                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-3-2006

Remoi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3685




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                                                  NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT

                            NO. 04-3685
                         ________________

                         OKOCCI REMOI,

                                 Petitioner

                                   v.

         ATTORNEY GENERAL OF THE UNITED STATES,

                               Respondent
             ____________________________________

                 On Petition for Review of an Order
                 of the Board of Immigration Appeals
                       Agency No. A72 748 741
                        on September 21, 2001
                   Immigration Judge: Alan L. Page

      Initially Docketed as an Appeal from EDPA No. 03-cv-03360
             Prior to the Enactment of the Real ID Act of 2005
               _____________________________________


              Submitted Under Third Circuit LAR 34.1(a)
                          March 21, 2006

Before: SLOVITER, SMITH AND VAN ANTWERPEN, CIRCUIT JUDGES

                        (Filed: May 3, 2006)
                     _______________________

                            OPINION
                     _______________________
PER CURIAM

       Okocci Remoi seeks review of a final order of removal issued by the Board of

Immigration Appeals (BIA). For the following reasons, we will deny the petition.1

       Okocci Remoi is a native and citizen of Uganda. Remoi was a student at Rutgers

University until he was expelled in 1990, based upon convictions for two counts of

criminal sexual contact in violation of N.J.S.A. § 2C:14-3(b) (criminal sexual contact in

the fourth degree) for which he received a sentence of time served (77 days) and three

years probation. The Immigration and Naturalization Service began deportation

proceedings against him in 1994. On September 21, 2001, the Board of Immigration

Appeals (BIA) issued a final order of removal against Remoi, finding that he had been

convicted of two crimes involving moral turpitude (CIMTs), and that a third 1995

conviction under the same New Jersey statute constituted an aggravated felony because it

was a crime of violence under 18 U.S.C. § 16(b) (one Board member dissented).

Supplemental Appendix (SA) at 000-014. He then filed a petition for habeas corpus in



  1
       Remoi initiated these proceedings by filing a habeas corpus petition under 28
U.S.C. § 2241 in the United States District Court for the Eastern District of Pennsylvania,
the judicial district in which Remoi was in custody at the time he filed the petition.
Following the District Court’s denial of habeas corpus relief, Remoi filed a timely notice
of appeal to this Court. While his appeal was pending, the REAL ID Act of 2005, Pub L.
No. 109-13, 119 Stat. 231, took effect on May 11, 2005. In light of the REAL ID Act, we
have determined that such pending appeals are converted to petitions for review under 8
U.S.C. § 1252. See Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005). Because
the matter is fully briefed and ripe for disposition, we decline to transfer it to the Second
Circuit, the judicial circuit in which the immigration judge completed the proceedings.
See id. at 446 n.5.

                                             2
the United States District Court for the Southern District of New York challenging that

order. The petition was transferred to the United States District Court for the Eastern

District of Pennsylvania, as described previously.

        The District Court dismissed the habeas petition on August 26, 2004 for lack of

jurisdiction. SA 172-81.2 The District Court held that the BIA had properly found that

Remoi had been convicted of two CIMTs, and held that Remoi had not identified any

constitutional errors or errors of law in the BIA’s determination that he was ineligible for

withholding of removal or deferral of removal under the United Nations Convention

Against Torture (CAT). Remoi timely appealed, and we now treat the matter as a petition

for review.3

        Although we are partially barred from reviewing a petition for review filed by an

alien removable for having committed certain criminal offenses; see 8 U.S.C.

§ 1252(a)(2)(C); we nevertheless have jurisdiction to review constitutional claims and

questions of law raised by such a petition; see 8 U.S.C. § 1252(a)(2)(D); Singh v.

Gonzales, 432 F.3d 533, 537 (3d Cir. 2006). Thus, we may review Remoi’s legal claim


  2
    In the meantime, the Government attempted to remove Remoi, but he passively
resisted, and was eventually convicted of knowingly preventing and hampering his
departure, in violation of 8 U.S.C. § 1253(a)(1)(C). He was sentenced to a term of 64
months imprisonment, followed by two years supervised release. He appealed to this
Court, which affirmed the conviction but vacated and remanded for resentencing pursuant
to United States v. Booker, 125 S. Ct. 738 (2005). United States v. Remoi, 404 F.3d 789
(3d Cir. 2005). The District Court again sentenced Remoi to a term of 64 months
imprisonment. Remoi’s appeal of the new sentence is pending in this Court at 05-4866.
  3
      This Court denied his motion for a stay of removal on October 27, 2005.

