Opposition Brief — Sauvage v. Immigration & Naturalization Service

Supreme Court, U.S.

FILED

Nnsaall SEP S 2000

No. 99-1932

LA

Jn the Supreme Court of the United-States——

PHILIPPE SAUVAGE, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

_FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Acting Assistant Atiorney

General

DONALD E. KEENER

ALISON R. DRUCKER’

SUSAN K. HOUSER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals erred in determin-

ing that substantial evidence supports the Board of

Immigration Appeals’ decision that petitioner’s prose-

cution by the Government of France for fraud and

swindling did not constitute persecution.

2. Whether the court of appeals erred in not re-

manding petitioner’s case and ordering the Board of

Immigration Appeals to consider new evidence.

(I)

TABLE OF CONTENTS

Opinions below ..........scsccssseceessseeees

Jurisdiction .........

Statement

Argument

Conclusion .........

TABLE OF AUTHORITIES

Cases:

Boag v. MacDougall, 454 U.S. 364 (1982) 20...

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) .............

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ............

INS v. Elias-Zacarias, 502 U.S. 478 (1992) «0...

INS v. Stevic, 467 U.S. 407 (1984)

Molinaro v. New Jersey, 396 U.S. 365 (1970) .............

Molko v. Holy Spirit Ass’n, 762 P.2d 46 (Cal. 1988),

cert. denied, 490 U.S. 1084 (1989)

eeeeee

New Haven Inclusion Cases, 399 U.S. 392 (1970) .......

Petition of France for the Extradition of Sauvage,

In re, 819 F. Supp. 896 (S.D. Cal. 1993)

Russell v. Southard, 53 U.S. 139 (1851)

Sauvage v. Reno, No. 00-1134-IEG (AJB) (S.D. Cal.

June 23, 2000)

Watt v. Alaska, 451 U.S. 259 (1981) ...ccccccccccccccesseseseeee

Statutes:

8 U.S.C. 1101(a)(42)(A) (1994 & Supp. IV 1998) ess...

8 U.S.C. 1158(a) (1994 & Supp. IV 1998)

eeeeee

8 U.S.C. 1253(h)

Miscellaneous: |

Office of the United Nations High Commissioner for

Refugees, Handbook on Procedures and Criteria

for Determining Refugee Status (1992)

(IIT)

In the Supreme Court of the Gnited States

No. 99-1932

PHILIPPE SAUVAGE, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3-9) is

not reported, but the judgment is noted at 199 F.3d

1333 (Table). The opinions of the Board of Immigration

Appeals (Pet. App. 10-20 and 21-30) are not reported.

JURISDICTION

The court of appeals entered its judgment on Sep-

tember 17, 1999. A petition for rehearing was denied on

March 3, 2000. Pet. App. 1-2. The petition for a writ of

certiorari was filed on June 1, 2000. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. Petitioner is a native and citizen of France. Pet.

App. 3. Petitioner is a Celtic faith healer who supports

the ethnic rights of the Celtic people in the French

province of Brittany. Jd. at 34. In the early 1990s,

French officials received approximately 200 complaints

from persons who had paid petitioner money for his

unsuccessful heali.g services. See In ve Petition of

France for the Extradition of Sauvage, 819 F. Supp.

896, 897 (S.D. Cal. 1993). They opened an inquiry, and a

French investigating magistrate subsequently issued

an international warrant for the arrest of petitioner for

fraud and swindling, in violation of Section 405 of the

French Penal Code. /bid. Fearing his imminent arrest,

petitioner left his wife and five children in France and

fled to Greenland and, from there, to Canada. Pet. App.

19, 38. In 1992, petitioner twice entered the United

States by using a falsified passport. Jd. at 3, 31, 46.’ In

October 1992, he was arrested in the United States on

the basis of an extradition request from France.”

In February 1993, the Immigration and Naturaliza-

tion Service commenced deportation proceedings

against petitioner. Pet. App. 31-32. Petitioner admit-

ted that he had entered the country on a false passport,

and applied for asylum and withholding of deportation.*

1 Petitioner has never alleged that he made his fraudulent

entry into the United States because he could not have remained

safely in Canada.

2 A magistrate judge denied extradition. In re Petition of

France for the Extradition of Sauvage, 819 F. Supp. 896 (S.D. Cal.

1993).

