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Click here for the full text of this decision FACTS:Shareef Alwan was born in Jordan and lived in the West Bank of the Occupied Palestinian Territories until he was 20. His parents moved to the United States and became U.S. citizens in 1980. Alwan entered the country in 1980 as a legal permanent resident. Alwan registered with the Selective Service, took an oath of allegiance and applied for derivative citizenship on his parents’ applications for naturalization. In 1995, Alwan went to Israel and married a Palestinian woman. While in Israel, he was arrested and tortured in relation to his recruitment in 1990 in Chicago for the terrorist organization Hamas. Alwan served approximately 18 months in an Israeli jail. His wife gave birth to a child in 1997, and Alwan returned to the United States in 1998 by himself. Upon return, Alwan was subpoenaed to testify before a grand jury investigation into Hamas’ criminal activities in the Chicago area. Alwan exercised his Fifth Amendment right and refused to answer questions. Alwan traveled to the West Bank in 1999. Then, in July 1999, Alwan was again subpoenaed. Though Alwan was to be granted immunity from prosecution, a district court told him he would be held in contempt of court if he did not answer the questions about Hamas’ money laundering activities. Alwan still would not answer questions, saying his cooperation would subject him and his family to harassment should they return to the Middle East, and so the district court found Alwan in contempt. As a result of the contempt conviction, the Immigration and Nationality Services (as it was then called) initiated deportation proceedings against Alwan as an alien convicted of an aggravated felony. Alwan was ordered deported, and the Board of Immigration Appeals affirmed. Alwan was then deported. Alwan argues he should not have been deported because he a U.S. “national,” not an “alien,” and he his contempt conviction is not an aggravated felony. HOLDING:Appeal dismissed. Finding that Alwan’s nationality claim is a purely legal question that Congress has not given up to the BIA’s discretion, the court says it will review Alwan’s claim de novo. On the other hand, the court says it will review the BIA’s determination of whether the contempt conviction is an aggravated felony only to determine whether it represents “permissible constructions” of the applicable statutory language. The court confirms, first, that Alwan’s claim is not moot, despite the fact that he has already been deported. A collateral consequence of Alwan’s deportation is that he will be permanently barred from re-entering the United States. Permanent inadmissibility to the United States is a “concrete disadvantage”, and so his claim is not moot. The court also confirms that its inquiry into whether it has jurisdiction “effectively merges” with its review of the merits of the case. The court assumes for purposes of the appeal that an alien may attain national status through sufficient objective demonstrations of allegiance to the United States. Despite concrete evidence, the court also assumes that Alwan did take some steps to demonstrate his allegiance. Nonetheless, the court finds that these steps were insufficient to confer national status. Unlike the petitioner in Lee v. Ashcroft, 216 F.Supp.2d 51 (E.D.N.Y. 2002), who not only married a U.S. citizen and had children who were U.S. citizens, but also did not maintain ties to his native Hong Kong, Alwan made frequent visits to the West Bank, and he married a Palestinian woman who lives there still with the couple’s child. The court says that it has never considered whether a conviction of criminal contempt under 18 U.S.C. 401(3), which punishes “disobedience of a court order,” meets the criteria for an aggravated felony. The court notes that an aggravated felony is defined as one relating to obstruction of justice. Though the statute does not define “obstruction of justice,” it is customary to look to the crimes in 1501-1518 to determine whether the substantive offense would be punishable under any of those provisions, specifically 1503, which is a catch-all. Section 1503 requires a specific intent to obstruct justice. The court says it has “no trouble” concluding that Alwan possessed the requisite specific intent. The court rejects Alwan’s contention that his objective not to testify before the grand jury was not to obstruct justice, but to avoid possible future harm to himself and his family. Alwan’s argument pertains to motive, not specific intent, and thus is not relevant. Whatever underlying purpose he may have had, Alwan unquestionably intended to undertake the act of refusing to testify with full knowledge that it would “impede the due administration of justice.” OPINION:Jolly, C.J.; Garwood, Jolly and Barksdale, JJ.

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