Yousefi v. U.S. Immigration & Naturalization Serv.

• Decision Date: 22 January 2001
• Docket Number: No. 00-1328,00-1328
• Citation: 260 F.3d 318
• Parties: (4th Cir. 2001) MOHAMMAD MUSA YOUSEFI, a/k/a Mohammad M. Yousefi, a/k/a Mohammad Yousafi, a/k/a Mohammed Yousefi, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE; JOHN ASHCROFT, Attorney General, Respondents. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 318

260 F.3d 318 (4th Cir. 2001)

MOHAMMAD MUSA YOUSEFI, a/k/a Mohammad M. Yousefi, a/k/a Mohammad Yousafi, a/k/a Mohammed Yousefi, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE; JOHN ASHCROFT, Attorney General, Respondents.

No. 00-1328

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: January 22, 2001

Decided: August 8, 2001

On Petition for Review of an Order of the Board of Immigration Appeals.

(A40-205-788)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

COUNSEL ARGUED: Judith Leslie Wood, Los Angeles, California, for Petitioner. Linda Sue Wernery, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. ON BRIEF: Jesse A. Moorman, Los Angeles, California, for Petitioner. David W. Ogden, Assistant Attorney General, Kristen Giuffreda Chapman, Senior Litigation Counsel, Loreto S. Geisse, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.

Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published per curiam opinion.

OPINION

PER CURIAM:

Mohammad Musa Yousefi ("Yousefi") filed this petition for review of an order of the Board of Immigration Appeals ("the Board") concluding that Yousefi was deportable and that he was ineligible for asylum and withholding of deportation. The Immigration and Naturalization Service ("the Service") contends that we do not possess jurisdiction to review Yousefi's petition. We hold that we have jurisdiction to consider Yousefi's petition. On the merits, we agree with the Board that Yousefi is deportable; however, in our view, the Board's decision that Yousefi committed a "particularly serious crime," rendering him ineligible for asylum and withholding of deportation, was arbitrary and must be set aside. Accordingly, we remand for further consideration of whether Yousefi was convicted of a particularly serious crime.

I.

Yousefi, a native of Afghanistan, entered the United States in 1987 as a lawful permanent resident. Less than one year after entering the United States, Yousefi was arrested for willfully concealing a poncho belonging to a K-Mart store with the intent to convert it to his own use, in violation of Virginia law. See Va. Code Ann. S 18.2-103. Yousefi pled nolo contendere and received a ten-day sentence, which was suspended.

In 1988, Yousefi was charged in the Superior Court of the District of Columbia with assault with a dangerous weapon, see 22 D.C. Code Ann. S 22-502, and assault with intent to kill while armed with a dangerous weapon, see D.C. Code Ann. SS 22-502, 22-3202. He pled guilty to assault with a dangerous weapon and received a prison sentence of 15 to 45 months, which was suspended, and 15 months probation. The assault with intent to kill charge was dismissed. The dangerous weapon charged in the indictment was a rock.

Finally, in December 1989, Yousefi was again charged with willfully concealing store merchandise in violation of section 18.2-103 of the Virginia Code. He pled guilty and received a suspended ten-day sentence.

In June 1991, based on these three convictions, the Service issued an order to show cause seeking to deport Yousefi under what was then section 241(a)(2)(A)(ii) of the Immigration and Nationality Act (INA), see 8 U.S.C. S 1251(a)(2)(A)(ii) (Supp. IV 1992), for having been convicted of two crimes of moral turpitude not arising from the same scheme of criminal conduct, and section 241(a)(2)(A)(i), see 8 U.S.C. S 1251(a)(2)(A)(i) (Supp. IV 1992), for having been convicted of a crime of moral turpitude within five years after entry and sentenced to confinement for a year or more.¹

Before the immigration judge, Yousefi admitted the underlying crimes but denied deportability on the basis that the crimes were not crimes of moral turpitude because they were petty in scope and nature. The immigration judge disagreed with Yousefi, and concluded that all three crimes qualified as crimes of moral turpitude. Yousefi then petitioned the immigration judge for relief from deportation. He sought asylum under INA S 208(a) and withholding of deportation under INA S 243(h)(1).² The immigration judge concluded that

Yousefi was statutorily ineligible for withholding of deportation because the conviction for assault with a dangerous weapon amounted to a "particularly serious crime." See INA S 243(h)(2)(B), 8 U.S.C. S 1253(h)(2)(B). And, the immigration judge ultimately determined that Yousefi was ineligible for asylum under the regulations accompanying the INA. See 8 C.F.R. S 208.14(c) (1992).