3 To qualify for asylum, an alien must show persecution or a

weil-founded fear of persecution on account of race, religion, na-

uonality, membership in a particular social group, or political

opinion. See 8 U.S.C. 1101(a)(42)(A), 1158(a) (1994 & Supp. IV

3

The immigration judge denied asylum and withholding

of deportation on the ground that the petitioner had not

demonstrated a clear probability or well-founded fear of

persecution if returned to France. The immigration

judge concluded that his prosecution by the French

government for fraud reflected the proper enforcement

of a valid criminal law rather than a veiled effort to

persecute petitioner on the basis of religion or political

opinion. Id. at 42-46.

2. Petitioner appealed to the Board of Immigration

Appeals (Board). While his appeal was pending, he

filed a motion to remand the case so that he could apply

for adjustment of status based on his intervening

marriage to a lawful permanent resident. The Board

dismissed the claims for asylum and withholding of

deportation and denied the motion to remand. Pet.

App. 22-30. The Board found that much of the evidence

petitioner submitted to show a reasonable fear of per-

secution based on his Celtic ethnicity and religion

lacked credibility and was improperly translated. Id. at

24-25. The Board further ruled that the prosecution of

petitioner for fraud and swindling was legitimate and

was not a pretext for religious or political persecution.

1998); INS v. Elias-Zacarias, 502 U.S. 478, 481-482 (1992). To

qualify for withholding of deportation, an alien must show that it is

more likely than not that his life or freedom. would be threatened

upon return “on account of race, religion, nationality, membership

in a particular social group, or political opinion.” See 8 U.S.C.

1253(h); INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987); INS v.

Stevic, 467 U.S. 407, 413 (1984).

4 The Board noted that many of the documents were translated

by petitioner’s first wife and lacked a translator’s certification, and

further that, in most instances, the translator “added emphasis

and/or explanatory notes, which suggests that the documents were

in effect edited.” Pet. App. 24.

4

Id. at 26-28. The Board noted that, despite his national

reputation as a “Celtic spiritual leader and healer,”

petitioner had never been arrested or otherwise

bothered by French officials prior to their receipt of

hundreds of fraud complaints from angry citizens. Id.

at 27 & n.7. The Board denied the motion to remand on

the ground that petitioner is ineligible for adjustment of

status because he “procured his admission into the

United States through fraud or willful misrepresenta-

tion.” Id. at 29.

3. Petitioner appealed the dismissal of his asylum

and withholding of deportation claims, but not the

denial of his motion to remand, to the United States

Court of Appeals for the Ninth Circuit. While that

appeal was pending, petitioner moved the Board to

reopen his case and remand it to permit him to apply

for a waiver of inadmissibility and adjust his status to

that of lawful permanent resident based on his mar-

riage. Pet. App. 10-11. The Board denied the motion.

Id. at 10-20. The Board first noted that, in addition to

his false entry into the United States, petitioner “is an

admitted bigamist,” having married a second wife in the

United States while still married to his first wife in

France. Id. at 12. The Board concluded that bigamy

was a crime of moral turpitude, further disqualifying

petitioner from adjustment of status. Jd. at 14-15.

In addition, the Board ruled that petitioner had failed

to establish that his third wife and their children would

suffer extreme hardship if he were deported. The

Board found the unsworn declaration of petitioner’s

third wife to be of little probative value, id. at 15-16,

especially because she married petitioner while his

deportation proceedings were pending and thus “know-

ing that he was a fugitive who faced deportation back to

France,” id. at 17. The Board further found insufficient

5

to constitute “extreme hardship” petitioner’s wife’s

reluctance to follow her husband back to France and

her concerns that his imprisonment would require her

to obtain work outside the home, forcing her children

“to undergo the ‘extremely traumatic’ experience of

having the children cared for by a babysitter or in a day

care center.” Jd. at 16. Finally, the Board ruled that, in-

any event, it would deny the adjustment of status in the

exercise of its discretion, because petitioner did not

marry his current wife until “after the commencement

of deportation proceedings against him,” committed

bigamy at the very time his first wife was helping him

with his asylum application, and gave false testimony at

his deportation proceeding. Jd. at 19-20. The Board

concluded that “we do not consider the [petitioner] de-

sirable as a permanent resident of the United States.”

Id. at 20.

4, The court of appeals affirmed. Pet. App. 3-9. The

court held that substantial evidence supported the

Board’s conclusions both that the documentary evi-

dence petitioner submitted was not credible and that

his criminal prosecution in France did not amount to

persecution. Jd. at 5-7. In particular, the court agreed

that the record “supports the [Board’s] finding that this

was a bona fide prosecution.” Jd. at 7. The court also

affirmed the denial of petitioner’s motion to reopen,

noting that the Board “reasonably concluded” that

petitioner’s wife would not be forced to remain in the

United States and that “any family separation occur-

ring in Europe would result from [petitioner’s] criminal

prosecution for fraud.” Jd. at 8. The court also sus-

tained the discretionary denial of adjustment of status

based on petitioner’s repeated fraudulent entries into

the United States. 7d. at 9.

