Ilchuk v. Attorney General of U.S., 04-3094.

• Decision Date: 17 January 2006
• Docket Number: No. 04-3094.,04-3094.
• Citation: 434 F.3d 618
• Parties: Ruslan I. ILCHUK, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

434 F.3d 618

Ruslan I. ILCHUK, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent.

No. 04-3094.

United States Court of Appeals, Third Circuit.

Argued September 30, 2005.

Filed January 17, 2006.

COPYRIGHT MATERIAL OMITTED

Tatiana S. Aristova, (Argued), Law Offices of John J. Gallagher, Philadelphia, PA, for Petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, Emily A. Radford, Assistant Director, Linda S. Wernery, Aviva L. Poczter, Blair T. O'Connor, William C. Peachey, United States Department of Justice, Office of Immigration Litigation, Washington, DC, Eric D. Miller, (Argued), United States Department of Justice, Civil Rights Division, Washington, DC, for Respondent.

Before ALITO and AMBRO, Circuit Judges, and RESTANI,^* Judge.

RESTANI, Judge.

Ruslan Ivanovich Ilchuk ("Petitioner") challenges the decision of the Department of Homeland Security ("DHS") Board of Immigration Appeals ("BIA") upholding the determination of the Immigration Judge ("IJ") that Petitioner is subject to removal from the United States, but reversing the IJ's grant of withholding of removal. We conclude that the BIA did not err in holding Petitioner removable under 8 U.S.C. § 1227(a)(2)(A)(iii) (2000) (commission of an aggravated felony, i.e., a theft crime) but did err in reversing the IJ. Petition is remanded.

FACTS

Petitioner entered the United States in April 1994 at the age of fifteen¹ as a refugee. His status was adjusted to that of legal resident on April 19, 1995.

Petitioner was a member of a Pentecostal Church in the Ukraine and, at the time of his January 13, 2004 administrative hearing, was also a member of a Pentecostal Church in the United States. According to the U.S. Department of State International Religious Freedom Report 2002, Orthodox Christianity is the majority religion in the Ukraine and non-native religions (including the Pentecostal Church) are de jure limited, but de facto governmental restrictions were not reported.

Petitioner and other family members testified as to educational and work difficulties encountered in the Ukraine by Pentecostals prior to their immigration to the United States in 1994. Petitioner also testified that an uncle suffered persecution in the Soviet army in the 1980's because of his religious commitments against bearing arms and swearing oaths. The BIA concluded, however, that respect for religious rights has been improving under the post-Communist presidential/parliamentary government established in 1991. While the BIA did note brutal treatment of fellow soldiers by their peers (even leading to death), it found no evidence that such treatment was on account of religious beliefs. It also found that discrimination by the government in granting conscientious objector status to members of certain religions, but not Pentecostals, did not amount to persecution under the appropriate legal standard. Accordingly, it concluded Petitioner's eligibility for military conscription until the age of 28 did not qualify him for withholding of removal.

Petitioner's immigration difficulties began with a criminal conviction in April 2001. He was an ambulance driver who on February 11 and 13, 2000, was dispatched to emergent incidents. The dispatch calls, however, had been diverted from the legally designated emergency service provider to Petitioner's employer. Petitioner was convicted of theft of services, 18 Pennsylvania Consolidated Statutes Annotated ("Pa.C.S.A.") § 3926(b) (West 1983); three counts of reckless endangerment, 18 Pa. C.S.A. § 2705 (West 2000); and one count of criminal conspiracy, 18 Pa.C.S.A. §§ 903 and 3926(b) (West 1998). Petitioner was sentenced to six to twenty-three months of house arrest with electronic monitoring.

The BIA found Petitioner subject to removal under three different statutory provisions: 8 U.S.C. § 1227(a)(2)(A)(iii), conviction of an aggravated felony (a theft offense with an imprisonment term of one year or more); 8 U.S.C. § 1227(a)(2)(A)(i), conviction of a crime of moral turpitude within five years of admission; and 8 U.S.C. § 1227(a)(2)(A)(ii), conviction of two or more crimes of moral turpitude.

Because withholding based on asylum is not available to one found removable based on an aggravated felony (see 8 U.S.C. § 1158(b)(2)(A)(ii) (2000) (asylum not available to one convicted of a particularly serious crime); 8 U.S.C. § 1158(b)(2)(B)(i) (aggravated felony is a particularly serious crime)), the BIA addressed Petitioner's claims for withholding of removal under 8 U.S.C. § 1231(b)(3)(A) (2000) and under the Convention Against Torture ("CAT"), and denied them.

