Orabi v. Attorney Gen. of the United States

• Decision Date: 10 September 2013
• Docket Number: No. 12–4025.,12–4025.
• Citation: 738 F.3d 535
• Parties: Omar Obd Gomaa ORABI, a/k/a Omar Gomma Orabi, Petitioner v. ATTORNEY GENERAL OF The UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

738 F.3d 535

Omar Obd Gomaa ORABI, a/k/a Omar Gomma Orabi, Petitioner

v.ATTORNEY GENERAL OF The UNITED STATES, Respondent.

No. 12–4025.

United States Court of Appeals,Third Circuit.

Submitted Pursuant to Third Circuit

LAR 34.1(a) Sept. 10, 2013.

Opinion Filed: Jan. 2, 2014.

Omar Obd Gomaa Orabi, Philipsburg, PA, Petitioner Pro Se.

Sharon M. Clay, Esq., Eric H. Holder, Jr., Esq., Thomas W. Hussey, Esq., Timothy B. Stanton, Esq., United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.

Before: SMITH, GARTH, and SLOVITER Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

Petitioner, Omar Abd Gomaa Orabi, appeals from an order of removability, entered by the Honorable Walter Durling, U.S. Immigration Judge (“IJ”), on May 22, 2012, and approved by the Board of Immigration Appeals (“BIA”) on September 18, 2012.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). For the reasons that follow, we will reverse the decision of the IJ and BIA.

I

Orabi, an Egyptian citizen, was admitted to the United States in 1990 and became a lawful permanent resident without conditions in 1996. In 2010, he was convicted in the U.S. District Court for the Southern District of New York (“S.D.N.Y.”) for the offenses of Conspiracy to Commit Fraud in connection with Access Devices, Possession of Counterfeit Access Devices, Possession of Counterfeit and Forged Checks, and Aggravated Identity theft. He was sentenced to a term of imprisonment of 70 months. In November 2011, the District Court amended its judgment and recalculated Orabi's sentence; however, Orabi was still sentenced to a term of 70 months. He appealed that order to the Second Circuit in December 2011, and that appeal remains pending. See United States v. Ibrahim (Orabi), C.A. No. 12–0044 (2d Cir., filed Dec. 29, 2011).

In February 2012, the Department of Homeland Security (“DHS”) initiated removal proceedings against Orabi. Among other things, DHS charged that Orabi was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because his S.D.N.Y. conviction was for an aggravated felony. See8 U.S.C. § 1101(a)(43)(R). Orabi notified DHS and the Immigration Court that he was appealing the S.D.N.Y. conviction, and DHS moved to withdraw the aggravated felony removal charge. At a subsequent removal hearing, Orabi appeared pro se and took part in an ambiguous exchange with the IJ regarding the status of the Second Circuit appeal. At the IJ's request, Orabi also agreed to provide a letter that ostensibly withdrew his Second Circuit appeal. DHS therefore moved to reinstate the removal charge, and the IJ sustained it.

The appellate record of the Second Circuit reveals neither the letter, which ostensibly withdrew Orabi's appeal, nor any motion by Orabi to withdraw the appeal.¹ Indeed, after a thorough examination of the docket sheet of the Second Circuit, it appears that Orabi's appeal from his S.D.N.Y. conviction is still awaiting disposition by the Second Circuit.

We make reference to the record of the Second Circuit because it is that record that is controlling regarding the documents received and matters affecting the appeal of a litigant. Moreover, absent any proof of actions, documents, affidavits, or similar submissions that might contradict the record, it is the record that governs. See, e.g., U.S. v. Simpson, 94 F.3d 1373, 1381 (10th Cir.1996) (“We believe that a certified docket sheet is adequate, absent some contradictory evidence by the defendant, to establish the existence of a prior conviction for this sentencing purpose” (citing United States v. Dickens, 879 F.2d 410 (8th Cir.1989))); Brainerd v. Beal, 498 F.2d 901 (7th Cir.1974) (“[T]he district court's docket cannot be impeached by affidavit” (citing Wall v. United States, 97 F.2d 672 (10th Cir.1938), cert. denied,305 U.S. 632, 59 S.Ct. 104, 83 L.Ed. 405 (1938))). Here, as we have indicated, the record is devoid of any such submissions by Orabi. Hence, we regard Orabi's appeal of his criminal conviction as still extant and therefore viable. We credit Orabi's appeal to the BIA, where he has argued that his Second Circuit appeal has never been withdrawn.