6

5. While his petition for rehearing was pending,

petitioner moved for a temporary stay to obtain his

French criminal records and, in the alternative, asked

that the case be remanded to the Board for reconsidera-

tion in light of those records. The court of appeals

denied rehearing, as well as the requested stay and

remand. Pet. App. 1-2.

In May 2000, petitioner filed a second motion to

reopen with the Board and again requested a stay of

deportation on the ground of “new” evidence that he

had been convicted of fraud in absentia in France in

1995 and sentenced to five years’ imprisonment. The

application for a stay was denied; the motion to reopen

is pending. Pet. 11.

Petitioner filed a second request for a stay from the

court of appeals, which was denied. Pet. 12 n.19. Peti-

tioner failed to report to the INS for deportation, as

required, on June 23, 2000, and remains at this time a

fugitive.®

ARGUMENT

1. Petitioner contends that the court of appeals

erred in holding both that the French government’s

prosecution of him for fraud and swindling was not

persecution (Pet. 14-18) and that he was not being

persecuted “on account of Religion” (id. at 18-28).

Neither of those claims merits this Court’s review.

Petitioner does not contend that the court of appeals’

ruling conflicts with any decision of this Court or the

other courts of appeals. Nor does petitioner disagree

with the general legal standard that the court of

5 A district court declined to grant Sauvage a preliminary

injunction against deportation because “Sauvage flouts his legal

obligations.” Sauvage v. Reno, No. 00-1134-IEG (AJB) (S.D. Cal.

June 23, 2000), slip op. 5.

7

appeals applied to his case, agreeing that “persecution

is not the same as ‘punishment for a common law

offense.” Pet. 16; see also id. at 14 (conceding that,

“[aJs a general matter, * * * the Board has held that

fear of prosecution for violations of fairly administered

laws does not itself qualify one as a ‘refugee’ or make

one eligible for withholding of deportation”).®

Petitioner simply disagrees with the outcome of the

court’s application of that legal test to the particular

facts of his case. This Court’s certiorari jurisdiction,

however, “is designed to serve purposes broader than

the correction of error in particular cases.” Watt v.

Alaska, 451 U.S. 259, 276 n.5 (1981) (Stevens, J., con-

curring); see also Boag v. MacDougall, 454 U.S. 364,

367-368 (1982) (Rehnquist, J., dissenting) (“this Court is

not a forum for the correction of errors”). That is par-

ticularly true when three different adjudicatory forums

already have consistently and harmoniously rejected

petitioner’s fact-bound claims. Petitioner’s claims, in

other words, do not present any legal issues of broad or

enduring importance that merit this Court’s review.

2. The court of appeals’ holding that petitioner did

not satisfy his burden of proving persecution was,

® Petitioner suggests (Pet. 16-17) that the court’s decision failed

to apply the analysis proposed by the Office of the United Nations

High Commissioner for Refugees, Handbook on Procedures and

Criteria for Determining Refugee Status ( 1992). That argument is

unavailing. This Court recently held that the Handbook “is not

binding on the Attorney General, the [Board], or the United States

courts.” See INS v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999).

Furthermore, while petitioner implies that the Handbook supports

his claim, he fails to establish that anything in the Handbook would

“compel[]” the court of appeals to conclude that the French gov-

ernment was persecuting him by prosecuting him for fraud. See

INS v. Elias-Zacarias, 502 U.S. 478, 484 (1992).

8

moreover, correct. Substantial evidence supported the

Board’s conclusion that petitioner failed to show that,

(1) France’s law against fraud and swindling was not

facially neutral,’ (2) the law in question was selectively

or disproportionately enforced against religious minori-

ties or political dissidents,® or (3) petitioner was ever

7 Article 405 of the French Penal Code provides:

Anyone, either using false identities or titles, or acting fraudu-

lently to persuade others of the existence of false companies, of

an imaginary power or credit or to raise up hopes or fears of

success, of accidents or all other chimerical event, will have ob-

tained or tried to obtain funds, furniture, bonds, notes, agree-

ments, receipts, and will have through one of these means

swindled or attempted to swindle toially or partially someone’s

wealth will be condemned to imprisonment for one to five

years at the most and to pay a fine of at least 3600 francs and

2,500,000 francs at most.

