                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-2002
                                       ___________

                          HUGO MIGUEL DUARTE RAMOS,
                                             Petitioner

                                             v.

                           ATTORNEY GENERAL OF THE
                           UNITED STATES OF AMERICA,
                                              Respondent

                               _______________________

                        On Petition for Review of an Order of the
                            Board of Immigration Appeals
                                 BIA No. A095-362-765
                 (U.S. Immigration Judge: Honorable Walter A. Durling)
                                    ______________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 31, 2016

                    Before: HARDIMAN and SCIRICA, Circuit Judges, and
                             ROSENTHAL,* District Judge.

                                 (Filed: March 23, 2017)
                                      ____________

                                       OPINION**
                                      ____________

       *
         The Honorable Lee H. Rosenthal, United States District Judge for the Southern
District of Texas, sitting by designation.
       **
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
SCIRICA, Circuit Judge.

       Hugo Miguel Duarte Ramos petitions for review of a final order of removal. The

Department of Homeland Security (“DHS”) charged Ramos as removable from the

United States on two independent grounds: (1) conviction for an aggravated felony, and

(2) conviction for a drug offense that did not fall within the personal use exception. An

Immigration Judge found both grounds warranted removal and determined Ramos was

prohibited from seeking discretionary relief. The Board of Immigration Appeals (“BIA”)

dismissed Ramos’s appeal. We will deny Ramos’s petition for review.

                                             I.

       Ramos was born in Portugal and entered the United States with his parents as a

non-immigrant in August of 2001. He became a lawful permanent resident in 2004. In

September 2007, at age eighteen, Ramos was pulled over in Maryland while driving a

stolen vehicle, and arrested. Ramos maintained at the time of arrest that he had not stolen

the car and was unaware that it was stolen when he borrowed it from a friend. Ramos

accepted a plea agreement, pleading guilty to unauthorized removal of property, a

misdemeanor under Maryland Criminal Code § 7-203. He received a sentence of four

years in jail but with three years and eleven months suspended.

       Seven years later, in 2014, Ramos was pulled over in Pennsylvania for driving

with darkened taillights. Police then determined through a blood test that Ramos had

marijuana in his system. Ramos again accepted a plea deal and pleaded guilty to one

count of driving under the influence of a controlled substance (marijuana), 75 Pa. C.S. §

3802(d)(1)(ii), for which he received a sentence of six months’ probation with the first

                                             2
month on house arrest, a $1000 dollar fine, and 25 hours of community service.

          On May 20, 2015, the Department of Homeland Security charged Ramos under 8

U.S.C. § 1227(a)(2)(A)(iii) as a removable alien convicted of an aggravated felony, and

under 8 U.S.C. § 1227(a)(2)(B)(i) as an alien convicted of a violation of a law relating to

a controlled substance. Ramos first appeared before an Immigration Judge in June of

2015 and contested the charges of removability. On July 20, 2015, the IJ invited Ramos’s

counsel to submit a brief on whether Ramos’s conviction for driving under the influence

of a controlled substance was subject to the exception for offenses involving the

possession of 30 grams or less of marijuana for personal use under 8 U.S.C.

§ 1227(a)(2)(B)(i).

          On September 2, 2015, the IJ entered an interlocutory ruling that the Maryland

offense was an aggravated felony, rendering Ramos removable and ineligible to apply for

cancellation of removal under 8 U.S.C. § 1229b(a)(3). Ramos then asked the IJ to allow

him to testify about the circumstances surrounding the Maryland conviction. The IJ

denied this request, stating that he was “not permitted to go behind the conviction itself.”

AR 159.

          On November 12, 2015, the IJ issued an oral decision ruling Ramos’s conviction

in Pennsylvania for driving under the influence of marijuana did not fall within the

personal use exception, and affirming his interlocutory ruling that the Maryland

unauthorized use conviction constituted an aggravated felony. The IJ sustained the

charges of removability and determined Ramos was ineligible to apply for discretionary

relief.

