Joseph v. Atty Gen USA

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

10-2-2006

Joseph v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 05-1047

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 05-1047 and 05-2889

WARREN HILARION EUSTA JOSEPH,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review from an Order Dated

December 10, 2004 of the Board of Immigration Appeals

(Board No. A41-090-468)

Immigration Judge Daniel A. Meisner

Argued July 13, 2006

Before: SMITH, WEIS and ROTH, Circuit Judges.

(Filed: October 2, 2006)

Claudia Slovinsky, Esq. (Argued)

396 Broadway, Suite 601

New York, NY 10013

Attorney for Petitioner

Peter G. O’Malley, Esq.

Office of United States Attorney

970 Broad Street, Suite 700

Newark, NJ 07102

Jonathan Potter, Esq. (Argued)

Linda S. Wernery, Esq.

Douglas E. Ginsburg, Esq.

John D. Williams, Esq.

U.S. Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent

OPINION OF THE COURT

WEIS, Circuit Judge.

The issue in this case is whether the petitioner’s

conviction under 18 U.S.C. § 922(a)(3) constitutes an

“aggravated felony” of “illicit trafficking in firearms” under

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Immigration and Nationality Act (“INA”) §§ 101(a)(43) and

237(a)(2)(A)(iii). 8 U.S.C. §§ 1101(a)(43)(C),

1227(a)(2)(A)(iii). We conclude that the petitioner’s offense is

not an aggravated felony under the INA because § 922(a)(3)

does not include a “trafficking element.”

Petitioner Warren Hilarion Eusta Joseph, a lawful

permanent resident of the United States and a native and citizen

of Trinidad, is subject to a removal order under

§§ 237(a)(2)(A)(iii) and (a)(2)(C) of the INA, 8 U.S.C. § 1227

(a)(2)(A)(iii) & (a)(2)(C), on the grounds that his conviction

under 18 U.S.C. § 922(a)(3) constituted an “aggravated felony”

and a removable “firearms offense.”

From 1988 to 1997, petitioner served in the United States

Army, including service in Operation Desert Storm and

Operation Desert Shield. During this enlistment he received

numerous awards and was honorably discharged in 1997.

On October 10, 2001, petitioner was convicted in the

United States District Court for the Eastern District of New

York for violations of 18 U.S.C. §§ 922(a)(3) and 924(a)(1)(D).

Section 922(a)(3) makes it illegal for a person, other than a

licensed importer, dealer or manufacturer, to transport into or

receive in the state where he resides firearms purchased or

otherwise obtained by that person outside of his state of

residence. Id. Section 924(a)(1)(D) provides that it is illegal to

“willfully violate[] any other provision of this chapter,” which

includes § 922.

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In sentencing petitioner, the court departed downward

from the then-mandatory sentencing guidelines range and

imposed probation only. Petitioner, however, violated his

probation by, inter alia, failing to inform his probation officer

that he had moved and for failing a drug test. He was

incarcerated for six months for those violations.

The government initiated removal proceedings and an

immigration judge conducted a hearing on July 12, 2004.

Petitioner testified about his criminal conviction, admitting that

he obtained weapons for persons to whom he owed money. He

further testified that he had turned himself in to authorities when

ATF contacted him and that he later pleaded guilty to violations

of §§ 922(a)(3) and 924(a)(1)(D).

Petitioner filed for asylum, withholding of removal, and

relief under the Convention Against Torture. He testified that

he believed he would be persecuted if he returned to Trinidad

because he is Christian and because he served in the United

States Army. Petitioner also argued that he is a national of the

United States under 8 U.S.C. § 1101(a)(22), and is thus not an

alien subject to removal. He based this claim on the fact that he

took the Oath of Enlistment upon entry into the United States

Army and thus is “a person who, though not a citizen of the

United States, owes a permanent allegiance to the United

States.” 8 U.S.C. § 1101(a)(22).

The IJ concluded that (1) petitioner was not a national of

the United States; (2) he was removable because he was

convicted of a weapons violation and because he was convicted

of an aggravated felony; (3) he was not eligible for asylum

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because he had been convicted of an aggravated felony; and

(4) he was not prima facie eligible for naturalization because the

aggravated felony conviction prohibited him from establishing

that he has “good moral character.”