Sauvage, 819 F. Supp. at 900 n.2.

8 Although petitioner complains to this Court (Pet. 21-23) about

the five-year sentence imposed—which was within the range

authorized by the statute—and cites three reports on country con-

ditions in France alleging that France persecutes some (unspeci-

fied) minority religions, none of that evidence was presented to the

Board or the court of appeals. See, e.g., New Haven Inclusion

Cases, 399 U.S. 392, 450 n.66 (1970) (“None of this is record

evidence, and we do not consider it.”); Russell v. Southard, 53 U.S.

139, 159 (1851) (“This court must affirm or reverse upon the case as

it appears in the record. We cannot look out of it, for testimony to

influence the judgment of this court sitting as an appellate tribu-

nal. And, according to the practice of the court of chancery from

its earliest history to the present time, no paper not before the

court below can be read on the hearing of an appeal.”). Nor, in any

event, is petitioner’s newly supplemented showing “so compelling

that no reasonable factfinder could fail to find” (Elias-Zacarias,

502 U.S. at 484) that France’s prosecution of petitioner is a facade

for religious persecution. While his co-defendants—who remained

in France to face the charges against them—received lesser sen-

tences, petitioner does not contend that the French government

9

harassed or threatened because of his religious or politi-

cal beliefs, or had any untoward encounter with any

branch of the French government prior to that govern-

ment’s receipt of hundreds of fraud complaints against

him.°

Petitioner asserts (Pet. 5, 21-22) that he had no intent

to defraud. That argument, of course, was available for

petitioner to present as a defense to his criminal prose-

cution in France, had he not fled to avoid the prosecu-

tion. Beyond that, petitioner fails to show either that

the record compels the conclusion that he lacked

fraudulent intent or that, even if true, France’s alleged

mistake in prosecuting him transforms his conviction

into religious persecution.”

Petitioner further asserts (Pet. 21-22) that his relig-

ious activity “would be wholly protected religious

expression in this country and under well-established

has any record or practice of imposing five-year sentences for

fraud exclusively on religious minorities or political dissidents.

* In fact, petitioner testified that he had been a member of the

French police force for a number of years. Pet. App. 48.

'© The magistrate judge’s extradition decision is not to the con-

trary. Cf. Pet. 7. In denying extradition, the magistrate judge

held only that, “{uJnder both the French swindling statute and the

American statutes prohibiting false advertising and theft, a knowl-

edge or intent requirement must be proved in order to convict,”

see Sauvage, 819 F. Supp. at 900, but that on the limited record

presented, the magistrate judge could not discern whether the

French magistrate had sufficient evidence of intent, id. at 901-902.

Indeed, the magistrate judge acknowledged that “the French mag-

istrate may very well have made [the finding of fraudulent intent]

based on sufficient evidence,” but that the magistrate judge could

not “simply adopt that conclusion.” Jd. at 903. The magistrate

judge thus held neither that petitioner was innocent of fraud nor

that the French government was prosecuting petitioner in bad

faith.

10

international norms.” First, even if true, that argument

would not compel the Board to conclude that France is

persecuting petitioner because of his religion. Second,

defrauding hundreds of people out of large sums of

money is not religious expression under the laws of this

country or international norms. See, e.g., Molko v.

Holy Spirit Ass’n, 762 P.2d 46, 56-58 (Cal. 1988) (en

banc), cert. denied, 490 U.S. 1084 (1989). ,

3. Petitioner also seeks (Pet. 28-30) this Court’s

review of the court of appeais’ refusal to remand his

case and to order the Board to consider his “new”

evidence—a French court decree finding him guilty in

absentia—which predated by two years the Board’s

decision in his case. The court of appeals’ decision

denying the motion to remand does not conflict with

any decision of this Court or the other courts of appeals;

the ruling has no consequence beyond this particular

case. In fact, the denial of the remand has little impact

even on petitioner’s case because petitioner already has

filed a separate motion to reopen directly with the

Board based on his 1995 evidence, and that motion

remains pending.

Finally, petitioner’s claims do not warrant an exer-

cise of this Court’s certiorari jurisdiction in light of his

present fugitive status. See n.5, supra, and accompany-

ing text; cf. Molinaro v. New Jersey, 396 U.S. 365, 366

(1970) (convicted defendant’s fugitive status “disen-

titles the defendant to call upon the resources of the

Court for determination of his claims”).

11

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Acting Assistant Attorney

General

DONALD E. KEENER

ALISON R. DRUCKER

SUSAN K. HOUSER

Attorneys

SEPTEMBER 2000