                                               3
       Ramos appealed to the BIA. The BIA affirmed the grounds for removal and

ineligibility for discretionary relief. The BIA also concluded the IJ did not violate

Ramos’s due process rights and dismissed his appeal. Ramos filed a timely petition for

review.

                                              II.

       Although we do not have jurisdiction “to review any final order of removal against

an alien who is removable by reason of having committed [an aggravated felony or drug

offense],” 8 U.S.C. § 1252(a)(2)(C), we do have jurisdiction “to determine whether the

necessary jurisdiction-stripping facts are present in a particular case, specifically (1)

whether the petitioner is an alien and (2) whether he has been convicted of one of the

enumerated offenses.” Borrome v. Att’y Gen., 687 F.3d 150, 154 (3d Cir. 2012) (citing

Papageorgiou v. Gonzales, 413 F.3d 356, 357–58 (3d Cir. 2005); Valansi v. Ashcroft,

278 F.3d 203, 207 (3d Cir. 2002)). Therefore, we review the BIA’s legal determinations

de novo, subject to the principles of agency deference articulated in Chevron, U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Denis v. Att’y Gen.,

633 F.3d 201, 205–06 (3d Cir. 2011).

                                             III.

       Ramos raises three issues on appeal. First, he contends the BIA erred in

concluding his misdemeanor conviction for unauthorized removal of property under the

Maryland Criminal Code constitutes a “theft offense” and by extension an “aggravated

felony” under the Immigration and Nationality Act (“INA”). Second, he contends the

BIA erred in its determination that his conviction for driving under the influence of

                                              4
marijuana did not fall within the statutory exception for an offense “involving possession

for one’s own use of 30 grams or less of marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i). Third,

he contends he was denied a full and fair hearing because the IJ did not allow him to

testify to the facts surrounding his convictions or to possible grounds for collateral attack

of those convictions.

   A. Aggravated Felony

       Under the INA, “[a]ny alien who is convicted of an aggravated felony at any time

after admission” is removable from the United States. 8 U.S.C. § 1227(a)(2)(A)(iii).

Conviction of an aggravated felony also makes an alien ineligible for certain forms of

discretionary relief from removal. See id. § 1158(b)(2)(A)(ii); §§ 1229b(a)(3), (b)(1)(C).

Congress has defined an “aggravated felony” to include, among other things, a “theft

offense . . . for which the term of imprisonment [is] at least one year.” 8 U.S.C. §

1101(a)(43)(G). The generic definition of a “theft offense” is the “taking of property or

an exercise of control over property without consent with the criminal intent to deprive

the owner of rights and benefits of ownership, even if such deprivation is less than total

or permanent.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007) (internal

quotations and citations omitted). The Maryland statute for “unauthorized removal” at

issue in this case in relevant part provides: “Without the permission of the owner, a

person may not take and carry away from the premises or out of the custody of another or

use of the other, or the other’s agent, or a governmental unit any property, including: (1)

a vehicle.” Md. Code, Crim. Law § 7-203.



                                              5
       Ramos contends the misdemeanor offense for unauthorized removal under the

Maryland Criminal Code is not a “theft offense” because: (1) it is categorized as an

“unauthorized use,” not a “theft,” offense under Maryland law, which defines “theft” as

“the conduct described in §§ 7-104 through 7-107”—notably excluding the section under

which Ramos was convicted, Pet. Br. at 13 (quoting Md. Code, Crim. Law § 7-101(m));

and (2) the statute does not include intent to deprive the owner, a necessary element of

the generic definition of a “theft offense.” Pet. Br. 14.

       “When the Government alleges that a state conviction qualifies as an ‘aggravated

felony’ under the INA, we generally employ a ‘categorical approach’ to determine

whether the state offense is comparable to an offense listed in the INA.” Moncrieffe v.

