278 F.3d 203 (3rd Cir. 2002), 00-2293, Valansi v Ashcroft

Docket Nº:00-2293
Citation:278 F.3d 203
Case Date:January 23, 2002
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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278 F.3d 203 (3rd Cir. 2002)




No. 00-2293

United States Court of Appeals, Third Circuit

January 23, 2002

Argued: April 6, 2001

On Petition For Review of an Order of the Board of Immigration Appeals United States Immigration and Naturalization Service

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[Copyrighted Material Omitted]

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Thomas E. Moseley (Argued) Suite 2600 One Gateway Center Newark, NJ 07102, for Appellant.

Michael P. Lindemann Alison M. Igoe (Argued) Matthew R. Hall United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044, for Appellee.

Before: Scirica, Ambro, and GIBSON,2 Circuit Judges

Ambro, Circuit Judge

Petitioner Elanith Valansi seeks judicial review of a final order of removal entered by the Board of Immigration Appeals (the "BIA" or "Board") for the United States Immigration and Naturalization Service (the "INS" or "Government"). The Board ruled that the petitioner's conviction for embezzling, in violation of 18 U.S.C.S 656, in excess of $400,000 in cash and checks from her employer (the First Union National Bank) was an aggravated felony as defined in section 101(a)(43)(M)(i) of the Immigration and Nationality Act of 1952 (the "INA" or "Act") (codified as amended at 8 U.S.C. S 1101(a)(43)(M)(i)). It therefore ordered her removed to Israel pursuant to 8 U.S.C. S 1227(a)(2)(A)(iii). Valansi's petition asks us to vacate the Board's final order of removal because her conviction under 18 U.S.C. S 656 does not qualify as an aggravated felony authorizing her removal from the United States. For the reasons explained below, we grant the petition for review and vacate the Board's order.

I. Background Facts and Procedural History

Valansi was born in Israel in 1974. She first came to the United States with her parents and older sister only a month and a half after her birth, and has been a lawful permanent resident in this country since 1990. Valansi's family settled in Monmouth County, New Jersey, where she attended elementary and high school and received her high school diploma. She later attended a local community college. Her father, mother, and sister are all lawful permanent residents. Her sister's son is a United States citizen, and she has two siblings from her father's prior marriage who are both United States citizens.

From 1992 to 1995, Valansi was employed as a bank teller in Tinton Falls, New Jersey. From 1995 to 1997, she was a bank teller with First Union National Bank ("First Union") in Eatontown, New Jersey. Prior to 1997, she had never been arrested and had no criminal record. However, on six separate occasions spanning four months in 1997, Valansi embezzled in the aggregate more than $400,000 in cash and checks entrusted to First Union. A federal grand jury returned an indictment charging that, "with intent to injure and defraud the Bank, [Valansi] knowingly and willfully embezzle[d] and purloine[d]... moneys, funds, credits, and assets belonging to the Bank and entrusted [sic] to her custody and care," in violation of 18 U.S.C. S 656.

On October 30, 1998, Valansi pled guilty to the six-count indictment in exchange for Page 206

the Government's agreement not to prosecute her further for any charges that might arise from her embezzlement, and in exchange for a stipulation regarding the federal sentencing guidelines that would apply to her case. During the plea colloquy during which Valansi's plea was accepted by the Court, the Government set forth the following essential elements of the crime to which she agreed to plead guilty:

First, that at the time of the offense charged, Valansi was an employee of First Union National Bank, which is a national bank.

Second, that she wilfully embezzled money or credits of First Union, or money, funds or assets entrusted to the custody or care of First Union.

Third, that the value of those moneys or assets was in excess of $1,000.

And, lastly, that Valansi acted with the intent to"injure or defraud" the bank.

The Court asked Valansi a series of questions designed to determine whether her criminal conduct conformed to the elements of the offense. It confirmed that she was an employee of First Union and that she "deliberately" removed funds in the amounts charged within the indictment with the intent to "deprive" the bank of those funds. The Court concluded that her conduct violated the elements of the offense under 18 U.S.C. S 656 and accepted Valansi's guilty plea. On January 22, 1999, Valansi was sentenced under United States Sentencing Guideline S 2B1.1, the Sentencing Guideline for theft offenses, to six months imprisonment followed by five years supervised release, the first six months of which to be served at home under electronic monitoring. She was ordered to pay restitution in the amount of $32,260.22 for the cash amounts embezzled.3

Valansi served her prison term. She sought employment in the prison education department and was hired to teach basic literacy and American Sign Language. In January 1999, Valansi became engaged to marry a United States citizen, and the couple planned a May 1999 wedding. On April 24, 1999, the INS served Valansi with a notice to appear for a removal proceeding charging her with removal for committing an aggravated felony as defined in 8 U.S.C. S 1101(a)(43)(M)(i). Valansi was taken into INS custody almost immediately after being released from prison.4 She was later released in May 2000 to complete the house arrest portion of her sentence.

