

VIOLATES THE EQUAL PROTECTION PRINCIPLES

EMBODIED IN THE FIFTH AMENDMENT, IN THAT

18 U.S.C. § 16 CAN BE USED TO REMOVE

A NON-CITIZEN CONVICTED OF A CRIME

IN ONE STATE BUT NOT IN ANOTHER STATE

CONVICTED OF THE SAME CRIME

Despite a strong national policy in favor of uniform

application of the immigration laws, someone who is not a

U.S. citizen is removable for a misdemeanor conviction in

one state but is not subject to deportation and removal in

another state for the same offense.

The due process clause of the Fifth Amendment

guarantees every person the equal protection of the laws.

Hampton v. Mow Sun Wong, 96 S. Ct. 1895, 1904 (1976).

The federal sovereign, like the States, must govern impar-

tially. Jd. The concept of equal justice under law is served

by the Fifth Amendment’s guarantee of due process, as

well as by the Equal Protection Clause of the Fourteenth

Amendment. /d. Although both Amendments require the

same type of analysis, the Fifth Amendment does not

contain an equal protection clause as does the Fourteenth

Amendment which applies to the states. However, the

concept of equal protection and due process both stem

from the American ideal of fairness. Bolling v. Sharpe, 74

S. Ct. 693, 694 (1954).

Essentially, the concepts of due process and equal

protection are premised on the fact that all persons similarly

situated should be treated alike. Plyler v. Doe, 457 U.S.

202, 216, 102 S. Ct. 2382, 2394, 72 L.Ed.2d 786 (1982).

What is relevant here is Petitioner’s substantive due

process. Substantive due process bars certain arbitrary

government actions regardless of the fairness of the

procedure used to implement them. Danieals v. Williams,

106 S. Ct. 677, 678 (U.S. 1986). The usual: standard of

review for a statute or regulation challenged on equal

protection grounds is the rational basis test. Under this

test, legislation is presumed to be valid, and will be sus-

tained as long as the classification drawn by the statute is

rationally related to a legitimate state interest. Griffin

High School v. Illinois High School Ass’n, 822 F.2d 671,

675 (7th Cir. 1987). Citing City of Cleburne v. Cleburne

Living Center, 473 U.S. 432, 105 S. Ct. 3249, 3254, 87

L.Ed.2d 313 (1985); see Schweiker v. Wilson, 450 U.S. 221,

230, 101 S. Ct. 1074, 1080, 67 L.Ed.2d 186 (1981); Vaden v.

Village of Maywood, 809 F.2d 361, 365 (7th Cir. 1987). As

such, both 8 U.S.C. § 1101(aX43) and 8 U.S.C. § 1182(h)

(2004) violate the equal protection principles embodied in

the Fifth Amendment by disparate treatment of similarly

situated persons.

A. Petitioner Is Being Treated Differently Un-

der 8 U.S.C. § 1101(a)(43) In Indiana Than A

Similarly Situated Person, Convicted Of The

Same Crime In Ilinois.

The terms of imprisonment for misdemeanor battery

conviction vary from state to state. For example, the

maximum term of imprisonment for a misdemeanor

conviction for the offense of battery in Indiana is one year;

while in Illinois the maximum term of imprisonment for a

misdemeanor conviction for the offense of battery is 364

days. See Illinois Code § 5-1-14 (2004) (Imprisonment of

less than one year for a misdemeanor battery) Indiana

Code § 35-50-3-2 (2004) (Imprisonment of not more than

one year for a misdemeanor battery).

If the Petitioner were convicted for the same actions

under a misdemeanor offense of battery in the State of

Illinois and received the maximum sentence, as he did in

the State of Indiana, his conviction would not be an

aggravated felony under 8 U.S.C. § 1101(a\43) and he

would not be subject to removal by the INS.

To survive substantive due process analysis, a regula-

tion need “bear a rational relation to a legitimate govern-

ment interest...” Griffin High School v. Illinois High

School Ass’n, 822 F.2d 671, 675 (7th Cir. 1987). See Wil-

liamson v. Lee Optical Co., 348 U.S. 483, 487-88, 75 S. Ct.

461, 464-65, 99 L.Ed. 563 (1955). There can be no reasona-

bly conceivable state of facts or any plausible reason that

could provide a rational basis for the Agency to treat a

person convicted of misdemeanor battery in the State of

Indiana differently than a-person convicted of misdemeanor

battery in the State of Illinois. Because 8 U.S.C. § 1101(a\43)

allows the unequal] treatment for the same course of conduct

from one state to another, without a rational basis for such

unequal treatment, that code violates Petitioner’s right to

equal protection under the due process clause of the Fifth

Amendment of the United States Constitution.

The equal protection violation is further exasperated

by the fact that both Indiana and [linois are. Seventh

Circuit jurisdictions. Thus, even within the Seventh

Circuit, similarly situated individuals that commit identi-

cal crimes would be treated differently under 8 U.S.C.

§ 1101(a43). A thorough review of the code, legislative

history, and ensuing case law found there to be no rational

relation to a legitimate government interest in treating

legal permanent residents in Indiana differently than

treating legal permanent residents in Illinois. Further-

more, it is important to reiterate that substantive due

process bars certain arbitrary government actions regard-

less of the fairness of the procedure used to implement

them. Danieals v.. Williams, 106 S. Ct. 677, 678 (U.S.

1986).

In conclusion, even though 8 U.S.C. § 1101(a)(43) may

be implemented fairly, the net result is an arbitrary

treatment of lawful permanent residents depending on the

state in which they committed a misdemeanor. Plainly

stated, the luck of the draw determines whether they will

be deported or allowed to remain in the United States.

B. The Disparate Treatment Of Legal Perma-

nent Resident Aggravated.Felons As Against

Non-Legal Permanent Resident Aggravated

Felons Violates The Due Process Clause Of

The Fifth Amendment On Equal Protection

Grounds.

A lawful permanent resident (LPR) is placed in

deportation proceedings if he is convicted of an aggravated

felony. 8 U.S.C. § 1227(a)(2)(iii) (2004). The LPR has not

recourse for remaining in the United States. However, the

same is not true for a non-legal permanent resident (non-

LPR) convicted of an aggravated felony. The non-LPR may

seek an adjustment of status and remain in the United

States by receiving a 212(h) discretionary waiver. 8 U.S.C.

§ 1182(h) (2004).

The [legal Immigration Reform and Immigrant

Responsibility Act (ITRAIRA) clearly bars discretionary

cancellations of deportation to LPRs convicted of aggra-

vated felonies while permitting these discretionary waiv-

ers for illegal aliens convicted of the same underlying

offenses. See Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir.

2001). This disparate treatment of similarly situated

individuals violates the due process clause of the Fifth

Amendment on equal protection grounds.

Congress’ plenary power in the area of immigration

and naturalization law requires special deference be given

in decisions to expel or exclude individuals from this

country. Fiallo v. Bell, 430 U.S. 787, 792 (1977). A classifi-

cation must be upheld against equal protection challenges

if there is any reasonably conceivable state of facts that

could provide a rational basis for the classification. Heller

v. Doe, 509 U.S. 312, 320 (1993). Although Petitioner is

entitled to equal protection under the Fifth Amendment,

such congressional distinctions among aliens are subject

only to rational review. See Fiallo, 430 U.S. at 792. Ra-

tional review requires that a statute be upheld if there are

plausible reasons for Congress’ action. United States R.R.

Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980).