Holder, 133 S. Ct. 1678, 1684 (2013) (citations omitted). Under the categorical approach,

we “focus solely on whether the elements of the crime of conviction sufficiently match

the elements of [the] generic [federal offense], while ignoring the particular facts of the

case.” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). Looking solely at the

elements of the crime, the manner in which an offense is categorized under state law is

irrelevant to this inquiry. See Taylor v. United States, 495 U.S. 575, 590–91 (1990).

       Regarding the elements of the state offense, Ramos is correct in asserting that the

language of the Maryland unauthorized removal of property statute does not include

intent to deprive the owner—or any mens rea—as an element. But in rejecting Ramos’s

argument, the BIA noted that Maryland’s highest court has interpreted the unauthorized

removal statute to require intent. See Allen v. State, 935 A.2d 421, 431 (Md. 2007)

(holding the recodification of the statute in 2002 did not change the substantive elements

                                               6
of the crime); Spence v. State, 165 A.2d 917, 918 (Md. 1960) (“One is guilty of

unauthorized use . . . if he participates in the continued use of the stolen car after the

original taking, since this manifests an intent to deprive the owner of his possession.”);

Ridley v. State, 151 A.2d 915, 915 (Md. 1959) (per curiam) (stating briefly that “criminal

intent” is a “necessary element of the offense”).1 And in applying the categorical

approach, where the highest court of a state has interpreted a state statute, “we are . . .

bound by [that court’s] interpretation of state law, including its determination of the

elements.” Johnson v. United States, 559 U.S. 133, 138 (2010). Therefore, in light of

Maryland’s highest court’s interpretation of the statute to require intent to deprive the

owner, unauthorized use satisfies the generic definition of a “theft offense” under the

INA. Ramos’s unauthorized use conviction is grounds for removal under 8 U.S.C. §

1227(a)(2)(A)(iii) and prevents him from seeking discretionary relief under 8 U.S.C. §

1229b(a)(3).

    B. Drug Conviction

       Under 8 U.S.C. § 1227(a)(2)(B)(i) of the INA, an alien convicted of a drug offense

“other than a single offense involving possession for one’s own use of 30 grams or less of

marijuana” is removable from the United States. Ramos was convicted of a DUI in


1
  Ramos attempts to rebut the application of these cases, arguing they “specifically
require a finding of ‘intent’ to deprive the true owner of the car” and there was never any
finding of fact that he intended to deprive the owner. But, as noted, Maryland’s highest
court has held that intent is a required element of the “unauthorized use” offense and
Ramos pleaded guilty to that offense. Furthermore, the categorical approach “preclud[es]
review of the particular facts underlying a conviction.” Restrepo v. Att’y Gen., 617 F.3d
787, 791 (3d Cir. 2010) (citations omitted).

                                               7
Pennsylvania for driving under the influence of marijuana. We agree with the BIA that

Ramos’s conviction does not fall within the exception and is grounds for removal under 8

U.S.C. § 1227(a)(2)(B)(i).

       Ramos contends his conviction for driving under the influence of marijuana falls

within the personal use exception because the exception has been interpreted broadly to

mean an alien only needs to show his offense “relates to” the possession of 30 grams or

less of marijuana for personal use. Pet. Br. at 18 (quoting Martinez-Espinoza, 25 I.&N.

Dec. 118 (BIA 2009)). Ramos contends his conviction meets this standard because it was

a single offense related to possession for personal use and involved only the trace

amounts of marijuana in his blood stream, well under the 30 gram limit.

