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


6-9-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2808




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2808


                                NOURREDINE MIRAT,

                                                  Petitioner

                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                                                  Respondent


                          Petition for Review of an Order of the
                              Board of Immigration Appeals
                                (Agency No. A75-463-629)


                       Submitted under Third Circuit LAR 34.1(a)
                                   on March 9, 2006

            BEFORE: SCIRICA*, ALDISERT and ROTH**, Circuit Judges

                             (Opinion Filed: June 8, 2006)



                                     OPINION




      *In light of Judge Roth’s change in status, the panel has been reconstituted. Chief
Judge Scirica replaces Judge Rodriguez on the panel.

      **Judge Roth assumed senior status on May 31, 2006.
ROTH, Circuit Judge:

       Nourredine Mirat petitioned for a writ of habeas corpus, asserting that he has been

unlawfully detained by the Department of Homeland Security, Bureau of Immigration

and Customs Enforcement (ICE), and that his continued custody violates legal protections

afforded him by law. Pursuant to the REAL ID Act, we construe his petition as a petition

for review and will grant it.

I. Background and Procedural History

       Because the parties are familiar with the facts and procedural posture, we will

provide only a brief synopsis of the events leading up to the petition.

       Mirat is a native and citizen of Morocco who entered the United States on

September 28, 1998, as a conditional legal permanent resident. On May 22, 2001, Mirat

entered a guilty plea and was convicted of writing bad checks under 18 PA. CONS. STAT.

ANN. § 4105(a)(1). Mirat was ordered to pay $13,000 in restitution and was sentenced to

5 years probation.

       On April 11, 2002, ICE initiated administrative removal proceedings against

Mirat, and on May 18, 2002, Mirat was ordered removed pursuant to 8 U.S.C. §

1227(a)(2)(A)(iii) for having been convicted as an aggravated felon under 8 U.S.C. §

1101(a)(43)(M)(i).

       On November 21, 2003, Mirat filed a petition for a writ of habeas corpus in the


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Court of Common Pleas of Montgomery County, alleging that, because his prior counsel

expressly assured him that a conviction would carry no adverse immigration

consequences, he did not enter into the guilty plea agreement knowingly and voluntarily.

In response to Mirat’s petition, the state court reduced Mirat’s restitution payment to

$6,125.1

       In March 2005, Mirat filed the present petition.

II. Jurisdiction and Standard of Review

       We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(2)(D). The

REAL ID Act of 2005 eliminates the district courts’ habeas corpus jurisdiction over final

orders of removal in nearly all cases. Pub. L. No. 109-13, 119 Stat. 231. As of May 11,

2005, habeas petitions filed under 28 U.S.C. § 2241 are to be transferred to the court of

appeals for the circuit in which a petition for review could have been properly filed under

section 8 U.S.C. § 1252, and the petition will be treated as if it had been filed as a petition

for review. REAL ID Act § 106(c). Thus, we will treat this petition as if it had been filed

as a petition for review. Hernandez v. Gonzales, 437 F.3d 341, 344 (3d Cir. 2006). We

review Mirat’s legal and constitutional challenges de novo. Id. at 345 n.3.

II. Discussion

       Under 8 U.S.C. § 1227(a)(2)(A)(iii), “[a]ny alien who is convicted of an

aggravated felony at any time after admission is deportable.” The term “aggravated

       1
        Because we conclude that Mirat’s conviction was not for an aggravated felony, we do
not reach whether the reduction in Mirat’s restitution payment drops him below the $10,000
minimum in 8 U.S.C. § 1101(a)(43)(M)(i). See Munroe v. Ashcroft, 353 F.3d 225, 227 (3d Cir.
2003) (noting that amount of loss, not the amount of restitution, is the critical issue).

                                               3
felony” includes “an offense that . . . involves fraud or deceit in which the loss to the

victim or victims exceeds $10,000 . . ..” 8 U.S.C. § 1101(a)(43)(M)(i). Mirat contends

that his Bad Checks conviction is not an offense involving fraud or deceit, and, therefore,

he is not an aggravated felon under 8 U.S.C. § 1101(a)(43)(M)(i). We agree.

