Adenodi v. Gonzales , 255 F. App'x 766 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
F I L E D
No. 05-60459 September 6, 2007
Charles R. Fulbruge III
Clerk
ADEDIPUPO FELIX ADENODI
Petitioner
v.
ALBERTO GONZALES
Respondent
Petition For Review of an Order
of the Board of Immigration Appeals
A29-980-092
Before DEMOSS, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:1
Adedipupo Felix Adenodi petitions this court for a review of a removal
order on two grounds. First, he argues that his convicted offense cannot be
considered an “aggravated felony.” Second, he argues that he should be
considered a United States national. We reject both grounds and therefore
DENY his petition.
1
Pursuant to 5th Cir. R. 47.5, the 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not be published and is not precedent except under the limited circumstances set forth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
Background
Adenodi, a native and citizen of Nigeria, adjusted his status in 1993 to that
of a lawful permanent resident. In 2003, a jury in the United States District
Court for the Eastern District of Louisiana convicted petitioner on three counts
of (1) conspiracy to alter and remove motor vehicle identification numbers, 18
U.S.C. § 511, to commit mail fraud, 18 U.S.C. § 1341, and to receive and sell
stolen vehicles that had crossed state boundaries after being stolen, 18 U.S.C.
§ 2313(a), in violation of 18 U.S.C. § 371; (2) mail fraud, 18 U.S.C. §§ 1341-1342;
and (3) receiving, possessing, concealing, storing, bartering, selling and
disposing of a stolen motor vehicle, 18 U.S.C. §§ 2313(a). He was sentenced to
a 24-month imprisonment. On May 28, 2004, Adenodi was served with a Notice
to Appear (“NTA”) at the location of his detention and was subjected to removal
proceedings based on his 2003 conviction.
At a hearing before the Immigration Judge (“IJ”), Adenodi denied the
charges but admitted the factual allegations in the NTA. Adenodi argued that
the Government had failed to prove that he had been convicted of conspiracy to
commit a theft offense that merited treatment as an aggravated felony under 8
U.S.C. § 1101(a)(43)(G). The IJ determined that Adenodi had been convicted of
a theft offense as defined in § 1101(a)(43)(G) because “the parenthetical
expression [defining a ‘theft offense’ to include the receipt of stolen property] was
not limiting,” but rather encompassed the conduct set forth in § 2313(a) in its
entirety. The IJ concluded that Adenodi’s offense involved the “knowing
handling of stolen property with the intent to deprive the rightful owner of the
benefit of the property” and that the Government had proven by clear and
convincing evidence that Adenodi had conspired to commit a theft offense as
defined by § 1101(a)(43)(G). The IJ found Adenodi removable as charged and
ordered Adenodi removed to Nigeria. Adenodi appealed to the Board of
Immigration Appeals (“BIA”). In his brief on appeal, Adenodi again argued that
2
the Government had failed to prove by clear and convincing evidence that he had
been convicted of conspiracy to commit a theft offense that merited treatment as
an aggravated felony under § 1101(a)(43)(G).
On April 29, 2005, the BIA dismissed Adenodi’s appeal. Citing its ruling
in Matter of Bahta, 22 I. & N. Dec. 1381, 1391 (BIA 2000), the BIA noted that it
had previously determined that the parenthetical reference to “receipt of stolen
property” in § 1101(a)(43)(G) was intended “in a generic sense to include the
category of offenses involving knowing receipt, possession, or retention of
property from its rightful owner.” The BIA reasoned that a person who holds or
disposes of property in the manner described in § 2313(a), knowing that the
property had been stolen, had “necessarily received, possessed or retained
property from its rightful owner” and had committed the generic offense of
receipt of stolen property under § 1101(a)(43)(G). The BIA concluded that,
because a violation of § 2313(a) constituted an aggravated felony under §
1101(a)(43)(G), Adenodi’s conviction for conspiracy to violate § 2313(a)
constituted an aggravated felony under § 1101(a)(43)(U).
On May 23, 2005, Adenodi filed a timely pro se petition for review in this
court in which he renewed his argument that the Government had failed to
prove by clear and convincing evidence that he had been convicted of a theft
offense under § 1101(a)(43)(G).
