Jоse Luis Bedolla AVILA, Petitioner v. ATTORNEY GENERAL, United States of America, Respondent
No. 15-1860
United States Court of Appeals, Third Circuit.
June 23, 2016
662 F.3d 662
Submitted pursuant to Third Circuit L.A.R. 34.1(a) on March 3, 2016
using the PUDGIE‘S mark in the same capacity as Pudgie‘s Horseheads, we need not consider whether Tarntino‘s knowledge of Tru-Foods‘s mark, which Tarntino alleges could be used only in connection with restaurants serving chicken, might also satisfy the scienter element of Plaintiffs’ claim.
Julia J. Tyler, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent.
Before: McKEE, Chief Judge, SMITH and HARDIMAN, Circuit Judges
OPINION
SMITH, Circuit Judge
Petitioner Jose Luis Bedolla Avila (Bedolla), a native and citizen of Mexico, petitions for review of a Final Administrative Removal Order (FARO) issued on March 9, 2015, by an Assistant Field Office Director with U.S. Immigration and Customs Enforcement (ICE), United States Department of Homeland Security (DHS), in Allenwood, Pennsylvania. For the reasons that follow, we will deny the petition for review.
I.
Bedolla illegally entered the United States in 1991, although he traveled to Mexico and re-entered the United States at least once since then. In February 2012, he was arrested in Chester County, Pennsylvania, on a bench warrant for failure to appear at trial on a charge of driving under the influenсe of alcohol. He was referred to an Immigration Enforcement Agent and, on February 22, 2012, was placed in removal proceedings pursuant to Section 240 of the Immigration and Nationality Act (INA),
Bedolla obtained counsel. He conceded removability and requested cancellation of removal and adjustment of status. In February 2014, DHS filed a motion to pretermit the application for adjustment of status on the grounds that Bedolla had departed the United States and reentered without inspection after accruing more than one year of unlawful presence in the United States. See
On May 1, 2014, before the scheduled hearing date, Bedolla was arrested on drug charges. His attorney obtained a continuance of his removal hearing due to his arrest and incarceration. On February 18, 2015, Bedolla pleaded guilty to a charge of Possession with Intent to Manufacture or Deliver Cocaine in violation of
The day after Bedolla entered the guilty plea, February 19, 2015, DHS issued a Notice of Intent to Issue a Final Administrative Removal Order (NOI), placing Bedolla in expedited administrative removal proceedings pursuant to
On March 9, 2015, an ICE detention officer wrote a memorandum to the Assistant Field Office Director advising that the period for responding to the NOI had elapsed, Bedolla had not filed a response, and a FARO should be signed. That same day, the Assistant Field Office Director signed the FARO. Although the Certificate of Service accompanying the FARO does not accurately reflect the date or manner of service, Bedollа avers that he received the FARO shortly after March 9, 2015.1 Bedolla timely filed this petition for review on April 8, 2015, within thirty days of the date of the FARO.
Meanwhile, on March 17, 2015, at DHS‘s request, the Immigration Judge terminated the still-pending INA § 240 removal proceeding that had been initiated in February 2012. DHS then re-issued the FARO on April 20, 2015, and served it the following week upon Bedolla in person in York, Pennsylvania on April 27, 2015. Bedolla did not petition for review of the April 20, 2015, FARO.2
Bedolla expressed a fear of returning to Mexico. An Asylum Officer therefore conducted a reasonable fear interview on May 19, 2015, and, on June 3, 2015, denied Bedolla‘s reasonable fear claim. Bedolla requested a hearing before an Immigration Judge, which was held on June 8, 2015. The Immigration Judge found that Bedolla did not establish a reasonable possibility that he would be persecuted or tortured in Mexico, and therefore returned the case to DHS for Bedolla‘s removal. Bedolla later mоved to re-open the proceeding and submit further evidence. The Immigration Judge denied reopening and Bedolla did not seek review of that decision.
We have jurisdiction over questions of law and constitutional claims presented in
II.