On appeal to the Board, Yousefi challenged the immigration judge's conclusion that he was ineligible for asylum and withholding of deportation as well as the determination that he was deportable in the first place. The Board agreed with the immigration judge that all three underlying convictions were for crimes of moral turpitude and that Yousefi was therefore deportable under INAS 241(a)(2)(A)(i) and INA S 241(a)(2)(A)(ii). The Board rejected the argument that the concealment convictions were too petty to constitute crimes of moral turpitude, noting that "both the courts and the Board have historically held that crimes of theft involve moral turpitude, regardless of the amount stolen or the sentence imposed." A.R. 4. With respect to Yousefi's eligibility for asylum or withholding of deportation, the Board concluded that Yousefi was barred from relief because the conviction for assault with a dangerous weapon was a"particularly serious crime." The Board dismissed Yousefi's appeal.

Yousefi petitions us for review of the Board's decision. He raises the same arguments he raised below; however, Yousefi makes the additional argument that the proceedings before the immigration judge failed to comport with due process. The Service, however, suggests that under IIRIRA S 309(c)(4)(G), which was enacted after the immigration judge's 1992 decision but before the Board rendered its decision in 2000, we lack jurisdiction to entertain the petition for review. If we do have jurisdiction, the Service contends that the Board correctly disposed of the merits.

II.

We first consider the question of subject matter jurisdiction. The Service contends that IIRIRA S 309(c)(4)(G) strips us of jurisdiction to review the Board's decision. Section 309(c)(4) of IIRIRA contains transitional rules for judicial review that apply to aliens who were involved in deportation proceedings prior to April 1, 1997, and were issued a final deportation order more than thirty days after September 30, 1996, the date IIRIRA was enacted. These transitional rules apply to Yousefi, who was placed into deportation proceedings in February 1992 but was not issued a final order until February 28, 2000.

The transitional rules direct that there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in . . . section 241(a)(2) (A)(iii), (B), (C), or (D) of the Immigration and Nationality Act (as in effect as of [September 30, 1996]).

IIRIRA S 309(c)(4)(G). The Service insists that Yousefi's conviction for assault with a dangerous weapon constituted an aggravated felony under INA S 241(a)(2)(A)(iii). That section provided that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." See INA S 241(a)(2)(A)(iii), 8 U.S.C. S 1251(a)(2) (A)(iii) (Supp. IV 1992). Therefore, the Service contends that Yousefi was "deportable by reason of having committed a criminal offense covered in . . . section 241(a)(2)(A)(iii)," precluding this court from exercising jurisdiction over his petition for review.

As we have observed numerous times, "the jurisdictional limitation under the transitional rules [is] triggered by two jurisdictional facts -whether the deportee [is] an alien and whether he [has] been convicted of an offense enumerated in the statute." Lewis v. INS, 194 F.3d 539, 542 (4th Cir. 1999). Regardless of the eventual outcome of our jurisdictional analysis, we always have the power to assess whether such jurisdictional facts are present. See id. ("Because our jurisdiction turns on the presence, or lack thereof, of these two facts, we have jurisdiction to review them."). Yousefi is an alien.³ The only question is whether he is deportable by reason of having committed an aggravated felony within the meaning of INA S 241(a)(2)(A)(iii).

Before we can address this issue, however, we must first consider the consequences of the Service's failure to charge Yousefi's commission of an aggravated felony as a legal ground for deporting him. Although the Service included Yousefi's conviction for assault with a dangerous weapon in the factual allegations contained in the order to show cause, the Service did not seek to deport Yousefi on the ground that he committed an aggravated felony under INA S 241(a)(2)(A)(iii). Rather, the Service charged that Yousefi was deportable because he had committed two or more crimes of moral turpitude under INA S 241(a)(2)(A)(ii), and that he had committed a crime of moral turpitude within five years after entry under INA S 241(a)(2)(A)(i). Thus, although Yousefi's conviction for assault with a dangerous weapon was one of the predicate crimes of moral turpitude, the Service did not raise the aggravated felony ground for deportability in its order to show cause, in the proceedings before the immigration judge, or during the appeal to the Board.

The Service takes the position that as long as an alien has been convicted of a crime covered under IIRIRA S 309(c)(4)(G), then he "is inadmissible or deportable by reason of" such conviction regardless of whether such conviction served as the basis for deportation. According to the Service, the jurisdiction-stripping effect of IIRIRA S 309(c)(4)(G) is triggered simply by an alien's commission...