Ibrahim v. Ashcroft , 74 F. App'x 426 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 11, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_______________________ Clerk
No. 03-60420
_______________________
ABUBAKER ALI IBRAHIM
Petitioner
v.
JOHN ASHCROFT, U. S. ATTORNEY GENERAL
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
--------------------
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.1
PRADO, Circuit Judge:
Abubaker Ali Ibrahim (“Ibrahim”), a citizen of Nigeria and a
permanent resident of the United States, was ordered removed from
the United States by a final order of the Board of Immigration
Appeals (“BIA”) on account of a 1987 conviction for possession of
stolen mail and a 1990 conviction for forgery. In response, he
petitions for review of a final order dismissing the appeal from
the Immigration Judge’s order denying his applications for asylum
1
Pursuant to 5th Cir. R. 47.5, this Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
1
and withholding of deportation under § 208(a) and § 243(h) of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158, issued
by the BIA. In response, Ibrahim filed a petition for review of
his BIA removal order in this court, challenging the BIA’s
determination that Ibrahim is removable as an aggravated felon
based on his 1986 conviction for possession of stolen mail.
Ibrahim argues that his conviction for possession of stolen mail
under 18 U.S.C. § 1708 is not a “theft offense” as defined by
section 101(a)(43)(G) of the Act. We reject this argument, and
we therefore dismiss his petition for review.
Under the transitional rules promulgated under the Illegal
Immigration Reform and Immigrant Responsibility Act of 19962 (the
“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009, we have no
jurisdiction to consider appeals from final orders of deportation
that are issued “by reason of [an alien] having committed an
2
Title III-A of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Sections 301-09, Pub. L. 104-208, 110
Stat. 3009 revises the procedure for removal of aliens, including the
provisions relating to judicial review. IIRIRA, Section 306(b).
Title III-A provisions’ effective date is April 1, 1997. Section
309(a) provides that Title III-A, and the amendments therein,
generally “shall take effect on the first day of the first month
beginning more than 180 days after the date of the enactment of this
Act. . . .” As IIRIRA was enacted on September 30, 1996, the Title
III-A provisions, except where otherwise indicated in IIRIRA, became
effective on April 1, 1997.
The IIRIRA, section 309(c) provides for transitional rules for
aliens who are in exclusion or deportation proceedings before April
1, 1997. These rules apply to aliens whose final administrative
orders of exclusion or deportation are entered on or after October
31, 1996. IIRIRA, section 309(c)(4). These transitional rules apply
to Ibrahim’s case because his Issuance to Show Cause was issued on
February 11, 1997 and the Board’s Final Deportation Order was issued
on April 14, 2003.
2
[theft and forgery] offense covered in [S]ection 212(a)(2).”
IIRIRA §309(c)(4)(G). We may, however, consider whether
Ibrahim’s conviction for “possession of stolen mail” is a theft
offense as defined by 101(a)(43)(G) of the Act.
I.
Ibrahim is a native and citizen of Nigeria. He came to the
United States in 1981. On September 20, 1984, Ibrahim became a
lawful permanent resident of the United States. On May 5, 1987,
he was convicted in the United States District Court for the
Southern District of Texas, of the offense of “possession of
stolen mail,” in violation of 18 U.S.C. § 1708, committed on or
about March 1986. He was sentenced to a two-year term of
imprisonment for this offense. On August 10, 1990, he was
convicted in the 230th District Court of Harris County, Texas,
for the offense of “forgery,” committed on or about March 28,
1990. He was sentenced to a three-year term of imprisonment for
this offense. On January 31, 1997, he was convicted in the
Superior Court of Washington for King County, Washington, for the
offense of “theft in the second degree,” in violation of RCW 9A
56 040 1A, committed on or about July 30, 1996.