In his appeal to the BIA, petitioner asserted three claims

for relief. First, he asserted that the IJ erred in determining that

petitioner was not a national of the United States. Second, he

argued the government should be equitably estopped from

removing him because of the gross delay in deciding earlier

applications for removal. Third, he contended that the IJ erred

in determining that petitioner was convicted of an aggravated

felony. The BIA affirmed the IJ’s decision without opinion.

Petitioner then filed a motion with the BIA to reconsider

and reopen his case. He argued that the Board impermissibly

issued an affirmance without opinion despite the fact that

petitioner had raised an issue of law (that a violation of

§ 922(a)(3) was not an aggravated felony), and (2) that because

petitioner had recently reapplied for naturalization, the BIA

should set his case aside pending resolution of that application.

The BIA denied the motion, concluding that petitioner

“in his request for reconsideration, primarily reiterates the

arguments raised on appeal regarding his removability as an

aggravated felon.” The BIA noted that it would not hold the

petition in abeyance pending resolution of his naturalization

application because his aggravated felony conviction prohibited

him from establishing prima facie eligibility for naturalization.

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In the proceeding before this Court, petitioner challenges

only the findings that his § 922(a)(3) conviction constituted an

aggravated felony and that he is not prima facie eligible for

naturalization.

Petitioner had also filed for habeas corpus relief in the

District Court and that case was transferred to this Court

pursuant to section 106(c) of the REAL ID Act of 2005, Pub.L.

No. 109-13, 119 Stat. 231. We consolidated the cases. See

Belito Garcia, No. 05-2786, 2006 WL 2529471, *2 (3d Cir.

Sept. 5, 2006). We have jurisdiction over the habeas corpus

action as well as the petition for review. However, our review

is limited to constitutional and legal questions. Id.

As an initial matter, the Government alleges that

petitioner has waived all of his claims because he failed to

exhaust his administrative remedies. The government argues

that because petitioner has not applied for cancellation of

removal, he cannot assert the aggravated felony issue because

determination of that matter is only relevant to whether

petitioner is now eligible for cancellation of removal. However,

whether petitioner has applied for cancellation of removal is

irrelevant to whether he has waived the aggravated felony claim.

An alien must exhaust all administrative remedies

available to him as of right before the BIA as a prerequisite to

raising a claim before this Court. See 8 U.S.C. § 1252(d)(1)

(1999); Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir.

2005). An applicant must first raise the issue before the BIA or

the IJ. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.

2005) (citing Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir.

6

1989)). As this Court has recognized, “so long as an

immigration petitioner makes some effort, however insufficient,

to place the Board on notice of a straightforward issue being

raised on appeal, a petitioner is deemed to have exhausted her

administrative remedies.” Yan Lan Wu, 339 F.3d at 422 (citing

Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir. 2004)).

Petitioner does not argue that we should grant him

cancellation of removal. He argues only that 18 U.S.C.

§ 922(a)(3) is not an aggravated felony, a contention that he

clearly raised before the BIA and thus exhausted. He discusses

cancellation of removal only to explain one of the reasons why

the aggravated felony claim is relevant and not moot.

The government’s exhaustion claim is meritorious,

however, with respect to the petitioner’s claim he is prima facie

eligible for naturalization. The government argues that

petitioner failed to raise before the Board his claim that, because

he can demonstrate that he has “good moral character,” he is

prima facie eligible for naturalization. In neither his motion to

reconsider and reopen nor in his brief in support of his appeal to

the Board did petitioner contest the IJ’s determination of

ineligibility for naturalization.

Under the liberal exhaustion policy outlined in Bhiski

and Yan Lan Wu, an alien need not do much to alert the Board

that he is raising an issue. In Bhiski, the petitioner did not file

a brief in support of his appeal to the BIA. He did, however,

identify the issues that he later raised before us. 373 F.3d at

368-69.

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In Yan Lan Wu, the petitioner failed to allege in her

Notice of Appeal to the BIA that the IJ erred in considering only

one interview that the government had with her. However, she

did contend in her Notice of Appeal that the IJ’s conclusion was

not supported by substantial evidence and that she had presented

sufficient evidence in support of specific facts underlying her

asylum claim. 393 F.3d at 422.

In the present case, by contrast, petitioner did nothing to

alert the BIA that he wished to appeal the IJ’s determination that

he was not prima facie eligible for naturalization.

