United States Court of Appeals

For the First Circuit

No. 04-2206

ALI ABDUL KARIM,

Petitioner,

v.

ALBERTO GONZÁLES, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS 

Before

 Boudin, Chief Judge,

Lipez and Howard, Circuit Judges.

William P. Joyce and Joyce & Zerola, P.C. on brief for

petitioner.

Thankful T. Vanderstar, Office of Immigration Litigation,

Department of Justice, Peter D. Keisler, Assistant Attorney

General, Civil Division, and Linda S. Wernery, Senior Litigation

Counsel, Office of Immigration Litigation, on brief for respondent.

September 22, 2005
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BOUDIN, Chief Judge. Ali Abdul Karim, petitioner in this

court, is a native of Lebanon. He was admitted to the United

States on April 16, 1993, as a tourist authorized to stay for one

month, but he did not depart or secure any change of status and

remains in the United States today. In January 2003, he was called

for an interview with the Department of Homeland Security ("DHS")

pursuant to its "special registration" program for nationals of

certain designated countries. Thereafter, the Immigration and

Naturalization Service ("INS") began removal proceedings against

Karim.

At the initial hearing in April 2003, Karim appeared with

counsel, which he had not had at the DHS meeting, and conceded

removability. At the next hearing in June 2003, his new counsel,

from the same law firm, asked for a postponement so he could

explore whether Karim was perhaps a citizen of Liberia, where he

had lived for a time with his family.

At the deferred hearing held in July 2003, his counsel

first said that he would like to file and brief a motion to

suppress on the ground that the DHS interview had "tainted" the

process; to this the judge replied that removability had already

been conceded at the initial hearing. Counsel then asked to amend

the earlier answer by denying removability, but he gave no clear

basis for his motion nor any basis for establishing that Karim was

not removable.
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The immigration judge denied the request to amend, noting

that removability had been conceded, and found that Karim was

removable. The judge also denied a request for voluntary departure

because Karim had no valid travel document, as his passport had

expired. Karim appealed to the Board of Immigration Appeals

("BIA"), arguing that he should have been given leave to amend his

pleadings and more time to develop an asylum claim, that the

special registration program was unconstitutional, and--as to

voluntary departure--that he had no travel document because DHS had

seized his passport.

In a brief per curiam order, the BIA rejected the appeal.

It said that Karim had had over three months between his notice to

appear in the removal proceeding and the filing of his original

pleadings, which was time enough to develop his objections to

removal; that he had furnished no reason for the later request to

amend his admission of removability; that his passport had expired

so voluntary departure was not permitted; and that the INS had no

authority over the special registration program whose

constitutionality was being challenged. Karim has now sought

review in this court.

Much of Karim's brief on appeal is general rhetoric about

the need for reasoned agency decisionmaking. In fact, it is fairly

easy to follow the reasoning of both the immigration judge and the

BIA. That both decisions were short is largely a result of the
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fact that Karim admitted removability at the outset and gave the

immigration judge no good reason for allowing Karim to revisit that

concession (which was made through counsel). As to voluntary

departure, the main argument now pressed was not made to the

immigration judge.

Turning to substance, Karim argues that the immigration

judge failed to articulate and then apply the various factors that

bear on whether to allow an amendment of the pleading. The

obligation to explain and articulate depends importantly on the

strength of the position being urged. Where no plausible reason is

offered for a request, the word "no" is plainly sufficient. Even

now, the brief provides no adequate explanation as to why Karim

should have been allowed to withdraw his concession nor any reason

to doubt that the concession was correct.

Karim says that the immigration judge and the BIA failed

to consider an (alleged) lack of prejudice in granting a

postponement. There is obvious prejudice to the hard-pressed

immigration process in deferring for yet a third time an already

twice-postponed proceeding and then using resources to conduct a

full-fledged proceeding in the absence of any indication that the

admission was mistaken. In any event, the failure to give an

adequate reason for a postponement or amendment dooms it regardless

of whether allowance would cause prejudice to the adversary.
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Karim says that he did explain to the immigration judge

that he wanted more time to investigate whether he was a citizen of

Lebanon or Liberia. That is not accurate. Counsel told the

immigration judge at the July hearing that the earlier postponement

had been secured to investigate that issue and continued: "And, as

I looked into that further, there is an association with Lebanon,

so that this whole Liberia theory went out the door."

Next, Karim's brief criticizes the BIA because, in

reviewing the denial of the request for voluntary departure, it

ignored the fact that DHS had seized Karim's passport. The

immigration judge was indeed told about the seizure but was also

told that the passport had expired in 1994. Karim did not, so far

as we can tell, urge the immigration judge to give him time to

secure and renew the passport. In any event, by statute, this

court lacks authority to review a refusal to allow voluntary

departure. 8 U.S.C. § 1229c(f) (2000).

Finally, Karim says that the immigration judge failed to

address his claim, by motion to suppress, that the removal

proceeding was tainted by the fact that DHS had conducted an

interview with Karim and secured admissions from him in the absence

of counsel. A reading of the transcript raises doubts whether

counsel properly preserved the claim at all, but that is beside the

point. Any attack on the DHS interview was mooted by Karim's

decision at the initial proceeding to concede removability.
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Conceivably, although there is no proof or proffer to

that effect, that concession may have been prompted by admissions

made in the DHS interview; if so, the time to raise the issue (by

motion to suppress or otherwise) was before making the concession.

Otherwise, Karim's position is no better than that of a defendant

who pleads guilty without reserving a Fourth Amendment claim and

then argues that his plea was prompted by an unlawful seizure of

evidence. The law is well settled that the unqualified guilty plea

waives such objections to antecedent events. United States v.

Cordero, 42 F.3d 697, 699 (1st Cir. 1994).

We add, merely to avoid unwarranted assumptions, that it

is far from clear that any flaws in the DHS interview would have

precluded use of the information there obtained. See INS v. LopezMendoza, 468 U.S. 1032, 1050 (1984) (holding that the exclusionary

rule does not typically apply in deportation proceedings). Nor is

it clear why any admissions made there mattered: Karim does not

claim to have American citizenship or any authorization to remain

in this country past 1994, and one would expect that untainted

government records could easily establish both points--the first by

reference to his admission to the country as a visitor and the

second by the usual "negative" search.

In closing, we add that there is no indication in this

record that Karim ever had any valid defense to removability. This

is not a case where obviously promising objections were forfeit or
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waived or where there is any indication of a miscarriage of

justice.

The petition for review is denied.