Court Rejects Chutzpah, Ejects Illegal Alien, But it Takes 10 Years

By David North on May 13, 2010

Sometimes it is useful to review one of those legal battles in which a clearly illegal alien delays his well-deserved deportation – in this case, for nearly 10 full years.

In many instances, of course, a not-so-deserving alien never leaves.

The alien in this case is named Paulin Shabaj; he is a citizen of Albania. Here's his story:

During 2000 he apparently left his home country and got to Italy, picking up a fake Italian passport along the way. There is no indication that his entry to Italy was legal or illegal, but the sea is narrow between the two countries, and there is a lot of human smuggling through those waters.

In November of that year he flew to the U.S. at the age of 18. He got through customs as a Visa-Waiver alien, posing successfully at the port of entry as an Italian citizen named Marco Napolitano. (Italy is covered by the visa waiver program; Albania is not.) Subsequently he claimed asylum status, on the grounds that he would be in danger of his life if he (at 18) was returned to Albania.

His asylum application was denied on October 3, 2001; his appeal was denied on February 25, 2003. He then complained that he had an ineffective lawyer; that claim, too, was denied.

By now it was the summer of 2005; he had been in the country illegally for at least four and a half years, his every legal maneuver failed, but the government had not deported him.

On July 6, 2005 he married a U.S. citizen named Gystina Shabaj; the record does not show anything about her, her place of birth, her immigration history, if any – just that she, on July 6, 2005, was a U. S. citizen. Less than two months later she petitioned USCIS to have him admitted to the U.S. as her husband.

Her petition was approved by USCIS on February 16, 2006, but in order to convert that petition into a green card Shabaj had to make it over another barrier – he had to get USCIS to give him a Waiver of Inadmissability (he had, after all, entered the nation illegally). On February 20, 2007 USCIS ruled that there would be no waiver.

Shabaj had now been in the country illegally for six and a half years.

He then filed, again, for the waiver, having acquired a new lawyer. This was on April 22, 2008.

On January 26, 2009, he and his new lawyer went to the ICE office in New York, and this time the government locked him up as a Visa Waiver applicant who had overstayed his 90 days in the country. Visa Waiver entrants give up any appeals rights (except the right to apply for asylum) because they have agreed to this, as part of the deal they signed with the U.S. when they came here without a visa. The case wound up before the Second Circuit Court of Appeals, after Shabaj has been jailed, and filed a writ of habeas corpus.

At this point, Shabaj's lawyer argued that the rules for Visa Waiver types do not apply to him, because he was not covered by that program, having used a fake passport to enter the nation through the program. (It reminds one of a previous prime example of chutzpah, the young adult, accused of murdering his parents, pleads for the court's mercy on the grounds that he is an orphan.)

The Second Circuit, understandably, did not buy that argument, and ordered his deportation.

That's the end of the story according to the April 26 issue of Interpreter Releases, the immigration bar's trade paper, but Shabaj's actual departure was not reported there. Maybe he and his latest lawyer have some other tricks up their collective sleeves. Maybe he's back in Albania.

Unlike most of these CIS blogs there is no readily accessible electronic link to the sources for this story. Interpreter Releases has no public internet connection – and it is expensive to subscribe to it. Some parts of the story are available online to subscribers to PACER, the relatively inexpensive electronic data base for most of the federal courts. There are two civil case citations to it there, 1:09-cv-00885-JSR and 1:09-cv-01890-DDD-JDK.

In addition to, and prior to, the Second Circuit, the case was before various immigration judges, the Board of Immigration Appeals, and the federal district courts in the Southern District of New York, and the Western District of Louisiana; the last named because when Shabaj was jailed it was in the LaSalle Detention Facility in Jena, La.

While an occasional summary of a long, drawn-out immigration case like this one may be useful, reading too many of them can only lead to prolonged depression. So don't do it.