                                             3
that he did not commit an aggravated felony, his constitutional claim that his due process

rights were violated, and any legal claim or application of law to undisputed fact relating

to his application for withholding of removal and protection under the CAT.

        As noted above, the BIA found that Remoi was removable because he had

committed two CIMTs, and also because he had committed an aggravated felony. Remoi

does not appear to contest the finding that he committed two CIMTs, and we affirm the

BIA’s decision in that regard for the reasons stated by the BIA. Remoi does contest,

however, the finding that he committed an aggravated felony. The Government argues

that we need not reach the issue of whether Remoi committed an aggravated felony, and

that the question is “ultimately moot.” Appellee’s brief at 17, 24-25. However, because

Remoi would be permanently barred from entering the United States if we uphold the

finding that he committed an aggravated felony, the question is not moot. See 8 U.S.C.

§ 1182(a)(9)(A)(ii) (2005) (removed alien convicted of an aggravated felony who seeks

admission “at any time” is inadmissible); Steele v. Blackman, 236 F.3d 130, 134 n.4 (3d

Cir. 2001).

        We agree with the BIA that Remoi’s 1995 conviction is an aggravated felony

pursuant to 8 U.S.C. § 1101(a)(43)(F), which provides that a crime is an aggravated

felony if it is:




                                             4
        a crime of violence (as defined in section 16 of Title 18,4 but not including a
        purely political offense) for which the term of imprisonment [is] at least one
        year.

This Court has determined that courts should look at the term of imprisonment actually

imposed in order to determine whether a crime falls under this subsection. See United

States v. Graham, 169 F.3d 787, 791 (3d Cir. 1999) (interpreting identical “term of

imprisonment” language in § 1101(a)(43)(G) to mean term of imprisonment “imposed.”).

Although Remoi was initially sentenced to 364 days imprisonment for this offense

(including 190 days served), SA 075, the BIA’s decision states that on September 25,

1996 Remoi was resentenced to incarceration for 18 months for failure to comply with

conditions of probation. SA 002, 077. A sentence imposed after violation of probation is

viewed as a modification of the original sentence, and should thus be considered as the

term “imposed” for the conviction. United States v. Hidalgo-Macias, 300 F.3d 281, 285

(2d Cir. 2002). Thus, Remoi’s 1995 crime fits the definition in terms of the length of




  4
      Pursuant to that section, “The term “crime of violence’ means--

(a) an offense that has as an element the use, attempted use, or threatened use of physical
force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the course of
committing the offense.

18 U.S.C. § 16.

                                               5
incarceration.5

       The question remains whether the crime was a crime of violence. We agree with

the BIA that it was, pursuant to the definition of “crime of violence” found in § 16(b). In

determining whether the crime falls under section 16(b), we use the categorical approach

of Taylor v. United States, 495 U.S. 575 (1990). Tran v. Gonzales, 414 F.3d 464, 469 (3d

Cir. 2005). Thus, we examine “the elements and the nature of the offense of conviction,

rather than . . . the particular facts relating to petitioner’s crime.” Id. at 468 (quoting

Leocal v. Ashcroft, 543 U.S. 1, 6 (2004)). However, where the statute is written in the

disjunctive, we may look to the charging instrument to determine which portion of the

statute was violated. United States v. Remoi, 404 F.3d 789, 793 (3d Cir. 2005).6

       Remoi was convicted under N.J.S.A. § 2C:14-3b (1995). That statute, as it existed

in 1995, provided:

       An actor is guilty of criminal sexual contact if he commits an act of sexual
       contact with the victim under any of the circumstances set forth in section
       2C:14-2c. (1) through (5). Criminal sexual contact is a crime of the fourth degree.