Bedolla argues that DHS erred by plаcing him in expedited administrative removal proceedings because his crime is not an aggravated felony for purposes of removal under
The statute under which Bedolla was convicted,
We therefore will consider the charging document, plea agreement, and trial court judgment to determine the exact crime to which Bedolla pleaded guilty. See Shepard v. United States, 544 U.S. 13, 16 (2005); Abbott, 748 F.3d at 158. It is undisputed that, in Bedolla‘s case, the controlled substance in question was cocaine. Bedolla argues, however, that his conviction was for conduct that does not qualify as an aggravated felony because he pleaded guilty to the mere possession of cocaine only. This argument is unavailing.
The statute of conviction,
Having identified Bedolla‘s crime as the felony of possession with intent to deliver cocaine, we next employ the framework for determining whether his conviction constitutes an aggravated felony. In Gerbier, 280 F.3d at 313, we held there are two independent but valid routes by which an offense may be found to qualify as an aggravated felony. The first, the illicit trafficking route, provides that a crime is an aggravated felony if it is a felony under state law and contains a trafficking element. Id. The second, the hypothetical federal felony route, provides that a crime is an aggravated felony if it would qualify as a felony under the Federal Controlled Substances Act. Id.
Bedolla argues that his conviction does not qualify as an aggravated felony because his crime does not contain a trafficking element. See id. at 299 (a state felony drug conviction qualifies as an aggravated felony if it contains a trafficking element). According to Bedolla, he did not commit a trafficking offense because hе did not admit to the exchange of drugs for money. Yet we need not decide whether Bedolla‘s conviction is a trafficking offense because the hypothetical felony route leads us clearly to the conclusion that Bedolla‘s crime is an aggravated felony.
Under the hypothetical federal felony route, we compare the offense of conviction to the federal Controlled Substances Act to determine if it is analogous tо an offense under that Act. Evanson, 550 F.3d at 289. A Pennsylvania felony conviction of possession of a controlled substance with intent to deliver is analogous to
Because Bedolla was convicted of a crime analogous to the federal felony of possession with intent to distribute cocaine prohibited by
III.
Next, Bedolla argues that the FARO is invalid because, at the time it was issued, the Executive Office for Immigration Review (EOIR) and DHS simultaneously were conducting removal proceedings against him on two separate bases—as an alien present without being admitted (in an EOIR removal proceeding before an Immigration Judgе under INA § 240) and as an aggravated felon (in an expedited administrative removal proceeding initiated by DHS under INA § 238). According to Bedolla, DHS and EOIR lack jurisdiction to concurrently adjudicate removal proceedings on separate bases involving the same individual. The government responds that no statute or regulation prohibits a period of brief concurrent proceedings before both DHS and the Immigration Judge, particularly where the two removаl proceedings were commenced on independent grounds.
Whether the applicable regulations preclude concurrent removal proceedings presents a question of statutory interpretation subject to our de novo review. Cheruku v. Attorney General, 662 F.3d 198, 202 (3d Cir. 2011). In support of his claim, Bedolla relies primarily upon 8 C.F.R. § 238.1(e), which provides:
In any proceeding commenced under section 240 of the Act which is based on deportability under section 237 of the Act, if it appears that the respondent alien is subject to removal pursuant to section 238 of the Act, the immigration judge may, upon the Service‘s request, terminate the case and, upon such termination, the Service may commence administrative proceedings under section 238 of the Act. However, in the absence of any such request, the immigration judge shall complete the proceeding commenced under section 240 of the Act.
8 CFR § 238.1(e) (emphasis added). According to Bedolla, this regulation mandates that any proceeding before the Immigration Judge must be dismissed before DHS permissibly may initiate an expedited removal proceeding.
