text:
Dickson v. Ashcroft
Dulal-Whiteway v. U.S. Department of Homeland Security
Under this approach, we "look to the elements and the nature of the offense of conviction, rather than to the…
Vargas-Sarmiento v. U.S. Dept. of Justice
Even before enactment of the REAL ID Act, this court had ruled that we necessarily retained jurisdiction to…
Full title:John P. DICKSON, Petitioner, v. John ASHCROFT, Attorney General of the…
Court:United States Court of Appeals, Second Circuit
Date published: Sep 9, 2003
346 F.3d 44 (2d Cir. 2003)
United States Court of Appeals, Second Circuit
holding that New York offense of unlawful imprisonment of competent adult is crime of violence within meaning of Immigration and Nationality Act
Summary of this case from U.S. v. Capler
See 25 Summaries
Argued: May 15, 2003.
Decided: September 9, 2003.
Appeal from the Court of Appeals, Sotomayor, Circuit Judge.
George A. Terezakis, Mineola, NY, for Petitioner.
Rebecca C. Martin, Assistant United States Attorney (James B. Comey, United States Attorney for the Southern District of New York, Kathy S. Marks, Gideon A. Schor, of counsel), New York, NY, for Respondent.
Terry A. Maroney, Wilmer, Cutler Pickering, New York, NY (Paul A. Engelmayer, Anjan Sahni, Wilmer, Cutler Pickering, New York, NY; Jonathan E. Gradess, Manuel D. Vargas, New York State Defenders Association, New York, NY; Joshua L. Dratel, National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers, New York, NY, on the brief) for amici curiae New York State Defenders Association, New York State Association of Criminal Defense Lawyers, and National Association of Criminal Defense Lawyers.
Before: McLAUGHLIN, LEVAL, and SOTOMAYOR, Circuit Judges.
SOTOMAYOR, Circuit Judge.
Petitioner John Dickson petitions for review of the decision of the Board of Immigration Appeals ("BIA") ordering him removed for having been convicted of an aggravated felony. Under the categorical approach to criminal statutory interpretation, we hold that the state-law crime of unlawful imprisonment in the first degree is divisible into crimes that are categorically grounds for removal and others that are not. Accordingly, the BIA was permitted to consult the record of conviction to determine the specific crime for which Dickson was convicted. In assessing whether Dickson's conviction was for a removable offense, however, the BIA improperly relied upon the narrative statement of facts contained in the pre-sentence report that was prepared for Dickson's criminal proceedings. We accordingly grant Dickson's petition for review, vacate the BIA's decision, and remand to the BIA with directions to order a new removal hearing.
I. Factual Background
Petitioner John Dickson is a native and citizen of Jamaica. He entered the United States in 1986, at the age of six, on a nonimmigrant visitor's visa. In 1998, Dickson adjusted his status to lawful permanent resident. His wife and infant son are both citizens of the United States.
In August 2000, Dickson was arrested on the basis of a complaint by his then-girlfriend (who is now his wife). In December 2000, Dickson pled guilty to unlawful imprisonment in the first degree, pursuant to N.Y. Penal Law § 135.10 (McKinney 2003) ("NYPL § 135.10"). He was sentenced in February 2001 to a prison term of one to three years.
In May 2001, during Dickson's incarceration, the Immigration and Naturalization Service ("INS") served Dickson with a Notice to Appear, charging that he was removable pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA") (codified at 8 U.S.C. § 1227(a)(2)(A)(iii)) as an alien convicted of an aggravated felony. During removal proceedings before the Immigration Judge ("IJ"), the INS attorney attached to her memorandum of law the pre-sentence report ("PSR") that had been prepared for Dickson's state criminal proceedings. The IJ referred to facts contained in the PSR during the removal proceedings and ultimately decided that Dickson's conviction for unlawful imprisonment constituted an aggravated felony. The IJ found that Dickson was not eligible for any form of relief from removal, and ordered him removed to Jamaica.
Dickson appealed the IJ's decision to the BIA. Dickson asserted, inter alia, that unlawful imprisonment is not an aggravated felony, and that the PSR was inadmissible in the removal proceedings and should not have been considered by the IJ. The BIA rejected Dickson's arguments, affirmed the decision of the IJ, and dismissed Dickson's appeal. Dickson petitions this Court for review of the BIA's decision.
II. Statutory Background
INA § 237(a)(2)(A)(iii) provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." Among the criminal convictions that fall within the INA's definition of an aggravated felony is a conviction for "a crime of violence (as defined in [ 18 U.S.C. § 16], but not including a purely political offense) for which the term of imprisonment [is] at least one year." INA § 101(a)(43)(F) (codified at 8 U.S.C. § 1101(a)(43)(F)). A "crime of violence" is in turn defined in the federal criminal code as:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S.C. § 16.
The New York state criminal code provides that "[a] person is guilty of unlawful imprisonment in the first degree when he restrains another person under circumstances which expose the latter to a risk of serious physical injury." NYPL § 135.10. The word "restrain" is further defined as follows:
"Restrain" means to restrict a person's movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined "without consent" when such is accomplished by (a) physical force, intimidation or deception, or (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the [custodial parent or institution] has not acquiesced in the movement or confinement.
N.Y. Penal Law § 135.00(1) (McKinney 2003) ("NYPL § 135.00(1)").
I. Jurisdiction and Standard of Review
INA § 242(a)(2)(C) (codified at 8 U.S.C. § 1252(a)(2)(C)) precludes review of "any final order of removal against an alien who is removable by reason of," inter alia, having been convicted of an aggravated felony. We do have jurisdiction, however, to determine whether this jurisdictional bar applies. See Dalton v. Ashcroft, 257 F.3d 200, 203 (2d Cir. 2001); Bell v. Reno, 218 F.3d 86, 89 (2d Cir. 2000). We may thus review the BIA's legal finding that Dickson was convicted of an aggravated felony. See Dalton, 257 F.3d at 203; Bell, 218 F.3d at 89.
The BIA's interpretation of ambiguous provisions in the INA, a statute it is charged with administering, must be granted substantial deference unless "arbitrary, capricious, or manifestly contrary to the statute." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Mardones v. McElroy, 197 F.3d 619, 624 (2d Cir. 1999). We review de novo, however, the BIA's interpretation of state or federal criminal statutes. Dalton, 257 F.3d at 203. Because the INA defines aggravated felony with reference to "crimes of violence" as defined in the federal criminal code, see 18 U.S.C. § 16, and because this case also involves interpretation of the state crime of unlawful imprisonment, we review de novo the question whether NYPL § 135.10 is a crime of violence. See Dalton, 257 F.3d at 203.
II. Whether Unlawful Imprisonment is a Crime of Violence Pursuant to 18 U.S.C. § 16
As noted above, § 16 requires consideration of whether an offense either has as an element the use or threatened use of physical force, or "by its nature" involves a substantial risk of the use of physical force. We have held that in determining whether an offense is a crime of violence under § 16, a "categorical approach" to criminal statutory interpretation must be applied. Dalton, 257 F.3d at 204-05. In describing the categorical approach, we have held that every set of facts violating a statute must satisfy the criteria for removability in order for a crime to amount to a removable offense; the BIA may not justify removal based on the particular set of facts underlying an alien's criminal conviction. See Sui v. INS, 250 F.3d 105, 116-18 (2d Cir. 2001); see also Dalton, 257 F.3d at 204. The categorical approach focuses on "the intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation." Id. at 204 ("[T]he singular circumstances of an individual petitioner's crimes should not be considered, and only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant[.]" (quoting Michel v. INS, 206 F.3d 253, 270 (2d Cir. 2000) (Calabresi, J., dissenting)) (internal quotation marks omitted)).
Where, however, a criminal statute encompasses diverse classes of criminal acts — some of which would categorically be grounds for removal and others of which would not — we have held that such statutes can be considered "divisible" statutes. See Kuhali v. Reno, 266 F.3d 93, 106 (2d Cir. 2001) (holding that a federal statute prohibiting the export of certain classes of firearms and ammunition was divisible, because violation of the statute with regard to firearms would be a removable offense, while violation of the statute with regard to ammunition might not be); Sui, 250 F.3d at 118 (holding that a statute that prohibited "mak[ing], utter[ing] or possess[ing] a counterfeited security" was divisible, because the determination of whether an alien was removable could vary "depending on whether he or she had been convicted alternatively of making, possessing, or uttering counterfeit securities").
In reviewing a conviction under a divisible statute, the categorical approach permits reference to the record of conviction for the limited purpose of determining whether the alien's conviction was under the branch of the statute that permits removal. See Kuhali, 266 F.3d at 106-07 ("[W]hen a criminal statute is `divisible' into multiple categories of offense conduct — some but not all of which constitute removable offenses — a court may refer to the record of conviction, particularly the judgment of conviction, to determine whether the alien's criminal conviction falls within a category that would justify removal.").