There is no rational basis for such a disparity of

treatraent between similarly-situated LPRs and non-LPRs

and therefore INA § 212(h) is unconstitutional and must

be struck down.

The Seventh Circuit has previousiy visited this issue

in Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001). The

Court in Lara-Ruiz gave three reasons for the distinction

between LPR aggravated felons and non-LPR aggravated

felons to be a rational classification. First, it claimed that

the amendment to INA § 212(h) fulfilled Congress’ overall

purpose in ITRIRA to streamline the removal process and

expedite the removal of criminal aliens. Jd. at 947. It is

clear that streamlining the removal process is a legitimate

government purpose; however the constitution addition-

ally requires that the law must be rationally related to the

achievement of that purpose. There is no rational link

between the asserted goals of streamlining the removal

process and Congress’ actions in denying discretionary

waivers only to LPRs. The Lara-Ruiz opinion completely

lacks reason rewarding those that have committed two

crimes, illegal entry and ‘aggravated felony’, by treating

them better than individuals guilty only of the same

‘aggravated felony’.

In addition, the Court in Lara-Ruiz stated that even if

Section 212(h) does not streamline the removal process, it

is a rational first step toward the expeditious removal of

all criminal aliens. Jd. at 947, stating:

[w)hile it might have been wiser, fairer, and

more efficacious for Congress to have eliminated

§ 212(h) relief for non-LPR aggravated felons as

well, the step taken by Congrr . was a rational

first step toward achieving the iegitimate goal of

quickly removing aliens who commit certain se-

rious crimes from the country. .. .

Id.

The distinction which Congress enacts in order to

advance this “first step,” however, must itself bear a

rational relationship to a legitimate government purpose.

See Brown v. Bowen, 905 F.2d 632, 637 (2d Cir. 1990).

Petitioner asserts that there is no rational relationship.

A rational “first step” would have been for Congress to

preclude only LPRs and non-LPRs who committed certain

felonies, but allowed felons who committed other, perhaps

less serious crimes to remain eligible for discretionary

relief. “This would bear a rational relationship to an initial

goal of removing the worst criminal aliens from the coun-

try in furtherance of a latter goal of expediting the re-

moval of all criminal aliens”. See Jankowski v. I.N.S., 138

F.Supp.2d 269 (D.Conn. 2001).

Instead congress chos> to punish LPRs guilty of an

aggravated felony to a hig.ier degree than illegal aliens

guilty of the same aggravated felony. There is not even a

scintilla of reason applicable to making that the “first

step” toward the expeditious removal of all criminal aliens.

Rather, the rational and logical first step should be to

remove the alien that has two strikes against him (illegal

entry and aggravated felony) before the alien that has only

one (an aggravated felony).

Lastly, this Court in Lara-Ruiz stated that Congress

may have decided to take an unprecedented step of giving

preference to illegal aliens over lawful permanent resi-

dents, stating:

LPRs enjoy rights and privileges by virtue of

their status which are not shared by non-LPRs,

and they typically have closer and longer-

standing ties to the United States through em-

ployment and family relationships. Therefore,

Congress may rationally have concluded that

LPRs, who commit serious crimes despite these

factors, are -uniquely poor candidates for relief

from removal through the ‘backdoor’ of waiver of

inadmissibility. Lara-Ruiz, 241 F.3d at 947.

It is incredible that this Court must reconcile whether

a lawful resident with longer-standing ties to the United

States, through employment and family relationships is

somehow Jess deserving of waiver inadmissibility than an

illegal alien with less ties to this country.

It is flatly irrational for Congress to punish those who

adhere to the immigration laws of his country while

offering rewards to those who have entered and/or remain

here illegally. INA § 212(h) fails to meet the minimum

standards or rational basis scrutiny and as such must be

struck down.

Il.

ARGUMENT

THE ENACTMENT OF ITRAIRA NOW CREATES

A STATUTORY RATHER THAN ADMINISTRATIVE

RIGHT IN ALIENS SEEKING REDRESS THROUGH

MOTIONS TO REOPEN UNDER 8 C.F-.R. § 1003,

AND AS SUCH THIS COURT’S HOLDING IN STONE

V. INS SHOULD NO LONGER BE APPLICABLE

Congress has vested the federal courts of appeal with

jurisdiction to review appeals from BIA orders denying

motions for reconsideration. New Orleans Pub. Serv. Inc. v.

Counsel of New Orleans, 491 U.S. 350, 358 (1989). The

court of appeals are duty-bound to exercise that jurisdic-

tion. Jd. This Court in Stone, however, held that pending

motions for reconsideration do not toll the finality of a BIA

deportation order. Jd. at 405. This Court has held that the

BIA’s denial of an appeal and its denial of a motion to

reconsider are two separate final orders, each of which

require their own petitions for review. Stone v. INS, 514

U.S. 386, 394 (1995). Although not directly reviewing the

BIA’s order, a review of the motion to reconsider may

require an evaluation of that order. Stone v. INS, 514 U.S.

386, 405 (1995).

A non-citizen in removal proceedings may also seek

relief from a decision of an immigration judge or the BIA

by filing a motion to reconsider. Despite the decision of the

Seventh Circuit in this case, other circuits have clearly

held that the “purpose of a motion to reconsider is not

to raise new facts, but rather to demonstrate that the IJ

or the BIA erred as a matter of law or fact”. Socop-

Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001), citing INA

§ 240(cX5XC), 8 U.S.C. § 1229a(cX5XC); 8 C.F.R. § 3.2(bK1)

(governing motions to reconsider before the BIA); 8 C.F.R.

§ 3.23(bX2) (governing motions to reconsider before the

IJ). That court further stated that an alien must file a

motion to reconsider within thirty days of the IJ’s or the

BIA’s decision to be reviewable via a petition for review.

INA § 240(cX5XB), 8 U.S.C. §1229a(cX5XB); 8 C.FR.

§ 3.2(bX 2); 8 C.F.R. §3.23(bX1). The Petitioner here did

just that.

The Seventh Circuit also failed to address whether

Udarbe enjoyed equitable tolling of his issues in his

motion for reconsideration.’

" While not asserted by petitioner, some courts have held that both

equitable tolling and equitable estoppel can be used to “stop a limita-

tions period from continuing to run after it has already begun to run.”

Gardenhire v. IRS, 220 B.R. 376, 38% (B.A.P. 9th Cir. 1998), rev'd on

other grounds, 209 F.3d 1145 (9th Cir. 2000). Tolling “focuses on the

plaintiff's excusable ignorance of the limitations period and on lack of

prejudice to the defendant,” estoppel “focuses om the actions of the

defendant.” Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir.

1981); see also Lehman v. United States, 154 F.3d 1010, 1015-17 (9th

Cir. 1998) (discussing both theories), cert. denied, 526 U.S. 1040 (1999);

Stitt v. Williams, 919 F.2d 516, 522 (9th Cir. 1990) (“[E}quitable tolling

(Continued on following page)

statute of limitations .. . we consider that the limitations period was in

any event tolled ... and that petitioners’ right to bring their suit was

not foreclosed.” Jd. at 494-95. See Kondo v. Katzenbach, 356 F.2d 351

(D.C. Cir. 1966), rev'd sub nom. Honda v. Clark, 386 US. 484 (1967).

