Department of Homeland Security Letter to Ansar Mahmood

Dear Mr. Mahmood:

Your request to have this office review your case for consideration of deferred action submitted on January 06, 2004 does not merit favorable action. After careful review of your entire immigration file, I have determined that the factors you presented do not meet the criteria necessary to qualify for the discretionary deferral of your removal from the United States.

Biographic, Immigration and Personal Background

Immigration file number: A47 265 599
Age/Date of Birth: 27 years/ August 04, 1977
Sex: Male
Marital Status: Unmarried
Family ties in the US: None
Equities in the United States: none
Length of time in the community: January 01, 2001 to January 25, 2002
Ties to the community: Very strong support group, which developed after your arrest
Country of Citizenship: Pakistan
Date of Entry: April 22, 2000; NYC as an Immigrant (lottery winner) DV1
Employment: prior to arrest for Harboring Aliens, pizza delivery person
Grounds for Removability: Violated Sec. 237(a)(2)(A)(iii) for Harboring aliens, which is classified as an aggravated felony under Sec. 101(a)(43)(N) of the Immigration and Nationality Act.

Litigation Background

You were arrested on October 10, 2001 having been charged with Harboring Aliens, in violation of Title 8 USC 1324(a)(i)(A)(iii).

You plead guilty to the above offense on January 25, 2002, and were sentenced to time served and 5 years probation. This conviction was the result of your providing aliens that were unlawfully present in the United States with housing and a vehicle. Based on a review of the transcript at the time of your pleading, the District Court Judge took a painstaking approach to ensure that your plea was knowing, voluntary, and based on a fully articulated understanding of the offense you had committed. You stated to the judge that you were guilty of the crime for which you were charged. I note that you were represented by a criminal defense attorney for these proceedings.

Special Agents of the Immigration and Naturalization Service (INS) took you into custody upon your guilty plea, and charged you on a Notice To Appear for having been convicted of an aggravated felony. You were transported to the Buffalo Federal Detention Facility, Batavia, NY for detention and a hearing before an immigration judge for a determination of your removability from the United States.

While your case was progressing before the immigration court, you filed a Petition for a Writ of Habeas Corpus, by your counsel, on March 20, 2002 with the United States District Court, Western District of New York. The Petition was based upon your contention that you should have been afforded an individual assessment of your risk of flight or dangerousness to the community in order to justify your detention. This court action granted you a stay preventing your removal until the legal issue you raised in the Petition for the Writ was resolved.

After several continuances and hearings, a decision dated July 17, 2002 by the immigration judge found you removable from the United States. You were ordered removed to Pakistan based on your conviction for an aggravated felony. All requests and applications for relief were reviewed and considered but were denied by the judge. You were represented throughout these proceedings by counsel.

You appealed the immigration judge's decision to the Board of Immigration Appeals on August 15, 2002. And on January 27, 2003 the Board of Immigration Appeals affirmed, in its entirety, the decision of the immigration judge.

On February 04, 2003 you filed a petition for review with the U.S. Second Circuit Court of Appeals for review of the decision of the of the Board of Immigration Appeals and the immigration judge. You also requested and were granted by the court a formal motion for a stay of removal. Once again you were represented by counsel in this matter.

On May 21, 2003 the Writ you filed with the District Court on March 20, 2002 was dismissed by a United States District Court Judge citing that the constitutionality of your continued incarceration was considered moot in that you were ordered removed from the United States by an immigration judge and that decision was upheld by the Board of Immigration Appeals.

On December 22, 2003 your attorney wrote to the Second Circuit Court of Appeals requesting to withdraw the petition for review of the Board of Immigration Appeals and immigration judge's decision.

On June 07, 2004 the Second Circuit Court issued a Mandate allowing the petition to be withdrawn, with prejudice and without attorney's fees. With all of the legal issues being resolved, this office will now consider your request for administrative deferred action.

Deferred Action Review

Deferred Action is a discretionary deferral action, an administrative choice to give a case a lower priority, but it is not considered to be an entitlement. It does not confer status, and in your case does not excuse your criminal conviction. Primary considerations for deferred action include age, physical ability to travel, and a country available to accept the removed alien.