In the instant case, Dickson was convicted in state court of unlawful imprisonment in the first degree. The crime of unlawful imprisonment is accomplished when a defendant (1) restrains a victim by (2) intentionally and (3) unlawfully (4) moving or confining the victim in a way that interferes substantially with the victim's liberty, (5) without the victim's consent, (6) with knowledge that the act is unlawful, and (7) under circumstances that expose the victim to a risk of serious physical injury. NYPL §§ 135.10, 135.00(1). Whether the elements of NYPL § 135.10 are met will depend on the identity of the victim in each case. If the victim is a competent adult, consent to the restraint will preclude application of the statute. See NYPL § 135.00(1)(a). If the victim is an incompetent person or a child under sixteen, however, the victim's acquiescence to the restraint will not preclude application of the statute unless the victim's parent or guardian has also acquiesced. See NYPL § 135.00(1)(b).
A. The Unlawful Imprisonment of a Competent Adult
The unlawful imprisonment of a competent adult will always satisfy the requirements of § 16. For the nonconsent element of unlawful imprisonment to be met when the victim is a competent adult, the restraint must be accomplished by "physical force, intimidation, or deception." NYPL § 135.00(1)(a). Where restraint occurs by physical force, the use of force is (obviously) always present, satisfying § 16(a). Likewise, where restraint occurs by intimidation, the threatened use of physical force is always present, again satisfying § 16(a).
The question whether restraint accomplished by deception satisfies the requirements of § 16 requires somewhat greater analysis. Dickson argues that where restraint occurs by deception, there is not necessarily the use, threatened use, or risk of physical force, and so § 16 is not satisfied. Dickson poses a number of hypothetical situations that he claims would satisfy the elements of unlawful imprisonment but that would not involve the use or risk of physical force. We disagree with Dickson's position, and note that the hypothetical scenarios Dickson describes suffer from one of two flaws: they either rely on an artificially constrained definition of physical force, or pose situations that would not satisfy the elements of unlawful imprisonment.
At oral argument, Dickson posed a hypothetical situation in which a defendant lures a victim to enter a room voluntarily, and then locks the door, leaving the victim imprisoned. Dickson argued that such an act would be unlawful imprisonment by deception, but would not involve the use or risk of force. We cannot agree that such an act does not involve confining the victim by force — even though there has been no application of violent force, the defendant has unquestionably, by locking the door, imposed physical barriers of forcible restraint. Dickson's arguments to the contrary rely on the notion that physical force is present only when a victim is subjected to violent or assaultive force. This definition of physical force is artificially narrow — we have previously noted that "force" is defined more broadly as "power, violence, or pressure directed against a person or thing." Chrzanoski v. Ashcroft, 327 F.3d 188, 192 (2d Cir. 2003) (quoting Black's Law Dictionary 656 (7th ed. 1999)) (internal quotation marks omitted).
Contrary to Dickson's assertion, nothing in our prior cases holding that in order for § 16 to be satisfied an offense must be intentional rather than merely reckless suggests otherwise. Dickson argues that our holding in Dalton supports his understanding of the circumstances in which the use or risk of force is present. In Dalton, we held that a violation of New York's drunk driving statute did not satisfy the requirements of § 16(b), because the statute prohibited acts that did not necessarily involve the use or risk of force. Dalton, 257 F.3d at 206. We explained:
The physical force [requirement of § 16(b)] . . . cannot reasonably be interpreted as a foot on the accelerator or a hand on the steering wheel. Otherwise, all driving would, by definition, involve the use of force, and it is hard to believe that Congress intended for all felonies that involve driving to be "crimes of violence."
[T]he word "use" as well as the phrase "in the course of committing the offense" suggest[s] that § 16(b) contemplates only intentional conduct and "refers only to those offenses in which there is a substantial likelihood that the perpetrator will intentionally employ physical force. . . ."
Id. at 206-08 (quoting United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir. 2001)).
Dalton does not require, as Dickson suggests, that the risk of force specified in § 16(b) be violent force applied directly to the person of the victim; rather, Dalton holds only that the requirements of § 16(b) are not met where the crime could be committed without the intentional use of physical force. Dalton, 257 F.3d at 207-08; see also Jobson v. Ashcroft, 326 F.3d 367, 374 (2d Cir. 2003) (following Dalton to hold that New York's second-degree manslaughter statute, which applies when a person recklessly causes death, did not meet the requirements of § 16(b) because many ways of recklessly causing death involve no " intentional use" of force).
Dickson's other hypothetical scenarios fail to prove that unlawful imprisonment by deception can be accomplished without the use or risk of force because they do not satisfy the elements of unlawful imprisonment. Dickson argues in his brief that the following scenario would constitute unlawful imprisonment of a competent adult by deception, but would not involve the use or risk of force:
Assume a young woman who had been drinking, and who is highly intoxicated, wishes to speak to her former boyfriend, in the hope she will be able to convince him to reconcile with her. She offers to drive him home from work. He enters her car believing she will drive him home. Instead, she deceives him, driving to a lot where she parks. After realizing she is not going to take him home, he exits the vehicle. The young woman has committed the offense of unlawful imprisonment by deception.
Petitioner's Reply Brief at 10.
We first note that it is not at all clear that such a situation would constitute unlawful imprisonment in the first degree. As discussed above, the elements of unlawful imprisonment in the first degree always include not only intent on the part of the defendant but also substantial interference with the victim's liberty and that the victim be at risk of serious physical injury. See NYPL §§ 135.10, 135.00(1). Here it is questionable both whether the defendant would have the requisite intent and whether the victim's liberty would be substantially interfered with; and Dickson has pointed to no New York cases involving a similar or even comparable fact pattern in which a conviction for unlawful imprisonment in the first degree has been obtained.
More fundamentally, Dickson's exercise in posing hypothetical scenarios purporting to show that an actor could be guilty of unlawfully imprisoning a competent adult without violating § 16 is useful only to a point. Even assuming that such a scenario would fulfill all the elements of the unlawful imprisonment statute (and assuming that we agree with Dickson that the actions would not involve the use of force), Dickson's argument would fail because we easily conclude that the offense would be one that "by its nature" involves a substantial risk that force may be used, and thus satisfies the requirements of § 16(b). Dickson suggests that were we to agree that even one such implausible but not, perhaps, impossible scenario could exist, we would be compelled to conclude under the categorical approach that unlawful imprisonment is not a crime of violence as defined in § 16. This assertion ignores both the plain language of § 16(b) and our prior case law interpreting that section.
Section § 16(b) defines as a crime of violence "any . . . offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 16(b) (emphasis added). Positing a hypothetical manner in which the unlawful imprisonment of a competent adult could be accomplished by deception and without the use of force thus does not necessarily exclude the unlawful imprisonment statute from the scope of § 16 — our inquiry under § 16(b) is broader and more flexible, and involves asking whether the crime is one that by its nature involves a substantial risk that force may be used. Cf. Sutherland v. Reno, 228 F.3d 171, 175-76 (2d Cir. 2000) (holding that a petitioner's conviction for indecent assault and battery under Massachusetts law constituted a crime of violence, because any offense under the state statute was by definition nonconsensual, and thus "any violation of [the statute], by its nature, presents a substantial risk that force may be used to overcome the victim's lack of consent and accomplish the indecent touching"). We hold that in any case in which a competent adult is restrained by deception, in a manner conforming to the elements of NYPL § 135.00, the offense will either involve the use of force to effectuate the restraint, or by its nature involve a substantial risk that force may be used. Cf. Sutherland, 228 F.3d at 175-76.
We thus conclude that whether accomplished by force, intimidation, or deception, the unlawful imprisonment of a competent adult under New York law always involves either the use or risk of force, and will always be a crime of violence pursuant to § 16.
B. The Unlawful Imprisonment of an Incompetent Person or Child under Sixteen
The unlawful imprisonment of an incompetent person or a child under sixteen, on the other hand, could be accomplished without satisfying the requirements of § 16. For the nonconsent element of unlawful imprisonment to be met when the victim is an incompetent person or a child under sixteen, the restraint may be accomplished by "any means whatever, including acquiescence of the victim, if . . . the [custodial parent or institution] has not acquiesced in the movement or confinement." NYPL § 135.00(1)(b). New York courts have held that restraint of an incompetent person or child under sixteen may be accomplished even with the victim's acquiescence and without the use or risk of force. See People v. Helbrans, 228 A.D.2d 612, 617, 645 N.Y.S.2d 307 (2d Dep't 1996) (affirming a conviction for second-degree kidnapping and finding that the thirteen-year-old victim had been restrained within the meaning of NYPL § 135.00(1)(b), despite the victim's acquiescence to the restraint and the lack of use of force); People v. De Vyver, 89 A.D.2d 745, 747, 453 N.Y.S.2d 915 (3d Dep't 1982). Thus, unlawful imprisonment of an incompetent person or a child under sixteen is not a crime of violence under § 16, because it neither has as an element the use of force nor categorically involves a substantial risk that force may be used.
C. The Unlawful Imprisonment Statute is Divisible
As our analysis above demonstrates, New York's unlawful imprisonment statute is divisible into two crimes: the unlawful imprisonment of a competent adult, which cannot be accomplished without use or threat of force, see NYPL §§ 135.10 135.00(1)(a); and the unlawful imprisonment of an incompetent person or child under sixteen, which can be accomplished without force, see NYPL §§ 135.10 135.00(1)(b). We thus hold that the unlawful imprisonment of a competent adult is always a crime of violence pursuant to § 16, but that the unlawful imprisonment of an incompetent person or child under sixteen is not a crime of violence pursuant to § 16.