       An individual commits an offense of Bad Checks “if he issues or passes a check . .

. for the payment of money, knowing that it will not be honored by the drawee.” 18 PA.

CONS. STAT. ANN. § 4105(a)(1). In cases such as this, we look only to the statutory

definition of the crime in assessing whether it qualifies as an aggravated felony. Singh v.

Ashcroft, 383 F.3d 144, 147-48 (3d Cir. 2004) (quoting Taylor v. United States, 495 U.S.

575, 600 (1990)). As the BIA has stated in In re Balao, 20 I&N Dec. 440, 443-44 (BIA

1992), section 4105 does not describe a crime involving moral turpitude because fraud is

not an express element. See also Commonwealth v. Kyslinger, 484 A.2d 389, 390 (Pa.

1984). Although aggravated felony cases are distinct from moral turpitude cases, the

categorical analysis is appropriate in either situation. See Knapik v. Ashcroft, 384 F.3d

84, 89 n.4 (3d Cir. 2004). We find Balao’s analysis of section 4105 to be persuasive and

conclude that fraud, while sufficient to satisfy the mens rea requirement of section 4105,

is not necessary. See Singh, 383 F.3d at 153. Therefore, passing bad checks under

section 4105 is not an aggravated felony because it is possible to violate the statute

without having engaged in fraud or deceit.2 See Balao, 20 I&N Dec. at 443-44.

       2
        We are unpersuaded by the government’s argument that Mirat’s conviction satisfies 8
U.S.C. § 1101(a)(43)(M)(i) because, despite the fact that the statute does not require a finding of
fraud or deceit, Mirat’s conduct might meet the common law definition of deceit. As discussed
above, we will not look to underlying conduct in determining whether an alien has committed an

                                                 4
       We must briefly address and distinguish our decision in Nugent v. Ashcroft, 367

F.3d 162 (3d Cir. 2004), in which we held that a conviction under Pennsylvania’s theft by

deception statute, 18 PA. CONS. STAT. ANN. § 3922, for passing bad checks constituted

both a “theft offense” under 8 U.S.C. § 1101(a)(43)(G) and an “offense involving fraud or

deceit” pursuant to 8 U.S.C. § 1101(a)(43)(M)(i). In reaching our decision, we noted that

Pennsylvania’s theft by deception statute uses both variations of the word “deceive” and

the phrase “false impression”. Nugent, 367 F.3d at 178. Section 4105, by way of

contrast, only mentions a knowledge requirement, but we pointed out that the Official

Comment to that section explains that “‘[a] person who passes a bad check could be

prosecuted for theft by deception under Section 3922.’” Id. (citing 18 PA. CONS. STAT.

ANN. § 4105 (Official Comment)). Despite the language in Nugent and the Official

Comment to section 4105, a conviction under section 4105 is fundamentally different

from one under section 3922 because the former has no deceit or false impression

requirement. Therefore, while some convictions for writing bad checks under section

4105 might also have resulted in a conviction under section 3922, it does not mean that

conviction under section 4105 necessarily involved an offense perpetrated by means of

fraud or deceit. Under Singh, we need conclude no more than that in order to hold that a

conviction under section 4105 does not render an alien deportable under 8 U.S.C. §§

1101(a)(43)(M)(i) and 1227(a)(2)(A)(iii).




aggravated felony. Singh, 383 F.3d at 147-48; Taylor, 495 U.S. at 600.

                                               5
IV. Conclusion

       Because the final administrative order of removal was issued pursuant to the

erroneous legal conclusion that a conviction under 18 PA. CONS. STAT. ANN. § 4105(a)(1)

constitutes an aggravated felony conviction, we will grant the petition for review and

remand this case to the Board of Immigration Appeals with directions to release Mirat

from custody and to vacate the order of removal against him.




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