The indictment shows that Remoi was charged with committing an act of sexual contact


  5
    In his brief, Remoi alleges that after the 18 month sentence was imposed on
September 25, 1996, his sentence was reduced on that same day to 280 days jail credit as
the term of imprisonment. As noted above, our review does not extend to questions of
fact. We therefore must accept the BIA’s finding that Remoi was sentenced to 18 months
imprisonment for this conviction. It further appears that Remoi did not raise this issue
before the BIA and has thus failed to exhaust administrative remedies as to the claim.
  6
    In Remoi, we determined that Remoi’s earlier New Jersey convictions were “crimes
of violence” as that term is defined in the sentencing guidelines, U.S.S.G. § 2L1.2.
Remoi, 404 F.3d at 795.

                                               6
with the victim “by using physical force or coercion and/or when [the victim] was one

whom Okocci Remoi knew or should have known was physically helpless . . . ., ” i.e., the

circumstances set forth at 2C:14-2c. (1) and (2).7 SA 039.

       We find that Remoi’s conviction fits the definition of § 16(b), because it is (1) “a

felony” that (2) “by its nature, involves a substantial risk that physical force against the

person or property of another may be used in the course of committing the offense.”

First, we look to state law to determine if the crime is categorized as a felony. Francis v.

Reno, 269 F.3d 162, 171-72 (3d Cir. 2001). Although New Jersey does not categorize

crimes as “felonies,” but rather as crimes of the first, second, third and fourth degrees and

as disorderly conduct offenses; see N.J. Stat. Ann. 2C:14-1 (1995); New Jersey has for

other purposes defined a “felony” as an offense punishable by more than a year in prison.

See State v. Doyle, 200 A.2d 606, 614 (N.J. 1964) (so defining “felony” for purposes of

determining whether peace officer may make an arrest without a warrant); N.J. Stat. Ann.

§ 39:3-10.11 (so defining “felony” for purposes of motor vehicle registration and

licensing laws). As Remoi’s crime was punishable by a maximum of 18 months in

prison, see N.J.S.A. § 2C:43-6 (a)(4); it thus may be categorized as a felony.

       Second, we find that the crime involved “a substantial risk that physical force




  7
    Section 2C:14-2c.(1) as it existed in 1995 provided that “The victim is one whom the
actor knew or should have known was physically helpless, mentally defective or mentally
incapacitated.”; section (2) provided that “The actor uses physical force or coercion, but
the victim does not sustain severe personal injury.”

                                               7
against the person or property of another may be used in the course of committing the

offense.” In order to meet the crime of violence definition of section 16(b), there must be

a substantial risk that the actor will intentionally use force in the furtherance of the

offense. Tran, 414 F.3d at 471 (emphasis in original). Remoi was charged with either

“using physical force or coercion,” which by definition involves a substantial risk that

force will be used, or with sexual contact with a victim who was physically helpless. We

agree with other courts that have found in such circumstances that a sexual crime against

a physically helpless victim, unable to give consent, involves a substantial risk that

physical force will be used. Cf. Lisbey v. Gonzales, 420 F.3d 930, 933 (9 th Cir. 2005)

(sexual touching against victim’s will and by restraint is crime of violence); Zaidi v.

Ashcroft, 374 F.3d 357, 361 (5 th Cir. 2004) (intentional sexual touching of another with a

particular mental state and without consent is crime of violence); Sutherland v. Reno, 228

F.3d 171, 176-77 (2d Cir. 2000) (indecent assault and battery under Massachusetts law is

crime of violence; “the non-consent of the victim is the touchstone for determining”

whether a given offense involves substantial risk that physical force may be used in

commission of offense); see also Remoi, 404 F.3d at 795 (“penetration against a

‘physically helpless, mentally defective or mentally incapacitated’ victim . . . constitutes a

‘forcible sexual offense’” and is therefore a crime of violence for purposes of the

sentencing guidelines). Remoi’s 1995 conviction is thus a crime of violence under §




                                               8
16(b), and is therefore an aggravated felony.8

       Because Remoi’s conviction is an aggravated felony, he is barred from applying

for asylum. See Ilchuk v. Attorney General, 434 F.3d 613, 621 (3d Cir. 2006); 8 U.S.C.

§ 1158(b)(2)(A)(ii) (asylum not available to alien who committed particularly serious

crime); 8 U.S.C. § 1158(b)(2)(B)(I) (aggravated felony is particularly serious crime for

purposes of asylum statute).