III. The Proper Scope of Reference to the Record of Conviction
Because the unlawful imprisonment statute is divisible into removable and non-removable offenses, the BIA was permitted to consult Dickson's record of conviction for the limited purpose of determining whether he was convicted of the unlawful imprisonment of a competent adult (a removable offense). See Kuhali, 266 F.3d at 106-07. In looking to the record of conviction for this purpose, the categorical approach permits inquiry into the fact of conviction of a specific offense but prohibits reference to or examination of the particular factual circumstances underlying that conviction. See Jobson, 326 F.3d at 372; Kuhali, 266 F.3d at 106-07; Sui, 250 F.3d at 117-18 n. 11. This restriction derives from the language of the INA, which renders aliens deportable based on crimes for which they have been "convicted," not based on crimes they may have committed. INA § 237(a)(2)(A)(iii). The policy has also been held necessary to avoid arbitrary results and to comport with Congress' intent that IJs and the BIA not perform a fact-finding function in determining whether a particular criminal conviction is a removable offense. See Sui, 250 F.3d at 117-18; accord In re Pichardo-Sufren, 21 I. N. Dec. 330, 334-36, 1996 WL 230227 (BIA 1996).
Here, the BIA properly determined that the unlawful imprisonment statute was divisible, and that it could look to the record of conviction to determine the crime for which Dickson was convicted: "Section 135:00 of the New York Penal [Code] is a divisible statute which has many parts. . . . [I]t is [thus] proper to look to the record of conviction, and to other documents admissible as evidence in proving a criminal conviction, to determine whether the specific offense of which the alien was convicted constitutes an aggravated felony. . . ." The BIA then held that Dickson's PSR was admissible in the proceedings to establish proof of his conviction, and noted that "on review of the report, . . . [Dickson] apparently forced the mother of his child to partake in a car ride against her will while bound." Based on this information, contained in the PSR's narrative statement of facts underlying Dickson's offense, the BIA concluded that Dickson had been convicted of a crime of violence.
In the context of an IJ's or the BIA's inquiry regarding the crime for which an alien has been convicted, the "record of conviction" is statutorily defined as including, inter alia, the charging document, a plea agreement, a verdict or judgment of conviction, a record of the sentence, or a plea colloquy transcript. See INA § 240(c)(3)(B) (codified at 8 U.S.C. § 1229a(c)(3)(B)); 8 C.F.R. § 1003.41(a). We have never had occasion to determine whether the PSR properly is considered part of the record of conviction for use in immigration proceedings.
Respondent also relies in part on the Ninth Circuit's decision in Abreu-Reyes v. INS, 292 F.3d 1029 (9th Cir. 2002), for the proposition that an IJ or the BIA properly may rely on facts contained in a PSR to determine an alien's removability. See id. at 1034 ("[A]dmitting the evidence of the amount of loss to the victim contained in the pre-sentence report [for the purpose of determining whether the alien had been convicted of an aggravated felony] was not fundamentally unfair, and the IJ properly relied on the pre-sentence report to determine Abreu-Reyes's removability."). However, the panel decision in Abreu-Reyes was published just four days after an in banc court of the Ninth Circuit reaffirmed that court's prior holding that "a presentence report reciting the facts of the crime is insufficient evidence to establish that the defendant pled guilty to the elements of the generic definition of a crime when the statute of conviction is broader than the generic definition." United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2002) ( in banc) (citing United States v. Franklin, 235 F.3d 1165, 1172 (9th Cir. 2000)). Thus, as another decision of the Ninth Circuit has recently explained, "there is noticeable tension in [the Ninth Circuit's] recent caselaw concerning whether the INS may ever rely on presentence reports to develop the factual basis of a convicted offense." Chang v. INS, 307 F.3d 1185, 1191 (9th Cir. 2002) (citing Abreu-Reyes and Corona-Sanchez, but declining to reconcile the apparent tension between those decisions). To whatever extent Abreu-Reyes could be said to bear on our analysis in this case, then, we note that it is of questionable vitality in its own Circuit.
Respondent asserts that INA § 240(c)(3)(B)(vi), permitting the admission in immigration proceedings of "[a]ny document or record prepared by, or under the direction of, the court in which the conviction was entered that indicates the existence of a conviction," specifically authorizes the BIA to rely on the PSR to determine the crime for which Dickson was convicted. However, we need not decide whether the PSR may be consulted to prove a conviction for immigration purposes, because we hold that even if it may, the BIA's reference to the narrative statement of facts contained in the PSR was impermissible.
Assuming arguendo that the PSR is a part of the record of conviction admissible in immigration proceedings, the BIA in the instant case did not rely on the PSR for its indication of the "existence of a conviction." INA § 240(c)(3)(B)(vi). Rather, the IJ and BIA relied on the PSR for its narrative statement of the facts underlying Dickson's offense. This was improper.
In its statement of the statutory provision under which Dickson's conviction was obtained, the PSR notes only that Dickson pled to "Unlawful Imprisonment 1st (E Fel.)," which clearly does not provide enough information on which the BIA could have relied to find that Dickson was convicted of the unlawful imprisonment of a competent adult.
The PSR is organized in such a way that the first page generally includes a number of boxes to be filled in by the preparing agency. These boxes include spaces to fill in such information as name, residence, criminal history, and current conviction. Following this page, the preparing agency attaches a narrative description of the facts underlying the offense for which the PSR was prepared, an analysis of the defendant's criminal history, and a discussion and analysis of the defendant's social history (including family, education, and health background).
The PSR is a tool used in aid of sentencing, and typically describes conduct that demonstrates the commission of an offense even if the alien was never convicted for that activity. New York law permits a PSR to include information and analysis of "the circumstances attending the commission of the offense, the defendant's history of delinquency or criminality, and the defendant's social history, employment history, family situation, economic status, education, and personal habits." N.Y.Crim. Proc. Law §§ 390.30(1), (3)(a) (McKinney 2003). Because the factual narratives contained in the PSR are prepared by a probation officer on the basis of interviews with prosecuting attorneys, police officers, law enforcement agents, etc., they may well be inaccurate. They may include allegations that were not proven at trial, as well as alleged facts that would have been inadmissible at trial had the prosecution attempted to present them. See Hili v. Sciarrotta, 140 F.3d 210, 216 (2d Cir. 1998) (noting that the inclusion of hearsay statements and inaccurate information in a PSR is "virtually inevitable"); Dorman v. Higgins, 821 F.2d 133, 138 (2d Cir. 1987) (noting that verification of the information contained in a PSR is "desirable . . . [but] not always possible")566. Such a narrative is not a highly reliable basis for a decision of such importance as deportation.
Moreover, there are many other documents that properly are considered part of the record of conviction, such as the judgment of conviction or the plea colloquy transcript, that do not pose the potential reliability problems of a factual narrative in a PSR. In light of the ready availability of these other documents on which an IJ or the BIA could rely to ascertain the crime for which an alien was convicted, we see no reason why the conviction record should be deemed to include inherently unreliable narratives based on hearsay, which may well be inaccurate.
We find ample support in our case law for this approach. In Sui, the defendant pled guilty to an indictment charging him with possession of counterfeit securities with the intent to deceive others. Sui, 250 F.3d at 108. The PSR prepared for Sui's sentencing indicated that Sui intended to use the counterfeit securities to purchase as much merchandise out of state as possible, and then to sell that merchandise in New York. Id. at 109. As a result of Sui's criminal conviction, the INS commenced removal proceedings, charging him with inadmissibility for having been convicted of an offense involving fraud in which the loss to the victim exceeded $10,000. Id. Although Sui's fraudulent conduct resulted in losses under $10,000, the IJ relied on the statement of Sui's intent contained in the PSR to hold that Sui attempted to defraud his victims of an amount greater than $10,000 and was, thus, removable. Id. at 110. We vacated the order of removal, holding that it was error for the IJ to have "go[ne] behind the offense as it was charged to reach [its] own determination as to whether the underlying facts amount[ed] to one of the enumerated crimes." Id. at 117-18 (quoting Lewis v. INS, 194 F.3d 539, 543 (4th Cir. 1999)). We explained that Congress did not intend for IJs or the BIA to perform a "factfinding role . . . in ascertaining whether an alien had committed an aggravated felony." Id. at 117.
Because the PSR prepared for Dickson's state trial proceedings does not identify the branch of the statute under which he was convicted with sufficient specificity for the BIA to have found him removable under § 16 and INA § 237(a)(2)(A)(iii), we make no suggestion as to what our ruling would be in a case in which the BIA relied not on the PSR's narrative statement of the facts constituting the offense, but on its identification of the particular branch of the statute under which the conviction was obtained. We thus need not and do not decide whether the PSR may, under some circumstances, properly be considered by the BIA in determining whether an alien has been convicted of a removable offense. We hold only that the BIA may not rely on factual narratives in a PSR to determine the crime for which an alien has been convicted.
