Jose Bedolla Avila v. Attorney General United States
826 F.3d 662
| 3rd Cir. | 2016Background
- Bedolla, a Mexican national who entered the U.S. unlawfully in 1991 and later reentered, was placed in INA § 240 removal proceedings in Feb 2012 as an inadmissible alien (unlawful entry) and conceded removability.
- DHS pretermitted his adjustment application in April 2014; he sought cancellation of removal but was later arrested and pled guilty (Feb 18, 2015) to Possession With Intent to Deliver (PWID) cocaine under 35 Pa. Cons. Stat. § 780-113(a)(30).
- DHS issued a Notice of Intent to Issue a Final Administrative Removal Order (NOI) on Feb 19, 2015 and a Final Administrative Removal Order (FARO) signed Mar 9, 2015, initiating expedited administrative removal under INA § 238(b) as an aggravated felon.
- DHS also had an ongoing INA § 240 proceeding (for inadmissibility); the IJ later terminated that § 240 proceeding at DHS’s request on Mar 17, 2015; DHS reissued and re-served the FARO on Apr 20–27, 2015.
- Bedolla filed a timely petition for review of the Mar 9, 2015 FARO; he asserted fear of return, had a reasonable fear interview and IJ review, which denied relief; he sought reopening but did not obtain review of that denial.
- The Third Circuit stayed removal, then considered whether (1) his PWID conviction is an aggravated felony and (2) whether concurrent DHS expedited removal and EOIR § 240 proceedings invalidated the FARO or violated due process.
Issues
| Issue | Bedolla's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Bedolla’s PWID conviction is an "aggravated felony" under INA § 101(a)(43)(B) | PWID conviction was mere possession (no trafficking element) and thus not an aggravated felony | PWID with intent to deliver is analogous to federal § 841 possession-with-intent/distribution and is a felony; conviction was for PWID cocaine | Held: Conviction is PWID of cocaine and, via the hypothetical federal felony route, is an aggravated felony; expedited removal proper |
| Whether DHS and EOIR may have concurrent removal proceedings and whether that invalidates the FARO | 8 C.F.R. § 238.1(e) and related regs require termination of § 240 proceedings before DHS may initiate § 238 expedited removal; concurrent proceedings are impermissible | No statute or regulation prohibits brief concurrent proceedings where they arise from independent bases; DHS discretion to choose § 238 procedure remains | Held: Regulations cited do not apply or bar brief concurrent proceedings here; FARO not invalidated |
| Whether INA § 238(b)(1) "or" wording bars concurrent procedures | The statutory "or" shows Congress intended mutually exclusive procedures, precluding simultaneous proceedings | The "or" gives DHS discretion to issue a removal order under § 238(b) or under § 240; it does not forbid concurrent pendency | Held: Statutory language does not prohibit concurrent pending proceedings; DHS lawfully issued FARO |
| Due process claim based on simultaneous proceedings | Concurrent proceedings deprived Bedolla of opportunity to present his case and violated due process | Bedolla was able to present claims (reasonable fear, IJ review); no fundamental right violated and no prejudicial regulatory violation shown | Held: Due process claim rejected; no showing of prejudice or denial of opportunity to present case |
Key Cases Cited
- Thomas v. Attorney General, 625 F.3d 134 (3d Cir. 2010) (standard of review for aggravated-felony question)
- Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) (use of categorical approach)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach foundation)
- Descamps v. United States, 570 U.S. 254 (2013) (divisible statutes and modified categorical approach)
- Shepard v. United States, 544 U.S. 13 (2005) (documents courts may consult under modified categorical approach)
- Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002) (possession with intent requires intent element)
- Evanson v. Attorney General, 550 F.3d 284 (3d Cir. 2008) (modified categorical approach application)
- Abbott v. United States, 748 F.3d 154 (3d Cir. 2014) (Pennsylvania § 780-113 divisible as to controlled substances)
- Catwell v. Attorney General, 623 F.3d 199 (3d Cir. 2010) (division as to conduct and analogy to federal law)
- Jeune v. Attorney General, 476 F.3d 199 (3d Cir. 2007) (state PWID analogous to § 841)
- Uspango v. Ashcroft, 289 F.3d 226 (3d Cir. 2002) (due process requires opportunity to present case)
- Leslie v. Attorney General, 611 F.3d 171 (3d Cir. 2010) (prejudice requirement for regulatory violations)
- Cheruku v. Attorney General, 662 F.3d 198 (3d Cir. 2011) (standard of review for statutory/regulatory interpretation)