Aeremeyes Beyen Kebede v. Eric Holder, Jr. , 442 F. App'x 34 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1075
AEREMEYES BEYEN KEBEDE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals
Submitted: July 26, 2011 Decided: August 4, 2011
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
Aeremeyes Beyen Kebede, Petitioner Pro Se. Paul Thomas
Cygnarowicz, Trial Attorney, Daniel Eric Goldman, Senior
Litigation Counsel, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aeremeyes Beyen Kebede, a native and citizen of
Ethiopia, petitions for review an order of the Board of
Immigration Appeals (“Board”) dismissing that part of his appeal
from the immigration judge’s order finding him removable
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien
convicted of an aggravated felony as defined in 8 U.S.C.
§ 1101(a)(43)(U) (2006) (defining aggravated felony as including
an attempt to commit an offense described in § 1101(a)(43)).
Kebede stood convicted of two counts of attempted petit larceny
under Va. Code Ann. §§ 18.2-26, 18.2-96 (2009). Under 8 U.S.C.
§ 1101(a)(43)(G), an aggravated felony includes a theft offense
for which the term of imprisonment is at least one year. Kebede
claims that his attempted petit larceny convictions, to which he
was sentenced to the maximum twelve months’ imprisonment, are
not aggravated felonies. The Attorney General has filed a
motion to dismiss contending this court is without jurisdiction.
We agree with the Attorney General and grant the motion to
dismiss.
Under 8 U.S.C. § 1252(a)(2)(C) (2006), this court
lacks jurisdiction, except as provided in 8 U.S.C.
§ 1252(a)(2)(D), to review the final order of removal of an
alien convicted of certain enumerated crimes, including an
aggravated felony. Under § 1252(a)(2)(C), this Court retains
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jurisdiction “to review factual determinations that trigger the
jurisdiction-stripping provision,” such as whether Kebede is an
alien and whether he has been convicted of an aggravated felony.
Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). Once
we confirm these two factual determinations, then, under 8
U.S.C. § 1252(a)(2)(C), (D), we can only consider
“constitutional claims or questions of law.” Mbea v. Gonzales,
482 F.3d 276, 278 n.1 (4th Cir. 2007).
We initially deferred action on the Attorney General’s
motion to dismiss in order to allow Kebede time to file his
informal brief. Kebede’s sole issue in the informal brief is
whether his misdemeanor attempted petit larceny convictions can
be classified as aggravated felonies. We answer in the
affirmative.
Both of Kebede’s convictions, although classified
under state law as misdemeanors, carried maximum twelve month
sentences. Because Kebede was twice convicted of attempt to
commit a theft offense that had a term of imprisonment of at
least one year, he has two aggravated felony convictions. See
Wireko v. Reno, 211 F.3d 833, 835 (4th Cir. 2000) (“Under the
plain language of this definition, there is no requirement that
the offense actually have been a felony, as that term is
conventionally understood.”); see also United States v. Graham,
169 F.3d 787 (3d Cir. 1999) (misdemeanor petit larceny
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conviction was an aggravated felony). Kebede’s reliance on In
re Crammond, 23 I. & N. Dec. 9 (BIA), vacated on other grounds,
23 I. & N. Dec. 179 (BIA 2001) is misplaced. In that opinion,
the Board stated that its holding only applied to aggravated
felonies under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A),
i.e., “murder, rape, or sexual abuse of a minor.” Crammond, 23
I. & N. Dec. at 10. Accordingly, the holding has no relevance
to Kebede’s attempted petit larceny convictions.
Because Kebede is removable for having been convicted
of an aggravated felony and he does not raise a constitutional
claim or a question of law, we grant the Attorney General’s
motion to dismiss and dismiss the petition for review for lack
of jurisdiction. We deny as moot Kebede’s motion to stay
removal. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
PETITION DISMISSED
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