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


12-14-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5194




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                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-5194


                            PATRICE ADOLSON BROOKS,

                                                       Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                       Respondent




                        On Petition for Review of an Order of
                         The Board of Immigration Appeals
                    Immigration Judge: Honorable Eugene Pugliese
                                 (No. A42-254-962)


                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 27, 2006

                    Before: RENDELL and AMBRO, Circuit Judges
                            and PRATTER,* District Judge

                           (Opinion filed December 14, 2006)




  *
   Honorable Gene E.K. Pratter, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
                                             OPINION


AMBRO, Circuit Judge

            Patrice Adolson Brooks, a Jamaican national, petitions us for review of the claim

that his conviction for criminal possession of stolen property under New York law does

not make him an aggravated felon for which he is removable under federal law. If he is

correct, he is eligible to apply for cancellation of removal; if wrong, he is not. At issue is

whether Brooks’s crime can be classified as a federal “aggravated felony” offense

notwithstanding its classification under New York law as a “misdemeanor.” We

conclude, as did the Board of Immigration Appeals and the Immigration Judge, that here

it can. We thus deny Brooks’ petition for review.

I.          Facts and Procedural History

            Because we write solely for the parties, we note only those facts relevant to our

decision. Brooks was admitted to the United States in 1989 as a lawful permanent

resident. Nearly fifteen years later, he pled guilty to possession of stolen property in the

fifth degree in violation of N.Y. Penal Law § 165.40 1 —a class A misdemeanor, which



     1
         N.Y. Penal Law § 165.40 states:

            A person is guilty of criminal possession of stolen property in the fifth
            degree when he knowingly possesses stolen property, with intent to benefit
            himself or a person other than an owner thereof or to impede the recovery
            by an owner thereof. Criminal possession of stolen property in the fifth

                                                  2
carries a penalty of up to one year’s imprisonment. Accordingly, the Judge sentenced him

to a one-year term of imprisonment.2

         On the basis of that conviction, Brooks was charged with removability under the

Immigration and Nationality Act (“INA”) § 237(a)(2)(A)(iii) [8 U.S.C.

§ 1227(a)(2)(A)(iii)]3 in violation of INA § 101(a)(43)(G) [8 U.S.C. § 1101(a)(43)(G)]

(defining “aggravated felony”).4 The Immigration Judge found Brooks removable as




         degree is a class A misdemeanor.
  2
    Brooks denies that he was convicted of possession of stolen property and sentenced to
prison for a year term. However, the Immigration Judge here determined that Brooks was
in fact convicted and sentenced for that offense on the basis of the indictment, criminal
complaint, and possession of stolen property certificate of disposition by New York
authorities.
  3
      This section reads as follows:
        (a) Classes of deportable aliens
                Any alien . . . in and admitted to the United States shall, upon the
                order of the Attorney General, be removed if the alien is within one
                or more of the following classes of deportable aliens: . . .
                ...
                Any alien who is convicted of an aggravated felony at any time after
                admission is deportable.
  4
    Brooks also was charged with removability for having been convicted of two crimes
(larceny under the New York Penal Law) involving moral turpitude under INA
§ 237(a)(2)(A)(ii). 8 U.S.C. § 1227(a)(2)(A)(ii) (“Any alien who at any time after
admission is convicted of two or more crimes involving moral turpitude, not arising out
of a single scheme of criminal misconduct, regardless of whether confined therefor and
regardless of whether the convictions were in a single trial, is deportable.”). The IJ
mentioned “moral turpitude” as a second basis for removability, but rested his
determination on the basis of the aggravated felony conviction.

                                              3
charged and, pursuant to INA § 240A(a)(3) [8 U.S.C. § 1229b(a)(3)],5 ineligible for

cancellation of removal. The BIA subsequently affirmed the IJ’s decision.

       Brooks submitted to us a motion for a stay of removal along with a timely petition

for review. We denied the motion to stay and now review his case on the merits.6

II.    Discussion

       Under the INA, the definition of “aggravated felony” includes “a theft offense

(including receipt of stolen property) or burglary offense for which the term of

imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). To determine whether

Brooks has been convicted of an aggravated felony, we “presumptively appl[y]” the

“formal categorical approach” outlined in Taylor v. United States, 495 U.S. 575 (1990).