While Orabi argued on appeal to the BIA that his convictions were not final for immigration removal and that the IJ's removal order was void, the BIA nevertheless held that his conviction remained final for immigration purposes. The BIA stated:

[U]nder section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A), the term “conviction” means “a formal judgment of guilt of the alien entered by a court.” Whether such judgment may be subject to direct appeal is immaterial to the attachment of immigration consequences. See, e.g., Planes v. Holder, 686 F.3d 1033 (9th Cir.2012)².... The Immigration Judge therefore properly considered the immigration consequences of [Orabi's] conviction.

Accordingly, the BIA dismissed Orabi's appeal.³

On August 12, 2013, the Government filed a letter brief stating that: (1) Orabi had been deported to Egypt; (2) despite Orabi's deportation, we retained jurisdiction; and (3) the Government was prepared to return Orabi to the United States pursuant to Immigration Control Enforcement (“ICE”) regulations. See ICE Policy, § 11061.1(2) (“Absent extraordinary circumstances, if an alien who prevails before the U.S. Supreme Court or a U.S. [C]ourt of [A]ppeals was removed while his or her [petition for review] was pending, ICE will facilitate the alien's return to the United States if either the court's decision restores the alien to lawful permanent resident (LPR) status, or the alien's presence is necessary for continued administrative removal proceedings.”); see also8 U.S.C. § 1229a(b)(2)(A) (requiring an immigrant's presence at a removal hearing absent the parties' consent or a telephonic or video conference).

Orabi now petitions pro se before us for review. Whether we have jurisdiction is the crux of his appeal from the BIA. The answer to this question depends on whether the S.D.N.Y. conviction, which is on appeal to the Second Circuit, was a final judgment for immigration purposes.

II

Although 8 U.S.C. § 1252(a)(2)(C) 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 [certain] criminal offense[s],” 8 U.S.C. § 1252(a)(2)(D) grants us jurisdiction to review “constitutional claims or questions of law raised upon a petition for review” of final removal orders. Paredes v. Att'y Gen., 528 F.3d 196, 198 (3d Cir.2008); Papageorgiou v. Gonzales, 413 F.3d 356, 357–58 (3d Cir.2005). We review questions of law de novo, Caroleo v. Gonzales, 476 F.3d 158, 162 (3d Cir.2007), but we “will not disturb the IJ's credibility determination and findings of fact if they are supported by reasonable, substantial and probative evidence on the record considered as a whole.” Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003) (internal quotation marks omitted). Whether Orabi's conviction was final for immigration purposes despite the pendency of his appeal to the Second Circuit is a question of law subject to plenary review. See Henry v. Bureau of Immig. & Customs Enforcement, 493 F.3d 303, 306 (3d Cir.2007).

III

The Government offers three arguments in support of its position that Orabi's conviction was final for immigration purposes: (1) the record supports the Agency's finding that Orabi withdrew his appeal to the Second Circuit; (2) Orabi's conviction was final regardless of whether his appeal was withdrawn because his appeal only challenged his sentence and not the finding of his guilt; and (3) this Court should adopt the position of its sister Circuits and the BIA that a conviction is final for immigration purposes regardless of whether a direct appeal is pending.

A

We have already discussed supra why the Government's position as to the withdrawal of Orabi's appeal cannot prevail. Based on the Second Circuit record, Orabi had—and has—a pending appeal before that Court. See Fiadjoe v. Att'y Gen., 411 F.3d 135, 153 (3d Cir.2005). Additionally, the BIA did not base its decision on its finding that Orabi did not have a pending appeal, but rather on its determination that a conviction is final for immigration purposes regardless of whether a direct appeal is pending. See AR 3 (citing Planes v. Holder, 686 F.3d 1033, 1034 (9th Cir.2012) (Ikuta, J., concurring in denial of rehearing en banc )).

B

The Government's argument regarding the sentence/conviction distinction and the contents of Orabi's Second Circuit appeal is similarly unavailing. Because the BIA did not reach its decision based on this ground, we may not affirm the judgment on this ground. See Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (“[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.”); Li v. Att'y Gen., 400 F.3d 157, 163 (3d Cir.2005) (noting that a court cannot affirm an agency decision on a ground upon which the agency did not rely).

C

Thus, we turn to the Government's concluding argument concerning the finality for immigration purposes of the Second Circuit appeal from Orabi's criminal judgment of conviction.

Prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), it was “well established that a conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has been exhausted or waived.” In re Ozkok, 19 I. & N. Dec. 546, 552 n. 7 (BIA 1988) (citing Marino v. INS, 537 F.2d 686 (2d Cir.1976); Aguilera–Enriquez v. INS,...