240 F.3d 246 (3rd Cir. 2001), 00-3232, Drakes v Zimski

Docket Nº:00-3232
Citation:240 F.3d 246
Party Name:TREVOR DRAKES, Petitioner v. CHARLES W. ZIMSKI, Acting Director of Immigration and Naturalization Service; JANET RENO, Attorney General, Respondents
Case Date:February 20, 2001
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 246

240 F.3d 246 (3rd Cir. 2001)

TREVOR DRAKES, Petitioner

v.

CHARLES W. ZIMSKI, Acting Director of Immigration and Naturalization Service; JANET RENO, Attorney General, Respondents

No. 00-3232

United States Court of Appeals, Third Circuit

February 20, 2001

October 30, 2000.

Petition for Review of Deportation Order of the Board of Immigration Appeals.

Alan H. Smith, Esquire, York, Pennsylvania, Attorney for Petitioner.

Kate L. Mershimer, Esquire, Office of the United States Attorney, Harrisburg, Pennsylvania, Attorney for Respondents.

Before: SCIRICA, NYGAARD, and BARRY, Circuit Judges.

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OPINION OF THE COURT

BARRY, Circuit Judge:

Trevor Drakes, a native of Guyana, has lived in the United States since 1981 as a lawful, permanent resident. On August 12, 1998, Drakes was stopped by the Delaware State Police for a traffic violation. While the facts of what he did are less than clear, at minimum he provided a false name to the police and later pled guilty to two counts of second-degree forgery under Delaware state law. The Immigration and Naturalization Service ("INS") determined that second-degree forgery was a deportable aggravated felony under 8 U.S.C. § 1101(a)(43)(R) and removal proceedings were initiated. Although the Immigration Judge found that Drakes' crime did not satisfy the statutory definition of "aggravated felony," the Board of Immigration Appeals ("BIA") disagreed and ordered Drakes deported.

Drakes filed a Petition for Review and a Petition to Stay Deportation in the United States District Court. Because of the 8 U.S.C. § 1252(b)(2) jurisdictional bar,1 the District Court transferred the case to this Court. We conclude that because Drakes is an alien convicted of an aggravated felony, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") divests this Court of jurisdiction to consider his petition on the merits. 8 U.S.C. § 1252(a)(2)(C). Accordingly, the petition will be dismissed.

It is by now well understood that under 8 U.S.C. § 1252(a)(2)(C), this Court lacks jurisdiction to consider a final order of removal against an alien convicted of one or more specified criminal offenses.2 Liang v. INS, 206 F.3d 308 (3d Cir. 2000) is our latest pronouncement to that effect. This limitation on our jurisdiction comes into play, however, only when two facts (which have, somewhat inappropriately, come to be known as "jurisdictional facts") exist: (1) the petitioner is an alien (2) who is deportable by reason of having been convicted of one of the enumerated offenses.

The initial question before us, then -- one we have not before explicitly considered -- is whether we have jurisdiction to determine whether these jurisdictional facts are present. Drakes argues, and the government concedes, that we have jurisdiction to determine our jurisdiction under § 1252(a)(2)(C). We agree, thus joining all of our sister circuits which have considered the issue. See, e.g., Tapia Garcia v. INS, 237 F.3d 1216, 1220-21 (10th Cir. 2001); Mahadeo v. Reno, 226 F.3d 3, 9 (1st Cir. 2000); Bell v. Reno, 218 F.3d 86, 89-90 (2d Cir. 2000); Lewis v. INS, 194 F.3d 539, 542 (4th Cir. 1999); Santos v. Reno, 228 F.3d 591, 597 n.11 (5th Cir. 2000); Diakite v. INS, 179 F.3d 553, 554 (7th Cir. 1999) (per curiam); Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir. 2000); see also Lettman v. Reno, 168 F.3d 463, 465 (11th Cir. 1999) (holding that the Court of Appeals has jurisdiction to decide its jurisdiction under the transitional rules of the IIRIRA), rev'd on other grounds, 207 F.3d 1368 (11th Cir. 2000).

Whether the requisite jurisdictional facts exist in a particular case is ordinarily easily determined. As the Fourth Circuit stated:

[Where . . . a criminal statute on its face fits the INA's deportability classification,

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all convictions under that statute necessarily render an alien deportable. To go beyond the offense as charged and scrutinize the underlying facts would change our inquiry from a jurisdictional one into a full consideration of the merits. Such an approach would fly in the face of the jurisdiction limiting language of IIRIRA.

Hall v. INS, 167 F.3d 852, 856 (4th Cir. 1999). See also Lewis, 194 F.3d at 543.

The rub here is this, and it is two-fold: Drakes does not take issue in any respect with his Delaware conviction; rather, he contends that the forgery of which he was convicted under Delaware law is not the crime of forgery Congress had in mind and intended to encompass when it used the term in 8 U.S.C. § 1101(a)(43)(R). He also contends that his sentence of one year on each of the two counts to which he pled guilty does not meet the statute's requisite threshold of "at least one year." If he is right, review is not precluded and the removal order will be vacated for failing to allege a deportable offense. If he is wrong, as we have already suggested, § 1252(a)(2)(C) prohibits further inquiry.

I.

The Immigration and Naturalization Act ("INK) provides that an alien convicted of an "aggravated felony" at any time after admission is deportable. INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1227(a)...

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