IV. Reconsideration on Remand
In granting Dickson's petition and vacating the BIA's order of removal, we remand for the purpose of allowing an IJ to make the legal determination in the first instance whether documents that are properly considered part of the record of conviction establish that Dickson is removable. Cf. Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d Cir. 1994) (remanding to the BIA for consideration in the first instance of an alien's ineffective assistance of counsel claim); Esposito v. INS, 987 F.2d 108, 112 (2d Cir. 1993) (remanding to the BIA for consideration of legal issues not previously considered). On remand, respondent may present appropriate documents showing the offense for which Dickson was convicted, such as the indictment and plea allocution transcript, to establish that Dickson is removable for having violated NYPL § 135.10(1)(a).
For the reasons stated above, we GRANT Dickson's petition for review, VACATE the BIA's order of removal, and REMAND to the BIA with directions to order a new removal hearing.
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holding that, even if none of the elements of unlawful imprisonment under N.Y. Penal Law § 135.10 expressly require the use of physical force, the offense still satisfies 18 U.S.C. § 16(b) because, "by its nature," the felony "involves a substantial risk that force may be used"
Summary of this case from Vargas-Sarmiento v. U.S. Dept. of Justice
holding that unlawful imprisonment of a minor or incompetent adult is not a crime of violence under § 16(b), because the crime can be accomplished with the victim's acquiescence
Summary of this case from Valencia v. Gonzales
finding no crime of violence under § 16 where the offense "neither has as an element the use of force nor categorically involves a substantial risk that force may be used"
Summary of this case from Blake v. Gonzales
concluding that New York offense of unlawful imprisonment of competent adult, even where accomplished by deception, involves substantial risk of violence
Summary of this case from U.S. v. Billups
concluding that the BIA may not consider the narrative statement in a PSI Report as evidence of the facts underlying a putative predicate offense
concluding that when the restraint constituting false imprisonment is accomplished by deception, the offense will either involve the use of force to effectuate the restraint, or by its nature involve a substantial risk that force may be used
Summary of this case from State v. Carlos
granting a petition for review of a BIA decision and vacating the order of removal
Summary of this case from Swaby v. Ashcroft
rejecting argument that "even one . . . implausible, but not, perhaps, impossible scenario" where crime could be committed without use of force would compel the Court to conclude under the categorical approach that unlawful imprisonment is not a crime of violence under section 16
Summary of this case from Canada v. Gonzales
describing the categorical approach as a method of statutory interpretation
Summary of this case from Flores v. Attorney Gen. U.S.
describing the "categorical approach" to criminal statutory interpretation whereby "every set of facts violating a statute must satisfy the criteria for removability in order for a crime to amount to a removable offense"
Summary of this case from Forbes v. Lynch
noting that there are many readily available and reliable documents that properly are considered part of the record of conviction such as the judgment of conviction or a colloquy transcript
Summary of this case from Ponce v. Attorney Gen. United States
noting that a defendant's "[p]ositing a hypothetical manner in which the [offense] could be accomplished" without the use of physical force "does not necessarily exclude" the offense from the ambit of § 16(b)
Summary of this case from Morris v. Holder
In Dickson, we observed that "[b]ecause the factual narratives contained in [a New York] PSR are prepared by a probation officer on the basis of interviews with prosecuting attorneys, police officers, law enforcement agents, etc., they may well be inaccurate."
Summary of this case from Guzman v. Holder
applying the modified categorical approach
Summary of this case from WALA v. MUKASEY
defining a "divisible statute" as one that "encompasses diverse classes of criminal acts — some of which would categorically be grounds for removal and others of which would not"
Summary of this case from Bazuaye v. Mukasey
noting that there are many readily available and reliable documents that properly are considered part of the record of conviction, such as the judgment of conviction or the plea colloquy transcript
Summary of this case from Ruiz v. Mukasey


Many people are naive. Contrary to anthropological, historical, and sociological information, they think that most people are naturally good, unselfish, and peaceful. However, our bubbles of naivete are repeatedly burst by sin, violence, divorce, addiction, terrorism, racism, war, etc.
Then the naive often turn to cynicism. They believe there is no hope for the world or themselves. Then they either give in to depression or try to escape from reality through overindulgence.
But there is hope in Jesus � only in Jesus. Jesus continues to come into the worst situations and raise the dead (see Lk 7:14-15). He is the Lord of history. Without Him we can do nothing (Jn 15:5). With Him nothing is impossible (see Mt 19:26).
Consequently, we Christians are the only people in the world who have reason to be hopeful. Thus, "should anyone ask you the reason for this hope of yours, be ever ready to reply" (1 Pt 3:15). "And this hope will not leave us disappointed, because the love of God has been poured out in our hearts through the Holy Spirit Who has been given to us" (Rm 5:5). The Lord promises: "I know well the plans I have in mind for you...plans for your welfare, not for woe! plans to give you a future full of hope" (Jer 29:11). "In hope we were saved" (Rm 8:24). "Rejoice in hope" (Rm 12:12).
Prayer: Father, thank You for giving me a life worth living forever. Alleluia!
Praise: Pope St. Cornelius helped sinners realize new hope by his substantiation of the forgiveness of grave sins.


Angel and I spent the last week on a summer holiday, celebrating both of our birthdays in Tokyo! It was a first trip to Japan for the both of us, and before I write some more in-depth posts about our biggest adventures of the trip, I first wanted to do an overview, highlighting some of the things that surprised us along the way.
No matter how much research you do ahead of time, visiting a new country for the first time always brings a few surprises, because you never truly know what to expect when you haven't been there yet. And, it turns out, we always have our little preconceptions about a place, even if we try not to--and oftentimes those preconceptions are proven to be false when confronted by reality.
1. This looks like Godzilla. I completely did not expect to see him in Tokyo. This was quite a surprise, although perhaps it shouldn't have been. I mean, Tokyo is sort-of where he belongs, right?
3. I did not expect pets to be so expensive. I don't like pet stores, but Angel was magnetically drawn to one in Shibuya and I followed him in so as not to get lost. That man can't resist the charms of either a dog or a cat, in spite of being allergic to them. I don't understand Japanese well enough to know exactly which of those numbers is the the price, if any, but all of them are very, very large numbers, enough to make me think that there might be puppies in this world more valuable than my entire net worth, which is a thought I'd never considered before.
4. Payphones! They're everywhere! You guys, I was born in the 90s. I've never used a payphone, only have vague memories of seeing them in the USA when I was kid. But there were phone booths along a number of streets, and Angel actually attempted to use one to get in touch with the owner of our Airbnb apartment.
5. Flowers! This flower-lover was so impressed by all the beautiful and neatly-organized flowerbeds and gardens in all sorts of places. I'm used to the looks of Malaysia and the climate here--in dry season, everything dies, and even during the rainy season, our most beautiful green areas have more of a wild overgrown jungle beauty than that beauty of an orderly garden filled with exuberant flowers. I loved walking the flower-lined walkways in various parts of Tokyo.
6. So many people! Perhaps I was too arrogant. I thought--I've lived in a big city in China, I've traveled extensively in Hong Kong, I'm prepared for any kind of crowded areas that Tokyo can throw at me. Nope. Tokyo totally has Hong Kong and ShenZhen beat, that's for sure. Definitely some of the most crowded trains and streets I've been on in my life.
7. I liked the food!! I was surprised by this. I will admit that I'm a picky eater. I don't eat seafood at all, and all of my friends kept telling me that I had to eat sushi in Japan. This kind of put me in mind that I wouldn't like the food in Japan, so I was pleasantly surprised to find that I loved everything I ate (none of which was sushi). Bagels seemed widely available (it's really, really hard to find good bagels where we live, so that was a welcome and surprising treat!). We stopped at many bakeries to enjoy fresh, delicious baked treats. Nearly every convenience store had bags of salty popcorn (popcorn is just about my all-time favorite food). I also at plenty of ramen and had various dishes of rice and beef or dumplings, and everything was delicious.
8. Free ice water at restaurants and food courts. Coming from a land where you always have to buy a drink, or at least order it (some restaurants give you water for free if you order it, but at plenty of places, you will still pay a small charge for ice water, or else you have to buy bottled mineral water)--this was a very pleasant surprise. We kept thinking we'd have to order a drink, only to find a station at the mall food court with cups and a cold water tap, or else we'd go into a little ramen shop and the table would already have a pitcher of ice water on it. This ice-cold water tap was at DisneySea--even there you could just walk into a food court and grab a cool drink in the middle of a hot day.
9. Street performers! I was surprised by how many street performers we saw--it's been a while since I've traveled or lived anywhere that really had street performers. Hanger-Man was the most exciting, with his act that involved jumping into a wire hanger while balancing on a board that balanced on top of a pipe. He also jumped over baby dolls while riding a unicycle. A thrilling performance!
10. I did not expect to see so many women wearing yukata. Again, I think I was influenced by what you see in Malaysia--for example, here, in the Indian community, you see plenty of older women wearing saris on any sort of day, but you really only see young women wearing traditional clothing for special occasions, i.e. holidays, weddings, ceremonies. But I noticed many young women wearing beautiful yukata wherever we went. I know that there are services that allow foreign tourists to rent yukata and walk around dressed up for the day in Japan. That seems a bit weird to me. I didn't take any pictures of strangers wearing traditional dress, so I'm sharing this 4-year-old picture of the yukata I was given in high school instead. Although theirs looked much neater than mine, and had much more ornately tied obis.