JURISDICTION AND STANDARD OF REVIEW

We have limited jurisdiction under 8 U.S.C. § 1252 (2005) to review a final order of removal. Pursuant to 8 U.S.C. § 1252(a)(2)(C) and (D), if a petitioner is subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii) as an aggravated felon, we may review only constitutional and other legal issues. Kamara v. Attorney General of the U.S., 420 F.3d 202, 211 (3d Cir.2005). We review such pure questions of law and issues of application of law to uncontested facts under a de novo standard. Id. Where we have jurisdiction to review the IJ's or BIA's findings of fact, such findings are conclusive unless "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

DISCUSSION

I. Petitioner is removable as an aggravated felon

As indicated, conviction of an aggravated felony is a ground for removal under 8 U.S.C. § 1227(a)(2)(A)(iii). 8 U.S.C. § 1101(a)(43) (2000) defines aggravated felony to include:

(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year;

This presents two legal issues: (1) is at least one of the crimes for which Petitioner was convicted a "theft offense" within the meaning of 8 U.S.C. § 1101(a)(43)(G); and (2) does Petitioner's sentence to house arrest remove his crime from the covered theft category because "house arrest" is not imprisonment.

We address each issue in turn.

A. Petitioner was convicted of a theft offense

The state law crime of which Petitioner was convicted, 18 Pa. C.S.A. § 3926, reads in pertinent part as follows:

§ 3926. Theft of Services

(b) Diversion of Services.A person is guilty of theft if, having control over the disposition of services of others to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto.

Nugent v. Ashcroft, 367 F.3d 162 (3d Cir.2004), resolved many of the preliminary issues before us. In Nugent we observed that because the Immigration and Nationality Act ("INA") does not define a "theft offense," and because Congress did not otherwise supply a definition, the court could not find that a theft offense was free from ambiguity, and thus had to determine whether the offense at issue was a "theft offense" by the "formal categorical approach." Id. at 170.² No one has argued before us that the common law definition of "theft" incorporated the type of theft crime set forth in the Pennsylvania statute before us. We stated in Nugent, however, that where a traditional definition of a crime was not in tune with modern meaning, a generic or contemporary definition, such as one found in state statutes, may apply. Id. at 172 (citing Drakes v. Zimski, 240 F.3d 246, 249 (3d Cir.2001)) (citing Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). We agreed in Nugent with our sister circuits that it was Congress's intent for a "theft offense" to be more broadly defined than the common law definition of larceny, and that by using that phrase, rather than merely the term "theft," Congress signaled that it was not presenting an exhaustive list of offenses, but rather, a definition with broad meaning. Nugent, 367 F.3d at 173-74 (citing Hernandez-Mancilla v. INS, 246 F.3d 1002, 1008 (7th Cir.2001)); United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir.2002) (en banc) (superseded on other grounds as recognized in United States v. Vidal, 426 F.3d 1011, 1015 (9th Cir.2005)). We noted that the Hernandez-Mancilla and Corona-Sanchez courts defined a theft offense as "a taking of property or an exercise of control over property without consent." Nugent, 367 F.3d at 174 (citing Hernandez-Mancilla, 246 F.3d at 1009). We relied on Pennsylvania's consolidated theft statute, which was taken from section 223.0 of the Model Penal Code, and which defines property in pertinent part as "anything of value." Nugent, 367 F.3d at 174 (citing 18 Pa.C.S.A. § 3901 (West 1983)).³

As to the facts now before us, it is clear that ambulance calls are not valueless. Private ambulance companies were alleged in the state criminal proceeding to charge in the range of $300.00 to $500.00 for transporting a patient to a hospital. Even assuming that this valuation may not be completely accurate, it is apparent that the reason the calls at issue were diverted was because they had value. Further, conviction under 18 Pa.C.S.A. § 3926(b) requires the perpetrator to have had control over the disposition of services of others. Services are defined at 18 Pa.C.S.A. § 3926(h) to include transportation services. Also, the perpetrator must not have been entitled to dispose of those services, and must have had knowing criminal intent, defined by Pennsylvania law as awareness of the fact that it was "practically certain that his conduct will cause such a result." 18 Pa. C.S.A. § 302(b)(2)(ii) (West 1998); Cf. Williams v. INS, 54 Fed. Appx. 55, 58 (3d Cir.2002) (finding conviction for possession of stolen property in the fifth degree, a class A misdemeanor under New York law requiring "knowing[] possess[ion of] stolen property," an "aggravated felony" under § 1101(43)(G)). In this case, the term "knowingly" requires proof that Petitioner was aware of the practical certainty that his acceptance...