Novitskiy v. Ashcroft , 120 F. App'x 286 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 24 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
SERGEY GENNAD’YEVICH
NOVITSKIY,
No. 04-9530
Petitioner,
v. (United States Board of Immigration)
JOHN ASHCROFT, United States (Agency No. A71 193 707)
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. **
Sergey Gennad’Yevich Novitskiy, Petitioner, asks us to review the Board
of Immigration Appeals’s order finding him removable because he committed an
aggravated felony. Finding that we lack jurisdiction, we dismiss the appeal.
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
BACKGROUND
Novitskiy, born in Azerbaijan, is a citizen of the former Soviet Union and a
legal alien in this country. In the District Court of Arapahoe County, Colorado,
Novitskiy pled guilty to trespass of an automobile with intent to commit a crime
and possession of burglary tools in violation of C.R.S. §§ 18-4-502 and 18-4-
205(1), respectively. The court sentenced Novitskiy to eighteen months in prison.
Because Novitskiy is an alien, removal proceedings were instituted. After a
hearing, an immigration judge (IJ) found Novitskiy removable because
unequivocal evidence showed he was an alien who committed an aggravated
felony, as defined by 8 U.S.C. § 1101(a)(43)(G) (2000) (defining an aggravated
felony as, among other things, a burglary conviction resulting in a prison sentence
in excess of one year). Novitskiy appealed the IJ’s decision to the Board of
Immigration Appeals (BIA). The BIA affirmed the decision, finding the
government met its burden of proving Novitskiy was an alien who was removable
because he committed an aggravated felony. Thereafter, Novitskiy filed a timely
appeal with this court.
ANALYSIS
The Immigration and Nationality Act (INA) divests this court of
“jurisdiction to review any final order of removal against an alien who is
removable by reason of having committed” an aggravated felony. 8 U.S.C.
-2-
§ 1252(a)(2)(C) (2000). However, in determining whether this jurisdictional bar
applies, we can “decide whether [a] petitioner is (i) an alien (ii) deportable (iii)
by reason of a criminal offense listed in” 8 U.S.C. § 1101. Tapia-Garcia v. INS ,
237 F.3d 1216, 1220 (10th Cir. 2001). Thus, while we can “determine whether
we have jurisdiction over deportation orders concerning alleged aggravated felons
as described in Tapia-Garcia , ‘the plain language of § 1252(a)(2)(C) fairly
explicitly strips the courts of appeals of jurisdiction to hear their claims on
petitions for direct review.’” Latu v. Ashcroft , 375 F.3d 1012, 1017 (10th Cir.
2004) (quoting Calcano-Martinez v. INS , 533 U.S. 348, 351 (2001)).
Our limited jurisdiction under § 1252(a)(2)(C) allows us only to determine
whether Novitskiy is an alien who is deportable because he committed an
aggravated felony as defined by 8 U.S.C. § 1101. Because neither party contests
Novitskiy’s status as an alien, we need only examine whether Novitskiy
committed an aggravated felony. 1
The INA specifically enumerates offenses that
constitute aggravated felonies. One such offense, found at § 1101(a)(43) is “a
theft offense . . . or burglary offense for which the term of imprisonment [is] at
1
Respondent moved to dismiss the appeal for lack of jurisdiction, arguing
that we lack jurisdiction to determine if Novitskiy committed an aggravated
felony. However, because we cannot determine whether the jurisdictional bar in 8
U.S.C. § 1252(a)(2)(C) applies without examining whether Novitskiy did in fact
commit an aggravated felony, we deny the motion.
-3-
least one year.” Novitskiy contends he did not commit an aggravated felony
because his crimes do not constitute a theft offense or burglary under § 1101. 2
The BIA noted Novitskiy pled guilty to “knowingly entering a motor
vehicle with the intent to steal a thing of value.” Aplt. Br. Ex. A, p. 4. Based on
this plea, and the resulting eighteen-month sentence, the BIA found Novitskiy
committed an aggravated felony, and specifically a theft offense, which it defined
as the attempted “‘taking of property or [] exercise of control over property
without consent [and] with the criminal intent to deprive the owner of rights and
benefits of ownership.’” Id. at 3 (quoting United States v. Vasquez-Flores , 265
F.3d 1122, 1125 (10th Cir. 2001)).
“[W]e must defer to the [BIA’s] construction of [an immigration]
statute . . . [if the statute] is subject to differing interpretations . . . [and] the
interpretation . . . is reasonable.” Tapia-Garcia , 237 F.3d at 1220. The INA does
not specifically define theft offense, thus it is subject to varying interpretations.
However, the BIA’s definition and interpretation of theft offense were reasonable
because they relied on applicable precedent and fairly construed the INA.
Therefore, we find Novitskiy is an alien who is deportable because he committed
2
Novitskiy also argues the government failed to meet its statutory burden
of proof. This argument necessarily requires us to review the merits of the case
and exceeds our jurisdiction under 8 U.S.C. § 1252(a)(2)(C) . Thus, we do not
address the argument.
-4-
a theft offense that constitutes an aggravated felony under 8 U.S.C. § 1101. As a
result, we must dismiss the case for lack of jurisdiction under 8 U.S.C.
§ 1252(a)(2)(C).
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
-5-