See Singh v. Ashcroft, 383 F.3d 144, 148 (3d Cir. 2004). “Under that approach, [we]

‘must look only to the statutory definitions of the prior offenses,’ and may not consider



  5
    This section, entitled “Cancellation of removal for certain permanent residents,” states
in pertinent part:

       The Attorney General may cancel removal in the case of an alien who is
       inadmissible or deportable from the United States if the alien—. . . has not been
       convicted of any aggravated felony.
  6
    The BIA had jurisdiction to review the appeal from the IJ’s decision under 8 C.F.R. §
3.2 (now codified at 8 C.F.R. § 1003.1(3) (effective April 1, 2005)). Under the REAL ID
Act, Pub. L. No. 109-13, div. B, 119 Sta. 231 (2005), we have jurisdiction to review the
Board’s final orders of removal under 8 U.S.C. § 1252(a)(1), and may review de novo
constitutional and legal questions pursuant to 8 U.S.C. § 1252(a)(2)(D). See Sukwanputra
v. Gonzales, 434 F.3d 627, 631 (3d Cir. 2006). Factual determinations, such as whether
Brooks was convicted in New York for possession of stolen property and the length of his
sentence, are outside our jurisdiction to review. See id. at 634.

                                             4
‘other evidence concerning the defendant’s prior crimes.’” Id. at 147–48 (quoting Taylor,

495 U.S. at 600). In exceptional circumstances, where the statute of conviction is phrased

in the disjunctive or otherwise “invite[s] inquiry into the underlying facts of the case,” we

may look beyond the face of the statute to the charging instrument and underlying facts.

Id. at 148, 159–60 (citing Valansi v. Ashcroft, 278 F.3d 203, 210 (3d Cir. 2002)); see also

Joseph v. Att’y Gen., 465 F.3d 123, 127 (3d Cir. 2006) (citing Singh, 383 F.3d at 148).

       Neither of the Singh exceptions to the formal categorical approach applies to the

New York statute. While it contains disjunctive phrases, they relate to the intended

beneficiaries and victims of the crime, nothing more. Compare N.Y. Penal Law § 165.40

(“A person is guilty of criminal possession of stolen property in the fifth degree when he

knowingly possesses stolen property, with intent to benefit . . . .”) with N.Y. Penal Law

§ 165.40 (“intent to benefit himself or a person other than an owner thereof or to impede

the recovery by an owner thereof”) (emphases added); see also Garcia v. Att’y Gen., 462

F.3d 287, 293 n.9 (3d Cir. 2006) (“[T]he key is whether the provision is disjunctive in a

relevant sense.”) (citing Singh, 383 F.3d at 163) (emphasis added). Furthermore,

“knowing possess[ion] [of] stolen property,” N.Y. Penal Law § 165.40, is a “‘relatively

unitary categorical concept[]’ like ‘forgery,’ ‘burglary,’ ‘crime of violence,’ and ‘illicit

trafficking in a controlled substance[,]’” which we have found does “not invite an inquiry

into the facts underlying the conviction.” Joseph, 465 F.3d at 127 (citations omitted).

       In this context, Taylor’s formal categorical approach no doubt applies. Looking to



                                               5
the statutory definitions of the possession of stolen property charge, we note that the New

York statutory provisions for a one-year conviction conforms to the definition for

“aggravated felony” under INA § 101(a). See N.Y. Penal Law § 70.15(1) (providing for

penalties of up to one year’s imprisonment for misdemeanors); 8 U.S.C. § 1101(a)(43)(G)

(specifying that “aggravated felony” encompasses “a theft offense (including receipt of

stolen property) . . . for which the term of imprisonment [is] at least one year”).

       Nonetheless, Brooks argues that his crime was not an aggravated felony for two

reasons. First, he asserts his conviction was not a “felony” conviction because New York

law classifies his crime as a “misdemeanor.” Second, he contends that the “term of

imprisonment” for his conviction was not “at least one year” (as the INA requires)

because New York misdemeanors authorize prison terms that “shall not exceed one year.”

These arguments fail under our case law. The fact that the New York statute calls the

crime a “misdemeanor” does not disturb its categorization as an “aggravated felony”

under Taylor. Moreover, we have held that the INA phrase “term of imprisonment”

relates to the actual sentence imposed, not the minimum sentence authorized by state

statute. United States v. Graham, 169 F.3d 787, 790–91 (3d Cir. 1999). Brooks was

actually sentenced to a one-year term of imprisonment. Therefore, his New York

misdemeanor constitutes a federal aggravated felony in this case.

       In sum, we conclude that the BIA and IJ committed no legal error in determining

that Brooks’s conviction for criminal possession of stolen property was an aggravated



                                              6
felony offense within the meaning of INA § 101(a)(43)(G), thus making him ineligible

for cancellation of removal under INA § 240A(a)(3). We therefore deny the petition for

review.




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