State v. Alhweiti

100 N.E.3d 1139, 2017 Ohio 8886
CourtCourt of Appeals of Ohio, Eighth District, Cuyahoga County
DecidedDecember 7, 2017
DocketNo. 105540
StatusPublished
Cited by1 cases

This text of 100 N.E.3d 1139 (State v. Alhweiti) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Eighth District, Cuyahoga County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Alhweiti, 100 N.E.3d 1139, 2017 Ohio 8886 (Ohio Super. Ct. 2017).

Opinion

TIM McCORMACK, P.J.:

{¶ 1} Defendant-appellant Yosef Abdal Salam Alhweiti appeals from his conviction for perjury. For the reasons that follow, we affirm his conviction.

Procedural History and Substantive Facts

{¶ 2} In July 2015, Alhweiti was charged in a multiple-count indictment that included charges of engaging in a pattern of corrupt activity, conspiracy, several motor-vehicle offenses, receiving stolen property, and perjury. Prior to trial, the state moved to dismiss all charges against Alhweiti except the perjury. The court granted the state's motion, and on February 1, 2017, a jury trial commenced on the sole charge of perjury.

{¶ 3} At trial, the state presented the following witnesses: Thorin Freeman, assistant chief counsel of the Office of Principal Legal Advisor within the department of Immigration and Customs Enforcement ("ICE"); Elliot Landrau, Cleveland police detective; and Detective Patrick Foye, with the Lakewood Police Department. In his defense, Alhweiti presented the expert testimony of Wayne Benos.

{¶ 4} Alhweiti, a non-United States citizen, initially entered the United States on a visitor's visa in June 2002. In April 2011, Alhweiti prepared a Form I-485, seeking an adjustment of his citizenship status. The application included a Form G-325, Biographic Information, that contained a section regarding employment. This section requested "[a]pplicant's employment [in the] last five years," to which Alhweiti responded "None." Alhweiti's information was provided under oath.

{¶ 5} Thorin Freeman, assistant chief counsel with ICE, represented the immigration office at Alhweiti's adjustment hearing held in December 2012. During that hearing, Alhweiti, once again, stated that he had not been employed in the United States prior to the hearing.

{¶ 6} The state presented the testimony of two detectives who testified that they observed Alhweiti working. Cleveland police detective Elliot Landrau testified that while out on patrol, he would see Alhweiti at his place of employment, which was a gas station in the detective's district in Cleveland. Detective Landrau explained that Alhweiti was a witness in a crime the detective was investigating in June 2012 and the detective sought Alhweiti's assistance at the gas station where Alhweiti was working.

{¶ 7} Lakewood police detective Patrick Foye similarly testified that he had observed Alhweiti on several occasions working at a gas station in Cleveland. The *1141detective stated that in November 2014, he followed up on an investigation that led him to the gas station where Alhweiti worked, and during this investigation, the detective interviewed Alhweiti. Alhweiti was Mirandized and the interview was recorded. During the interview, Alhweiti stated that he had worked at the gas station full time for four years and covered some shifts for people for three years prior to his full-time status.

{¶ 8} During Freeman's direct testimony, he explained the process of an adjustment hearing, the typical length of a hearing, and how the direction of a hearing can change:

Q: How long do these hearings last?
A: Depends on the hearing. * * * Sometimes they are * * * straightforward, 35 minutes. Sometimes they can go for several days.
Q: If you are going to have a hearing like that, you are aware of all the issues that are in question before you start?
A: I don't want to say all of them. Sometimes through generalized questioning, somebody will say something and you realize, whoa, there is actually another issue here. Sometimes you can have a thin file that you think will be 35 minutes and it turns into a two-day affair. Sometimes there are additional questions, you find out additional information that has to be explored.
Q: Is it fair to say, then, that you could have a surprise answer that would change what you are doing that day?
A: Absolutely.

{¶ 9} Freeman testified regarding the importance of an applicant's work history and how an applicant's responses to questions regarding employment can change the line of questioning:

When I saw [that Alhweiti] didn't have [a social security number] on his forms, for a guy that had been here I think at the time of the hearing it was around 10 years, that's just not common sense to me. I'm curious as to how you are supporting yourself and that's also important in terms of discretion for the judge to know, in terms of there [are] forms that go along with that. I don't know what to put on these forms. There [are] a number of avenues that we could explore, given the answers to those questions.
* * *
[W]ork history can become very important to us for a number of reasons. Number one, for an adjustment application, you have to prove that you are entitled to the court's discretion. We are going to look at positive factors in that.
Negative factors is an immigration violation. Immigration violation * * * is working in contravention of the visa on which you came * * *. Another negative factor, or perhaps positive factor, is are you paying taxes, are you filing your taxes. These are things we need to know. These are discretionary decisions made by the judge.
* * *
[T]he court simply looks at the individual, what are your positive equities and what are your negative equities. If the positive equities outweigh the negative equities and you are admissible, you will be granted permanent residency. If the negative equity outweighs the positive ones, you will be denied permanent residence.

{¶ 10} Immigration expert Wayne Benos testified on Alhweiti's behalf. Benos testified that, typically, an individual applying for an adjustment of status is not permitted to have "unauthorized employment." However, the law provides an exception to *1142those applicants applying for adjustment of status based upon marriage to a United States citizen, an immediate relative. Therefore, where Alhweiti may have had unauthorized employment, this employment would not be a bar to an adjustment of status, because he was married to a United States citizen. And within that context, Benos stated, the fact that Alhweiti answered "yes" or "no" regarding employment does not prevent him from adjusting his status.

{¶ 11} However, Benos testified that although he did not believe the fact that Alhweiti was working affected his adjustment of status, "there is an issue as to whether or not answering falsely like this would have cut off a line of inquiry that could have led to discovery of inadmissibility." And on cross-examination, Benos conceded that working creates other potential issues that could lead to a bar of an adjustment status, including whether the individual who is working is paying or filing taxes. Benos stated that the issue concerning whether an applicant is paying his or her taxes, among other issues, is something the judge has the discretion to consider in determining whether or not to grant someone lawful permanent resident status.

{¶ 12} Again on cross-examination, Benos testified that a willful misrepresentation can cut off a material line of inquiry, and he explained how a misrepresentation can affect the outcome of the proceeding:

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Bluebook (online)
100 N.E.3d 1139, 2017 Ohio 8886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alhweiti-ohctapp8cuyahog-2017.