378 F.3d 173 (2nd Cir. 2004), 02-2632, Abimbola v. Ashcroft

Docket Nº:02-2632.
Citation:378 F.3d 173
Party Name:Rafiu Ajadi ABIMBOLA, Petitioner-Appellant, v. John ASHCROFT, United States Attorney General; James W. Ziglar, Commissioner of Immigration and Naturalization Service; Edward J. McElroy, INS District Director for New York; Christine G. Davis, INS District Director for Louisiana; John P. Weiss, The Office in charge, INS Connecticut, Respondents-Appel
Case Date:August 05, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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378 F.3d 173 (2nd Cir. 2004)

Rafiu Ajadi ABIMBOLA, Petitioner-Appellant,

v.

John ASHCROFT, United States Attorney General; James W. Ziglar, Commissioner of Immigration and Naturalization Service; Edward J. McElroy, INS District Director for New York; Christine G. Davis, INS District Director for Louisiana; John P. Weiss, The Office in charge, INS Connecticut, Respondents-Appellees.

No. 02-2632.

United States Court of Appeals, Second Circuit

August 5, 2004

Argued: June 17, 2004.

Anil Kalhan, Cleary, Gottlieb, Steen & Hamilton, New York, New York (Wesley Kelman, Lewis J. Liman, MaryAnn J. Sung, of counsel), for Petitioner-Appellant.

Kristen Chapman, Assistant United States Attorney, Brooklyn, New York (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, on the brief; Varuni Nelson, Assistant

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United States Attorney, of counsel), for Respondents-Appellees.

Before: B.D. PARKER and WESLEY, Circuit Judges, and IRENAS, Senior District Judge.[*]

WESLEY, Circuit Judge:

Background

Petitioner Rafiu Ajadi Abimbola, a citizen of Nigeria, entered the United States in 1991 and was granted lawful permanent resident status on September 8, 1994. In the latter half of the 1990s, Abimbola was charged with several federal and state crimes. On February 24, 1997, Abimbola pleaded guilty in the United States District Court for the Eastern District of New York to bank fraud in violation of 18 U.S.C. § 1344. Moreover, on November 7, 1997, he entered an Alford plea to larceny in the third degree in violation of Connecticut General Statutes § 53a-124.1

In June 1999, based on the federal conviction, the Immigration and Naturalization Service ("INS") served Abimbola with a notice to appear. The INS sought Abimbola's removal pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii), for an aggravated felony conviction as defined under INA § 101(a)(43)(G). 8 U.S.C. § 1101(a)(43)(G). That subsection defines "aggravated felony" as "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." Id. Although the original charge only included the federal conviction, the INS amended the notice to appear by adding the Connecticut larceny conviction. The INS asserted that Connecticut third-degree larceny is a theft offense and therefore also an aggravated felony.

Abimbola responded pro se, arguing that the Connecticut third-degree larceny conviction is not an aggravated felony as defined by the INA. He also moved for a change of venue from Oakdale, Louisiana to New York City--a request the immigration judge ("IJ") denied. Finally, Abimbola applied for asylum, asserting that he would be killed by Muslim extremists if he returned to Nigeria because of his family's prominent position in their Christian church.

In December 2000, at a removal hearing in Oakdale, Louisiana, the INS withdrew the charge of removability based on the federal conviction as that conviction was still on direct appeal.2 Abimbola contested the charge of removability, arguing that the conduct underlying the state larceny conviction constituted fraud and deceit rather than theft. He argued that the conviction should not be construed as an aggravated felony. On June 22, 2001, the IJ found Abimbola removable as an aggravated felon and ordered him removed to Nigeria. The IJ also denied Abimbola's

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application for asylum and his petition for withholding of removal under INA § 241(b)(3) and the United Nations Convention Against Torture ("CAT"). The IJ reasoned that Abimbola did not provide credible testimony concerning his alleged fear of persecution and torture in Nigeria.

Abimbola appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). He added several arguments that had not been presented to the IJ. First, he argued that his Alford plea did not constitute a conviction pursuant to 8 U.S.C. § 1101(a)(48)(A). Second, he argued that he was entitled to discretionary relief under former § 212(c) of the INA. See 8 U.S.C. § 1182(c), repealed by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-597 (Sept. 30, 1996). With regard to the denial of withholding of removal under § 241(b)(3) and CAT, Abimbola only challenged the credibility determination of the IJ. On February 12, 2002, the BIA dismissed Abimbola's appeal, finding that Abimbola had been convicted of an aggravated felony and was not eligible for any other form of relief from removal, including relief under the former § 212(c). The BIA did not address Abimbola's Alford plea argument.

On August 16, 2001, Abimbola filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York, challenging his detention, the removal proceedings, and his order of removal. He presented to the district court the same arguments he previously made before the BIA. The district court denied the habeas corpus petition and lifted the stay of removal it had imposed pending the outcome of the § 2241 petition. Abimbola v. Ashcroft, No. 01-CV-5568(NG), 2002 WL 2003186, 2002 U.S. Dist. LEXIS 16219 (E.D.N.Y. Aug.28, 2002). The district court reasoned that Abimbola's Alford plea was a conviction for purposes of the immigration laws and that Connecticut third-degree larceny qualifies as an aggravated felony. The court also concluded that the IJ had not abused its discretion in denying the motion to change venue. Finally, the district court held that the claim under former § 212(c) was unexhausted because it was never presented to the IJ and that the claims under § 241(b)(3) and the CAT were nonreviewable because Abimbola only challenged the IJ's credibility findings. Judgment was entered on September 5, 2002.

Abimbola appeals the district court's decision.

Discussion

Is third-degree larceny under Connecticut law, see Conn. Gen.Stat. § 53a-124, an aggravated felony under the INA? More specifically, was petitioner convicted of a "theft offense" under section 101(a)(43)(G) of the INA when he entered an Alford plea to the state crime? We agree with the BIA as well as the district court that petitioner committed an aggravated felony and is deportable. We also find that petitioner's other claims are either without merit or that we lack jurisdiction to hear them. Thus, we affirm the district court's order denying the habeas petition and dismiss the appeal.

Connecticut Third-Degree Larceny:

When this Court is called upon to construe a provision of the INA, we must give "substantial deference" to the BIA's interpretation of the statutes it is charged with administering. Evangelista v. Ashcroft, 359 F.3d 145, 150 (2d Cir. 2004). Since the term "theft offense" is not cross-referenced to any other federal criminal statute, the BIA's interpretation is "given controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984);

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see also Evangelista, 359 F.3d at 150.

The BIA interprets "theft offense" to include the taking of property "whenever there is a criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent." In re V-Z-S-, 22 I. & N. Dec. 1338, 1346 (BIA 2000). This definition is similar to definitions adopted by three of our sister circuits. For example, the Ninth Circuit defines "theft offense" as "a 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." United States v. Corona-Sanchez, 291 F.3d...

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