Jaggernauth v. U.S. Atty. Gen.

• Decision Date: 19 December 2005
• Docket Number: No. 03-16317.,03-16317.
• Citation: 432 F.3d 1346
• Parties: Marlene JAGGERNAUTH, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

432 F.3d 1346

Marlene JAGGERNAUTH, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 03-16317.

United States Court of Appeals, Eleventh Circuit.

December 19, 2005.

Rima Y. Mullins, White & Case, LLP, Miami, FL, for Petitioner.

Anthony Cardozo Payne, U.S. Dept. of Justice, OIL-Civ. Div., Washington, DC, David V. Bernal, OIL, Office of Immigration Litigation, Washington, DC, Kurt B. Larson, U.S. Dept. of Justice, Office of Immigration Litigation, Washington, DC, Ernesto H. Molina, Jr., U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before BARKETT and MARCUS, Circuit Judges, and GEORGE^*, District Judge.

PER CURIAM:

Marlene Jaggernauth petitions for review of the Board of Immigration Appeals' ("BIA") November 14, 2003 order affirming the Immigration Judge's ("IJ") order of removal based on a finding that Jaggernauth's conviction in 2001 for grand theft under Florida Statutes § 812.014(1) constituted an aggravated felony under § 101(a)(43)(G) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(G) (2000), subjecting her to deportation under § 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii).

Jaggernauth argues that Florida Statutes § 812.014(1) is a divisible statute encompassing some offenses that constitute deportable aggravated felonies and some that do not, and that because the record is unclear as to whether she was convicted under the portion of § 812.014(1) that encompasses deportable felonies, the BIA erred in finding her removable. Jaggernauth further argues that the BIA erred in failing to reverse the IJ's finding that she had been convicted of two or more crimes involving moral turpitude, subjecting her to deportation under § 237(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii).

The government has moved to dismiss the appeal, arguing that we lack jurisdiction to review the BIA's November 14, 2003 order of removal because it is no longer "final." The government maintains that the order of removal was rendered non-final by a January 21, 2004 BIA order granting Jaggernauth's motion for reconsideration. The government argues that the grant of reconsideration "implicitly vacated" the order of removal, and that because Jaggernauth failed to appeal the order granting reconsideration, we must refuse to hear this appeal.

For the reasons explained below, we conclude that we have jurisdiction to consider this appeal, as the BIA's reconsideration order does not alter the November 14, 2003 order of removal or affect its finality. Thus, the November 14, 2003 order is a "final order of removal" for jurisdictional purposes. In addition, we agree with Jaggernauth that the BIA erred in concluding that she was removable because she had been convicted of an "aggravated felony" as defined by the INA.

I. Relevant Facts and Procedural History

Jaggernauth is a 39-year-old native and citizen of Trinidad and Tobago who lawfully entered the United States on November 18, 1977 when she was twelve years old. She was a lawful permanent resident until 2003, when she was ordered removed in the present proceedings. The removal order at issue concerns Jaggernauth's April 1997 nolo contendere plea and conviction for grand theft under Florida Statutes § 812.014(1). That section provides that:

A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or use, the property of another with intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit from the property.

(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

Fla. Stat. § 812.014(1). For this conviction, Jaggernauth was initially sentenced to probation, though she was later sentenced to six months' imprisonment after a probation violation.

On May 29, 2001 Jaggernauth pleaded nolo contendere and was again convicted of grand theft under Florida Statutes § 812.014(1) as well as the misdemeanor offense of resisting a merchant under Florida Statutes § 812.015(6). The 2001 Information charging Jaggernauth with grand theft tracked the general language of § 812.014(1). The Information did not specify under which subsection Jaggernauth was charged or whether the alleged deprivation was temporary or permanent.

For her grand theft conviction, Jaggernauth was sentenced to a suspended one-year term of imprisonment as well as probation. For her misdemeanor conviction for resisting a merchant, she was sentenced to 132 days of imprisonment. Jaggernauth has no other convictions.