You are 27 years of age, in good health, and a recent immigrant from Pakistan. A valid passport in your name was sent to the Pakistani Consulate by this office. To date, you have made no effort to obtain a travel document. It is incumbent upon you to assist government officials in obtaining a travel document. Therefore, these factors have absolutely no influence or weight for favorable consideration.

Next, I reviewed the presence of sympathetic factors, which could result in a distortion of the law with unfavorable implications for future cases; there are none in your case. As a convicted aggravated felon, your case has been given a high enforcement priority for removal. You cited three cases that had been granted deferred action in other jurisdictions, but you did not provide "A" numbers or full names so I was not able to review those files. Regardless, those cases would not be considered precedent or binding on your case.

However, based on the information you provided, the three cases are not similar to yours except that you were all convicted of crimes; these aliens had all been in the United States for long periods of time and developed considerable equities and family ties. You immigrated to the United States on April 22, 2000 about a year and a half before you were charged with an aggravated felony, you have no family here, and your time in the Hudson community is just about one year. You argue on your behalf that you should be allowed to remain here so that you can continue to contribute funds to your family who all reside oversees.

And lastly, I note that no local, state, or federal law enforcement authority has desired your presence for the purpose of ongoing civil or criminal investigation or prosecution.

It is without dispute that you were convicted of an aggravated felony having pled guilty to have knowingly concealed, harbored and shielded from detection two illegal aliens. This is an egregious factor that I find disappointing for a new immigrant to this country to have been arrested and convicted for harboring illegal aliens. Further, it is noted in your testimony before the immigration judge that you lied to the federal court, under oath, during your plea hearing when you admitted your guilt.

As outlined above, you have availed yourself of all legal reviews and appeals of the American legal system. Each step in the judicial process your case has been reviewed and examined. Having exhausted these judicial remedies, you now come before this office for yet another opportunity to have your criminal conviction set aside to allow you to remain in this country as if you were never convicted of an aggravated felony. I find that the judicial reviews you have received have provided a fair and unbiased review and determination of your situation.

Before the Immigration Court you wove yourself into a corner attempting to minimize your conviction. But an astute immigration judge listened intensively to your testimony during your immigration hearing. The immigration judge concluded in his oral decision that, "unequivocally" you are, "a liar and a perjurer". These are very compelling and uncontroverted statements from an impartial reviewer that carried considerable weight in reaching the decision to deny your request for deferred action. In the immigration judge's decision, he found your credibility to be very much lacking. The immigration judge found your testimony to be "anything but, consistent, believable, and credible." No doubt you were trying to paint your arrest and conviction in a sympathetic light, which, without scrutiny and examination could have easily been accepted and adopted by someone who did not have all the facts and testimony, as did the immigration judge.

Community Support

Clearly, this is the strongest factor you have going for you. You have a very dedicated group of supporters in the Hudson, NY area who describe themselves as the "Ansar Mahmood Defense Committee" I have received over a hundred letters and calls of support on your behalf. But I also note that the majority of these supporters have never met or communicated with you. In fact, when this committee first met with me in October 2003 no one had ever met you or knew you prior to your arrest.

Letters and calls I have received about you raised multiple issues and concerns that I feel need to be answered. Although these were not specifically outlined in your request for deferred action, I feel it is important that I address these issues and concerns as they came to me on your behalf from the committee that you have sanctioned and they are part of your immigration file.

These include: a belief that the government has illegally detained you; that you are a law-abiding person and you plead guilty to a crime that should not be a crime; you should be released because you are not a terrorist; your conviction of an aggravated felony should be overlooked because your first encounter with law enforcement authorities which lead to your arrest was later determined to be benign; you did not understand or comprehend the English language; your financial support to your family oversees is required to send your siblings to school and help your infirm father; you should be released to atone for the criminal incidents that occurred at the Abu Garab prison.

I also received calls and letters, which were directed as general anti-US government sentiments. One person who wrote on your behalf citied the need to change our manner of government. But they did not have specific points that I could address in relation to your request for deferred action.

