Patel v. Ashcroft, 01-3365.

• Decision Date: 20 June 2002
• Docket Number: No. 01-3365.,01-3365.
• Citation: 294 F.3d 465
• Parties: Vinodbhai Bholidas PATEL, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

294 F.3d 465

Vinodbhai Bholidas PATEL, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 01-3365.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) April 8, 2002.

Filed: June 20, 2002.

James J. Orlow, Philadelphia, PA, for Petitioner.

Robert D. McCallum, Jr., Assistant Attorney General, Civil Division, David J. Kline, Principal Deputy Director, Hugh G. Mullane, Senior Litigation Counsel, David J. Kline, John M. McAdams, Jr., Terri J. Scadron, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, for Respondent.

Before: McKEE, BARRY, Circuit Judges, and ALARCON, Senior Circuit Judge.^*

OPINION OF THE COURT

McKEE, Circuit, Judge.

This petition for review of an order of removal requires that we determine if a conviction for harboring an alien constitutes an "aggravated felony." The Immigration Judge (sometimes referred to as "IJ") concluded that it was, and that the permanent resident alien who is the petitioner here was therefore removable. For the reasons that follow, inasmuch as we agree with the IJ's conclusion, we must dismiss the petition for review because we lack subject matter jurisdiction.

I. FACTS AND PROCEDURAL HISTORY

Vinodbhai Bholidas Patel is a native and citizen of India who was admitted to the United States as a nonimmigrant in 1984. In 1990, he adjusted his status to that of lawful permanent resident. However, on January 10, 2000, he pled guilty to harboring an alien in violation of § 274(a)(1)(A)(iii) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1324(a)(1)(A)(iii), and was subsequently sentenced to five months imprisonment, followed by three years of supervised release.

While he was serving his sentence, the Immigration and Naturalization Service ("INS") issued a Notice to Appear charging him with being removable based upon his conviction for an aggravated felony as defined in INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N). The INS alleged that harboring an alien is an aggravated felony rendering Patel removable. Based upon that Notice, the INS eventually took Patel into custody and placed him in detention.¹

At a hearing before an Immigration Judge on February 15, 2001, Patel, through counsel, acknowledged the fact of his conviction, but argued that his crime was not an aggravated felony as defined in the INA. He did not, however, request relief from removal.² The IJ disagreed, and held that harboring an alien was an aggravated felony and that Patel was therefore removable as charged. Accordingly, the IJ ordered Patel removed to India. The Board of Immigration Appeals ("BIA") affirmed, and this petition for review followed.

II. DISCUSSION

A. Standard of Review

At the outset, we note that there is some confusion surrounding the proper standard of review in cases such as this. We usually afford deference to decisions of administrative agencies when we are reviewing the agency's interpretation of a statute the agency is charged with administering. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This deference recognizes the agency's expertise in addressing issues that often arise when interpreting such statutes. However, we recognize that legal issues that turn on a pure question of law not implicating the agency's expertise do not raise the same concerns under Chevron. See Sandoval v. Reno, 166 F.3d 225, 250, 239-40 (3d Cir.1999) ("An issue concerning a statute's effective date is not one that implicates agency expertise in a meaningful way, and does not, therefore, appear to require Chevron deference."). Accordingly, when we are called upon to resolve pure questions of law by statutory interpretation, we decide the issue de novo without deferring to an administrative agency that may be involved. INS v. Cardoza-Fonseca, 480 U.S. 421, 446, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Our analysis here involves a pure question of law because we must determine if Patel's criminal conviction is an "aggravated felony" under 8 U.S.C. § 1252(a)(2)(C); the relevant statute. Moreover, inasmuch as our subject matter jurisdiction turns upon that inquiry, the need to defer to the expertise of the INS is attenuated at best. Nevertheless, we have previously suggested that some deference is still required under Chevron even though we are reviewing a purely legal question such as the BIA's interpretation of a criminal statute. See Drakes v. Zimski, 240 F.3d 246, 250 (3d Cir.2001).