We need not decide whether Bedolla has properly interpreted this regulation. Bedolla overlooks a critical issue: the terms of 8 CFR § 238.1 do not apply to him. The regulation applies only to § 240 proceedings before an Immigration Judge that are based on deportability under section 237 of the Act. (emphasis added). Bedolla‘s original removal proceeding was not based on
Bedolla next looks to the regulations at 8 C.F.R. §§ 239.1 and 239.2, which govern the issuance and cancellation of a notice to appear, the document that triggers proceedings before an Immigration Judge. For instance, 8 C.F.R. § 239.2(c) provides that [a]fter commencement of proceedings pursuant to 8 C.F.R. § 1003.14 [concerning commencement of proceedings before an Immigration Judge], ICE counsel, or any officer enumerated in paragraph (a) of this section, may move for dismissаl of the matter on the grounds set out under paragraph (a) of this section. Paragraph (a), in turn, permits cancellation of a notice to appear on a number of grounds, including that [c]ircumstances of the case have changed after the notice to appear was issued to such an extent that continuation is no longer in the best interest of the government. 8 C.F.R. § 239.2(a)(7).
We see nothing in these provisions directing that a proceeding befоre an Immigration Judge must be cancelled at a particular time. We certainly see nothing to support Bedolla‘s claim that the regulations do not permit a brief period in which an individual may face removal proceedings before both an Immigration Judge and DHS. These regulations simply do not address the issue of concurrently pending removal proceedings where, as here, the proceedings were based upon independent reasons for effecting removal.
In support of his interpretation of 8 C.F.R. § 239.2, Bedolla relies upon a decision by the Board of Immigration Appeals, In re G-N-C, 22 I & N Dec. 281 (BIA 1998). In G-N-C, the government moved to terminate a proceeding pending before an Immigration Judge so that it could reinstate a prior deportation order under INA § 241, based upon the petitioner‘s conviction of a crime of moral turpitude. Id. at 282-83. The day after the government filed the motion, without considering any response from the petitioner, the Immigration Judge summarily terminated the removal proceeding as unopposed. Id.
Upon review, the BIA determined that the Immigration Judge erred by terminating the proceeding at the government‘s request and without notice to the other side. The BIA concluded that, once proceedings have begun before an Immigration Judge, the government may move for dismissal only in the manner provided by 8 C.F.R. § 239.2:
[A]fter commencement of procеedings in the Immigration Court, Service counsel may move for dismissal of the matter on the grounds set out (in) this section. 8 C.F.R. § 239.2(c). This language marks a clear boundary between the time prior to commencement of proceedings, where a Service officer has decisive power to cancel proceedings, and the time following commencement, where the Service officer merely has the privilege to move for dismissal of proceеdings. By this distinction, the regulation presumably contemplates not just the automatic grant of a motion to terminate, but an informed adjudication by the Immigration Judge or this Board based on an evaluation of the factors underlying the Service‘s motion.
Thus, the G-N-C decision addresses the proper manner in which an Immigration Judge may terminate one removal proceeding where a second is going forward. 22 I & N Dec. at 284. It does not undermine our conclusion that 8 C.F.R. § 239.2
Finally, Bedolla looks to
Once again, we do not interpret this language to prohibit the pendency of concurrent removal proceedings. Rather, this statute permits the government discretion to issue a final order of removal under either one of the two applicable provisions. In Bedolla‘s case, DHS chose to proceed by issuing a final order of removal under
IV.
Finally, Bedolla argues that the conduct of simultaneous proceedings before the Immigration Judge and DHS resulted in a deprivation of his right to due process. We reject this claim. Bedolla has made no showing that he was prеvented from reasonably presenting his case. See Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002). Moreover, as we have concluded that there was no violation of the applicable statutes or regulations, Bedolla has failed to establish that he suffered a violation of any fundamental right. Cf. Leslie v. Attorney General, 611 F.3d 171, 178 (3d Cir. 2010) ([V]iolations of regulations promulgated to protect fundamental statutory or constitutional rights need not be accompanied by a showing of prejudice to warrant judicial relief.).
V.
For all of the foregoing reasons, the petition for review will be denied. The stay of removal previously imposed by a panel of this Court is hereby lifted.