On August 4, 1997, the Immigration and Naturalization
Service (“INS”) served an amended Order to Show Cause on Ibrahim,
charging him with being subject to deportation pursuant to INA §
241 (a)(2)(A)(ii), 8 U.S.C. 1251 (a)(2)(A)(ii) (1996), as an
3
alien who, at any time after entry, has been convicted of two or
more crimes involving moral turpitude, not arising out of a
single scheme of criminal misconduct. On March 19, 1998, an
immigration judge found Ibrahim deportable as charged, denied his
applications for INA § 212(c) relief, asylum and withholding of
deportation, and ordered him deported to Germany. On August 3,
1999, the BIA issued a decision finding Ibrahim statutorily
ineligible for INA § 212(c) relief and asylum, but finding that
the immigration judge erred in pretermitting Ibrahim’s
application for withholding of deportation. Thus, the Board
ordered Ibrahim’s case remanded to the immigration judge for a
full hearing on his application for that relief, and noting that
the immigration judge was to first determine whether Ibrahim had
been convicted of a particularly serious crime prior to ruling on
the application for withholding. On January 21, 2000, the
immigration judge issued an oral decision in which he found
Ibrahim ineligible for withholding of deportation because his
conviction constituted particularly serious crimes. The
immigration judge also found that Ibrahim failed to show that it
was more likely than not that he would be tortured if he returned
to Nigeria, and, consequently, denied deferral of removal under
Article III of the Convention Against Torture. Thereafter, the
immigration judge ordered Ibrahim deported to Nigeria.
On April 14, 2003, the Board dismissed Ibrahim’s appeal. In
4
its decision, the Board found Ibrahim ineligible for a waiver
under INA § 212 (c) based on the Supreme Court’s decision in INS
v. Cyr, 533 U.S. 289 (2001). Additionally, the Board affirmed
the immigration judge’s finding that Ibrahim’s conviction for
possession of stolen mail in violation of 18 U.S.C. § 1708 is a
“theft offense (including receipt of stolen property)” so as to
constitute an aggravated felony as defined in section
101(a)(43)(G)of the Act, 8 U.S.C. § 1101(a) (43) (G).
The Board rejected Ibrahim’s contention that “receipt of
stolen property” was not akin to “possession of stolen property”
based on its precedent in Matter of Bahta, 22 I. & N Dec. 1381
(BIA 2000). The Board found that Ibrahim’s convictions
constituted aggravated felonies for which he received an
aggregate term of imprisonment of at least five years. As such,
the Board affirmed the immigration judge’s finding that Ibrahim
could not apply for withholding of deportation. This petition
for review followed.
II. Standard of Review and Jurisdiction
The issue to be decided is whether this court has
jurisdiction to consider the claims presented in Ibrahim’s
petition for direct review of the BIA’s final order of removal.
The IIRIRA deprives us of jurisdiction to hear petitions for
review filed by aliens who are deportable for having been
convicted of an aggravated felony. See 8 U.S.C. § 1252(a)(1) and
5
(b) (“notwithstanding any other provision of law, no court shall
have jurisdiction to review any final order of removal against an
alien who is removable by reason of having committed a criminal
offense” including those covered by 8 U.S.C. §
1227(a)(2)(A)(iii)(aggravated felony)); Florez-Garza v. Ashcroft,
328 F.3d 797,801 (5th Cir. 2003); Jobson v. Ashcroft, 326 F.3d
367, 371 (2d Cir. 2003); Randhawa v. Ashcroft, 298 F.3d 1148,
1151 (9th Cir. 2002). We retain jurisdiction, however, to
determine whether IIRIRA’s jurisdictional bar applies. Florez-
Garza, 328 F.3d 797 at 801-02; Gousse v. Ashcroft, No. 02-4192,
2003 U.S. App. LEXIS 16056 at *8 (2d Cir. Aug. 6, 2003); Ming Lam
Sui v. INS, 250 F.3d 105, 110 (2d Cir. 2001). We have
jurisdiction to review jurisdictional facts and to determine the
proper scope of our own jurisdiction. Florez-Garza, 328 F.3d at
802; Gousse, 2003 U.S. App. at *8; Ming Lam Sui, 250 F.3d at 110.
