CA2 on Unreliability of Pre-Sentence Report: Wassily v. Holder

CA2 on Unreliability of Pre-Sentence Report: Wassily v. Holder

Kerry Bretz writes: "Mr. Wassily (A026-102-429), was previously granted asylum in 2000 based on a well-founded fear of religious persecution in Egypt as a Coptic Christian.  On March 22, 2004, he was convicted under NYPL § 120.50 for 3rd degree stalking and NYPL § 260.10 for endangering the welfare of a child.  These are both class A misdemeanors for which he was sentenced to three years probation.  On February 15, 2007, the Department of Homeland Security (DHS) filed a motion to reopen Mr. Wassily’s case and terminate his asylee status arguing that his 3rd degree stalking violation was a particularly serious crime (PSC).  On April 10, 2007, The Immigration Judge (IJ) granted the DHS’s motion to reopen and subsequently they submitted various conviction documents including a plea colloquy and pre-sentence investigation report (PSR).  The PSR was comprised almost entirely of hearsay, often double or triple hearsay, and contained no direct statement from the victim of the crime or from the arresting officer.  Mr. Wassily then submitted a renewed I-589 application and the IJ scheduled an individual hearing.

On April 28, 2008, Mr. Wassily testified about the circumstances that led to his convictions and on March 12, 2008, an expert witness testified about country conditions in Egypt.  On September 3, 2008, the IJ issued a written decision denying Mr. Wassily’s I-589, finding that he had committed a PSC and that he failed to prove that he more likely than not would be tortured if removed to Egypt. Despite that unreliability of the PSR, the IJ’s decision and PSC analysis relied on it almost exclusively.  Additionally, as an unadjusted asylee, Mr. Wassily was eligible to adjust his status with a 209(c) waiver; however, neither his attorney nor the IJ ever informed him of this.

Mr. Wassily retained Bretz & Coven, LLP and we submitted an appeal and a separate motion to remand based on ineffective assistance of counsel (IAC).  The Board of Immigration Appeals (BIA) denied both motions affirming the IJ’s PSC finding while also solely relying on the PSR in its PSC analysis.  The BIA also denied the IAC claim, summarily holding that Mr. Wassily was not eligible for adjustment without providing any explanation.  We submitted a Petition For Review (PFR) to the U.S. Court of Appeals for the 2nd Circuit based on these denials.  On May 3, 2013, the 2nd Circuit issued a decision remanding to the BIA, in part: (1) affirming Dickson v. Ashcroft, 346 F.3d 44, 54 (2d Cir.2003), holding that the factual narratives in PSRs are inherently unreliable and the IJ and BIA erred by relying on the PSR in their PSC analyses; and (2) the BIA abused its discretion in denying the IAC claim as Mr. Wassily was eligible for relief and prejudiced by his former attorney’s conduct.  Most importantly, this decision affirms Dickson and stands for the fact that in the 2nd Circuit, IJs and the BIA may not rely on PSRs to determine the crime for which a noncitizen has been convicted." - Wassily v. Holder, May 3, 2013.  [Hats off to Brian Wolf, Amanda Gray, Kerry Bretz and Jules Coven!]