ILW.COM - the immigration portal Immigration Daily

Home Page

Advanced search

Immigration Daily


Processing times

Immigration forms

Discussion board



Twitter feed

Immigrant Nation


CLE Workshops

Immigration books

Advertise on ILW

VIP Network


Chinese Immig. Daily


Connect to us

Make us Homepage



The leading
immigration law
publisher - over
50000 pages of free

Immigration LLC.

< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1191

Ivan Beslic,



Immigration and Naturalization Service,


Petition for Review of an Order
of the Board of Immigration Appeals. 
No. A36-973-625

Argued May 9, 2001--Decided September 7, 2001


  Before Ripple, Manion, and Kanne, Circuit

  Kanne, Circuit Judge.  Petitioner Ivan
Beslic was convicted in federal court of
conspiring to export without a license
military weapons and related articles
including Stinger missiles, Red-eye
missiles, M-16 rifles, and night vision
equipment. The Immigration Judge ("IJ")
found Beslic deportable on the grounds
that he had been convicted of an offense
that was: (1) an aggravated felony; (2) a
firearms offense; and (3) a violation of
a law prohibiting the export of goods
from the United States. The IJ also
denied Beslic's application for
adjustment of status. Beslic appealed to
the Board of Immigration Appeals ("BIA"),
and the BIA affirmed the decision of the
IJ. Beslic now seeks review of the BIA's
decision. We dismiss Beslic's petition
for want of jurisdiction.

I.  History

  Beslic, a native of Croatia, immigrated
to the United States in 1979 and was
granted permanent resident status. On
January 30, 1995, he was convicted in
federal district court of conspiring to
violate 22 U.S.C. sec.sec. 2778(b)(2) and
(c), which prohibit the export of defense
articles from the United States without a
license. He was sentenced to thirty days
imprisonment, three years supervised
release, and five months home
confinement. In an Order to Show Cause
("OSC") dated January 8, 1997, the INS
charged Beslic with deportability under 8
U.S.C. sec. 1251(a)(2)(A)(iii) (current
version at 8 U.S. C. sec.
1227(a)(2)(A)(iii)) as one convicted of
an aggravated felony and 8 U.S.C. sec.
1251(a)(2)(C) (current version at 8
U.S.C. sec. 1227(a)(2)(C)) as one
convicted of a firearms or destructive
devices offense. On April 24, 1997, the
INS added an additional charge alleging
that Beslic was also deportable pursuant
to 8 U.S.C. sec. 1251(a)(4)(A)(i)
(current version at 8 U.S. C. sec.
1227(a)(4)(A)(i)) as one who engaged in
activity to violate any law "prohibiting
the export from the United States of
goods, technology, or sensitive
information." Id.

  In proceedings before the Immigration
Judge, Beslic admitted the fact of his
conviction and conceded that he was
deportable on the aggravated felony and
firearms charges. He did, however,
challenge the INS's contention that he
was deportable for violating the export
laws. Beslic argued that the export
activities giving rise to his conviction
did not involve a threat to national
security and that 8 U.S.C. sec.
1251(a)(4)(A)(i) should be construed to
require such a showing. The IJ rejected
this argument and found Beslic deportable
as charged. The IJ also denied Beslic's
application for adjustment of status
because he found that Beslic had not met
his burden of showing that he was
admissible to the United States as
required by 8 U.S.C. sec. 1255(a).
Specifically, the IJ found that Beslic
was inadmissible under 8 U.S.C. sec.
1182(a)(3)(A), which provides that "[a]ny
alien who . . . the Attorney General
knows, or has reasonable ground to
believe, seeks to enter the United States
to engage solely, principally, or
incidentally in--(i) any activity . . .
(II) to violate or evade any law
prohibiting the export from the United
States of goods, technology, or sensitive
information" is inadmissible.

  On appeal to the BIA, Beslic once again
asserted that he was not deportable under
8 U.S.C. sec. 1251(a)(4)(A)(i). He argued
that the legislative history of sec.
1251(a)(4)(A) makes it clear that
Congress intended that provision to
include only violations of the export
laws that compromise national security.
The BIA determined that, even under his
proposed interpretation of the statute,
Beslic was deportable as charged because
Beslic's participation in a conspiracy to
export weapons "undermined the strong
national security interest in restricting
through a licensing procedure both the
number and types of weapons leaving the
country" and "compromised the strong
national security interest in maintaining
control over which persons, groups or
nations receive and thereafter utilize
such weapons." In re Beslic, slip op. 3-4
(BIA Dec. 23, 1999). As a result of the
fact that the BIA concluded that Beslic's
actions did threaten national security,
it declined to reach the question of
whether 8 U.S.C. sec. 1251(a)(4)(A)(i)
includes violations of the export laws
that do not threaten national security.
In a divided decision, the BIA also
upheld the IJ's denial of Beslic's
application for adjustment of status. The
BIA found that Beslic's conviction
created a presumption that he was seeking
to enter the country "at least
'incidentally' to engage in the illegal
export of defense technology" and that
Beslic had failed to meet his burden in
overcoming that presumption. On appeal,
Beslic concedes his deportability but
challenges the BIA's determination that
he does not qualify for adjustment of
status under 8 U.S.C. sec. 1255(a)./1
Id. at 4-5. 