We learn so many new things about the world around us when we travel--particularly not to rely so much on preconceived expectations! Do you have any stories of being surprised by something you came across on a trip?
Looks like such an interesting trip! Although, I must say, seeing all those people crowded together in that street makes me start hyperventilating a bit.
Wowee that's an expensive dog! And the flowers are beautiful!
I respect that you don't eat seafood, though I still think you're somewhat crazy for not liking seafood when you live in the corner of the world that has super-fresh seafood! That's really interesting that you saw so many women in yukata-I would not be expecting that, either! I guess I've always seen Japan (and Tokyo, more specifically) as such a modern place, I figured that no one would really be wearing traditional clothes.
I've always wanted to visit Japan, and you've done a great job of capturing its beauty! It's safe to say I want to go there more now LOL!
I've always thought of Tokyo as too busy of a city for my liking. This has me convinced I should give her a shot!
can't wait to read more! I'd love to visit Japan, but wow...those crowds.
Beautiful pictures! Tokyo is on my bucket list.
How interesting! I love the random Godzilla coming out of the building, haha. I'm not sure what the exchange rate comes out to with that puppy price but it certainly looks expensive! So cute though!
Rachel, thanks for giving us a glimpse into your trip! Now I want to hop on a plane to go somewhere...anywhere! My husband would be in heaven there, because ramen (or, saimen, as they call it in Hawaii) is just about his favorite food. I laughed so hard at that Godzilla! Happy Birthday to you two!
My husband lived in Japan for 3 years while in the army, and he really wants to go back for a visit. We're hoping to go in a couple of years. Thank you for sharing your pictures and stories.
Great post! We have always thought it would be fun to visit Japan someday.
I'm shocked at the price for an animal!
What a fun trip! I can't believe how crowded it is! I wouldn't know what to do in that situation.
Isn't Tokyo fun!! So many surprises there... and you look great in the yukata, Rachel!
Looks like so much fun! Tokyo is definitely on my list of places to go to soon :) I love how they have payphones, how practical and old fashioned!
Sounds like you had a fantastic time! That Godzilla is crazy! All your pictures are gorgeous! I would definitely have been surprised by all of these things too. What a fun way to recap the entire trip!
I would never have imagined that there would be phone boxes in such a techno-savvy country! Those gardens are beautiful, I'm a big fan of gardens. Crowds not so much... That looks like Oxford Street in the run up to Christmas!
Looks like a great trip! Phillip's family lived in Shibuya for 5 years.
Visiting Tokyo is on Justin's bucket list--he really wants to go to a cultural festival while there one day.


The breakthrough album Highway to Hell is immortalized on an innovative round silver note that resembles the original record. Minted in fine silver, the huge coin measures 168 mm in diameter at a half ounce in weight.
the obverse is struck in a way to resemble the texture of a real record.


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Manitoba gov says some film production could resume on June 1
While many aspects of the reopening remain in flux, MFM's Rachel Rusen Margolis said it signals to producers that they can begin to plan for productions to return to Manitoba.
The Manitoba government says that some film production could resume as early as June 1 as part of a phased approach to reopening local services and businesses during the COVID-19 pandemic.
While public and private gatherings of more than 10 people are still prohibited, the provincial government said it will begin easing restrictions on businesses starting on May 4.
Phase one of the process will see non-essential businesses – such as hair salons, museums, galleries, libraries and retails businesses – reopen on the condition that occupancy is limited to 50% of normal business operations, or that spaces are limited to one person per 10 square metres, whichever is lower.
Pending the success of phase one, the second phase of reopening (starting June 1) will see restrictions on public gathering eased and events and venues such as film production and dine-in restaurants being "considered for reopening," according to the government.
However, while film production may be able to resume on June 1, the size of the crews that will be permitted to shoot – and the measures and protocols implemented to keep workers safe – remains unclear.
As for large gatherings, the Manitoba government said those will not be permitted until at least September.
While it is still early days and many aspects of how the virus spreads are still being understood, On Screen Manitoba executive director Nicole Matiation told Playback Daily there are ongoing conversations through various committees, and an existing working group which includes representatives from On Screen Manitoba, Manitoba Film and Music, the Government of Manitoba, IATSE 856, ACTRA, DGC, the Winnipeg Film and Events Office and Film Training Manitoba.
"We look forward to working with the provincial government and all components of the industry to ensure that the appropriate health and safety protocols and practices are put in place for all types of production over the coming weeks," said Matiation.
Meanwhile, Manitoba Film and Music (MFM) CEO and film commissioner Rachel Rusen Margolis (pictured top right) said the government's announcement represents good news for the sector, but emphasized that everything is predicated on the success of phase one of the province's reopening process.
"I don't think it's a gates open, lights-camera-action [situation on] June 1, but it does signal to our producers and international clients that they can begin to plan for productions to return to Manitoba," she said, adding that domestic production is expected to resume earlier than international shows, especially while borders remain closed.
Screen-based production has grown significantly in Manitoba over the past three years, with the province posting a string of record-setting years in terms of production volume. In 2018/19, production spending rose to $269.4 million, from $173 million in 2016/17.

redpajama_set_name: RedPajamaCommonCrawl


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Joe Biden and Kamala Harris pray for the COVID dead as the grim total in the U.S. tops 400,000
A new ventilator for the iron lung could revolutionize treatment with Covid
Jeremy Corbyn's supporters leave & # 39; anti-Semitic & # 39; Tease and collect money to defend him
Jeremy Corbyn supporters have been accused of leaving "anti-Semitic" comments on a Go Fund Me campaign that raised money to defend the former opposition leader.
The supporters have raised over £ 190,000 on behalf of Mr. Corbyn Legal action following criticism of the party's decision to apologize to anti-Semitism whistleblowers and pay damages.
Carole Morgan, from Ryde in the south east of England, he organized the Go Fund Me to let the former Labor leader know that his fans had "not forgotten" him.
The campaign exceeded the goal of achieving the £ 20,000 goal in less than 24 hours.
However, some of the comments supporters have left on the fundraiser since then have been criticized as "anti-Semitic".
Jeremy Corbyn pictured faces legal action after criticizing the party's decision to apologize and pay damages to anti-Semitism whistleblowers
Some supporters who commented on a Go Fund Me campaign in support of Jeremy Corbyn have been criticized as "anti-Semitic".
The anti-Semitism campaign said it was "depressingly unsurprising" that some people who donated to the campaign did so because they "advocated Mr. Corbyn's own views on anti-Semitism".
A supporter commented on the campaign as follows: "We love Jeremy Corbyn and he is everything we have! It is incredibly absurd that he is seen and propagated by the media of the Imperial Wing and portrayed as if he could be the next shitler! I met Jeremy Corbyn who is very kind and sympathetic to others! I am proud to send donations to this honorable person. & # 39;
Another person commented: & # 39; Corbyn supports PALESTINE. Like everyone in the civilized world. & # 39;
Other supporters criticized the lawsuit against Mr. Corbyn as a "witch hunt".
A spokesman for the campaign against anti-Semitism told MailOnline about these comments: "Under Jeremy Corbyn's leadership, the Labor Party became institutionally anti-Semitic and caused Labor's own workers to oppose their own party and to whistle the hatred of Jews in it.
& # 39; It was Mr. Corbyn's senior team that went to great lengths to pull the whistleblower's name through the mud, and in some cases caused them to consider suicide.
"Instead of shamefully apologizing for trying to bully and silence these whistleblowers, Mr. Corbyn has now attacked the Labor Party for apologizing to them."
Supporters of Jeremy Corbyn criticized the lawsuit against Mr. Corbyn as a "witch hunt" in the comment section of a campaign that raised over £ 190,000
The campaign spokesman for anti-Semitism added: "It is absolutely right that he should be brought to justice for this, and it is unsurprisingly unsurprising that some of those who are now donating money to cover his self-inflicted legal bills do so do because they represent Mr. Corbyn's own views on anti-Semitism.
"When the Equal Opportunities and Human Rights Commission completes its investigation into institutional anti-Semitism in the Labor Party, people will see for themselves how the anti-racism party was plagued by hatred of Jews. Mr Corbyn's toxic legacy is the normalization of anti-Semitism into the mainstream of British politics. & # 39;
The fundraiser comes after seven former party officials and journalist John Ware initiated a lawsuit against the former opposition leader after he attacked Sir Keir Starmer's decision to settle a defamation lawsuit triggered by a BBC Panorama documentary.
On Wednesday, Mr. Corbyn said the party's decision to make a £ 500,000 payout was "disappointing" and "a political decision."
Mr. Corbyn went on to say that the legal advice the party received had a "strong case" and the evidence in the leaked work report, which is now the subject of an NEC investigation led by Martin Forde QC, raised concerns about the role some reinforced from those who participated in the program. & # 39;
When asked if any action would be taken on Mr. Corbyn's statement after the hearing, Attorney Mark Lewis of Patron Law, who represented Panorama Whistleblowers and Mr. Ware, said: "I can confirm that I have been instructed to investigate cases . "
Seven former party officials and journalist John Ware are bringing Mr. Corbyn to justice after he attacked Sir Keir Starmer's decision to settle a defamation lawsuit
This happens shortly after fears that the Labor Party could go bankrupt as a result of new legal claims by anti-Semitism whistleblowers demanding compensation in the millions.
