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


10-2-2006

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Precedential or Non-Precedential: Precedential

Docket No. 05-1047




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                                        PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


              Nos. 05-1047 and 05-2889


      WARREN HILARION EUSTA JOSEPH,

                           Petitioner

                          v.

ATTORNEY GENERAL OF THE UNITED STATES,

                         Respondent


     On Petition for Review from an Order Dated
December 10, 2004 of the Board of Immigration Appeals
              (Board No. A41-090-468)
       Immigration Judge Daniel A. Meisner


              Argued July 13, 2006
  Before: SMITH, WEIS and ROTH, Circuit Judges.

              (Filed: October 2, 2006)
Claudia Slovinsky, Esq. (Argued)
396 Broadway, Suite 601
New York, NY 10013
      Attorney for Petitioner

Peter G. O’Malley, Esq.
Office of United States Attorney
970 Broad Street, Suite 700
Newark, NJ 07102

Jonathan Potter, Esq. (Argued)
Linda S. Wernery, Esq.
Douglas E. Ginsburg, Esq.
John D. Williams, Esq.
U.S. Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
       Attorneys for Respondent



                OPINION OF THE COURT


WEIS, Circuit Judge.

      The issue in this case is whether the petitioner’s
conviction under 18 U.S.C. § 922(a)(3) constitutes an
“aggravated felony” of “illicit trafficking in firearms” under

                              2
Immigration and Nationality Act (“INA”) §§ 101(a)(43) and
237(a)(2)(A)(iii). 8 U.S.C. §§ 1101(a)(43)(C),
1227(a)(2)(A)(iii). We conclude that the petitioner’s offense is
not an aggravated felony under the INA because § 922(a)(3)
does not include a “trafficking element.”

       Petitioner Warren Hilarion Eusta Joseph, a lawful
permanent resident of the United States and a native and citizen
of Trinidad, is subject to a removal order under
§§ 237(a)(2)(A)(iii) and (a)(2)(C) of the INA, 8 U.S.C. § 1227
(a)(2)(A)(iii) & (a)(2)(C), on the grounds that his conviction
under 18 U.S.C. § 922(a)(3) constituted an “aggravated felony”
and a removable “firearms offense.”

      From 1988 to 1997, petitioner served in the United States
Army, including service in Operation Desert Storm and
Operation Desert Shield. During this enlistment he received
numerous awards and was honorably discharged in 1997.

       On October 10, 2001, petitioner was convicted in the
United States District Court for the Eastern District of New
York for violations of 18 U.S.C. §§ 922(a)(3) and 924(a)(1)(D).
Section 922(a)(3) makes it illegal for a person, other than a
licensed importer, dealer or manufacturer, to transport into or
receive in the state where he resides firearms purchased or
otherwise obtained by that person outside of his state of
residence. Id. Section 924(a)(1)(D) provides that it is illegal to
“willfully violate[] any other provision of this chapter,” which
includes § 922.




                                3
       In sentencing petitioner, the court departed downward
from the then-mandatory sentencing guidelines range and
imposed probation only. Petitioner, however, violated his
probation by, inter alia, failing to inform his probation officer
that he had moved and for failing a drug test. He was
incarcerated for six months for those violations.

       The government initiated removal proceedings and an
immigration judge conducted a hearing on July 12, 2004.
Petitioner testified about his criminal conviction, admitting that
he obtained weapons for persons to whom he owed money. He
further testified that he had turned himself in to authorities when
ATF contacted him and that he later pleaded guilty to violations
of §§ 922(a)(3) and 924(a)(1)(D).

        Petitioner filed for asylum, withholding of removal, and
relief under the Convention Against Torture. He testified that
he believed he would be persecuted if he returned to Trinidad
because he is Christian and because he served in the United
States Army. Petitioner also argued that he is a national of the
United States under 8 U.S.C. § 1101(a)(22), and is thus not an
alien subject to removal. He based this claim on the fact that he
took the Oath of Enlistment upon entry into the United States
Army and thus is “a person who, though not a citizen of the
United States, owes a permanent allegiance to the United
States.” 8 U.S.C. § 1101(a)(22).

      The IJ concluded that (1) petitioner was not a national of
the United States; (2) he was removable because he was
convicted of a weapons violation and because he was convicted
of an aggravated felony; (3) he was not eligible for asylum

                                4
because he had been convicted of an aggravated felony; and
(4) he was not prima facie eligible for naturalization because the
aggravated felony conviction prohibited him from establishing
that he has “good moral character.”