F.2d 645 (9th Cir. 1985), the Ninth Circuit deelt with the issue of

whether the petitioner exhausted his administrative remedies where it

was unclear whether he timely appealed the IJ’s decision to the BIA. /d.

at 648. That court observed that the BIA did, in fact, consider the

merits of the IJ’s decision and therefore the court ruled the petitioner

had exhausted his remedies even if he failed to timely appeal to the

BIA. That court wrote, “|wJhether or not the decision on the merits was

technically before the BIA, the BIA addressed it thoroughly enough to

convince us that the relevant policy concerns underlying the exhaustion

requirement - that an administrative agency should have a full

opportunity to resolve a controversy or correct its own errors before

judicial intervention - have been satisfied here.” Id. at 648. The

Seventh Circuit was aware of the equitable considerations that weighed

in Udarbe’s favor because Udarbe presented them at ors: argument,

and court making reference that Udarbe has been in the United States

over two decades and one pane] member stating that “this isn’t a axe

murderer ... You have a misdemeanor conviction in Indiana..I recog-

nize we have all these jurisdiction issues in this case ... ” (http/

ca7.org/tmp/LAI9VOIK.mp3). Udarbe explicitly urged the court to

(Continued on following page)

Since the Stone decision, Congress enacted ITRIRA

and replaced the old statutory section governing judicial

review of deportation and exclusion orders, INA § 106, 8

U.S.C. §1105a, with a new section governing judicial

review of “removal” orders, INA § 242, 8 U.S.C. § 1252.

The Eighth Circuit has held that “[a] motion for

reconsideration alleges defects of soine sort in the underly-

ing decision by the BIA. Though our review is only for the

abuse of discretion, a proper review under the abuse-of-

discretion standard of denials of motions for reconsidera-

tion ordinarily requires some review of the underlying

decision.” Esenwah v. Ashcroft, 378 F.3d 763, 765 (8th Cir.

2004).

The Fifth Circuit has held that under Stone, that

court is without jurisdiction to review the BIA’s denial of

motion to reopen removal proceedings (citing Stone, 514

U.S. at 394).

Since the passage of ITRARIA in 1996, however, other

circuits have dealt with motions to reopen in a different

framework. In so holding, this Court averred that motions

for reconsideration are separate, final agency orders,

indicating that the proper procedure for appealing both a

deportation order and a subsequent denial of a motion for

reconsideration is to file two separate petitions for review

which may be consolidated for review. See id. at 395

exercise its powers to vacate the decision of the BIA, despite the

jurisdictional issues. The BIA in fact, issued the same conclusion in its

order denying the motion to reconsider, stating Udarbe “has primarily

reiterated the constitutional arguments that were made on appeal. We

considered those arguments in adjudicating the respondent’s appeal,

and find no reason to disturb our prior decision.”

(“Upon denial of reconsideration, the petitioner would file

a separate petition to review that second final order.”).

Since the 104th Congress in 1996, however, passed the

Illegal Immigration Reform and Immigrant Responsibility

Act (ITRAIRA), some circuits addressing motions to recon-

sider have held that they are no longer regulatory in

nature, but statutory. While this Court has not addressed

the issue of whether ITRAIRA cases make Stone v. INS

inapplicable, the Ninth Circuit in Azarte v. Ashcroft, 394

F.3d 1278 (9th Cir. 2005) has noted that with the enact-

ment of ITRIRA, motions to reopen were transformed from

a regulatory to a statutory form of relief. Jd. at 1283. As

the nature of such motions have changed, so too, does the

effect of said motions change and therefore the reviewing

authority of the court has changed by act of Congress. In

Sidikhouya v. Gonzales (04-1365, 04-1970, 8th Cir. May

17, 2005), for example, the Eighth Circuit held that

motions to reopen afford aliens a statutory right to a

determination on the merits, Jd. at 3, citing Azarte, 394

F.3d at 1282. The Court then found that under the BIA’s

interpretations, the large class of aliens who are granted

voluntary departure are “functionally deprived of their

statutory right to file a motion to reopen.” Jd.

Timely filed motions to reopen, which assert error in

law by the BIA, should be reviewable by federal appellate

courts. Other circuits have ruled that motions to reopen

are now statutory in nature with the enactment of

ITRAIRA. As such, Stone should only apply to pre-ITRAIRA

cases, not cases wherein the legal effect of motions to

reopen fall within the scope of ITRAIRA. With the enact-

ment of ITRIRA, motions to reopen and reconsider are

transformed from a regulatory to a statutory form of relief,

as correctly interpreted by the Eighth and Ninth Circuits.

Therefore, Petitioner’s timely-filed motion for reconsidera-

tion, filed within thirty days of the BIA’s dismissal, was

reviewable by the Seventh Circuit Court of Appeals. While

the BIA denied Petitioner’s motion to reconsider, the

Seventh Circuit Court of Appeals became the Petitioner’s

only mode of review. It had jurisdiction to review the

timely filed petition for review and by failing to do so

violated Petitioner’s constitutional rights.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

CHRISTOPHER WILLIAM HELT

Counsel of Record

LAW OFFICES OF CHRISTOPHER W. HELT

325 West Huron Street

Suite 515

Chicago, Illinois 60610

(312) 266-0531

Attorney for the Petitioner

App. 1

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 2, 2005

Decided May 16, 2005

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

No. 04-2164

NOEL U. UDARBE, Petition for Review of

Petitioner, an Order of the Board

7 of Immigration Appeals

ALBERTO R. GONZALES, No. A38-052-399

Respondent.

ORDER

Noel Udarbe, a native and citizen of the Philippines,

has been a lawful permanent resident of the United States

since his arrival in 1982. In 2001, Udarbe pled guilty and

was convicted of battery in Indiana and sentenced to one

year in jail. Finding that to be a conviction for an aggra-

vated felony, the INS charged him as removable under 8

U.S.C. § 1227(aX2XAXiii). In the course of the removal

proceedings, Udarbe admitted that he had been convicted

but claimed that his conviction should not qualify as an

aggravated felony. He argued that removing him under

App. 2

that provision violated his Fifth Amendment rights be-

cause if he had been convicted of the same crime in Illi-

nois, the maximum sentence would have been 364 days,

meaning that he would not have been convicted of a felony.

The immigration judge found Udarbe removable.

Udarbe appealed, again admitting his conviction and

sentence but repeating his equa! protection argument The

‘Board of Immigration Appeals dismissed Udarbe’s appeal,

stating that it did not “have the authority to rule on the

constitutionality of the Act. ...” Udarbe filed a motion to

reconsider, which the Board also denied. Udarbe appeals

that decision, arguing again that his constitutional rights

were violated and that the Board erred in determining

that it did not have the authority to rule on his constitu-

tional claims.

Unfortunately for Udarbe, we don't have the authority

to examine the merits of his constitutional argument,

either. On July 19, 2004, we issued en order explaining

that, because Udarbe did not file a timely petition for

review of the Board's initia] decision, this appeal is limited

to review of the Board’s April 6, 2004; denial of Udarbe’s

motion to reconsider. In that order, the Board stated

simply that Udarbe “failed to show any particular errors of

fact or law in our prior decision,” noting that Udarbe

instead simply repeated constitutional arguments the

Board had previously considered.

In this appeal, Udarbe does not dispute the Board's

contention that he failed to present any new facts or

evidence in his motion for reconsideration. Therefore, we

find no error in the Board’s order denying Udarbe’s motion

for reconsideration. And, as we explained in our July 19

order, our review is limited to that decision, so we do not

App. 3

have jurisdiction to consider Udarbe’s claim that the

Board erred in its initial decision not to consider Udarbe’s

constitutional arguments. The petition to review the

denial of the petition for reconsideration is therefore

DENIED.