The party agreed to pay around £ 370,000 to seven former members on Wednesday, but is now facing another 42 civil lawsuits, fearing that the bill could add up to millions.
Supporters of Sir Keir Starmer beat former leader Jeremy Corbyn over the lawsuit after criticizing Wednesday's deal as "politically illegal".
Mr. Corbyn himself is brought to justice by the whistleblowers for his comments. His supporters raise £ 100,000 to defend the former Labor leader in just 24 hours.
He has been accused of triggering the wave of legal claims that Labor is now facing.
It is believed that many of the cases handled by two law firms are linked to an internal report on how the party has dealt with anti-Semitism and focus on allegations of defamation and data breaches.
Supporters of Sir Keir Starmer beat former leader Jeremy Corbyn over the lawsuit after criticizing Wednesday's deal as "politically illegal"
The document, which leaked shortly after Sir Keir's takeover in April, contains allegations about the behavior of party officials and lists some of the complainants.
Former Labor Secretary-General Lord McNicol, who resigned during Mr Corbyn's leadership, is one of the measures.
The party's legal number of cribs is expected to increase further after the start of an independent investigation into anti-Semitism and a reported lack of legal insurance.
Senior officials have warned of possible seven-digit payouts, although claims that the total bill could exceed £ 8m are controversial.
A Labor frontbencher told the telegraph: "We pay the price with money that could be used for the public.
"The question now is how deep is the hole where the Labor Party was dug by Corbyn and his acolytes."
A second shadow cabinet minister added: "This is Corbyn's legacy. People should be angry. & # 39;
The payout and apology on Wednesday is part of an agreement aimed at drawing a line among the allegations made during Mr. Corbyn's leadership that the party was increasing the apparent hatred of the Jewish people.
The depicted followers of Sir Keir Starmer beat up the former party leader because of the legal dispute
The decision was welcomed by MPs and Jewish workers' activists who have long campaigned against anti-Semitism within the party.
But in a sign that the move could restart factional struggles with the party's hard left element, Mr. Corbyn and his followers, including Unite leader Len McCluskey, attacked the payout.
In a letter on Facebook, Corbyn said: "The party's decision to apologize today and make substantial payments to former employees who have sued the party in connection with last year's Panorama program is a political decision, not a legal one .
& # 39; Our legal advice was that the party had a strong defense, and the evidence in the leaked work report, which is now the subject of an NEC investigation led by Martin Forde QC, increased concerns about the role of some of the participants the program. & # 39;
Mr. McCluskey, whose union is Labor's largest donor, added: "Today's agreement is a misuse of Labor Party funds to settle a case that has been advised that we would win in court.
"The leaked account of how anti-Semitism was dealt with tells a very different story about what happened."
However, according to Labor sources, the party should have been involved in a lawsuit, with the cost of losing a lawsuit estimated at up to £ 2m.
Tagsdailymail Jeremy Corbyn Keir Starmer Labor news
Katie Price's dog breeders say that no one is responsible for the puppy's death
Amber Heard lay naked and bleeding on the floor while Johnny Depp urinated on furniture


October 7, 2019 and are subject to a $35 processing fee.
Cancellations received after October 7, 2019, will NOT be honored and all registration fees will be forfeited.
Please contact Nannette Jordan at nannette@mpassociates.com.


text:
Heo Ji-woong "Earn for living = Life's greatest achievement, don't think it's trivial"
[Reporter Lee Da-gyeom, Daily Economy Star Today]
Heo Ji-woong of 'Cheolpa M'gave serious advice to the listeners' concerns.
Heo Ji-woong appeared as a special guest on SBS Power FM Radio 'Kim Young-cheol's Power FM' (hereinafter 'Cheolpa M'), which aired on the 20th.
On this day, a listener confessed to Heo Ji-woong that the same daily routine was boring and exhausting. Heo Ji-woong said, "It's the part that everyone thinks the same," and said, "If I think about it a little more, is there something I want to achieve through a day that repeats like a wheel."
"Especially, we think it's basically what we're doing, and we often overlook it, but I don't think it is. Being alive is the biggest challenge and achievement a human faces during his or her life. I hope I don't think too little of myself doing it."
trdk0114@mk.co.kr
'Heo Ji-woong Show' Heo Nam-woong "Kim Yoon-seok is…
Purple Kiss sold 12,000 copies of albums... The…
'Video Star' Heo Woong and Heo Jae declared "I will…
'Idol Room' 15 Years Super Junior Completely…
Song Ga-in won the Achievement Award for…
Hong Seok-cheon "Monthly Income? I earn more than…
'Radio Show' Lee Seung-cheol "A month's income? I…
'Heo Ji-woong show' Yoon Eun-hye, gold-son class...…
Heo Ji-woong
[Photo] Jonghyeong, the youngest's charming heart
'Deliver Us From Evil' 4 million eyes, placed 1st on the 15th day [MK Movie]


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Inside the hell of 'communist heaven': ROBERT HARDMAN on the collapse of Venezuela
Jose Moncon was on the way home from his school for the mentally disabled, clutching nothing more threatening than his colouring book, when a demonstration blocked the road ahead and forced him to take a detour.
Moments later, a police snatch squad coming the other way scooped him up and put him in prison for unspecified crimes against the state.
He is severely epileptic and has the mental age of a ten-year-old. But because Jose is 21 and classed as an adult, he shares an airless cell with 18 other adult men, many of them hardened criminals. As Venezuela is jostling for top spot in the world homicide league, there are plenty of those around here.
President Nicolas Maduro is clinging to power in Venezuala as opposition against his socialist regime increases as a result of the nation's economic collapse
President Maduro, pictured addressing troops at Libertador Air Base in Maracay on January 29, has lost the support of people who were loyal to his predecessor Hugo Chavez
Jose's mother Maria, 44, is distraught as I meet her outside the terrifying Soviet-style 'Palace of Justice' in Maracay, a garrison town 60 miles from the capital, Caracas. It is more than a week since her terrified son was taken and his lawyer says the police have no idea how to treat his epileptic fits.
More from Robert Hardman for the Daily Mail…
With her is Rosanna Paz, another mother frantic with worry. Her daughter Ana Paula, 16, was returning from the gym when a snatch squad grabbed her off the street. A week on, Ana Paula is in jail, waiting to hear what crimes she is supposed to have committed.
'She's in her last year of high school. She's never been in any sort of trouble,' says Rosanna, who had been so proud when Ana Paula was chosen to organise this year's school prom. Now she has a criminal record for life.
Human rights lawyers here call it 'human hunting'. They know of more than 75 children aged between 12 and 16 who have been arrested in the past week alone, though there are thought to be many more.
They are a fraction of the total number of people detained for allegedly protesting against a brutal kleptocracy clinging ruthlessly to power as its authority, like its stolen wealth, crumbles by the day.
Most of the free world has finally decided it is time to topple Venezuelan president Nicolas Maduro. Yet a few unreconstructed neo-Trots, including much of Britain's hard Left, still cling to the myth that Maduro's narco-gangster regime is some sort of socialist utopia. Only yesterday, Jeremy Corbyn was calling for an end to all outside intervention. Venezuela, he said, simply needs 'dialogue'.
As far as apologists like Shadow Chancellor John McDonnell are concerned, Jose and Ana Paula are not innocent children. They're part of a huge CIA conspiracy orchestrated by Donald Trump and American oil suits. Throw away the key, comrades!
Yet things are changing here — and fast. In recent days, the U.S. and much of the free world have recognised the country's new young opposition leader, Juan Guaido, as Venezuela's legitimate interim head of state.
The U.S. — the main importer of Venezuelan oil — has now imposed a ban on all payments to the state-owned oil company, thus depriving the Maduro regime of 80 per cent of its income.
On top of that, the Bank of England is refusing to return £1 billion of gold bars currently in its vaults, saying Maduro is not their rightful owner. The dictator must now turn to the drug cartels for cash.
So might this be the end of this tragic country's 20-year experiment with 'Chavismo', the bonkers socialist economics of Maduro's late predecessor, Hugo Chavez?
He was at the airbase to witness a military exercise to show he still has the loyalty of his army
The U.S. — the main importer of Venezuelan oil — has now imposed a ban on all payments to the state-owned oil company, thus depriving the Maduro regime of 80 per cent of its income
We may have a clearer picture this weekend as Venezuela steels itself for mass demonstrations. But like any cornered animal, Maduro is now at his most dangerous. Reprisals could be bloody.
I have spent the past week in a country where graves are routinely ransacked for a corpse's jewellery; where nurses must choose which premature baby gets the only functioning incubator and which must die; where 10 per cent of the population have fled over the borders with just the clothes on their back; where presidential cronies have looted billions of U.S. dollars from the economy; where inflation is set to hit ten million per cent this year; where parliament has been sidelined by a puppet assembly; where children are arrested on the whim of a Stalinist commissar with a grudge — and all this while sitting on the world's largest untapped oil reserves.
Petrol is cheaper than water here, but most people can't afford a car and the average weekly wage is £1.50 — barely enough for a couple of eggs.
