Pеtitioner Sidikiba Magasouba, a native and citizen of Guinea, seeks review of a decision of the Board of Immigration Appeals (“BIA”), which declared him removable as an aggravated felon and denied his application for withholding of removal and relief under the Convention Against Torture (“CAT”). In casеs involving aggravated felons, this court has jurisdiction to review only “colorable” claims of constitutional or legal error, i.e., claims that have “somе potential validity.”
Pan v. Gonzales,
First.
Whether petitioner’s state-court conviction actually constitutes an aggravated felony, as defined in 8 U.S.C. § 1101(a)(43), is a question of law over which this court has jurisdiction.
See, e.g., Aguiar v. Gonzales,
In 2006, after being caught selling pirated copies of DVDs and CDs, petitioner was convicted in a Rhode Island state court of two оffenses. Of relevance here is his conviction under a provision entitled “[florgery, counterfeiting, or alteration of trademark, service mark, or identification mark,” which provides as follows:
Any person who knowingly and willfully sells, offerfs] to sell, or possesses with the intent to sell goods which contain a *15 countеrfeit trademark, service mark, or identification mark ... shall be guilty of the offense of trafficking in trademark counterfeits.
R.I.G.L. § ll-17-13(c)(l). The BIA concluded that this offense constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(R), which refers to
an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehiclеs the identification numbers of which have been altered for which the term of imprisonment is at least one year.
8 U.S.C. § 1101(a)(43)(R).
We agree that subsection (a)(43)(R) subsumes all the elements of the Rhode Island offense. The state provision involves a relatively narrow category of conduct; indeed, it is but one of fourtеen provisions outlawing different forms of counterfeiting or forgery. Subsection (a)(43)(R), by contrast, is much more encompassing, as is made particularly evident by its use of the term “relating to.” By employing that phrase, “Congress evidenced an intent to define [the listed offenses] in [their] broadest sense.”
Park v. Attorney General,
In disputing this conclusion, petitioner contends that his conviction is instead, or is also, encompassed by 8 U.S.C. § 1101(a)(43)(M). That provision, in relevant part, refers tо an offense that “involves fraud or deceit in which the loss to the ... victims exceeds $10,000,” a loss amount that allegedly was not involved here. Petitioner appears to advance several arguments in this regard. First, he asserts that, since subsection (M) is applicable, subsection (R) must be inapplicable. Yеt he does not explain why this should be so, nor does he otherwise contest subsection (R)’s applicability.
Second, he suggests that even if both subsections apply, the government was obligated to proceed under subsection (M). In rejecting an analogous argument involving these same two provisions, the Third Cirсuit held that the government had the discretion to proceed “under either or both subsections.”
Bobb v. Attorney General,
Third, by describing the offense here as a “hybrid” crime and by earlier referring to
Nugent v. Ashcroft,
Second. Petitioner’s next claim involves a due process challenge to the manner in which the charges against him were amended. This сlaim only barely, if at all, rises to the level of “colorable.”
The notice to appear alleged that petitioner was removable for having been convicted of (1) an aggravated felony in the form of a “theft offense” under 8 U.S.C. § 1101(a)(43)(G), and (2) two crimes of moral turpitude. Thereafter, in respоnse to petitioner’s motion to terminate pro *16 ceedings, the government acknowledged that neither rationale was viable. As a result, it issued a Form 1-261, entitled “Additional Charges of Inadmissibility/De-portability,” which set forth an amended charge based solely on subsection (R).
Petitioner did not object to the filing of this nеw charge, and he received an extension of time to respond thereto. Nonetheless, he now argues that the government could not repair the defective notice to appear simply by filing a new charge on Form 1-261; rather, it was required to dismiss the original notice to appear аnd issue a new one. Had that sequence been followed, he contends, the government would have been barred by res judicata from seeking removаl based on the same conviction. The BIA perceived no error, even while describing the presentation of charges here as “slightly awkward.”
We agree that this claim falls short. By regulation, the government is entitled to lodge “additional or substituted charges” of removability “[a]t any time during the proceeding.” 8 C.F.R. § 1240.10(е);
accord
8 C.F.R. § 1003.30. We have stated that “there is no requirement that the [government] advance every conceivable basis for deportability in the original show cause order.”
De Faria v. INS,
In the case at hand, the BIA determined that the filing of an amended charge on Form 1-261 was the “functional equivalent” of filing the same charge on the notice to appear. It also held that petitioner had been given adequate notice of the new charge and amplе time to respond thereto (findings that petitioner has not disputed). And, finally, the application of res judicata in this context would require “a final judgment, rendеred on the merits in a separate action.”
Valencia-Alvarez v. Gonzales,
Third.
Petitioner’s remaining claims involve fact-based challenges to the withholding and CAT rulings. These principally consist of challenges to the immigration judge’s credibility assessments, evidentiary rulings, and other factual determinations. Because of petitioner’s status as аn aggravated felon, we lack jurisdiction to review such assignments of error.
See, e.g., Conteh,
The petition for review is dismissed in part for lack of jurisdiction. What remains is denied.