App. 4

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A38 052 399 — Chicago Date: APR - 6 2004

In re: NOEL URIAS UDARBE

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Pro se

APPLICATION: Reconsideration

ORDER:

PER CURIAM. The respondent moves the Board

pursuant to 8 C.F.R. § 1003.2 to reconsider our decision

dated February 20, 2004. We find that the respondent has

failed to show any particular errors of fact or law in our

prior decision. See 8 C.F.R. § 1003.2(b). Instead, the

respondent has primarily reiterated the constitutional

arguments that were made on appeal. We considered these

arguments in adjudicating the respondent’s appeal, and

find no reason to disturb our prior decision. Accordingly,

the motion to reconsider is denied.

/s/ {Megible}

FOR THE BOARD

App. 5

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A38 052 399 — Chicago Date: FEB 20 2004

In re: NOEL URIAS UDARBE

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

John J. Muldoon, Esquire

CHARGE:

Notice: Sec. 237(aX2\A)iii), I&N Act [8 U.S.C.

§ 1227(aX2)(A)iii)] — Convicted of ag-

gravated felony as defined in section

101(aX43)(F) of the Act

APPLICATION: ‘Termination

In a decision dated September 24, 2002, an Immigra-

tion Judge found the respondent removable as charged,

that he did not establish eligibility for any form of relief

from removal, and ordered him removed to the Philip-

pines. The respondent has filed this appeal, which is

opposed to by the Department of Homeland Security

(formerly the Immigration and Naturalization Service).

The appeal will be dismissed.

On appeal, the respondent concedes that his convic-

tion for battery is a crime of violence under section

101(aX43)(F) of the Immigration and Nationality Act, 8

U.S.C. §1101(a)(43XF). His argument is that the Act

violates the Equal Protection Clause because a similar

conviction in another state might not support removability.

App. 6

Neither this Board nor the Immigration Judges have the

authority to rule on the constitutionality of the Act and the

regulations we administer. See Matter of Fuentes-Campos,

21 I&N Dec. 905, 912 (BIA 1997). The appeal will be

dismissed.

ORDER: The appeal is dismissed.

/s/ (Megible]

FOR THE BOARD

App. 7

U.S. Department of Justice

Immigration ion and Naturalization Service Notice to Appear

In removal proceedings under section 240

of the Immigration and Nationality Act

In the Matter of: Filed No: __A38052399 _

Inmate Number:

Respondent: Noel Urias UDARBE aka _

currently residing at:

4555 W. 58th Street Chicago, IL 60629 __

(Number, street, city, state and ZIP code)

(Area code and phone number)

not been admitted or paroled.

@ You have been admitted to the United States, but are

deportable for the reasons stated below.

The Service alleges that:

1. You are not a citizen or national of the United States.

2. You are a native of _PHILIPPINES and a citizen of

PHILIPPINES _;

3. You entered the United States at or near _ Chicago,

[linois_, on or about _October 05, 1982 __;

4. At that time, you were admitted as an immigrant,

class of admission P-11.

5. You were, on November 9, 2001, convicted in the Lake

County Superior Court, State of Indiana, for the offense of

Battery, for which a sentence of 1 year was imposed.

App. 8

On the basis of the foregoing, it is charged that you are

subject to removal from the United States pursuant to the

following provision(s) of law:

Section 237(a)(2)A)(iii) of the Immigration and National-

ity Act (Act), as amended, in that, at any time after admis-

sion, you have been convicted of an aggravated felony as

defined in section 101(a)(43)(F) of the Act.

found that the respondent has demonstrated a credible

fear of persecution.

C) Section 235(b)(1) order was vacated pursuant to:

O 8CFR 208.30(f)(2) OO 8 CFR 235.3(b)(5\iv)

YOU ARE ORDERED to appear before an immigration

judge of the United States Department of Justice at:

a 1e St te 19 nicago, Illinois

(Complete Ad of Immigration Court,

Including Room Number, if any)

on To BeSet at To Be Set to show why you should not

(Date) (Time) be removed from the United

States based on the charge(s)

set forth above. —

/s/ (Megible] Assist. Officer in Charge _

(Signature and Title of Issuing Officer)

Date: April 12, 2002

(City and State)

EXHIBIT: 1

DATE: 1/9/02 Form 1-862 (Rev. 4-1-97)

IJ CODE: _[illegible mark)

See reverse for important information

App. 9

WARNING: Any statement you make may be used

against you in removal proceeding

Alien Registration: This copy of the Notice to Appear

served upon you is evidence of your alien registration

while you are under removal proceedings. You are required

to carry it with you at all times.

Representation If you so choose, you may be repre-

sented in this proceeding, at no expense to the Govern-

ment, by an attorney or other individual authorized and

qualified to represent persons before the Executive Office

for Immigration Review. Unless you so request, no hearing

will be scheduled earlier than ten days form the date of

this notice, to allow you sufficient time to secure counsel. A

list of qualified attorneys and organizations who may be

available to represent you at no cost will be provided with

this Notice.

Conduct of the hearing: At the time of your hearing,

you should bring with you any affidavits or other docu-

ments which you desire to have considered in connection

with your case. If any document is in a foreign language,

you must bring the original and a certified English trans-

lation of the document. If you wish to have the tesimony

[sic] of any witnesses considered, you should arrange to

have such witnesses present at the hearing.

At your hearing you will be given the opportunity to admit

or deny any or all of the allegations in the Notice to Ap-

pear and that you are inadmissible or deportable on the

charges contained in the Notice to Appear. You will have

an opportunity to present evidence on your own behalf, to

examine any evidence presented by the Government, to

object, on proper legal grounds, to the receipt of evidence

and to cross examine any witnesses presented by the

App. 10

Government. At the conclusion of the hearing, you have a

right to appeal an adverse decision of the Immigration

Judge.

You will be advised by the immigration judge before whom

you appear, of any relief from removal for which you may

appear eligible including the privilege of departing volun-

tarily. You will be given a reasonable opportunity to make

any such application to the immigration judge.

Failure to Appear You must notify the Immigration

Court immediately by using Form EOIR-33 whenever you

change your address or telephone number during the

course of this proceeding. You will be provided with a copy

of this form. Notices of hearing will be mailed to this

address. If you do not submit Form EOIR-33 and do not

otherwise provide an address at which you may be reached

duving the proceedings, then the Government shall not be

required to provide you with written notice of your hear-

ing. If you fail to attend the hearing at the time and place

designated on this notice, or any date and time later

directed by the Immigration Court, a removal order may

be made by the immigration judge in your absence, and

you may be arrested and detained by the INS.

Request for Prompt Hearing

To expedite a determination in my case, I request an

immediate hearing. I waive my right to have a 10 day

period prior to appearing before an immigration judge.

Before: (Signature of respondent)

(Signature and title of INS officer) Date

App. 11

Certificate of Service

This Notice to Appear was served on the respondent by

me on _ 9/25/02 _, in the following manner and in com-

pliance with section 239(a)(1F) of the Act:

C) in person @ by certified mail, return receipt requested

CJ by regular mail

™ A list of providers of free legal services has been given

to the respondent

©) The alien was provided oral notice in the

language of the time and place of his or her hearing

and of the consequences of failure to appear as pro-

vided in section 240(b)(7) of the Act.