I meet a group of cowed but angry residents of El Junquito, one of the poorest slum districts or barrios in Caracas. The capital is surrounded by these shanty cities, clinging to near-vertical hillsides amid unrelenting squalor.
I ask them what they would say to Corbynista supporters of the Maduro regime. 'These people are just playing politics with our poverty,' says Omaira, 27, a mother of two, as she shows me a grotesque mobile phone image of a local teenager shot dead by the National Guard during last week's protests.
We are joined by two of her neighbours, Jose, 21, and Jesus, 19. Both have a hunted look — the two men took part in the recent protests and live in fear of being denounced by the collectivos, the regime spies who permeate every community. Yet there is a palpable spirit of revolution in the air. 'We feel it is now or never,' says Jesus.
The latest turmoil began with last year's presidential elections. Maduro won by a landslide — although millions boycotted the poll
The latest turmoil began with last year's presidential elections. Maduro won by a landslide — although millions boycotted the poll.
Many nations — including, crucially, almost every other South American state — rejected the result. When the new presidential term of office began on January 10, most of the world ignored Maduro's inauguration ceremony.
Opposition politicians invoked the Venezuelan constitution. It states that, in the absence of a legitimate president, the speaker of the national parliament becomes acting head of state. Step forward the current incumbent, Juan Guaido, an earnest 35-year-old former engineer and social democrat MP.
Standing in a city square, he duly proclaimed himself acting president before disappearing on the back of the motorbike that has been at his side ever since. He was swiftly endorsed by the U.S., Canada and most of South America.
Many European nations, including the UK, have given Maduro until tomorrow to announce fresh elections or they will follow suit.
Needless to say, Maduro has angrily denounced this upstart, pointing to all those honest countries that have endorsed him, namely Russia, China, North Korea, Cuba and Turkey, plus terror movements including Hezbollah and Hamas. Sinn Fein, it should be noted, proudly sent a delegation to his inauguration.
Many European nations, including the UK, have given Maduro until tomorrow to announce fresh elections or they will follow suit and endorse the Venezuelan opposition leader Juan Guaido as interim president
When Guaido called for demonstrations against the regime last week, Maduro's response was brutal. We can expect more of the same today at marches across the country. Most embassies have repatriated all but essential staff. Foreign journalists are being arrested.
No one seriously believes Maduro's promise of a new 'Vietnam' against the 'Yankee' imperialists, any more than they expect Donald Trump to invade. But those with cars are filling their tanks and those without are pouring Molotov cocktails.
Violent protest has been part of Venezuelan life for years, but now it has spread from the city centre to those slums that once adored Chavez and Maduro.
The daily struggle to exist here defies belief. Water and electricity come and go at random. In the countryside, people have had neither for months. Banknotes are almost worthless. Last year alone, Maduro lopped five zeros off Venezuela's currency, the bolivar, in a vain attempt to stabilise prices.
Yet it is so often the small things that tell the big picture. On my last visit here, I was struck by the dismal scenes in Caracas's zoo, where many animals had been eaten by the locals. One survivor was a lone elephant with a huge weeping sore. I was going to look her up this week, until I heard she starved to death last summer.
No one seriously believes Maduro's promise of a new 'Vietnam' against the 'Yankee' imperialists, any more than they expect Donald Trump to invade. But those with cars are filling their tanks and those without are pouring Molotov cocktails
The abiding image from this visit will be one of the city's main cemeteries. Almost every grave has been torn open in the quest for bodies buried with jewellery (a skull can also fetch a few bolivars from followers of a voodoo cult).
One tomb is daubed with a furious message in red paint: 'Cursed be those who dig out our dead. I will kill the one I catch.' The lid of the tomb has been smashed open regardless.
My guide urges me to leave. The cemetery is overlooked by a famously violent barrio from which gangs prey on isolated mourners.
His own mother, Josefina, was attacked last year while visiting her father's grave. A robber demanded her wedding ring. When it wouldn't budge, he tried to bite off her finger until his saliva miraculously loosened the ring.
It is the stuff of horror films — but everything about Venezuela is surreal, even getting here. In the boom days, you could fly from Caracas to Paris by Concorde. These days, the few airlines still operating all stop in neighbouring countries to change crew. Cabin staff refuse to stay overnight in Venezuela, as it is too dangerous.
It's not great for passenger morale to see all your flight attendants abandon ship in this way (and there is no one to complain to when your luggage vanishes, as mine did).
What next? It all hinges on the military. Hugo Chavez was a soldier. Portly 56-year-old Maduro, however, is an ex-bus driver. For now, the armed forces are on his side. He has made his senior generals dollar millionaires. But how long will the troops endure meagre pay and rations?
I am keen to track down Juan Guaido, the man who claims he can sort all this out. Understandably, he is hard to pin down. On Thursday, police raided his house (he wasn't there), while Maduro has frozen his assets and banned him from getting on a plane.
I find him making a surprise visit to a hospital, where medical staff have given him a white coat covered with handwritten messages — 'Save Our Nation' and the like.
He seems almost bashful. Charismatic he is not. But he is friendly and clearly brave.
I introduce myself and he smiles broadly at the mention of the UK and shakes my hand.
'I just had an amiable conversation with your Foreign Secretary,' he says, adding his thanks to the British people. And with that, he jumps on the motorbike and is off via a side road, avoiding the riot police at the main gate.
I drop in at the offices of Alfredo Romero's law firm. Educated at Harvard and the London School of Economics, he is a law professor and director of Foro Penal, the charity that defends political prisoners. Last weekend, so many detainees packed the main justice building in Caracas, he was in court until 3am and emerged to find a wheel missing from his car.
Over the years, Romero, 50, has helped defend more than 14,000 victims of 'Chavismo' but says there has been a major change in recent days. 'The police are now breaking into homes to arrest people and almost all of them are from the poorest areas,' he says. 'The other big change is that they are detaining children.'
Romero says he has no time for ideology. 'I am not Left or Right. It's just about natural justice.' By rights, he should be a darling of global bien pensant society — an award-winning and genuine human rights lawyer (not some huckster chasing British Army veterans).
Juan Guaido, pictured at a rally in Caracas on January 26, has to keep details of his movements confidential as he is likely to be arrested following a raid by police this week on his house
Yet to the British Left, he and his ilk are in cahoots with evil Trump. Does he care? He laughs. 'They are just ignorant hypocrites.'
I hear the same thing from one of the country's best-known opposition figures still at large. 'It's very sad that Left-wing politicians don't understand the magnitude of our problems,' says Maria Corina Machado, an MP who has been subject to a travel ban for the past five years. She has been attacked many times and once had her nose broken in five places by a Maduro crony inside the parliamentary chamber.
She believes this week's events have been a game-changer. 'The international coalition is getting broader by the day and this is no ordinary dictatorship. There is no ideology,' she says. 'It's a criminal state and when a criminal state runs out of money, it collapses.'
Few expect change to be swift. The likeliest scenario, say Western analysts, is that moderate Chavismo elements will begin furtive talks with the opposition and cracks will start to appear — then Western governments stand ready to bombard the country not with weapons but with humanitarian aid.
Venezuela is not an Iraq or Libya, where the demise of the strong man allowed anarchy to fill the power vacuum. It thrived as a democracy before and can do so again — with our support.
Just don't expect Her Majesty's Opposition to help.
For nothing, surely, proves the moral inadequacy of our hard Left as eloquently as its bovine insistence that we should stand back and leave Maduro and his fraudsters to plunder what is left of their ruined state.
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text:
In Photos: From Popular to the Offbeat, north-eastern Madhya Pradesh's diverse charms
[Women's swimming enclosure at Govindgarh Fort]
Even when things seem to be going nowhere, India has the uncanny ability to surprise you. By now, I'm tuned to believe there's always light at the end of the tunnel. So even though I was awake for more than 22-hours straight at that point and we were literally in the middle of nowhere, I was hanging onto a faint ray of hope that the morning could bring some magic. A bunch of us were travelling in the heart of Hindustan, Madhya Pradesh and it sure got off to a shaky start. But the tide turned quickly and how! From exploring totally off the grid places to discovering the hidden charm of well-known destinations, my one week in Madhya Pradesh went by in a blur of awe and perplexity. (What's travel really if it doesn't make you reflect?)
In the one week that I travelled exclusively in the north-eastern corner of Madhya Pradesh, a region I had never been to before, in collaboration with HolidayIQ and MP Tourism, here's a quick recap of what I saw in 14 pictures. Detailed blog posts to follow.
We began the trip with a misty sunrise safari in Parsili(L) and ended it with a balmy sunset at Khajuraho(R).
Sanjay National Park, Parsili
Has the "Tiger Tourism" got on your nerves already? If you, like me, are looking for a worthy alternative to the well known national parks where assured sightings come with the added frenzy of a crowd, Sanjay National Park is your answer. Opened to tourists only two years ago, Sanjay-Dubri Tiger Reserve is spread over an area of 831 Sq. Kms between Madhya Pradesh and Chhattisgarh. Home to about 40 tigers, leopards and sloth bears that especially oblige visitors with their unbridled presence, a safari in the thriving jungles of Sanjay National Park offers a novel high– one that is unencumbered by the trappings of a more popular national park.
The glowing grasslands of Sanjay National Park. This was perhaps a village once, hence the lack of the characteristically thick forest prevalent here.