In Drakes, we noted that our decision in Sandoval predated the Supreme Court's decision in INS v. Aguirre-Aguirre, 526 U.S. 415, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) wherein the Court reversed the decision of the Court of Appeals for the Ninth Circuit because the circuit court had not afforded proper deference to the BIA's interpretation of a statute. However, Aguirre-Aguirre concerned the extremely sensitive issue of whether criminal conduct that an alien admitted committing in Guatemala precluded the alien's eligibility for asylum or withholding of deportation from the United States. The alien claimed that his conduct in Guatemala should not bar his eligibility for that relief because he committed those crimes as part of a protest against certain policies of the government of Guatemala. The IJ granted the requested relief holding that the alien had demonstrated a well founded fear of persecution based upon his political beliefs if he was returned to Guatemala. The BIA reversed. The BIA did not decide if the alien had demonstrated a risk of persecution. Rather, the BIA simply concluded that the alien "had committed a serious nonpolitical crime" within the meaning of the relevant statute, and he was therefore not eligible for asylum or withholding of deportation. 526 U.S. at 422, 119 S.Ct. 1439. However, the court of appeals reversed the BIA's ruling. That court held that the BIA should have weighed certain factors before deciding that the alien's Guatemalan crimes destroyed his eligibility for asylum or withholding of deportation. The Supreme Court reversed. In doing so, the Court stated:

It is clear that principles of Chevron deference are applicable to this statutory scheme.... In addition, we have recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations. A decision by the Attorney General to deem certain offenses violent offenses committed in another country as political in nature, and to allow the perpetrators to remain in the United States, may affect our relations with that country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.

Id. (internal quotation marks and citations omitted). Those considerations were not present in Drakes, and they are absent here. Ultimately, we did not decide if Chevron deference applied to our analysis in Drakes because we concluded that the result would be the same whether we afforded de novo or deferential review. That is also our situation here. Therefore, we need not now decide the issue of whether deference should be afforded to the BIA's interpretation of the statutory definition of "aggravated felon." Just as in Drakes, our result would be the same whether we afford the BIA's statutory interpretation deferential or de novo review. Under either scope of review we conclude that the BIA did not err in concluding that Patel has been convicted of an aggravated felony.

B. Jurisdiction

Under § 242(a)(2)(C) of the INA, 8 U.S.C. § 1252(a)(2)(C), courts of appeals lack jurisdiction to review a final order of removal for an alien convicted of one or more specified criminal offenses, including any aggravated felony.³ However, notwithstanding the seemingly broad restriction of jurisdiction contained in § 242(a)(2)(C), we retain the jurisdiction to determine whether we can review a decision of the BIA even though that review entails the same inquiry as a review of the merits of the BIA's decision; i.e., whether the underlying criminal offense is an "aggravated felony." Therefore, we have jurisdiction here to determine whether Patel is an alien, and whether he is removable by reason of having been convicted of one of the enumerated offenses in INA § 242(a)(2)(C). See Drakes, 240 F.3d at 247. If both of those conditions are satisfied, § 242(a)(2)(C) prohibits further adjudication of the petition for review and we must dismiss for lack of jurisdiction. Id. at 248. However, if either condition is not satisfied, our review is not precluded, and we have jurisdiction to review the BIA's decision. Id. In that instance, the petition for review must be granted and the order of removal vacated. Id. Simply put, we have jurisdiction to determine our jurisdiction under § 242(a)(2)(C). Drakes, 240 F.3d at 247. Our inquiry here need only focus on the second factor since it is undisputed that Patel is an alien. The instant dispute centers instead on whether Patel's conviction for harboring aliens is an aggravated felony, rendering him removable. The jurisdiction inquiry is, therefore, a back-door merits inquiry because the former supplies the answer for the latter.

C. Is a Conviction for Harboring Aliens an Aggravated Felony?

INA § 274(a)(1)(A) provides as follows:

Bringing in and harboring certain aliens

(a) Criminal penalties

(1)(A) Any person who —

(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and...