Petitioner is removable by reason of having committed a

criminal offense covered by § 1227(a)(2)(C), which provides

that aliens are removable if they are “convicted under any law

of purchasing, selling, offering for sale, exchanging, using,

owning, possessing, or carrying . . . any weapon, part, or

accessory which is a firearm or destructive device . . . in

violation of any law.” Section 922(a)(3) clearly falls under the

broad umbrella of weapons crimes covered by § 1227(a)(2)(C),

which include “possessing” and “carrying” and petitioner does

not challenge this.

That petitioner is removable as a result of having

committed a firearms offense, however, does not moot his claim

that he was not convicted of an “aggravated felony.” The

petitioner’s eligibility for a cancellation of removal depends

upon resolution of this issue. See 8 U.S.C. § 1229b(a)(3); see

also Kuhali v. Reno, 266 F.3d 93, 107 (2d Cir. 2001)

(concluding that the issue of whether the alien committed an

“aggravated felony” was “not mooted by the . . . determination

8

that he is removable as an alien convicted of a firearms offense”

because his eligibility for a voluntary departure hinged on that

point). Moreover, an aggravated felony determination would

prevent petitioner from reentering the United States for twenty

years. See 8 U.S.C. § 1182(a)(9)(A)(ii).

8 U.S.C. § 1101(a)(43) defines the term “aggravated

felony” by reference to several crimes. The inquiry here is

confined to § 1101(a)(43)(C), which provides that an aggravated

felony includes “illicit trafficking in firearms . . . .”

The issue is whether § 922(a)(3), which makes it illegal

“for any person, other than a licensed importer, licensed

manufacturer, licensed dealer, or licensed collector to transport

into or receive in the State where he resides . . . any firearm

purchased or otherwise obtained by such person outside that

state . . . ,” qualifies as a crime of “illicit trafficking in firearms.”

We generally employ the “formal categorical approach,”

announced in Taylor v. United States, 495 U.S. 575 (1990), in

determining whether an offense falls within the category of

“aggravated felony.” See Singh v. Ashcroft, 383 F.3d 144, 140

(3d Cir. 2001). Using that analysis, a court “must look only to

the statutory definitions” of the specified offense, and may not

“consider other evidence concerning . . . the particular facts

underlying [a] conviction[ ].” Taylor, 495 U.S. at 600.

We apply that approach unless (1) “the language of the

particular subsection of 8 U.S.C. § 1101(a)(43) at issue . . .

invite[s] inquiry into the underlying facts of the case,” or

(2) “the disjunctive phrasing of the statute similarly invites

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inquiry into the specifics of the conviction.” Singh, 383 F.3d at

148; see also Belito Garcia, 2006 WL 2529471, at *3 (citing

Singh, 383 F.3d at 161).

Neither of these exceptions applies to § 922(a)(3). As we

explained in Singh, the prototypical example of a statute that

invites inquiry into the facts underlying the conviction at issue

is 8 U.S.C. § 1101(a)(43)(M)(i), which includes the qualifier “in

which the loss to the victim or victims exceeds $10,000.”

Singh, 383 F.3d at 161. We observed that that phrase

“expresses such a specificity of fact that it almost begs an

adjudicator to examine the facts at issue.” Id. By contrast,

statutory phrases that have “relatively unitary categorical

concepts” like “forgery,” “burglary,” “crime of violence,” and

“illicit trafficking in a controlled substance” do not invite an

inquiry into the facts underlying the conviction. Belito Garcia,

2006 WL 2529471, at *3 (citing Singh, 383 F.3d at 156 n.4,

161).

The statutory phrase under scrutiny here, “illicit

trafficking in firearms,” falls well within the category of unitary

categorical concepts, where there is no invitation to inquire into

the specific facts underlying the conviction.

Section 922(a)(3) also does not have any relevant

disjunctive language. A conviction based on any part of the

disjunctions would not constitute a conviction for “illicit

trafficking.” See, e.g., Ng v. Attorney General, 436 F.3d 392,

397 (3d Cir. 2006) (noting that “although 18 U.S.C. § 1958 is

phrased in the disjunctive with respect to the type of interstate

10

commerce facility involved, this inquiry has no bearing on

whether the crime is one of violence”).