Specifically, to determine whether we are precluded from
reviewing this petition, we must inquire, first whether Ibrahim
is an alien and then, if he is, whether he is removable for
having committed a crime covered by 8 U.S.C. §
1252(a)(2)(A)(iii).3 Because we must review whether Ibrahim’s
offense qualifies as an aggravated felony, the jurisdictional
inquiry and the analysis on the merits merge. The BIA’s
interpretation of the INA is, however, subject to established
3
It is undisputed that Ibrahim is a citizen of Nigeria and thus
an alien of the United States.
6
principles of deference. United States v. Aguirre-Aguirre, 526
U.S. 415, 424-25 (1999).
III. DISCUSSION
In this appeal, Ibrahim seeks review regarding whether or
not Petitioner’s convictions are of a nature that would
ultimately preclude jurisdiction in this court.4 While Ibrahim
fails to advance any specific argument as to why his theft and
forgery offenses are not aggravated felonies under INA §
241(a)(2)(A)(iii) as defined at INA § 1101(a)(43)(G) and (R)5, we
will address the argument he made before the BIA - that Ibrahim’s
conviction for “possession of stolen goods” is not akin to
“receipt of stolen goods” as defined by INA § 1101(a)(43)(G).
Ibrahim was convicted of possession of stolen mail in
violation of Title 18 U.S.C. § 1708. We hold that a conviction
obtained under § 1708 is categorically a “theft offense” – and
therefore an aggravated felony – within the meaning of 8 U.S.C. §
4Section 309(c)(4) of the IIRIRA states:
[T]here shall be no appeal permitted in the case
of an alien who is inadmissible . . . by reason
of having committed a criminal offense covered
in [S]ection 212(a)(2) . . .
5
That statute states:
(43) The term “aggravated felony” means –
. . . (G) a theft offense (including receipt of
stolen property) or burglary offense for which
the term of imprisonment at [sic] least one year
. . .(R) an offense relating to commercial
bribery, counterfeiting, forgery, or trafficking
in vehicles the identification numbers of which
have been altered for which the term of
imprisonment is at least one year.
7
1101(a)(43)(G).
The BIA found Ibrahim deportable because his conviction for
possession of stolen mail was a “theft offense” as defined by 8
U.S.C. 1101(a)(43)(G). In determining whether an offense
qualifies as an aggravated felony, we look to the statute under
which the person was convicted and compare its elements to the
definition of an aggravated felony in 8 U.S.C. § 1101(a)(43).
See Taylor v. United States, 495 U.S. 575, 602, 109 L.Ed. 2d 607,
110 S.Ct. 2143 (1990); Randhawa, 298 F.3d at 1152; United States
v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002). We must
therefore determine whether “possession of stolen mail” is a
“theft offense” and thus an aggravated felony under the 8 U.S.C.
§ 1101(a)(43).
In our determination, we apply the categorical approach.
Gousse, 2003 U.S. App. at *9-10; Randhawa 298 F.3d at 1152.
The categorical approach analysis asks whether the statutory
definition of the offense of conviction is any broader than an
offense defined as an "aggravated felony" under federal law.
Gousse, 2003 U.S. App. LEXIS 16056 at *10. See Jobson, 326 F.3d
at 371-72 (applying categorical approach to determining whether
offense is removable "crime of violence" under 18 U.S.C. §§ 16);
Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 2001)(same); Ming
Lam Sui, 250 F.3d at 109, 116-18 (applying categorical approach
to whether offense is a removable offense that "involves fraud or
deceit in which the loss to . . . victims exceeds $ 10,000" under
8
8 U.S.C. §§ 1101(a)(43)(M)(i)); Michel v. INS, 206 F.3d 253, 263
(2d Cir. 2000) (applying categorical approach to whether offense
is crime involving "moral turpitude" under 8 U.S.C. §§
1227(a)(2)(A)(ii)). Unless the offense of conviction is broader,
the petitioner has committed an "aggravated felony" irrespective
of the particular circumstances of his crime. Gousse, 2003 U.S.
