                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 11-3924
                                       ___________

                        RICHARD MICHREKA NYAMWANGE,

                                                                  Petitioner

                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                        Respondent
                       ____________________________________

                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A029-043-107)
                    Immigration Judge: Honorable Walter A. Durling
                      ____________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   August 22, 2012

                Before: SMITH, HARDIMAN and ROTH, Circuit Judges

                           (Opinion filed: September 12, 2012)
                                      ___________

                                       OPINION
                                       ___________

PER CURIAM

       Richard Michreka Nyamwange, a citizen of Kenya, was admitted to the United

States as a lawful permanent resident in 1988. In 2008, after a jury trial in the
Pennsylvania Court of Common Pleas at Monroe County, he was convicted of sexual

assault in violation of 18 Pa. Cons. Stat. § 3124.1 and aggravated indecent assault without

consent in violation of 18 Pa. Cons. Stat. § 3125(a)(1). He was sentenced to a term of

two and a half to five years in prison for the former offense and five years of probation

for the latter. Subsequently, the Government charged Nyamwange as removable as an

alien convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(A) (relating

to rape), and in 8 U.S.C. § 101(a)(43)(F) (a crime of violence, as set forth in 8 U.S.C.

§ 16, for which the alien received a sentence of at least one year in prison). Ultimately,1

the Board of Immigration Appeals (“BIA”) held that Nyamwange was removable on the

basis that his sexual assault offense under 18 Pa. Cons. Stat. § 3124.1 was a categorical

aggravated felony under 8 U.S.C. § 101(a)(43)(F).

       Nyamwange appeals. Our jurisdiction is circumscribed because Nyamwange is

removable for having been convicted of an aggravated felony. See 8 U.S.C.

§ 1252(a)(2)(C). However, we retain jurisdiction over constitutional claims and

questions of law, including the main question at issue in this appeal, namely, whether

Nyamwange was convicted of an aggravated felony. See Pierre v. Attorney Gen. of the

United States, 528 F.3d 180, 184 (3d Cir. 2008) (en banc) (citing 8 U.S.C.

§ 1252(a)(2)(C)-(D)).


       1
         As the parties are aware, the procedural history of this case before this agency
was not uneventful. However, we will not recount the history in detail, for it is not
relevant to the outcome of this case.

                                             2
       Pertinent to our analysis is Nyamwange’s conviction for sexual assault, for which

he received a sentence of more than one year in prison. He was convicted under a statute

that provides that “. . . a person commits a felony of the second degree when that person

engages in sexual intercourse or deviate sexual intercourse with a complainant without

the complainant’s consent.” 18 Pa. Cons. Stat. § 3124.1. We have already analyzed this

statute in detail and concluded that a conviction under it constitutes a crime of violence

pursuant to 18 U.S.C. § 16(b) and an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).

See Aguilar v. Attorney Gen. of the United States, 663 F.3d 692, 700-04 (3d Cir. 2011).

We reject Nyamwange’s arguments to the contrary (including his arguments about why

he believes our decision in Aguilar is incorrect, see Reich v. D.M. Sabia Co., 90 F.3d

854, 858 (3d Cir. 1996) (explaining that a panel of the court is bound by a published

decision of a prior panel absent intervening authority or amendments to the relevant

statutes or regulations)). Accordingly, we hold that the BIA did not err in ruling that

Nyamwange was removable. We will deny the petition for review.2



       2
        We also have considered Nyamwange’s arguments about the Government’s
alleged waiver or abandonment, during the administrative proceedings, of the charge on
which Nyamwange was found removable. We conclude that the arguments are without
merit. We review the decision of the BIA, which ruled on the charge (which the
Government had included in the notice to appear). The BIA has been delegated authority
by the Attorney General, see 8 C.F.R. § 1003.1, who is the respondent in this case, and
who is charged with the administration and enforcement of the Immigration and
Nationality Act, see 8 U.S.C. § 1103(a)(1). Furthermore, we are unaware of any
authority that holds that any deficiency in briefing by the Government during the
administrative process requires an Immigration Judge, the BIA, or us to deem a charge
waived or abandoned.
                                              3