We recognized in Singh that “[s]tatutes phrased in the

disjunctive are akin to, and can be readily converted to, statutes

structured in outline form, with a series of numbered or letter

elements.” Id. at 162. Thus, we can convert § 922(a)(3) into the

following:

It shall be unlawful for any person, other than a

licensed importer, licensed manufacturer, licensed

dealer, or licensed collector to:

(a) transport into the State where he resides . . .

any firearm purchased by such person outside that

State;

(b) transport into the State where he resides . . .

any firearm otherwise obtained by such person

outside that State;

(c) receive in the State where he resides . . . any

firearm purchased by such person outside that

State;

OR

(d) receive in the State where he resides . . . any

firearm otherwise obtained by such person outside

that State.

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The next step, under Singh, is to determine whether a

violation of some of those sections, but not others, would

constitute an aggravated felony. In conducting this inquiry,

“only the minimum criminal conduct necessary to sustain a

conviction under a given statute is relevant.” Canada v.

Gonzales, 448 F.3d 560, 565 (2d Cir. 2006) (internal citations

and quotations omitted). It is necessary that conduct required

for any conviction under the statute amounts to an aggravated

felony. See Singh, 383 F.3d at 153 (“what matters is whether

such conduct is necessary for such a conviction”) (emphasis in

original). Only if the minimum conduct required to sustain a

conviction under any part of the statute would constitute an

aggravated felony, do we look to the charging document or other

facts.

Thus, we must determine whether the minimum conduct

necessary to sustain a conviction under the various terms of

§ 922(a)(3) constitutes weapons “trafficking.” The INA does

not define “trafficking” and when the relevant statute does not

define a word, “we normally construe it in accord with its

ordinary or natural meaning.” Smith v. United States, 508 U.S.

223, 228 (1993). Black’s Law Dictionary defines “traffic” as a

verb meaning, “To trade or deal in (goods, esp. illicit drugs or

other contraband)”). Black’s Law Dictionary (8th ed. 2004).

Black’s also defines traffic as a noun that includes

“1. Commerce; trade; the sale or exchange of such things as

merchandise, bills, and money” and “2. The passing or exchange

of goods or commodities from one person to another for an

equivalent in goods or money.” Id.

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Webster’s New International Dictionary defines traffic as

a verb meaning “to engage in commercial activity; buy and sell

regularly” and “to engage in illegal or disreputable business or

activity.” Webster’s New International Dictionary (3d ed.

1966). Webster’s also defines traffic as a noun meaning

“commercial activity usually involving import and export

trade”; “the activity of buying or bartering and selling”; and

“illegal or disreputable usually commercial activity.” Id.

In Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002), this

Court considered the use of the phrase “illicit trafficking” in

§ 1101(a)(43)(B), which provides that an “aggravated felony”

includes “illicit trafficking in a controlled substance.” In that

case, defendant was convicted under a state statute which,

though called “trafficking,” punished mere possession. Id. at

314-15. We held that the state crime was not a crime of

“trafficking” because “trading or dealing” in controlled

substances was not an element of the offense. Id. at 305. In that

case, defendant “did not plead guilty to distribution, solicitation,

or possession with intent to distribute or any other fact

suggesting that he was trading or dealing in cocaine.” Id. at

313-14.

Similarly, § 922(a)(3) does not include any element of

“dealing in firearms” and in fact encompasses the legal purchase

in another state of a firearm and the subsequent transport of that

firearm to an individual’s home state. The statute does not

require that the purchase and transportation or receipt of the

weapon be accompanied by any intent to sell or otherwise

distribute the firearm to another individual. The plain meaning

of “illicit trafficking of firearms” requires some element of

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illegal trading and dealing of firearms, an element which is

totally absent from § 922(a)(3). The mere movement of an

article in interstate commerce does not constitute “trafficking.”

It is not necessary to prove that a defendant engaged in

trafficking to sustain a conviction under any of the subsections

of § 922(a)(3) and thus we do not have occasion to look to the

charging document, or any other facts.

This is quite unlike the situation in Belito Garcia, where

some parts of the Pennsylvania statute involved in that case

required “trading or dealing” as an element of the offense, while

others did not. Belito Garcia, 2006 WL 2529471, at * 4 n.9. In

that case, it was appropriate to consider the charging document

to determine whether the petitioner was convicted under a part

of the statute that required trading and dealing.

Because Joseph’s § 922(a)(3) conviction was not an

aggravated felony of “illicit trafficking in firearms” under

§ 1101(a)(43)(C), we will grant the petition for review and

remand to the BIA for further proceedings consistent with this

opinion.

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