        In his appeal to the BIA, petitioner asserted three claims
for relief. First, he asserted that the IJ erred in determining that
petitioner was not a national of the United States. Second, he
argued the government should be equitably estopped from
removing him because of the gross delay in deciding earlier
applications for removal. Third, he contended that the IJ erred
in determining that petitioner was convicted of an aggravated
felony. The BIA affirmed the IJ’s decision without opinion.

       Petitioner then filed a motion with the BIA to reconsider
and reopen his case. He argued that the Board impermissibly
issued an affirmance without opinion despite the fact that
petitioner had raised an issue of law (that a violation of
§ 922(a)(3) was not an aggravated felony), and (2) that because
petitioner had recently reapplied for naturalization, the BIA
should set his case aside pending resolution of that application.

       The BIA denied the motion, concluding that petitioner
“in his request for reconsideration, primarily reiterates the
arguments raised on appeal regarding his removability as an
aggravated felon.” The BIA noted that it would not hold the
petition in abeyance pending resolution of his naturalization
application because his aggravated felony conviction prohibited
him from establishing prima facie eligibility for naturalization.




                                 5
       In the proceeding before this Court, petitioner challenges
only the findings that his § 922(a)(3) conviction constituted an
aggravated felony and that he is not prima facie eligible for
naturalization.

        Petitioner had also filed for habeas corpus relief in the
District Court and that case was transferred to this Court
pursuant to section 106(c) of the REAL ID Act of 2005, Pub.L.
No. 109-13, 119 Stat. 231. We consolidated the cases. See
Belito Garcia, No. 05-2786, 2006 WL 2529471, *2 (3d Cir.
Sept. 5, 2006). We have jurisdiction over the habeas corpus
action as well as the petition for review. However, our review
is limited to constitutional and legal questions. Id.

       As an initial matter, the Government alleges that
petitioner has waived all of his claims because he failed to
exhaust his administrative remedies. The government argues
that because petitioner has not applied for cancellation of
removal, he cannot assert the aggravated felony issue because
determination of that matter is only relevant to whether
petitioner is now eligible for cancellation of removal. However,
whether petitioner has applied for cancellation of removal is
irrelevant to whether he has waived the aggravated felony claim.

        An alien must exhaust all administrative remedies
available to him as of right before the BIA as a prerequisite to
raising a claim before this Court. See 8 U.S.C. § 1252(d)(1)
(1999); Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir.
2005). An applicant must first raise the issue before the BIA or
the IJ. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.
2005) (citing Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir.

                               6
1989)). As this Court has recognized, “so long as an
immigration petitioner makes some effort, however insufficient,
to place the Board on notice of a straightforward issue being
raised on appeal, a petitioner is deemed to have exhausted her
administrative remedies.” Yan Lan Wu, 339 F.3d at 422 (citing
Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir. 2004)).

       Petitioner does not argue that we should grant him
cancellation of removal. He argues only that 18 U.S.C.
§ 922(a)(3) is not an aggravated felony, a contention that he
clearly raised before the BIA and thus exhausted. He discusses
cancellation of removal only to explain one of the reasons why
the aggravated felony claim is relevant and not moot.

       The government’s exhaustion claim is meritorious,
however, with respect to the petitioner’s claim he is prima facie
eligible for naturalization. The government argues that
petitioner failed to raise before the Board his claim that, because
he can demonstrate that he has “good moral character,” he is
prima facie eligible for naturalization. In neither his motion to
reconsider and reopen nor in his brief in support of his appeal to
the Board did petitioner contest the IJ’s determination of
ineligibility for naturalization.

       Under the liberal exhaustion policy outlined in Bhiski
and Yan Lan Wu, an alien need not do much to alert the Board
that he is raising an issue. In Bhiski, the petitioner did not file
a brief in support of his appeal to the BIA. He did, however,
identify the issues that he later raised before us. 373 F.3d at
368-69.



                                7
        In Yan Lan Wu, the petitioner failed to allege in her
Notice of Appeal to the BIA that the IJ erred in considering only
one interview that the government had with her. However, she
did contend in her Notice of Appeal that the IJ’s conclusion was
not supported by substantial evidence and that she had presented
sufficient evidence in support of specific facts underlying her
asylum claim. 393 F.3d at 422.

        In the present case, by contrast, petitioner did nothing to
alert the BIA that he wished to appeal the IJ’s determination that
he was not prima facie eligible for naturalization.