Somewhere behind those bushes is an ambling, big, black Sloth Bear. Sanjay NP's trump card is not the Tiger but Sloth Bear and Leopard sightings apparently. No leopard but I saw two bears!
Khajuraho's misguided stereotype
One of the biggest duds and highlights of the trip was Khajuraho. To begin with, I was never fascinated by Khajuraho. It probably had to do with the western exoticisation of the erotic sculptures that these temples were reduced to. So when I visited, I was expecting to be bombarded with those sculptures. But it felt like much ado about nothing. I had to literally trawl though the panels to find the racy carvings. I wondered, if these temples didn't even live to up to the stereotype they've been reduced to, then what were they even worth? Only when our guide commiserated saying less than 10% of these carvings were erotic, I realized how misguided the hype was. Once that was clear, I was happy to refocus and look at the temples in a new light. The winter light sure did work its magic, as I discovered, the charm of Khajuraho was not in its minute details but in its surreal setting, at least for me. The mystery of their origins and the timeless tenacity of surviving a thousand years got to me eventually. Khajuraho was an acquired taste for sure.
Indian tourists walking in the Western Temple Complex in Khajuraho. I was quite surprised to find more domestic tourists than international here.
Devi Jagadambi Temple is western complex is usually overshadowed by the more famous Lkashmana and Kandariya Mahadev termples but it is coming into its own of late.
Possibly because Chandelas wanted to suppress Buddhism, as our guide conjectured, they gave patronage to Jains who built their temples in Khajuraho alongside the Hindu temples. Eastern complex primarily houses Jain temples.
Panna National Park is probably one of the country's few conservation stories showing a surprisingly remarkable turnaround. From loosing all its tigers in 2009 to the steady success of tiger reintroductions from Kanha and Bandhavgarh, Panna has bounced back to normalcy after a period of despair. Today, tiger's may still be the biggest draw of this national park but what intrigued me more was its landscape. A pristine Karnavati(Ken) River flows through the heart of the park and forms the lifeline of the jungle and its dwellers. The river that criss-crosses the landscape also forms deep ravines that offer gorgeous outcrops to loop into the valleys where vultures and crocodiles thrive. If Kanha's crowning glory is its grasslands, it's the canyons for Panna.
One of Madhya Pradesh's big four, Panna, along with Kanha, Bandhavgarh and Pench forms the important areas in the state for Tiger conservation and sightings.
One of the defining characteristics of landscape in Panna is its gorgeous canyons and deep ravines. Dhundwa Seha, a cascade that drops from a height of over 100m into a deep gorge mellows down in the blue pools of the stream that cuts through the valley.
One of the pleasant surprises on this trip was the Raneh Canyon over the Karnavati(Ken) river- it's 5 kilometers long, formed due to volcanic action and has 5 different kinds of igneous rocks ranging from pink to black! This must be quite a sight just after rains.
Rewa & Govindgarh's historic ruins
Most of us would associate Madhya Pradesh with its Tigers, national parks, Mowgli and Jungle Book. I know I did, for a very long time. Then I found out about Bundelkhand, remnants of its glorious past littered generously across the state in the form of quaint towns and forgotten monuments.
Then, on this trip, I hear about Bagelkhand, another region right next to Bundelkhand brimming with history and monumental heritage. The princely state of erstwhile Rewa is where I first came face to face with the crumbling history of Bagelkhand. Later, I visited Govindgarh Fort that was in a pitiful state of dilapidation but it sure was holding plenty of untold stories. Unfortunately there wasn't a guide around who could tell us these stories that have now become secrets. But MP Tourism is now looking to promote this region and if it does, I can see great potential here.
The colorfully painted fort gate in the historic city of Rewa
Set on the banks of Raghurajsagar Lake, Govindgarh Fort is a forgotten and crumbling monument today.
The dilapidated state of the fort is in equal parts haunting and alluring.
Have you been to any of these places in Madhya Pradesh before?
Living with the Tiger
Wild Things of Kanha & Bandhavgarh National Park - A Photo Essay
Note: This post is published as part of the #ChaloMPwithHolidayIQ campaign and I was hosted by HolidayIQ in Madhya Pradesh.
Tags: central India, india, Madhya Pradesh, photo essay
Ghar ka khana November 24, 2016 at 9:01 AM
Amazing pics,I am waiting for your detailed posts
Neelima Vallangi November 26, 2016 at 7:53 PM
Thank you! Working on the posts, should be out by next week. :)
Lila November 24, 2016 at 6:30 PM
Such hidden gems, loved the shot of the tiny lake feeding a waterfall.
Oh yeah, that place was quite a surprise, wasn't expecting much from it. It looks stunning just after monsoons actually, with hundreds of waterfalls flowing through the canyon.
anindya November 25, 2016 at 7:09 AM
Have never been to MP and after reading your post I think I must visit this place soon. Have been interested in going to the national foresrs there , Whats the right time to visit the place?
I love MP, some of the places there are straight out of a fairy tale, like Orccha and Kanha. Now added these new places I visited too. :) Winter's the best time to visit the jungles if you'd like to see stunning scenery along with wildlife. If you're interested only in wildlife, no better time than summers when all the wildlife is forced to congregate around few remaining watering holes.
R Niranjan Das November 25, 2016 at 3:10 PM
Kapil Pilankar November 26, 2016 at 2:02 PM
Have set my eyes on Bundelkhand and Bagelkhand for some time now ... And I just added Govindgarh n Rewa to the map ... Thanks!
Both amazing places with lots of history. Although Baghelkhand is a bit difficult to explore, no infrastructure at all unfortunately. Fascinating nonetheless.
Antilog Vacations December 3, 2016 at 5:10 PM
Wonderful Effort..
The tragedy of Khajuraho: A misguided stereotype s...
Where I stayed: In Madhya Pradesh's Parsili, Rewa,...
In Photos: From Popular to the Offbeat, north-east...


Always banging on things as a child, but his parents insisted on him playing a guitar. His music teacher insisted on him playing Cornet. He wasn't going to be happy until he got a drum kit. He did in High School thanks to a family friend. Shortly after school, he got married and his drums got put aside. A few years ago, when he got a new set and has been banging them since. Recently he did pick up a guitar and started to fiddle with it.


text:
Adobe Puts an End to Indefinite Gag Order
By Andrew Crocker
In a newly unsealed case [.pdf], a Los Angeles federal court ruled that Adobe could not be indefinitely gagged about a search warrant ordering it to turn over the contents of a customer account.
This is important work by Adobe. Gag orders almost always violate the First Amendment; they prevent service providers from notifying users that the government is requesting their sensitive data and from being transparent about surveillance in general. And yet, providers receive indefinite gags with frustrating frequency. In most contexts, the government must do little to justify these gags and instead relies on rote invocations of national security and the sanctity of investigations.
The Adobe gag was issued under 18 U.S.C. § 2705(b), the same law Microsoft is challenging as facially unconstitutional because it allows for indefinite gags.1 These arguments are also at the heart of EFF's long-running national security letter (NSL) lawsuit, which was argued in the Ninth Circuit Court of Appeals last month.
Thankfully, the court in Adobe's case recognized the serious harm to free speech these gags represent. It held that orders barring companies from notifying their users about government data requests are both prior restraints and content-based restrictions on speech subject to strict scrutiny. That's a very high bar. The court found that the indefinite gag order imposed on Adobe fails strict scrutiny because the government could make "no showing[] that Adobe's speech will threaten the investigation in perpetuity."
The government's attempts to save the Adobe gag order were nearly identical to arguments it made in our NSL litigation. It claimed gags don't even implicate Adobe's First Amendment rights because the company only wants to speak about information learned from the government, and that an indefinite gag was OK because Adobe could simply come to court when the need for a gag had passed. But on point after point, the court rejected these arguments. The First Amendment requires gag orders to be narrowly tailored, and Section 2705(b) orders and NSL gags come nowhere close to meeting that standard. As the court put it, "the fact that the speaker cannot know when the restriction's 'raison d'etre fades' effectively equates to no tailoring at all."
While the appeals court in our NSL case doesn't have to follow this court's lead, we think any First Amendment arguments that can be deployed against 2705(b) orders are doubly effective for NSLs. That's because the FBI can issue indefinite NSL gags without even going before a court, as Section 2705(b) requires.
Adobe's fight should demolish another of the government's arguments in our NSL case: that providers don't want to speak out about gags. Adobe promises to notify its customers about government data requests in all cases unless "legally prohibited from doing so." And it goes one step further, stating upfront that indefinite gags "are not constitutionally valid and we challenge them in court." Following through on this promise gives lie to the unsupportable claim that providers don't care to speak out on these issues.
Here's hoping the days of indefinite gag orders are numbered.
1. Section 2705(b) allows a court to issue a gag "for such period as the court deems appropriate." There's an interesting split of opinion on whether that language allows for indefinite gag, or whether the word "period" implies a finite limit. The court in Adobe's case determined that periods can in fact be indefinite, which led to its First Amendment ruling.
Law Enforcement Access
Microsoft v. Department of Justice
In re: National Security Letter 2011 (11-2173)
In re National Security Letter 2013 (13-80089)
In re National Security Letter 2013 (13-1165)
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