Gzregorz Lepianka v. Attorney General United States , 586 F. App'x 869 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-1581
___________
GZREGORZ LEPIANKA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A047-613-807)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 3, 2014
Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges
(Opinion filed: October 6, 2014)
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OPINION
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PER CURIAM
Pro se petitioner Gzregorz Lepianka has filed a petition for review challenging a
final order of removal. The government, meanwhile, has filed a motion to dismiss the
case for lack of jurisdiction. For the reasons detailed below, we will grant the
government’s motion and dismiss Lepianka’s petition for review.
Lepianka is a citizen of Poland. He arrived in the United States when he was 11,
and obtained lawful-permanent-resident status. However, he was subsequently convicted
of manufacturing, distributing, dispensing, or possessing with the intent to manufacture,
distribute, or dispense a controlled substance in violation of N.J. Stat. Ann. § 2C:35-
5(a)(1), (b)(2). As a result, in 2012, the Department of Homeland Security charged him
with being removable as an alien who had been convicted of a controlled-substance
violation, see 8 U.S.C. § 1227(a)(2)(B)(i), and an aggravated felony, see
§ 1227(a)(2)(A)(iii). Lepianka conceded removability but applied for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT).
Lepianka, who is Muslim, claimed that he did not wish to return to Poland because he
believed that he would be discriminated against there on the basis of his religion.
An Immigration Judge (IJ) denied Lepianka’s application. The IJ concluded that
Lepianka’s New Jersey conviction qualified as a particularly serious crime that rendered
him ineligible for asylum, see 8 U.S.C. § 1158(b)(2)(A)(ii), and withholding of removal,
see § 1231(b)(3)(B)(ii). Further, the IJ ruled that Lepianka — who specifically testified
that he feared discrimination in Poland but did not believe he would face torture — failed
to show that he was entitled to CAT relief. Lepianka appealed to the Board of
Immigration Appeals (BIA), which dismissed the appeal, concluding, among other
things, that Lepianka had “failed to present any objective evidence to establish . . . that he
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would be tortured” in Poland. Lepianka then filed a timely petition for review to this
Court.
The contours of our jurisdiction over this case depend on the correctness of the
agency’s conclusion that Lepianka’s New Jersey offense qualifies as an aggravated
felony under 8 U.S.C. § 1101(a)(43). See 8 U.S.C. § 1252(a)(2)(C) (“no court shall have
jurisdiction to review any final order of removal against an alien who is removable by
reason of having committed” an aggravated felony). Lepianka has not challenged this
aspect of the agency’s opinion, but because we have an independent obligation to
examine our jurisdiction, see Shehu v. Att’y Gen., 482 F.3d 652, 655 (3d Cir. 2007), we
must address this issue notwithstanding Lepianka’s silence.
Under the hypothetical-federal-felony approach, a state drug conviction qualifies
as an aggravated felony if it is punishable as a felony under the Controlled Substances
Act. See Gerbier v. Holmes, 280 F.3d 297, 306 (3d Cir. 2002). In performing this
analysis, the Court generally may look to only the statutory definition of the offense, and
may not consider the particular facts underlying a conviction. See United States v.
Brown, --- F.3d ----, 2014 WL 4345256, at *3 (3d Cir. Sept. 2, 2014). However, a court
may look beyond the face of the statute and consider certain additional documents when
the statute is divisible, such that “at least one, but not all of the separate versions of the
offense is, by its elements,” an aggravated felony. Id. at *5.
Lepianka was convicted under N.J. Stat. Ann. § 2C:35-5, which “proscribes the
identical conduct” as 21 U.S.C. § 841(a)(1). Wilson v. Ashcroft, 350 F.3d 377, 381 (3d
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Cir. 2003). A conviction under the New Jersey statute is not categorically an aggravated
felony, but only because the statute covers possession with the intent to distribute
marijuana, and distribution of a “small amount” of marijuana for no remuneration is a
federal misdemeanor (not a felony). 21 U.S.C. § 841(b)(4); Wilson, 350 F.3d at 381.
However, because the New Jersey statute covers “distinct offenses carrying separate
penalties,” some of which, by their elements, are crimes of violence, the Court may turn
to the modified categorical approach. Singh v. Ashcroft, 383 F.3d 144, 162 (3d Cir.
2004); Brown, 2014 WL 4345256, at *5. Under this approach, the Court may review,
among other things, the indictment and the judgment. Singh v. Att’y Gen., 677 F.3d 503,
512 (3d Cir. 2012). Here, these documents reveal that Lepianka was convicted for
possessing with intent to distribute ecstasy, in violation of § 2C:35-5(b)(2). This subpart
of § 2C:35-5 categorically qualifies as a felony under federal law. See 21 U.S.C.
§ 841(b)(1)(C).
Accordingly, our jurisdiction is limited to reviewing constitutional claims and
questions of law. See § 1252(a)(2)(D). In his brief, Lepianka primarily argues that the
BIA erred in denying his CAT claim. However, the BIA rejected this claim on the
ground that Lepianka failed to present evidence that he was likely to be harmed in any
way in Poland, which represents the type of factual finding that this Court lacks
jurisdiction to review. See Roye v. Att’y Gen., 693 F.3d 333, 343 n.12 (3d Cir. 2012);
Kaplun v. Att’y Gen., 602 F.3d 260, 271 (3d Cir. 2010).
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The only other argument that Lepianka has raised is that the agency erred in
denying his request for withholding of removal. However, the IJ concluded that
Lepianka’s New Jersey conviction was “particularly serious,” and thus disqualifying for
purposes of withholding of removal. Lepianka did not challenge that ruling before the
BIA, and we therefore lack jurisdiction to review it. See § 1252(d)(1) (stating that a court
may review a final order of removal only if “the alien has exhausted all administrative
remedies”); Lin v. Att’y Gen., 543 F.3d 114, 120-21 & n.6 (3d Cir. 2008).
Accordingly, we grant the government’s motion and will dismiss Lepianka’s
petition for lack of jurisdiction.
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