On December 7, 1999, an Immigration Judge held that Valansi was removable under 8 U.S.C. S 1227(a)(2)(A)(iii) as an alien who had been convicted of an aggravated felony. On July 20, 2000, the BIA affirmed. In doing so it rejected Valansi's argument that her conviction under 18 U.S.C. S 656 was not an aggravated felony because it was a theft offense with a term of imprisonment of less than one year.

It concluded that Valansi's conviction under S 656 was properly considered an aggravated felony because it was an offense involving fraud or deceit (and not theft) Page 207

that resulted in loss to the victim greater than $10,000.

Valansi filed this petition for review on August 7, 2000. The Government moved to dismiss her petition on September 11, 2000, for lack of subject matter jurisdiction, and Valansi filed an opposition to this motion on October 2, 2000. By order dated November 1, 2000, our Court referred this motion to a merits panel.5 By letter dated October 20, 2000, Valansi's attorney notified this Court that she would become eligible for removal on November 7, 2000, but that he had not received notice from the INS expressing an intent to execute the removal order at that time. To preserve the status quo and allow us to make a decision on this case, we granted Valansi's motion for stay of removal.

II. Discussion

Valansi's petition for review is governed by 8 U.S.C. S 1252(a)(2)(C), which provides that "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 covered in section... 1227(a)(2)(A)(iii)." We have recently explained that this jurisdiction-stripping provision comes into play only when two facts exist:"(1) the petitioner is an alien (2) who is deportable by reason of having been convicted of one of the enumerated offenses." Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001). In keeping with the views of several other circuit courts, we held that we have jurisdiction "to determine whether these jurisdictional facts are present." Id.; Tapia Garcia v. INS, 237 F.3d 1216, 1220-21 (10th Cir. 2001); Mahadeo v. Reno, 226 F.3d 3, 9 (1st Cir. 2000), cert. denied, 121 S.Ct. 2590 (2001); Bell v. Reno, 218 F.3d 86, 89-90 (2d Cir. 2000), cert. denied, 121 S.Ct. 784 (2001); Santos v. Reno, 228 F.3d 591, 597 n.11 (5th Cir. 2000); Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir. 2000); Lewis v. INS, 194 F.3d 539, 542 (4th Cir. 1999); Diakite v. INS, 179 F.3d 553, 554 (7th Cir. 1999) (per curiam).

In this case, Valansi does not dispute that she is an alien. Instead she argues that her conviction for embezzlement of bank funds under 18 U.S.C. S 656 does not qualify as an aggravated felony as defined in 8 U.S.C. S 1101(a)(43)(M)(i), and that she therefore cannot be deported pursuant to 8 U.S.C. S 1227(a)(2)(A)(iii). If she is right, judicial review is not precluded, and the removal order will be vacated for failing to allege a removable offense. If she is wrong, 8 U.S.C. S 1252(a)(2)(C) deprives us of jurisdiction to inquire any further into the merits, and the removal order will stand. Because we are determining a purely legal question, and one that governs our own jurisdiction, we review de novo whether the petitioner's conviction qualifies as an aggravated felony. See, e.g., Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000), cert. denied, 121 S.Ct. 757 (2001) ("Reviewing the matter de novo, we nevertheless conclude that we have no jurisdiction under IIRIRA [Illegal Immigration Reform and Immigrant Responsibility Act of 1996], because Lopez-Elias was convicted of a crime of violence...."); Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th Cir. 2000) ("[B]oth our jurisdiction to hear this case and the merits of the appeal turn on the question of whether Page 208

Solorzano-Patlan is an aggravated felon, a decision we review de novo."); Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000) ("This court reviews de novo the question of whether a particular offense constitutes an aggravated felony for which an alien is subject to removal.").

Despite our exercise of de novo review, we will give deference to the...

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