        Petitioner is removable by reason of having committed a
criminal offense covered by § 1227(a)(2)(C), which provides
that aliens are removable if they are “convicted under any law
of purchasing, selling, offering for sale, exchanging, using,
owning, possessing, or carrying . . . any weapon, part, or
accessory which is a firearm or destructive device . . . in
violation of any law.” Section 922(a)(3) clearly falls under the
broad umbrella of weapons crimes covered by § 1227(a)(2)(C),
which include “possessing” and “carrying” and petitioner does
not challenge this.

       That petitioner is removable as a result of having
committed a firearms offense, however, does not moot his claim
that he was not convicted of an “aggravated felony.” The
petitioner’s eligibility for a cancellation of removal depends
upon resolution of this issue. See 8 U.S.C. § 1229b(a)(3); see
also Kuhali v. Reno, 266 F.3d 93, 107 (2d Cir. 2001)
(concluding that the issue of whether the alien committed an
“aggravated felony” was “not mooted by the . . . determination

                                8
that he is removable as an alien convicted of a firearms offense”
because his eligibility for a voluntary departure hinged on that
point). Moreover, an aggravated felony determination would
prevent petitioner from reentering the United States for twenty
years. See 8 U.S.C. § 1182(a)(9)(A)(ii).

       8 U.S.C. § 1101(a)(43) defines the term “aggravated
felony” by reference to several crimes. The inquiry here is
confined to § 1101(a)(43)(C), which provides that an aggravated
felony includes “illicit trafficking in firearms . . . .”

         The issue is whether § 922(a)(3), which makes it illegal
“for any person, other than a licensed importer, licensed
manufacturer, licensed dealer, or licensed collector to transport
into or receive in the State where he resides . . . any firearm
purchased or otherwise obtained by such person outside that
state . . . ,” qualifies as a crime of “illicit trafficking in firearms.”

        We generally employ the “formal categorical approach,”
announced in Taylor v. United States, 495 U.S. 575 (1990), in
determining whether an offense falls within the category of
“aggravated felony.” See Singh v. Ashcroft, 383 F.3d 144, 140
(3d Cir. 2001). Using that analysis, a court “must look only to
the statutory definitions” of the specified offense, and may not
“consider other evidence concerning . . . the particular facts
underlying [a] conviction[ ].” Taylor, 495 U.S. at 600.

       We apply that approach unless (1) “the language of the
particular subsection of 8 U.S.C. § 1101(a)(43) at issue . . .
invite[s] inquiry into the underlying facts of the case,” or
(2) “the disjunctive phrasing of the statute similarly invites

                                   9
inquiry into the specifics of the conviction.” Singh, 383 F.3d at
148; see also Belito Garcia, 2006 WL 2529471, at *3 (citing
Singh, 383 F.3d at 161).

         Neither of these exceptions applies to § 922(a)(3). As we
explained in Singh, the prototypical example of a statute that
invites inquiry into the facts underlying the conviction at issue
is 8 U.S.C. § 1101(a)(43)(M)(i), which includes the qualifier “in
which the loss to the victim or victims exceeds $10,000.”
Singh, 383 F.3d at 161. We observed that that phrase
“expresses such a specificity of fact that it almost begs an
adjudicator to examine the facts at issue.” Id. By contrast,
statutory phrases that have “relatively unitary categorical
concepts” like “forgery,” “burglary,” “crime of violence,” and
“illicit trafficking in a controlled substance” do not invite an
inquiry into the facts underlying the conviction. Belito Garcia,
2006 WL 2529471, at *3 (citing Singh, 383 F.3d at 156 n.4,
161).

        The statutory phrase under scrutiny here, “illicit
trafficking in firearms,” falls well within the category of unitary
categorical concepts, where there is no invitation to inquire into
the specific facts underlying the conviction.

        Section 922(a)(3) also does not have any relevant
disjunctive language. A conviction based on any part of the
disjunctions would not constitute a conviction for “illicit
trafficking.” See, e.g., Ng v. Attorney General, 436 F.3d 392,
397 (3d Cir. 2006) (noting that “although 18 U.S.C. § 1958 is
phrased in the disjunctive with respect to the type of interstate



                                10
commerce facility involved, this inquiry has no bearing on
whether the crime is one of violence”).