       Commission of a “particularly serious crime” also precludes eligibility for

withholding of removal under the statute and the CAT. In the context of withholding of

removal:

       an alien who has been convicted of an aggravated felony (or felonies) for
       which the alien has been sentenced to an aggregate term of imprisonment of
       at least 5 years shall be considered to have committed a particularly serious
       crime. The previous sentence shall not preclude the Attorney General from
       determining that, notwithstanding the length of sentence imposed, an alien
       has been convicted of a particularly serious crime.

8 U.S.C. § 1231(b)(3)(B). The BIA found that, despite his sentence to time served (77

days) and three years of probation, the second offense under Remoi’s first (1990)

conviction was a particularly serious crime because Remoi touched the victim in a sexual

manner without her consent. SA 004.

       To the extent the BIA’s determination was discretionary, we lack jurisdiction to

review it. 8 U.S.C. § 1252(a)(2)(B)(ii); Matsuk v. INS, 247 F.3d 999, 1002 (9 th Cir.



  8
   Given our holding, we need not reach the issue of whether Remoi’s 1995 conviction
would be a crime of violence under § 16(a).

                                             9
2001). Remoi argues that he is not challenging the discretionary determination that his

crime was “particularly serious,” but instead raises a due process violation. However,

Remoi was given an opportunity before the IJ to challenge the designation of his crime as

“particularly serious.” On appeal, the BIA looked at the particular facts of Remoi’s case

in making an individualized determination that his crime was particularly serious. “Due

process requires no more.” Chong v. District Director, 264 F.3d 378, 387 (3d Cir. 2001)

(finding no due process violation in similar circumstances). We therefore must uphold

the BIA’s determination that Remoi committed a particularly serious crime.

       Despite his conviction for an aggravated felony and a particularly serious crime,

Remoi would remain eligible for deferral of removal under the CAT if he could show that

it is more likely than not that he will be tortured if returned to Uganda. 8 C.F.R. § 208.17.

The BIA affirmed the IJ’s adverse credibility finding, noting that Remoi had omitted

several key elements of his testimony from his application and affidavit in support of his

CAT claim. As “credibility determinations are factual matters,” see Jishiashvili v.

Attorney General, 402 F.3d 386, 392 (3d Cir. 2005), and because Remoi is a “criminal

alien,” we may not review the determination. 8 U.S.C. § 1252(a)(2)(C).

       Again, Remoi attempts to challenge the adverse credibility finding by framing the

issue as a due process violation. Remoi appears to make two arguments. First, he argues

that the BIA misapplied 8 C.F.R. § 208.18(b), which provides, inter alia, that an alien

who has a request for relief under the CAT pending on March 22, 1999 need not


                                             10
demonstrate that the evidence sought to be offered in support of that claim was

unavailable and could not have been discovered or presented at a prior hearing. Remoi

argues that because the BIA faulted him for not providing details of his claim in his

original application for asylum and withholding, it violated this regulation. However, the

BIA did not reject his testimony in support of his CAT claim on the grounds that he did

not show that the details he presented were previously unavailable; rather, it found his

testimony incredible because it was not reasonable to believe that he would leave

compelling, graphic details out of his original application.

       Remoi’s second argument is that to the extent the adverse credibility finding rested

on failure to corroborate his claim, the IJ violated his due process rights by not allowing

him to introduce the recorded testimony of a particular Ugandan exile. However, as the

Government notes, the IJ did accept into evidence an affidavit from this same person, but

gave it no weight, as the exile was not of the same ethnicity as Remoi,9 and because the

exile was granted asylum based on his political activities and not his ethnicity.10 Further,

we note that Remoi declined the IJ’s offer of additional time to gather and submit

additional evidence about conditions in Uganda. App. A-006. We find no violation of

Remoi’s due process rights.



  9
    Remoi sought asylum and related relief based on persecution on account of his
ethnicity.
  10
    The Government also notes that there is no evidence in the record that Remoi
actually sought to introduce this recorded testimony.

                                             11
       Because Remoi did not produce credible testimony and evidence supporting his

claim for protection under the CAT, the BIA properly denied deferral of removal. For the

foregoing reasons, we will deny the petition for review.




                                            12