/s/ Mark Summons SA__

(Signature of respondents (Signature and title of

if personally served) officer)

App. 12

IMMIGRATION COURT

55 EAST MONROE STREET, STE. 1900

CHICAGO, IL 60603

In the Matter of: Case A 38-052-399

John J. Muldoon IN REMOVAL PROCEEDINGS

Respondent z

ORDER OF THE IMMIGRATION JUDGE

This is a summary of the oral decision entered on 9-24-02 .

This memorandum [sic] solely for the convenience of the

parties. If the proceedings should be appealed or reopened,

the oral vision will become the official opinion in the case.

[v]

{ ]

[ J

{ J

‘7

The respondent was ordered removed from the United

States to______ Philippines __.

Respondent’s application for voluntary departure

was denied and respondent was ordered removed to

alternative to P

Respondent’s application for voluntary departure was

granted until upon posting a

bond in the amount of $ with an alternate

order of removal to ,

Respondent’s application for asylum was ( ) granted

( )denied( ) withdrawn.

Respondent’s application for withholding of removal

was )granted( )denied( ) withdrawn.

Respondent’s application for withholding/deferral of

removal under Article 3 of the U.N. Convention Against

Torture was( )granted( )denied( ) withdrawn.

Respondent’s application for cancellation of removal

under Section 240A(a) was ( ) granted ( ) denied

( ) withdrawn.

lv]

App. 13

. Respondent’s application for cancellation of removal

under Section 240A(b) was ( ) granted ( ) denied

( ) withdrawn. If granted, it was ordered that the re-

spondent be issued all appropriate documents neces-

sary to give effect to this order.

Respondent's application for a waiver under Section

of the INA was( )granted( ) denied

( ) withdrawn ( ) other.

Respondent's application for adjustment of status

under Section . of the INA was( ) granted

( )denied({ ) withdrawn. If granted, it was ordered

that respondent be Issued all appropriate documents

necessary to give effect to this order.

Respondent's status was rescinded under Section 246.

Respondent is admitted to the United States as a

until .

As a condition of admission, respondent is to post a

$ bond.

Respondent knowingly filed a frivolous asylum

application after proper notice.

Respondent was advised of the limitation on discre-

tionary relief for failure to appear as ordered in the

Immigration Judge's oral decision.

Other:

Date: 9-24-02 /s/ Craig M. Zerbe _

Craig M. Zerbe

Immigration Judge

APPEAL: Reserved/Waived (Alien/INS/Both)

(

)

App. 14

LIMITATIONS ON DISCRETIONARY

RELIEF FOR FAILURE TO APPEAR

A. below) for a period of ten (10) vears from the

date of your scheduled hearing.

You have been granted voluntary departure from

the United States pursuant to section 240B of

the Immigration and Nationality Act, and re-

maining in the United States beyond the author-

ized date will result in your being found

ineligible for certain forms of relief under the

Immigration and Nationality Act (see Section A.

below) for tem (10) years from the date of the

scheduled departure. Your voluntary departure

bond, if any, will also be breached. Additionally, if

you fail to voluntarily depart the United States

within the time period specified, you shall be

subject to a civil penalty of not less than $1000

and not more than $5000.

App. 15

(“~) 4. An order of removal has been entered against

you. If you fail to appear pursuant to a final or-

der of removal at the time and place ordered by

the INS, other than because of exceptional cir-

cumstances beyond your control** you will not be

eligible for certain forms of relief under the Im-

migration and Nationality Act (See Section A. Be-

low) for ten (10) years after the date you are

scheduled to appear.

**the term “exceptional circumstances” refers to

circumstances such as serious illness of the alien or

death of an immediate relative of the alien, but not

including less compelling circumstances.

THE FORMS OF RELIEF FROM REMOVAL FOR

WHICH YOU WILL BECOME INELIGIBLE:

Date:

Immigration Judge: [Illegible] _

Voluntary departure as provided for in section

240B of the Immigration and Nationality Act;

Cancellation of removal as provided for in section

240A of the Immigration and Nationality Act;

and

Adjustment of status or change of status as pro-

vided for in section 245, 248 or 249 of the Immi-

gration and Nationality Act. "

This written notice was provided to the alien in

English. Oral notice of the contents of this notice must be

given to the alien in his/her native language, or in a

language he/she understands by the Immigration Judge.

9/24/02

or Court Clerk:

App. 16

CERTIFICATE OF SERVICE

THIS DOCUMENT WAS SERVED BY: MAIL (M)

PERSONAL SERVICE (P)

TO: {| JALIEN’ [| | ALIEN eo Custodial Officer

[“]ALIEN’SATT/REP {[ | INS

DATE: 9/24/02‘: BY: COURTSTAFF [Illegible] _

Attachments: [{ ] EOIR-33 [ |} EOIR-28

{ ] Legal Services List [| |} Other

App. 17 *

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

File A 38 052 399 -

In the Matter of

NOEL URIAS UDARBE, ) IN REMOVAL PROCEEDINGS

)

Respondent )

CHARGE: Section 237(aX2A\iii) through 101(aX43Xf)

of the Act.

APPLICATION: Termination,

ON BEHALF OF ON BEHALF OF

RESPONDENT: SERVICE:

John J. Muldoon, Esquire Stan Gonsalves, Esquire

Assistant District Counsel,

INS

DECISION OF THE IMMIGRATION JUDGE

The respondent is a male. He’s a native and citizen of

the Philippines. He arrived in the United States on Octo-

ber 5th, 1982 and was admitted as an immigrant.

On May 23rd, 2002, the Immigration Service issued a

Notice to Appear charging the respondent with violating

Section 237(aX2XA\iii) through 101(aX43\f) of the Act. A

hearing on July 9th, 2002, the respondent pled to the

allegations admitting the five allegations in the Notice to

Appear. The pertinent part [sic] those allegations charge

the respondent with not being a United States citizen,

with having been admitted as a permanent resident on

App. 18

October 5th, 1982, and with having been convicted of the

offense of battery on November 9th, 2001.

The respondent’s contention is that he was not con-

victed of an aggravated felony under Section 101(a43Xf)

for the following reasons. First, that the respondent “is not

being treated equally as a person similarly situated in the

state of [linois insofar as that crime under Illinois crimi-

nal law would require a sentence of less than 365 days”,

and consequently his rights under the 5th Amendment of

the Constitution and due process laws of the Constitution,

are being violated.

Having reviewed the conviction records (see Exhibit

2), I've concluded that the respondent has been convicted

of a crime constituting an aggravated felony for the follow-

ing reasons. First, a determination of whether the respon-

dent has been convicted of an aggravated felony is made

with reference to the crime. The nature of the offense is

indicated in the state statute. In addition, with reference

to the elements of that statute under the applicable law of

that state, in this case the applicable iaw is the state of

Indiana, shows that the respondent was convicted of

battery. In addition, the penalty for battery and his sen-

tence as provided by the Court was 365 days incarceration.

The order by the Court (see Exhibit 2) provides the re-

spondent has jail time credit that exceeds one year and

therefore has satisfied the one year sentence imposed by

the Court. Clearly the respondent received a one year jail

term.

Even assuming arguendo that there are some batter-

ies which would not constitute crimes of violence and those

which do, in this case, assuming that is, the statute is

divisible, and resolution of this question of whether the

App. 19

respondent has been convicted of a crime of violence can be

made with reference to the conviction record. The convic-

tion record indicates the respondent was found guilty of an

unwarranted touching of an individual after being charged

in a multiple count indictment with a number of offenses.