       We recognized in Singh that “[s]tatutes phrased in the
disjunctive are akin to, and can be readily converted to, statutes
structured in outline form, with a series of numbered or letter
elements.” Id. at 162. Thus, we can convert § 922(a)(3) into the
following:

       It shall be unlawful for any person, other than a
       licensed importer, licensed manufacturer, licensed
       dealer, or licensed collector to:

       (a) transport into the State where he resides . . .
       any firearm purchased by such person outside that
       State;

       (b) transport into the State where he resides . . .
       any firearm otherwise obtained by such person
       outside that State;

       (c) receive in the State where he resides . . . any
       firearm purchased by such person outside that
       State;

       OR

       (d) receive in the State where he resides . . . any
       firearm otherwise obtained by such person outside
       that State.



                               11
       The next step, under Singh, is to determine whether a
violation of some of those sections, but not others, would
constitute an aggravated felony. In conducting this inquiry,
“only the minimum criminal conduct necessary to sustain a
conviction under a given statute is relevant.” Canada v.
Gonzales, 448 F.3d 560, 565 (2d Cir. 2006) (internal citations
and quotations omitted). It is necessary that conduct required
for any conviction under the statute amounts to an aggravated
felony. See Singh, 383 F.3d at 153 (“what matters is whether
such conduct is necessary for such a conviction”) (emphasis in
original). Only if the minimum conduct required to sustain a
conviction under any part of the statute would constitute an
aggravated felony, do we look to the charging document or other
facts.

       Thus, we must determine whether the minimum conduct
necessary to sustain a conviction under the various terms of
§ 922(a)(3) constitutes weapons “trafficking.” The INA does
not define “trafficking” and when the relevant statute does not
define a word, “we normally construe it in accord with its
ordinary or natural meaning.” Smith v. United States, 508 U.S.
223, 228 (1993). Black’s Law Dictionary defines “traffic” as a
verb meaning, “To trade or deal in (goods, esp. illicit drugs or
other contraband)”). Black’s Law Dictionary (8th ed. 2004).
Black’s also defines traffic as a noun that includes
“1. Commerce; trade; the sale or exchange of such things as
merchandise, bills, and money” and “2. The passing or exchange
of goods or commodities from one person to another for an
equivalent in goods or money.” Id.




                              12
        Webster’s New International Dictionary defines traffic as
a verb meaning “to engage in commercial activity; buy and sell
regularly” and “to engage in illegal or disreputable business or
activity.” Webster’s New International Dictionary (3d ed.
1966). Webster’s also defines traffic as a noun meaning
“commercial activity usually involving import and export
trade”; “the activity of buying or bartering and selling”; and
“illegal or disreputable usually commercial activity.” Id.

        In Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002), this
Court considered the use of the phrase “illicit trafficking” in
§ 1101(a)(43)(B), which provides that an “aggravated felony”
includes “illicit trafficking in a controlled substance.” In that
case, defendant was convicted under a state statute which,
though called “trafficking,” punished mere possession. Id. at
314-15. We held that the state crime was not a crime of
“trafficking” because “trading or dealing” in controlled
substances was not an element of the offense. Id. at 305. In that
case, defendant “did not plead guilty to distribution, solicitation,
or possession with intent to distribute or any other fact
suggesting that he was trading or dealing in cocaine.” Id. at
313-14.

        Similarly, § 922(a)(3) does not include any element of
“dealing in firearms” and in fact encompasses the legal purchase
in another state of a firearm and the subsequent transport of that
firearm to an individual’s home state. The statute does not
require that the purchase and transportation or receipt of the
weapon be accompanied by any intent to sell or otherwise
distribute the firearm to another individual. The plain meaning
of “illicit trafficking of firearms” requires some element of

                                13
illegal trading and dealing of firearms, an element which is
totally absent from § 922(a)(3). The mere movement of an
article in interstate commerce does not constitute “trafficking.”

        It is not necessary to prove that a defendant engaged in
trafficking to sustain a conviction under any of the subsections
of § 922(a)(3) and thus we do not have occasion to look to the
charging document, or any other facts.

        This is quite unlike the situation in Belito Garcia, where
some parts of the Pennsylvania statute involved in that case
required “trading or dealing” as an element of the offense, while
others did not. Belito Garcia, 2006 WL 2529471, at * 4 n.9. In
that case, it was appropriate to consider the charging document
to determine whether the petitioner was convicted under a part
of the statute that required trading and dealing.

      Because Joseph’s § 922(a)(3) conviction was not an
aggravated felony of “illicit trafficking in firearms” under
§ 1101(a)(43)(C), we will grant the petition for review and
remand to the BIA for further proceedings consistent with this
opinion.




                               14