App. at *10 See, also, Sui, 250 F.3d at 116.
Congress did not define the term “theft offense” in 8
U.S.C. 1101(a)(43)(G). Thus, under Taylor, we must construe and
define the meaning of the phrase. Corona-Sanchez, 291 F.3d at
1204. Other circuits have considered this issue and this Court
finds their conclusions persuasive.
The Seventh, Ninth and Tenth Circuits have adopted a generic
definition of “theft offense” in the context of 8 U.S.C.
1101(a)(43)(G). That definition reads:
[A theft offense] is a taking of property or an
exercise of control over property without consent with
the criminal intent to deprive the owner of rights and
benefits of ownership, even if such deprivation is less
than total or permanent.
Corona-Sanchez,291 F.3d at 1205 (quoting Hernandez-Mancilla v.
INS, 246 F.3d 1002, 1009 (7th Cir. 2001), see also United States
v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir. 2001). Relying
on the Seventh Circuit’s determination that this “definition is
closer to the ‘the generic sense in which the term is now used in
the criminal codes of most states’ and as ‘envisioned by the
9
Supreme Court,’” the Ninth and Tenth Circuits adopted this
definition.6 Corona-Sanchez, 291 F.3d at 1205. This Court
recognizes the desirability of a uniform national definition as
suggested by the Supreme Court in Taylor. Id. As such, we also
adopt the Seventh Circuit’s construction.
Having adopted a definition of “theft offense,” we continue
our categorical inquiry by looking to the statute under which
Ibrahim was convicted. Randhawa,298 F.3d at 1153. The Ninth
Circuit considered this very issue and we agree with their
determination that a conviction under 18 U.S.C. § 1708 facially
qualifies as a conviction for a theft offense (and thus an
aggravated felony) because that statute criminalizes only that
conduct that fits within Corona-Sanchez’s [our] definition of a
theft offense.” Id. Title 18 U.S.C. § 1708 provides as follows:
Whoever steals, takes, or abstracts, or by fraud or
deception obtains, or attempts so to obtain, from or
out of any mail, post office, or station thereof,
letter box, mail receptacle, or any mail route or other
authorized depository for mail matter, or from a letter
or mail carrier, any letter, postal card, package, bag,
or mail, or abstracts or removes from any such letter,
package, bag, or mail, any article or thing contained
therein, or secretes, embezzles, or destroys any such
6
This definition is also consistent with the BIA’s
determination that:
the reference to “receipt of stolen property” in section
1101(a)(43)(G) of the INA was intended in a generic sense
to include the category of offenses involving knowing
receipt, possession, or retention of property from its
rightful owner.
Matter of Bahta, 22 I.& N. Dec.at *23-24.
10
letter, postal card, package, bag, or mail, or any
article or thing contained therein; or
Whoever steals, takes, or abstracts, or by fraud or
deception obtains any letter, postal card, package,
bag, or mail, or any article or thing contained therein
which has been left for collection upon or adjacent to
a collection box or other authorized depository of mail
matter; or
Whoever buys, receives, or conceals, or unlawfully has
in his possession, any letter, postal card, package,
bag, or mail, or any article or thing contained
therein, which has been so stolen, taken, embezzled, or
abstracted, as herein described, knowing the same to
have been stolen, taken, embezzled, or abstracted --
Shall be fined under this title or imprisoned not more
than five years, or both.
Both 18 U.S.C. § 1708 and our definition require a showing that a
defendant knowingly possess stolen mail. Randhawa, 298 F.3d at1153-54 . As such, we agree with the Ninth Circuit that § 1708
is no more broad on its face than our settled definition of a
“theft offense.” Id. at 1154.
Accordingly, because we are without jurisdiction to consider
Ibrahim’s petition, respondent’s motion to dismiss petition for
lack of jurisdiction is GRANTED and the petition is DISMISSED.
Further, respondent’s alternative motion for an extension of
sixty (60) days after disposition of motion to dismiss petition
in which to file the administrative record is DENIED as MOOT.
11