I’ve concluded that the respondent’s conviction falls within

a crime of violence insofar as it involves the threatened

use of physical force against the person of another. The

crime as described in the conviction record indicates that

the respondent used physical force in order to perpetrate

essentially a sexual offense on his victim. Consequently,

I’ve concluded that the respondent has been convicted of a

crime of violence and therefore an aggravated felony under

101(aX43\(f) of the Act.

Having concluded that the respondent has been

convicted of a crime of violence, an aggravated felony, I

must consider whether he’s seeking any relief. The re-

spondent has not requested any relief and more impor-

tantly, does not appear to be eligible for any relief. First,

the respondent has not sought any. Secondly, he’s not

eligible for cancellation of removal for permanent resi-

dents, for political asylum, or for voluntary departure.

When asked whether he wished to apply for any relief, his

attorney stated only that he wished to appeal. Conse-

quently, the Court will direct removal to the Philippines.1

Accordingly, the following order is entered:

* This is not a case where responsibility to designate a country of

removal expresses or implies that he fears returning to the Philippines.

He has made no claim of persecution which would qualify him for

protection under the Torture Convention, or for withholding of removal.

App. 20

IT IS ORDERED that the respondent be removed to

/s/ Craig Zerbe _

CRAIG ZERBE

Immigration Judge

App. 21

U.S. DEPARTMENT OF JUSTICE

Board of Immigration Appeals

Matter of ) File: A 38 0652 399

NOEL URIAS UDARBE,

Respondent. )

PETITIONER'S MOTION TO RECONSIDER

THE DECISION TO DISMISS HIS APPEAL

NOW COMES the Petitioner, NOEL URIAS

UDARBE, by his attorney, John J. Muldoon, and in sup-

port of his Motion to Reconsider the Decision to Dismiss

His Appeal, states as follows:

1. The Immigration and Naturalization Service

(“INS”) began proceedings to remove Petitioner, NOEL

URIAS UDARBE, (“Petitioner”) pursuant to 8 U.S.C.

§ 1101(a)X(43) (the “Act.”)

2. The INS claimed that Petitioner is removable

pursuant to 8 U.S.C. § 1101(a)(43) on the basis of his

conviction on a misdemeanor battery charge on or about

November 9, 2001, in the Superior Court of Lake County,

Criminal Division, Crown Point, Indiana under Case

Number 45G01-9901-CF-00016 as it constituted an “ag-

gravated felony” as defined by 8 U.S.C. § 1101(aX43).

3. However, Petitioner asserted that the application

of 8 U.S.C. § 1101(aX43) to his misdemeanor conviction for

the offense of battery in the State of Indiana violated his

Equal Protection rights as guaranteed by the due process

clause of the Fifth Amendment of the Constitution of the

United States because the terms of imprisonment for

misdemeanor battery convictions vary from state to state

App. 22

and that if Petitioner were convicted for the same actions

under a misdemeanor offense of battery in another state

(such as the State of Illinois) and received the maximum

sentence, as he did in the State of Indiana, his conviction

would NOT be an aggravated felony under the Act and he

would NOT be subject to removal by the INS.

4. On February 20, 2004 the Board of Immigration

Appeals issued a written decision denying Petitioner's

appeal stating that it did not have “the authority to rule

on the constitutionality of the Act.”

5. The Board in support of its decision cited Matter

of Fuentes-Campos, 21 I&N Dec. 915 (BIA 1997.)

6. Aclose reading of the Fuentes-Campos reveals the

U.S. Supreme Court's recognition of the canon that “statu-

tory interpretation stating that constructions of doubtful

constitutional validity should be avoided where possible,”

citing United States v. Witkovich, 353 U.S. 194, 199 (1957)

7. However in the Fuentes-Campos case the board

found it unnecessary to resort to the canon as it found no

ambiguity in section 440(d); the act at issue.

8. Conversely a construction of “doubtful constitu-

tional validity” does exist in the board’s interpretation in

the case at bar.

9. The INS is attempting to remove petitioner by

defining-his misdemeanor conviction as an “aggravated

felony.”

10. There is an obvious difference between a misde-

meanor and an aggravated felony.

App. 23

11. It is doubtful that a statute that mandates

removal on the basis of an “aggravated felony” should be

used to remove a person who has been convicted of a mere

misdemeanor.

12. The canon cited by the U.S. Supreme Court in

Witkovich mandates that the board interpret the Act to

avoid the “doubtful constitutional validity” created by the

INS treating a person convicted of misdemeanor battery in

the State of Indiana differently than a person convicted of

misdemeanor battery in the State of Illinois.

13. Because the INS interprets the Act to allow the

unequal treatment for the same course of conduct from one

state to another, without a rational basis for such unequal

treatment; the INS’ interpretation violates Petitioner's

rights to equal protection under the due process clause of

the Fifth Amendment of the United States Constitution.

WHEREFORE, for all the foregoing reasons, this board

must follow the canon to avoid the construction of doubtful

constitutional validity of the Act and dismiss the INS

removal proceedings against Petitioner.

Respectfully Submitted,

/s/

John J. Muldoon

105 W. Madison Street, Suite 900

Chicago, IL 60603

312-726-0324

App. 24

FOR PUBLICATION

ATTORNEY FOR ATTORNEYS FOR

APPELLANT: APPELLEE

MARCE GONZALEZ, JR. STEVE CARTER

Merrillville, Indiana Attorney General of Indiana

NANDITA G. SHEPHERD

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

NOEL UDARBE,

Appellant-Defendant,

vs.

STATE OF INDIANA,

Appellee-Plaintiff.

No. 45A03-0010-CR-373

ee ee eee ee ee ee

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorabie Richard W. Maroc, Judge

Cause No. 45G01-9901-CF-16

May 8, 2001

OPINION - FOR PUBLICATION

KIRSCH, Judge

Noel Udarbe appeals his conviction of attempted

criminal deviate conduct,’ a Class B felony, contending

* See IC 35-42-4-2; IC 35-41-5-1.

App. 25

that the trial court erred in admitting uncharged sexual

misconduct evidence when his intent was not placed at

issue. We agree and reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the judgment show that in

July 1996, Maria Baclao, a Philippino on a working visa,

worked as a visiting nurse at Gentlepro Health Home

Services. Udarbe was Baclao’s supervisor. Udarbe first

sexually assaulted Baclao at work sometime between

March and April 1998. At the time of the assault, Udarbe

grabbed Baclao while she was working in the supply room

and pinned her against a metal rack and caressed her

sexual assaults followed. Bacizo reported the incidents to

Gentlepro’s main office and to the police in October 1998.

Udarbe was later arrested, charged, and subsequently

convicted.

At trial, over his objection, the State was permitted to

introduce the testimony of Revlon Villacin, a former

employee of Gentlepro, that she too had been sexually

assaulted by Udarbe. Udarbe now appeals the trial court's

admission of this evidence.

DISCUSSION AND DECISION

Udarbe asserts that the trial court erred in admitting

evidence of prior uncharged sexual misconduct at his trial.

Specifically, Udarbe claims that the trial court erroneously

determined pursuant to Indiana Evidence Rule 404(b) that

intent was made an issue based upon his opening state-

ment and trial testimony. He maintains that both in his

App. 26

opening statement and in his trial testimony he denied

touching Baclao in a sexual manner. Udarbe contends that

he completely denied that the charged acts occurred and

accordingly claims that his intent was never placed at

issue.