On April 22, 2005, Adenodi filed a pro se 28 U.S.C. § 2241 petition in the
Western District of Texas, in which he argued that he was not subject to removal
as a United States national. In support of his claim, Adenodi argued that he had
applied for United States citizenship in 1999, was interviewed, was tested on
January 6, 2003, and owed permanent allegiance to the United States because
the United States had been his lawful domicile for over 20 years and because he
was married and had four children who were United States citizens. The
3
District Court for the Western District of Texas transferred Adenodi’s § 2241
petition to this court as a petition for review pursuant to the Real ID Act, Pub.
L. No. 109-13, § 106(c), 119 Stat. 231, 311 (2005).
Discussion
On appeal, Adenodi presents two issues: 1) whether the IJ and the BIA
were in error in finding that petitioner was convicted of an aggravated felony
and 2) whether he is a national of the United States and therefore not
removable.
1. Petitioner’s conviction is considered an “aggravated felony”2
We review questions of law regarding the aggravated-felony definition de
novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).
The BIA based its order of removal on the petitioner’s conviction “of the
offense of conspiracy to violate 18 U.S.C. § 2313.”3 18 U.S.C. § 2313 reads,
“[w]hoever receives, possesses, conceals, stores, barters, sells, or disposes of any
motor vehicle, vessel, or aircraft, which has crossed a State or United States
boundary after being stolen, knowing the same to have been stolen, shall be
fined under this title or imprisoned not more than 10 years, or both.” The BIA
concluded that a conviction under § 2313 is an “aggravated felony” since the
“aggravated felony” definition includes, in 8 U.S.C. § 1101(a)(43)(G), any “theft
offense (including receipt of stolen property) or burglary offense for which the
term of imprisonment [is] at least one year.”
2
This case presents a difficult argument regarding whether the Petitioner
actually waived the appeal with respect to this issue. Since we reach the merits and
conclude against the Petitioner, we will assume arguendo that the issue was not
waived.
3
Petitioner’s argument that a “conspiracy” conviction should be treat differently
than the underlying substantive offence is inapposite. See Lopez-Elias v. Reno, 209
F.3d 788, 792 n.7 (5th Cir. 2000) (citing 8 U.S.C. § 1101(a)(43)(U)).
4
The question before us is whether a conviction under § 2313 is a “theft
offense” under § 1101(a)(43)(G). The Circuits that have confronted this issue,
and the BIA, define “theft offense” using a generic definition of theft: “[the]
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.” Gonzales v. Duenas-
Alvarez, 127 S. Ct. 815, 820 (2007). We have similarly applied this definition in
an unpublished disposition, Ibrahim v. Ashcroft, 74 F. App’x 426, 430 (5th Cir.
2003). We find no reason to deviate from this definition in this case. The acts
described in the conviction clearly map onto the generic definition of “theft,” as
the conviction offense was a knowing deprivation of the owner of rights or
benefits of ownership without his consent, i.e. control of property with the full
knowledge that the property was stolen. Compare United States v. Dabeit, 231
F.3d 979, 983 (5th Cir. 2000), abrogated on other grounds, United States v.
Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (adopting Black’s Law Dictionary’s
definition of theft as “act of stealing”) with Hernandez-Mancilla v. I.N.S., 246
F.3d 1002, 1006-09 (7th Cir. 2001) (finding Black’s Law Dictionary’s definition
as supporting an interpretation of § 1101(a)(43)(G)’s “theft offense” as a “broad”
definition that includes the receipt of stolen property); see also Ibrahim, 74 F.
App’x 426, 430 & n.6. In addition, the conviction identifies conduct that fits a
generic definition of “receipt of stolen property,” an act specifically included
under the “aggravated felony” definition in § 1101(a)(43)(G). Cf. Id. We
conclude that Adenodi’s conviction is an aggravated felony.
2. Adenodi cannot be considered a “national”
We review Adenodi’s nationality claim de novo as a question of law.
Marquez-Marquez v. Gonzales, 455 F.3d 548, 554 (5th Cir. 2006). We have
5
previously stated that “a person may become a national only by birth or by
completing the naturalization process.” Omolo v. Gonzales, 452 F.3d 404, 409
(5th Cir. 2006). Since Adenodi does not claim that he was born in the United
States or that he completed the naturalization process, he cannot be considered
a national of the United States. Id. See also Perdomo-Padilla v. Ashcroft, 333
F.3d 964, 972 (9th Cir. 2003).
Conclusion
For these reasons, the petition is DENIED.
6