It is without dispute that you came to the attention of federal law enforcement authorities based on the report of a guard who became suspicious when you took scenic pictures that encompassed a water treatment reservoir. The act of reporting suspicious activity after the 9/11/01 terrorist attacks on US soil was encouraged (and all persons residing in America are asked to be vigilant and report activity out of the ordinary or suspicious in order to defend against future terrorist attacks) So I find no fault in the manner that you came to the attention of federal authorities. Once you were questioned by federal agents, it was determined that you committed a crime, a crime of harboring illegal aliens, which unquestionably was unrelated to the picture taking encounter. In fact it was determined that you were not engaged in any terrorist activity and were quickly cleared of any suspicion of terrorist activity. Yet your chance encounter with federal authorities led to the discovery that you aided illegal aliens to remain in this country. That is why you were arrested, had your lawful immigrant status taken away and face removal from the United States. I am confident you did not engage in terrorist activity, you have never been charged as a terrorist or accused as a being a terrorist. So let me put that issue to an end. However, a federal court has found you guilty of harboring illegal aliens, an aggravated felony.

Above I have outline a brief synopsis of your legal history from the time of your arrest up to the response for your request for deferred action. It is clear to see that you have been represented throughout your legal process by counsel, and you have exercised extensive legal avenues and reviews accorded by the legal system; this includes stays you filed with the courts to prevent your removal from the United States. So the time that you have spent while awaiting removal has been at your direction not as a punitive decision by the government. While you were exhausting all of your legal avenues accorded under the American legal system, you have used this time to provide numerous articulate interviews with both the TV media and print media to garner attention for your release based on public support.

It is the Congress of the United States that enacts the administrative and criminal laws of the country and it is duty of the enforcement arms of the Executive Branch of the government to uniformly enforce these well thought out and debated laws. Not everyone in this country agrees in totality with all of our laws, that is the nature of a democratic society, they must however, abide by those laws. If you violate a law you must face the consequences of criminal and administrative sanctions. If the Executive Branch of the government, an agency or officer decided to selectively enforce some laws and ignore others, chaos would quickly follow in our system of government.

In the immigration judge's decision, he notes that, in your application before the court, you are fluent in the English language, you appeared before the courts without the need of an interpreter, and you provided well over twenty press interviews on TV and with news print media. The judge concluded that you are very conversant in the English language and cited that you used your purported lack of understanding English in an attempt to cloud the legal difficulties in which you have found yourself.

Decision

You were placed into removal proceedings and were charged as being removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (Act). You specifically were charged as alien who is removable for a conviction of a crime, relating to Section 101(a)(43)(H) of the INA. This statute specifically relates to a conviction for the smuggling or harboring of aliens. You were ordered removed by an immigration judge on July 17, 2002. In the oral decision the judge stated that you were a liar and perjurer. In pertinent part, the decision states that "he testified under oath to this court that he lied to a federal judge in connection with criminal proceedings". In testimony taken by the court, you stated that you did not know that the aliens that you were convicted for harboring were in the United States illegally. In a Record of Sworn Statement (Affidavit) by Hafiz Mohammad Tauseef A#77 899 674, dated October 10,2001, he stated, "he (Ansar Mahmood) knew that I was in the United States illegally. He also took copies of my wife's (Zarmina) with my passports for safe keeping." In the Record of Sworn Statement (Affidavit) by Ansar Mahmood, dated October 10, 2001, you stated, "I knew that Zarmina Ansar and Touseef Ansar were illegal and I helped them get an apartment, a car and work with Shahid Mahmood." Further, during your criminal proceeding in the United States District Court, Northern District of New York, you stated to the judge that you were pleading guilty because you were guilty.

After reviewing all pertinent correspondence, it has been determined that the safety and security of the United States far outweighs the amount of publicity that has been generated in this case. The harboring and smuggling of illegal aliens continues to pose a serious threat to national security. Congress has mandated that the Department of Homeland Security enforce the Immigration and Nationality Act. The removal of criminal aliens has become a priority. By law, your conviction has defined you as an "aggravated felon" and your removal is in the best interests of national security.

You are an alien that was convicted for a crime that the United States Government considers serious. Four separate courts reviewed your case and each court upheld the order of removal issued. I find that I cannot set aside your order of removal and grant you deferred action, due to the serious nature of the crime for which you were convicted. You have ample level of review. The Department of Homeland Security will not exercise prosecutorial discretion in your case and place in a deferred action status.