What if he was a foreigner?

Thursday, April 30th, 2015
By: Jonathan MontagJ.D.

David Howell Petraeus

On April 23, 2015, David Howell Petraeus pled guilty to violating 18 USC 1924, which states:

(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.
(b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).
(c) In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.

He received two years probation and a $100,000 fine.

What if he was a foreigner? Gen. Patraeus gave classified information to his biographer, Ms. Paula Broadwell. The statute defines classified information as information that requires protection in the interest of national security. Violating this statute, arguably, endangers national security.  At INA § 237(a)(4)(A)(ii) there is exists a ground of removability for any person who has engaged in criminal activity which endangers public safety or national security. Assuming Mr. Petraeus was a lawful permanent resident, the standard relief he would seek is Cancellation of Removal for Certain Permanent Residents, INA § 240A(a). If he were not, he might seek Cancellation of Removal for Certain Nonpermanent Residents, INA § 240A(b)(1). However, according to INA § 240A(c)(4), and alien deportable under INA § 237(a)(4) is ineligible for these forms of relief.

It is possible that Gen. Petraeus might be eligible for asylum or withholding of removal if he could prove he had a fear of persecution based on his race religion, nationality, political opinion, or social group. As many abroad presumably would like to get hold of a former CIA Director and U.S. Army General, he might have a claim. However, asylum and withholding are not available to aliens who are considered a danger to the United States (INA § 208(b)(2)(A)(iv)) or committed a crime that constitutes a danger to the United States (INA § 208(b)(2)(A)(ii)). If his crime was considered one dangerous to the United States or that rendered him one dangerous to the United States, he would not be eligible for this relief.

Gen. Petraeus might be able to obtain permanent residence through adjustment of status, i.e., through his marriage to a United States citizen or through an adult United States citizen son or daughter. He has adult an adult son and daughter, as well as a U.S. citizen spouse, so this avenue may be available for him. Maybe son or daughter is better, the marriage is kind of iffy, as can happen to men with biographers. There does not appear to be a parallel ground of inadmissibility for having committed a national security offense that could provide an obstacle to adjustment. However, there is a ground of inadmissibility for a person for whose entry to the United States there is a reasonable ground to believe would have serious adverse foreign policy consequences for the United States. INA § 212(a)(3)(C)(i). The State Department routinely finds that past conduct leads to a presumption of future danger, such as in cases where former presumed (but not necessarily proved to be) gang members are not allowed into the United States based on a belief they will enter to commit crimes. INA § 212(a)(3)(ii). There is an exception for members of foreign governments, but Gen. Petraeus was not a member of a foreign government.  If this route failed, he could ask for protection under the U.S. Convention Against Torture if his home country might allow him to be tortured if he returned. All in all, it would be a tough road for America’s greatest hero. Posted April 30, 2015.


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