The evidentiary rulings of a trial court are afforded

great deference and are reversed on appeal only upon a

showing of an abuse of discretion. Herrera v. State, 710

N.E.2d 931, 935 (Ind. Ct. App. 1999). Indiana Evidence

Rule 404(b) provides that “[e)vidence of other crimes,

wrongs, or acts is not admissible to prove the character of

a person in order to show action in conformity therewith.

It may, however, be admissible for other purposes, such as

proof of motive, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident” Rule 404(b) “is

designed to prevent the jury from making the ‘forbidden

inference’ that prior wrongful conduct suggests present

guilt.” Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind.

1999).

The standard for assessing the admissibility of 404(b)

evidence is: (1) the court must determine that the evidence

of other crimes, wrongs, or acts is relevant to a matter at

issue other than the defendant’s propensity to commit the

charged act; and (2) the court must balance the probative

value of the evidence against its prejudicial effect pursu-

ant to Ind. Evid. Rule 403. Boone v. State, 728 N.E.2d 135,

137-38 (Ind. 2000); Hicks v. State, 690 N.E.2d 215, 221

(Ind. 1997). The evidence is inadmissible when the State

offers it only to produce the “forbidden inference” that the

defendant has engaged in other, uncharged misconduct

and the charged conduct was in conformity with the

uncharged misconduct. Crain v. State, 736 N.E.2d 1223,

1235 (Ind. 2000) (citing Hicks, 690 N.E.2d at 219.) The

App. 27

trial court has wide latitude in balancing the probative

value of the evidence against the possible prejudice of its

admission and its ruling will only be reviewed for an abuse

of discretion. Crain, 736 N.E.2d at 1235.

The intent exception to Rule 404(b) is available when

a defendant goes beyond merely denying the charged

culpability and affirmatively presents a claim of contrary

intent, whether in opening statement, cross-examination,

or presentation of his own case-in-chief. Wickizer v. State,

626 N.E.2d 795, 799 (Ind. 1993). In Wickizer, our supreme

court explained:

“Mindful of the variety of judicial perspec-

tives regarding the proper role of prior conduct

evidence in the ascertainment of truth, we con-

clude that Indiana is best served by a narrow

construction of the intent exception in Evid. R.

404(b). It does not authorize the general use of

prior conduct evidence as proof of the genera! or

specific intent element in criminal offenses. To

allow the introduction of prior conduct evidence

upon this basis would be to permit the intent ex-

ception to routinely overcome the rule’s otherwise

emphatic prohibition against the admissibility of

other crimes, wrongs, or acts to prove the charac-

ter of a person in order to show action in confor-

mity therewith. In this context, admission of

prior bad acts would frequently produce the ‘for-

bidden inference’ cautioned against in Hardin [v.

State), 611 N.E.2d (123,]129 [(Ind. 1993)).

The intent exception in Evid. R. 404(b) will

be available when a defendant goes beyond

_merely denying the charged culpability and af-

firmatively presents a claim of particular con-

trary intent. When a defendant alleges in trial a

particular contrary intent, whether in opening

App. 28

statement, by cross-examination of the State’s

witnesses, or by presentation of his cwn case-in-

chief, the State may respond by offering evidence

of prior crimes, wrongs, or acts to the extent

genuinely relevant to prove the defendant's in-

tent at the time of the charged offense. The trial

court must then determine whether to admit or

exclude such evidence depending upon whether

‘its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by consid-

erations of undue delay, or needless

of cumulative evidence.’ Evid. R. 403.”

Id. Applying this rule, the court reversed Wickizer’s

conviction for child molestation after determining that his

pre-trial statement to the police that he was not a “devious

character” did not constitute the “assertion of a particular

contrary intent so as to permit the State to utilize the

intent exception of Evid. R. 404(b) to present prior conduct

testimony.” Jd. at 800.

In Cook v. Staie, 734 N.E.2d 563, 569 (Ind. 2000), our

supreme court also determined that the trial court erred in

admitting into evidence in a murder trial the fact that

defendant, apparently unprovoked, punched another

person in the face a few hours before the murder. On

appeal, the court rejected the State’s theory that the

evidence was admissible pursuant to Rule 404(b)’s intent

exception: “Although couching its argument in terms of

state of mind, it is apparent the State sought to introduce

the evidence for the purpose of demonstrating that be-

cause Cook had acted violently in the recent past, he likely

acted in conformity therewith and shot the victim in this

case. This is the forbidden inference that 404(b) specifi-

cally prohibits.” Id.

App. 29

Additionally, in Sundling v. State, 679 N.E.2d 988,

993 (Ind. Ct. App. 1997), we reversed defendant’s three

child molestation convictions finding that the trial court

abused its discretion in admitting evidence of the defen-

dant’s prior uncharged molestations where “[qjuite simply,

Sundling’s defense was that the molestations never oc-

curred.” We further noted that none of the exceptions

listed in Rule 404(b) were in genuine dispute and that the

State did not claim that the uncharged sexual misconduct

was admissible under any of these exceptions. See also

Sloan v. State, 654 N.E.2d 797, 802 (Ind. Ct. App. 1995),

trans. denied, abrogated on other grounds by Hicks v.

State, 690 N.E.2d 215 (Ind. 1997) (noting that defendant’s

motive and intent were not placed at issue in child moles-

tation case, and thus did not justify admitting defendant’s

prior bad acts).

Unlike other cases in which the defendant specifically

advanced a claim of contrary intent, a review of the record

reveals that Udarbe did not place his intent in issue. See

e.g., Boone, 728 N.E.2d at 138 (State allowed to present

evidence establishing that defendant’s intent was to inflict

fatal harm when defendant advanced defense of sudden

heat); Evans v. State, 727 N.E.2d 1072, 1080 (Ind. 2000)

(in murder trial, evidence of uncharged misconduct evi-

dence properly admitted where “[djefendant went beyond

merely denying the charged culpability and affirmatively

presented a claim of particular contrary intent — self

defense”); Johnson v. State, 722 N.E.2d 382, 384 (Ind. Ct.

App. 2000) (defendant placed intent at issue in rape case

by alleging that victim had engaged in consensual sexual

intercourse); Roche v. State, 699 N.E.2d 752, 754 (Ind. Ct.

App. 1998) (defendant’s intent placed at issue in case of

attempted murder of a prison guard where defendant

App. 30

alleged his intent in shooting guard was not to kill the

guard, but instead to gain time to effect a prison escape).

In Sundling, 679 N.E..2d at 993, we wrote that:

“(T)o introduce extraneous bad acts, the propo-

nent of the evidence must articulate a rational

and legitimate connection between the evidence

and some matter actually at issue in the case.

Where the proponent is unable to demonstrate

such a connection, it is likely that none exists

and the true purpose of the evidence was the for-

bidden one of proving the accused's bad charac-

ter.”

Here, throughout the trial, Udarbe denied the charged

acts and did not present a claim of particular contrary

intent. Udarbe maintained his innocence during the entire

trial. Consequently, his intent was not at issue so as to

justify the admission of prior uncharged acts under the

intent exception to Rule 404(b).

The State contends that the evidence of prior miscon-

duct with Villacin was not introduced as proof of intent,

but instead to rebut the specific factual claims raised by

Udarbe, namely that Baclao was a problem employee and

that she was upset because Udarbe rejected her advances.

