Green v. Atty Gen USA , 278 F. App'x 164 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-22-2008
Green v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1268
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________
No. 07-1268
BETTENA AMEKAH GREEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
__________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A46-239-940)
Submitted under Third Circuit LAR 34.1(a)
March 4, 2008
Before: SCIRICA, Chief Judge, FISHER and ROTH, Circuit Judges
(Opinion filed: May 22, 2008)
OPINION
ROTH, Circuit Judge:
Bettena Ameka Green seeks review of a final order by the Board of Immigration
Appeals (BIA), affirming the order of an Immigration Judge (IJ) ordering Green removed
from the United States. The BIA held that she was inadmissible because she committed
two crimes of moral turpitude. Green argues that she should be eligible for the petty
offense exception available to those who have committed only one crime of moral
turpitude, as her crimes arose from a single course of criminal misconduct. As the statute
providing the exception refers to aliens who have committed only a single crime, rather
than a single course of criminal misconduct, we will dismiss the petition for review.
I. BACKGROUND
Green is a native and citizen of Jamaica. She was initially admitted into the United
States and acquired lawful permanent residence status on September 3, 1997. In
December of 2000, Green was convicted in the Superior Court of the State of Delaware of
conspiracy and theft in violation of D EL. C ODE A NN., tit. 11, §§ 511 and 841. She received
suspended sentences of eleven months (later reduced to five months).
Subsequently, on October 30, 2003, while returning from a trip to Jamaica, Green
was stopped by immigration officers at the Philadelphia International Airport and
questioned about her criminal history. Based on her statements, on November 12, 2003,
the Department of Homeland Security (DHS) issued a Notice to Appear against Green,
placing her in removal proceedings as an arriving alien. The Notice to Appear charged
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that Green was inadmissible into the United States as an alien convicted of crimes of
moral turpitude under INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I). In the
administrative proceeding before the IJ, Green moved to terminate the proceedings on the
basis of the petty offense exception under INA § 212(a)(2)(A)(ii), 8 U.S.C. §
1182(a)(2)(A)(ii). On March 30, 2005, the IJ denied Green’s motion to terminate
proceedings, finding that she was not entitled to the petty offense exception because she
committed two crimes involving moral turpitude. Green appealed to the BIA.
The BIA dismissed Green’s appeal on December 27, 2006. The BIA found that
because the pertinent statutory provisions limit the exception to the commission of one
“crime” rather than one “scheme,” and Green had committed and was convicted of two
crimes involving moral turpitude, Green was ineligible for the petty offense exception.
Green filed a timely petition for review from the BIA’s decision on January 26, 2007.
We have exclusive jurisdiction to review final orders of removal pursuant to INA
Section 242. 8 U.S.C. § 1252 (2005), as amended by The REAL ID Act of 2005, § 106,
Pub. L. No. 109-131, Div. B, 119 Stat. Where, as here, an alien is removable by reason of
having committed a criminal offense covered in § 1182(a)(2), we have jurisdiction to
review only constitutional claims or questions of law. INA § 242(a)(2)(D), 8 U.S.C. §
1252(a)(2)(D) (added to the INA by Real ID Act § 106(a)). We review constitutional
issues and legal questions under the de novo standard, giving deference where appropriate
under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
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(1984), to the BIA’s interpretation of the Immigration and Nationality Act. See Valansi v.
Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002); Ilchuk v. Att’y Gen., 434 F.3d 618, 621 (3d
Cir. 2006), INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999).
II. DISCUSSION
The central issue here is whether the petty offense exception is available to
someone who has been convicted of two crimes of moral turpitude that arose from one
criminal course of conduct. The relevant statute states that “any alien convicted of . . . a
crime involving moral turpitude” is inadmissible, unless the alien “committed only one
crime,” the maximum possible penalty for the crime did not exceed imprisonment for one
year, and the imposed punishment did not exceed imprisonment of six months. INA §
212(a)(2)(A), 8 U.S. C. § 1182(a)(2)(A).
Green argues that INA § 212 should be interpreted so that one can be convicted of
two crimes while only having “committed” one crime. We disagree. When Congress has
wished to distinguish between multiple criminal convictions and multiple criminal courses
of conduct in the immigration context, it has done so. See 8 U.S.C. § 1227(a)(2)(A)(ii)
(providing that any alien is deportable who “at any time after admission is convicted of
two or more crimes involving moral turpitude, not arising out of a single scheme of
criminal misconduct”) (emphasis added). Congress chose not to include such language in
the statute in question here.
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We see no justification for a finding that the BIA was unreasonable in interpreting
INA § 212(2)(A)(ii) to treat separate convictions as separate committed crimes, regardless
of whether they arose from a single course of conduct.
III. CONCLUSION
For the foregoing reasons, we will deny the petition for review.
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