II.  Analysis

  The government argues that we lack
jurisdiction over Beslic's appeal.
Because Beslic was placed in deportation
proceedings prior to April 1, 1997 and
challenges a BIA decision issued on or
after October 31, 1996, our jurisdiction
is governed by the transitional rules set
forth in section 309(c)(4) of the Illegal
Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA"),
Pub. L. No. 104-208, 110 Stat. 3009
(1996). According to the government,
section 309(c)(4)(E) of IIRIRA--which
provides that "there shall be no appeal
of any discretionary decision under
section . . . [8 U.S.C. sec. 1255(a)]"--
eliminates our jurisdiction to review
Beslic's petition. Although the
government is correct that section
309(c)(4)(E) generally creates a
jurisdictional bar in cases involving a
challenge to a denial of adjustment of
status, our cases have recognized that
such "door-closing statute[s] . . . are
often interpreted as being inapplicable
to constitutional challenges." McBrearty
v. Perryman, 212 F.3d 985, 987 (7th Cir.
2000); cf. Singh v. Reno, 182 F.3d 504,
507 (7th Cir. 1999) (acknowledging that
"a safety valve remains whereby deportees
can seek direct review of substantial
constitutional issues in the courts of
appeals"); Czerkies v. U.S. Dept. of
Labor, 73 F.3d 1435, 1441 (7th Cir. 1996)
("Each statute must stand on its own two
feet, but each is informed by the
presumption . . . against slamming the
courthouse door in the face of holders of
constitutional claims."). Allowing a
petitioner to seek direct review of
constitutional challenges ensures that
"judicial review is curtailed as Congress
intended, but enough of a safety valve is
left to enable judicial correction of
bizarre miscarriages of justice."
LaGuerre v. Reno, 164 F.3d 1035, 1040
(7th Cir. 1998). Direct review in this
court is an "exceptional procedure," see
Singh, 182 F.3d at 510, however, and it
is only available to petitioners who have
raised a "substantial constitutional
claim[ ]," Lara-Ruiz v. INS, 241 F.3d
934, 939 (7th Cir. 2001). 

  In an attempt to show that he has raised
a substantial constitutional claim,
Beslic argues that the language of 8
U.S.C. sec. 1182, which provides that
aliens are inadmissible if they are
attempting to enter the United States to
"evade any law prohibiting the export of
goods, technology, or sensitive
information," is unconstitutionally
vague. Although Beslic labels his
argument as a vagueness challenge, it is
clear from his brief that he is actually
challenging the BIA's decision to apply
the admissibility statute to offenses
such as his, which involve the export of
non-classified materials without a
license--a challenge that we are without
jurisdiction to hear. Even if Beslic had
properly articulated a vagueness
challenge, it is questionable whether
such a challenge to an admissibility
statute would be cognizable. Although the
Supreme Court has made it clear that an
alien may bring a vagueness challenge to
a deportation statute, see Jordan v. De
George, 341 U.S. 223, 231, 71 S. Ct. 703,
95 L. Ed. 886 (1951), it is doubtful that
an alien has a right to bring such a
challenge to an admissibility statute. In
Boutlier v. INS, 387 U.S. 118, 87 S. Ct.
1563, 18 L. Ed. 2d 661 (1967), the
Supreme Court refused to entertain a
vagueness challenge to an immigration
statute that prohibited the admission of
aliens "afflicted with psychopathic
personality." Id. at 118, 123-24. The
Court stated that "[t]he constitutional
requirement of fair warning has no
applicability to standards . . . for
admission of aliens to the United States.
. . . Congress has plenary power to make
rules for the admission of aliens and to
exclude those who possess those
characteristics which Congress has
forbidden." Id. at 123. 

  Moreover, even if we assume, arguendo,
that Beslic could bring a vagueness
challenge to 8 U.S.C. sec.
1182(a)(3)(A)(i), we believe that such a
claim would lack merit. The fact that it
may be difficult to determine whether a
particular offense falls within the
meaning of a statute does not
automatically make a statute
impermissibly vague. See Jordan, 341 U.S.
at 232 (holding that the term "moral
turpitude" was sufficiently definite to
provide aliens with fair warning of the
possibility of deportation). Instead,
"[t]he test is whether the language
conveys sufficiently definite warning as
to the proscribed conduct when measured
by common understanding and practices."
Id. at 231-32. Despite Beslic's repeated
assertions to the contrary, we are unable
to find that the language of 8 U.S.C.
sec. 1182(a)(3)(A)(i) fails to provide
fair warning to aliens of the
consequences of exporting defense
articles without a license. Section
1182(a)(3)(A)(i) does not "contains terms
so vague that persons of common
intelligence must necessarily guess at
its meaning and differ as to its
application." Gresham v. Peterson, 225
F.3d 899, 907 (7th Cir. 2000) (citation
and internal quotation omitted).
Therefore, we find that Beslic has not
presented a substantial constitutional
question sufficient to trigger the safety
valve of review in this court. 

III.  Conclusion

  For the foregoing reasons, we do not
have jurisdiction to hear this appeal.
Accordingly, the petition for review is


/1 It appears from Beslic's brief to this court that
he continues to challenge the BIA's determination
that he was deportable as one convicted of vio-
lating the export laws, see 8 U.S.C. sec. 1251(a)(4)(A)(i)
(current version at 1227(a)(4)(A)(i)); however, we need
not address that claim because he has conceded his
deportability on two other grounds.