The INS instituted removal proceedings against Jaggernauth on January 16, 2003 based on her 1997 conviction for grand theft and her 2001 conviction for grand theft and resisting a merchant. The INS charged that Jaggernauth's 2001 grand theft conviction rendered her removable under 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony as that term is defined in 8 U.S.C. § 1101(a)(43)(G). As a separate basis for removal, the INS also charged that Jaggernauth was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien convicted of two crimes of moral turpitude not arising out of a single scheme of criminal misconduct. Jaggernauth, appearing pro se before the IJ, admitted that she had been convicted of and sentenced for the crimes forming the basis of the removal proceedings. However, she did not concede that she was removable from the United States on account of these convictions.

The IJ ordered Jaggernauth removed and deported to Trinidad and Tobago on the grounds that she had been convicted of: (1) an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), which was based on her 2001 grand theft conviction; and (2) two crimes involving moral turpitude based on her 1997 and 2001 grand theft convictions.

Jaggernauth timely appealed the IJ's decision to the BIA. On November 14, 2003 the BIA dismissed the appeal, affirming the IJ's conclusion that Jaggernauth is an aggravated felon and upholding the IJ's order of removal. The BIA order stated that § 812.014(1) appeared to be a divisible statute, encompassing some offenses that constitute deportable aggravated felonies and some that do not, but concluded that the record of conviction established that the grand theft offense with which she was charged was in fact an aggravated felony.¹ The BIA did not address the issue of whether or not Jaggernauth was independently removable as an alien convicted of two crimes of moral turpitude.

On December 12, 2003 Jaggernauth filed the instant petition for review of the BIA's November 14, 2003 order upholding the IJ's order of removal in this court. On December 13, 2003 Jaggernauth also filed a timely motion to reconsider the November 14, 2003 order to the BIA. On January 21, 2004 the BIA granted Jaggernauth's motion to reconsider, and upheld and affirmed the IJ's order of removal and the BIA's November 14, 2003 order, without changing the legal basis for the decision: that Jaggernauth had committed an aggravated felony. The BIA again did not address the IJ's determination that Jaggernauth had been convicted of two crimes of moral turpitude.

On February 27, 2004 Jaggernauth was physically deported from the United States.

II. Standards of Review

We review questions concerning our jurisdiction de novo. Ortega v. U.S. Att'y Gen., 416 F.3d 1348, 1350 (11th Cir.2005). We review the BIA's statutory interpretation de novo, but will defer to the BIA's interpretation of a statute if it is reasonable and does not contradict the clear intent of Congress. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001).

III. Discussion

A. Subject Matter Jurisdiction

Before reaching the merits of Jaggernauth's claim on appeal, we must first address whether or not we have jurisdiction to review the order on appeal. Under INA § 242(a)(1), 8 U.S.C. § 1252(a)(1), we are limited to reviewing "final order[s] of removal." See Balogun v. U.S. Att'y Gen., 304 F.3d 1303, 1307 (11th Cir.2002). The government does not dispute that the IJ's removal order became "final" when it was affirmed by the BIA on November 14, 2003. See also 8 C.F.R. § 1241.1 ("An order of removal made by the immigration judge at the conclusion of proceedings under section 240 of the [INA] shall become final: (a) Upon dismissal of an appeal by the Board of Immigration Appeals"). The issue of contention between the parties is whether that final order of removal remained final once the BIA issued a second order granting reconsideration and affirming the removal order.

To seek judicial review of an order of removal, an alien must file a petition for review with the federal appellate court within 30 days of the BIA's issuance of the final order. See 8 U.S.C. § 1252(b)(1)-(2). In addition, and as occurred in the present case, the petitioner may simultaneously move for reconsideration before the BIA within 30 days of the BIA's issuance of the final order of removal. See 8 C.F.R. § 1003.2(b). According to statute, "[w]hen a petitioner seeks review of an order [of removal], any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order." 8 U.S.C. § 1252(b)(6).

The Supreme Court has held that a petitioner's filing to the BIA of a motion to reconsider a final deportation order does not render the order non-final. Stone v. INS, 514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). In Stone, the petitioner waited to appeal the BIA's final deportation order until after the BIA denied the petitioner's motion for reconsideration, at which time he appealed both orders. The petitioner argued that the filing of the reconsideration motion tolled the statutory time period for filing for review of the final deportation order, and...