       Ramos is correct that the BIA has construed the word “involving” broadly, but not

without limits. In Matter of Davey, 26 I.&N. Dec. 37 (BIA 2012), the BIA stated “it

would defeat the purpose of the exception to interpret it as encompassing an offense that

is inherently more serious than simple possession, such as distributing, manufacturing,

transporting, or being under the influence of marijuana, or possessing marijuana in a

prison or near a school.” Id. at 40 n.3. It was on this basis that the BIA rejected Ramos’s

claim that his conviction falls within the exception—because “[his] conviction is for a

more serious offense.” AR 4. To challenge this interpretation of the seriousness of the

offense, Ramos cites remarks made by the IJ describing the DUI conviction as “a very

minor thing” and “just driving under the influence of a controlled substance.” Pet. Br. at

19 (citing AR 142–43; 174) (emphasis added). The IJ was not bound by these comments

made prior to rendering his final decision. The IJ’s ultimate decision, affirmed by the

                                             8
BIA, that Ramos’s DUI is a more serious offense and therefore not eligible for the

exception is not an arbitrary or capricious interpretation of the INA.

C. Due Process Claims

       The final issue before us is whether Ramos was denied a full and fair hearing.

Ramos contends he was deprived due process in two respects: (1) the IJ did not allow

Ramos to testify about the underlying facts of the unauthorized use conviction, and (2)

the IJ did not consider the basis for Ramos’s collateral attack of both convictions under

Padilla v. Kentucky, 559 U.S. 356 (2010). The BIA rejected these arguments, stating

“both of the Immigration Judge’s decisions reflect a thorough review of the evidence and

arguments presented.” AR 04–05. We agree.

       As discussed, when determining whether a conviction qualifies as grounds for

removal under the INA, we apply the categorical approach. See Moncrieffe, 133 S. Ct. at

1684. “[T]he categorical approach prohibits consideration of evidence other than the

statutory definition of the offense, thus precluding review of the particular facts

underlying the conviction.” Restrepo, 617 F.3d at 791 (internal citations and quotation

marks omitted). The IJ indicated as much when he denied Ramos’s request to testify,

stating, “I’m restricted to look at the elements of the offense itself. Whatever the elements

of unauthorized removal of property is under Maryland statute 7-203, that makes or

breaks the case.” AR 133–34. Although this mode of analysis reflects the hardships

engendered by applying the categorical approach, the IJ was correct in his interpretation

and application of the categorical approach and therefore did not infringe Ramos’s due

process rights by foreclosing an opportunity to testify to the underlying facts.

                                              9
       Ramos contends the IJ further violated his due process rights by not allowing him

to testify about the possible grounds for collaterally attacking the underlying convictions

under Padilla. Under Padilla, aliens are entitled to collaterally attack their convictions

when not informed that a guilty plea could carry “a risk of deportation.” 559 U.S. at 374.

The denial of opportunity to present his Padilla claim evidence at the immigration

hearing did not violate Ramos’s due process rights.

       Although Ramos may have a valid Padilla claim regarding the DUI conviction,2

he does not have a due process right to present such evidence at a deportation hearing. In

Daniels v. United States, 532 U.S. 374 (2001), the Supreme Court held that a criminal

defendant has no due process right to collaterally attack prior convictions in the course of

his federal sentencing. Id. at 382 (excepting claims that right to counsel was denied). In

Drakes v. INS, 330 F.3d 600 (3d Cir. 2003), we held that the Supreme Court’s “analysis

and reasoning” in Daniels “appl[ied] equally” in the context of removal hearings. Id. at

603. “Whether a petitioner challenges a prior state conviction in the context of a

sentencing enhancement or in the context of an order of removal, ‘the goals of easy

administration and finality have ample “horsepower” to justify foreclosing relief’ under a

federal post conviction proceeding.” Id. at 605 (quoting Daniels, 532 U.S. at 383).

Therefore, convictions are final and valid for immigration purposes “unless and until the

convictions are overturned” as a result of a collateral attack filed in the proper court.

Paredes v. Att’y Gen., 528 F.3d 196, 198–99 (3d Cir. 2008).

2
 Padilla does not apply retroactively. See Chaidez v. United States, 133 S. Ct. 1103,
1113 (2013). Therefore, only Ramos’s 2014 DUI conviction, not his 2008 unauthorized
use conviction, is susceptible to challenge under Padilla.
                                              10
                                   IV.

For the foregoing reasons, we will deny Ramos’s petition for review.




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