Nugent v. Ashcroft, 02-4329.

• Decision Date: 07 May 2004
• Docket Number: No. 02-4329.,No. 04-1541.,02-4329.,04-1541.
• Citation: 367 F.3d 162
• Parties: Errol O'Neil NUGENT, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent Errol O'Neil Nugent, Appellant v. Patricia Mullin, Assoc. Special Agent in Charge of the Philadelphia Office of United States Immigration and Customs and Enforcement (USICE) of the Department of Homeland Security; Theodore Nordmark, Assistant District Director for Deportation and Detention of USICE in Philadelphia the Department of Homeland Security, Appellees
• Court: U.S. Court of Appeals — Third Circuit

Page 162

367 F.3d 162

Errol O'Neil NUGENT, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent Errol O'Neil Nugent, Appellant v. Patricia Mullin, Assoc. Special Agent in Charge of the Philadelphia Office of United States Immigration and Customs and Enforcement (USICE) of the Department of Homeland Security; Theodore Nordmark, Assistant District Director for Deportation and Detention of USICE in Philadelphia the Department of Homeland Security, Appellees

No. 02-4329.

No. 04-1541.

United States Court of Appeals, Third Circuit.

Argued January 12, 2004.

Filed May 7, 2004.

Submitted under Third Circuit LAR 34.1(a) March 22, 2004.

Steven A. Morley (Argued), Morley, Surin & Griffin, P.C., Philadelphia, PA, for Petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, David V. Bernal, Assistant Director, William C. Minick, Anthony C. Payne, Jamie M. Dowd (Argued) Office of Immigration Litigation, Civil Division, United States Justice Department, Washington, D.C., for Respondent.

Before: SLOVITER, RENDELL and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

In the petition by Errol O'Neil Nugent at No. 02-4329 for review of a final order of removal by the Board of Immigration Appeals ("BIA"), we must decide whether we have jurisdiction inasmuch as Nugent was ordered removed from the United States under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two crimes involving moral turpitude. In the consolidated appeal at 04-1541 from a judgment of the United States District Court for the Eastern District of Pennsylvania we must decide whether a conviction under a Pennsylvania theft by deception statute constitutes an aggravated felony.

We hold that we lack jurisdiction in the petition for review of the final order of removal and will dismiss the petition, but, for reasons other than those stated by the district court, we affirm the judgment of the district court on the aggravated felony issue denying the writ of habeas corpus without prejudice to Appellant's applying to the Attorney General for cancellation of the removal order pursuant to 8 U.S.C. § 1229b. We will first address the petition for review.

I.

Nugent is a native and citizen of Jamaica who entered the United States on August 25, 1971, as a lawful permanent resident when he was seven years old. On January 30, 1984, he was convicted in the Court of Common Pleas of Montgomery County for the State of Pennsylvania of theft by unlawful taking (theft of movable property) in violation of 18 Pa. Cons.Stat. Ann. § 3921(a) (West 1973 & Supp.1983) and receiving stolen property in violation of 18 Pa. Cons.Stat. Ann. § 3925(a) (West 1973 & Supp.1983). The crime involved theft of two typewriters valued at a total of approximately $1,900. Nugent could have been sentenced to five years imprisonment, but instead he was sentenced to 12 months on probation. Theft of the two typewriters valued at this amount constituted a misdemeanor of the first degree. See 18 Pa. Cons.Stat. Ann. § 3903(b) (West 1973 & Supp.1983). A misdemeanor of the first degree was punishable by up to five years imprisonment. See 18 Pa. Cons.Stat. Ann. § 1104(1) (West 1983); Com v. Schreiber, 319 Pa.Super. 367, 466 A.2d 203, 208 (1983) (holding that a sentence of five years imprisonment would have been appropriate for a first-degree misdemeanor conviction of theft by unlawful taking).

On November 28, 2000, Nugent was convicted in the Court of Common Pleas of Montgomery County for the State of Pennsylvania of theft by deception in violation of 18 Pa. Cons.Stat. Ann. § 3922(a) (West 1983 & Supp.2000). He was sentenced to a term of imprisonment of not less than six months but not more than 23 months.

It was on the basis of Nugent's 2000 Pennsylvania conviction that the Immigration and Naturalization Service ("INS")¹ charged Nugent with removability from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(G). The original Notice to Appear stated:

4. You were, on November 28, 2000, convicted in the Court of Common Pleas, County of Montgomery, Commonwealth of Pennsylvania for the offenses of THEFT BY DECEPTION (DOCKET # 1061-00) and DRIVING UNDER THE INFLUENCE (DOCKET # 1974-00), in violation of Title 18, Pennsylvania Statutes, Section 3922 and Title 75, Pennsylvania Statutes, Section 3731.