In support of this contention, the State relies upon Koo v.

State, 640 N.E.2d 95, 101-02 (Ind. Ct. App. 1994), trans.

denied (1995), in which a panel of this court held that

prior bad act evidence may be admitted by the State to

rebut a specific factual claim raised by the defendant.

In Koo, during his rape trial, the defendant presented

“substantial evidence” during opening statement, direct

examination of witnesses, and cross-examination of the

State’s witnesses suggesting that the rape victim had

hallucinated the sexual encounter due to her drug use. /d.

App. 31

at 101. To refute this specific factual claim, the State was

allowed to introduce the testimony of two witnesses that

defendant had previously raped them. In upholding the

trial court’s ruling we, in part, relied upon U.S. v.

Beltempo, 675 F.2d 472 (2nd Cir. 1982), cert. denied, 457

U.S. 1135 (1982), where the court admitted prior bad act

evidence to rebut a factual claim by the defendant. The

following was our interpretation of the case:

“In that case, defendants were on trial for con-

spiring to import heroin into the United States

from Italy. The prosecution admitted evidence

that one of the defendants, Giuseppe Gallina,

had deposited a check for $20,000 three years be-

fore the crime at issue was committed. On ap-

peal. Gallina contended that this evidence tended

to show the commission of a prior criminal act.

The court upheld the admission of the evidence

because it tended to rebut the defense’s claim

that Gallina was a poverty-stricken butcher who

traveled to Italy occasionally for health reasons.”

Koo, 640 N.E.2d at 101.

Here, not only did Udarbe not present substantial

evidence to support a specific factual claim, but Villacin’s

testimony does not rebut the claims which the State

alleges that Udarbe presented. The State claims that

Udarbe placed in issue the specific factual claims that

Baclao’s job performance was poor and that she was upset

that Udarbe had rejected her. Accordingly, the State

maintains that it was properly allowed to rebut these

factual claims with evidence of Udarbe’s prior sexual

misconduct with Villacin. However, unlike the facts in Koo

and Beltempo, the State’s introduction of Villacin’s testi-

mony does not rebut Udarbe’s claims that Baclao was a

App. 32

poor employee and angered by his rejection. To the con-

trary, Villacin was permitted to go beyond these allega-

tions and testify in detail about previously being sexually

assaulted by Udarbe. The prior sexual misconduct evi-

dence does not rebut Udarbe’s claims.

The State’s true purpose in admitting the evidence

was to prove the “forbidden inference” of demonstrating

Udarbe’s propensity to commit the charged act. Accord-

ingly, we conclude that pursuant to the intent exception

specifically enumerated in Rule 404(b) the admission of

Villacin’s testimony was an abuse of discretion.

Our analysis does not end with the finding of error in

the admission of this evidence because we must also

examine the prejudicial impact of such evidence. An error

in the admission of evidence does not justify setting aside

a conviction unless the erroneous admission appears

inconsistent with substantial justice or affects the sub-

stantial rights of the parties. Wickizer, 626 N.E.2d at 800

(citing Ind. Trial Rule 61). Such error is harmless when

substantial independent evidence of guilt supports the

conviction such that the reviewing court is satisfied that

the erroneous admission of evidence played no role in the

conviction. Sundling, 679 N.E.2d at 994. However, rever-

sal is mandated when the record reveals that the improp-

erly admitted evidence likely had a prejudicial impact on

the average juror such that it contributed to the verdict.

Id. Here, we conclude that Villacin’s testimony likely

substantially swayed the jury so as to have contributed to

the conviction. A review of the record establishes that the

only evidence of Udarbe’s guilt came from Baclao, the

victim of the sexual assault. Substantial independent

evidence of Udarbe’s guilt was not presented by the State.

App. 33

Accordingly, the admission of the prior sexual misconduct

was not harmless error.

The trial court abused its discretion in admitting

evidence of the alleged prior sexual misconduct with

Villacin.

Reversed and remanded for a new trial.

SHARPNACK, C.J., and MATTINGLY-MAY, J., concur.

App. 34

Information Maintained by the Office of Code

Revision Indiana Legislative Services Agency

_IC 35-42-2-1 Version a

Battery

Note: This version of section amended by P.L.175-2003,

SEC.2. See also following version of this section amended

by P.L.281-2003, SEC.3.

Sec. 1. (a) A person who knowingly or intentionally

touches another person in a rude, insolent, or angry

manner commits battery, a Class B misdemeanor. How-

ever, the offense is:

(1) a Class A misdemeanor if.

(A) it results in bodily injury to any other

person,

(B) it is committed against a law enforce-

ment officer or against a person summoned and directed

by the officer while the officer is engaged in the execution

of his official duty;

penal facility or a juvenile detention facility (as defined in

IC 31-9-2-71) while the employee is engaged in the execu-

tion of the employee's official duty;

(D) it is committed against a firefighter (as

defined in IC 9-18-34-1) while the firefighter is engaged in

the execution of the firefighter’s official duty; or

(E) it is committed against a community

policing volunteer:

App. 35

(i) while the volunteer is performing the

duties described in IC 35-41-1-4.7; or

(ii) because the person is a community

policing volunteer;

(2) a Class D felony if it results in bodily injury

to:

(A) a law enforcement officer or a person

summoned and directed by a law enforcement officer while

the officer is engaged in the execution of his official duty;

(B) a person less than fourteen (14) years of

age and is committed by a person at least eighteen (18)

years of age,

physically disabled and is committed by a person having

the care of the mentally or physically disabled person,

whether the care is assumed voluntarily or because of a

legal obligation;

(D) the other person and the person who

commits the battery was previously convicted of a battery

in which the victim was the other person;

(E) an endangered adult (as defined in

IC 12-10-3-2),;

(F) an employee of the department of

correction while the employee is engaged in the execution

of the employee's official duty;

(G) am employee of a school corporation

while the employee is engaged in the execution of the

employee's official duty; ,

App. 36

(H) a correctional professional while the

correctional professional is engaged in the execution of the

correctional professional’s official duty;

(1) a person who is a health care provider

(as defined in IC 16-18-2-163) while the health care

provider is engaged in the execution of the health care

provider’s official duty;

(J) an employee of a penal facility or a

juvenile detention facility (as defined in IC 31-9-2-71)

while the employee is engaged in the execution of the

employee’s official duty;

(K) a firefighter (as defined in IC 9-18-34-1)

while the firefighter is engaged in the execution of the

firefighter’s official duty; or

(L) acommunity policing volunteer:

(i) while the volunteer is performing the

duties described in IC 35-41-1-4.7; or

(ii) because the person is a community

policing volunteer;

(3) a Class C felony if it results in serious bodily

injury to any other person or if it is committed by means of

a deadly weapon;

(4) a Class B felony if it results in serious bodily

injury to a person less than fourteen (14) years of age and

is committed by a person at least eighteen (18) years of

age;

(5) a Class A felony if it results in the death of a

person less than fourteen (14) years of age and is commit-

ted by a person at least eighteen (18) years of age;

App. 37

(6) a Class C felony if it results in serious bodily

injury to an endangered adult (as defined in IC 12-10-3-2);

and

(7) a Class B felony if it results in the death of

an endangered aduit (as defined in IC 12-10-3-2).

(b) For purposes of this section:

(1) “law enforcement officer” includes an alco-

holic beverage enforcement officer; and

(2) “correctional professional” means a:

(A) probation officer;

(B) parole officer;

(D) home detention officer.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.