(App. at 206.)

On September 7, 2001, Nugent filed a motion to terminate removal proceedings on the basis that his conviction for theft by deception under Pennsylvania law did not constitute an aggravated felony theft offense as defined by 8 U.S.C. § 1101(a)(43)(G).

On September 14, 2001, an immigration judge ("IJ") issued an interlocutory order denying Nugent's motion to terminate removal proceedings. The IJ concluded that Nugent's conviction for theft by deception constituted an aggravated felony theft under 8 U.S.C. § 1101(a)(43)(G).

On September 12, 2001, the INS charged Nugent with being subject to removal under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two or more crimes involving moral turpitude. In notifying Nugent of the additional charge, the INS stated in its "Additional Charges of Inadmissibility/Deportability" Form I-261:

6. You were convicted on January 30, 1984 in the Court of Common Pleas of Montgomery County for the State of Pennsylvania, of Theft of Movable Property and Theft by Receiving Stolen Property, in violation of Pennsylvania Criminal Laws Sections 3921 and 3925.

7. The conviction alleged above in Allegation No. 6 and the conviction alleged in Allegation No. 4 on the Notice to Appear dated February 14, 2001 did not arise out of a single scheme of criminal misconduct.

(App. at 138.)

At a hearing before the IJ on October 11, 2001, the following colloquy took place:

Judge to Mr. Mazer [representing petitioner Nugent]:

. . . .

Q. And how do you plead allegations six and seven?

A. We will concede those allegations.

Q. Okay. You concede that they constitute crimes involving moral turpitude then?

A. Ah, yes.

(App. at 124.)

On the same day, October 11, 2001, the IJ issued an oral decision concluding that Nugent was subject to removal as an aggravated felon. The IJ then added: "Further, in court today counsel has conceded the allegations set forth in the I-261. The Court finds the respondent is subject to removal as charged therein." (App. at 80.) As set forth above, the Form I-261 added paragraphs 6 and 7 in which the INS listed Nugent's 1984 conviction for theft by unlawful taking and referenced his 2000 conviction for theft by deception. Thus, the two crimes involving moral turpitude consisted of theft by deception, conviction date November 28, 2000, as contained in the INS' Allegation No. 4 in the original Notice to Appear, and theft by unlawful taking, conviction date January 30, 1984, as contained in the INS' Allegation Nos. 6 and 7 in the Form I-261. The IJ specifically ordered Nugent removed from the United States based on convictions for both the aggravated felony listed in the Notice to Appear and the two crimes of moral turpitude listed in the "Form I-261, Additional Charges of Inadmissibility/Deportability."

Nugent appealed the IJ's decision to the BIA, and on November 18, 2002, the BIA affirmed the IJ's decision without opinion, thereby adopting the IJ's decision as the final agency determination. Nugent timely appealed the BIA's order.

II.

The BIA had jurisdiction pursuant to 8 C.F.R. §§ 1003.1(b)(3) and 1240.15 to review the decision of the IJ. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) and (b) "to determine our jurisdiction under [8 U.S.C.] § 1252(a)(2)(C)." Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir.2001). Section 1252(a)(2)(C), the INA's no-review provision, bars us from reviewing any final removal order for an alien who has been ordered removed from the United States because of convictions for either an aggravated felony or two crimes of moral turpitude, among other offenses. Thus, we must "determine whether these jurisdictional facts are present." Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir.2002).

In determining the pure legal questions before us that govern our own jurisdiction, we apply a de novo standard of review. Id.

III.

The INA's no-review provision provides in relevant part:

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 covered in section 1182(a)(2) or 1227(a)(2)(A)(iii) [aggravated felony], (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) [two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct] of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title.

8 U.S.C. § 1252(a)(2)(C).

Nugent's 1984 conviction for theft by unlawful taking (theft of movable property) was a crime involving moral turpitude. The INA does not define moral turpitude, but we have noted that a legal dictionary defines the term as "[c]onduct that is contrary to justice, honesty, or morality." De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 636 (3d Cir.2002) (quoting Black's Law Dictionary 1026 (7th ed.1999)). Although Nugent received a sentence of only 12 months on probation for the 1984 conviction, he could have been sentenced to up to five years imprisonment. See 18 Pa. Cons.Stat. Ann. § 1104 (West 1983); 18 Pa. Cons.Stat. Ann. §§ 3903 and 3921 (West 1973 & Supp.1983).

Likewise, Nugent's 2000 conviction for theft by deception constituted a crime involving moral turpitude. Nugent received a sentence of imprisonment of not less than six months but not more than 23 months. The 1984 and 2000 crimes did "not aris[e] out of a single scheme of criminal misconduct...."...