Rikesh Navnit Patel v. U.S. Attorney General ( 2012 )

Case: 12-11241 Date Filed: 12/17/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11241
Non-Argument Calendar
________________________
Agency No. A047-958-656
RIKESH NAVNIT PATEL,
a.k.a. Rikesh Patel,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
_______________________
Petition for Review of a Decision of
the Board of Immigration Appeals
_______________________
(December 17, 2012)
Before BARKETT, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
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Rikesh Navnit Patel, a native and a citizen of the United Kingdom, petitions
for review of the order of the Board of Immigration Appeals (“BIA”) determining
that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been
convicted of an aggravated felony and under 8 U.S.C. § 1227(a)(2)(B)(i) for
having been convicted of an offense relating to a controlled substance.
Specifically, Patel’s removability was based on his Florida convictions for
possession of 20 grams or less of marijuana, possession of alprazolam with intent
to sell or deliver, and possession of oxycodone with intent to sell or deliver, all
under Fla. Stat. Ann. § 893.13, and one conviction for possession of drug
paraphernalia, under Fla. Stat. Ann. § 893.147(1). On appeal, Patel asserts that
because his convictions under Fla. Stat. Ann. § 893.13 lack a mens rea greater than
strict liability or negligence, they should not be considered deportable offenses.
Our jurisdiction to review orders of removal is limited by the Immigration and
Nationality Act which provides that “no court shall have jurisdiction to review any
final order of removal against an alien who is removable by reason of having
committed a criminal offense covered in section . . . 1227(a)(2)(A)(iii) [or] (B) . . . of
this title.” 8 U.S.C. § 1252(a)(2)(C). However, we have jurisdiction to review
constitutional claims or questions of law, which includes whether the petitioner is
“(1) an alien; (2) who is removable; (3) based on having committed a disqualifying
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offense.” 8 U.S.C. § 1252(a)(2)(D); Moore v. Ashcroft, 251 F.3d 919, 923 (11th
Cir. 2001). We also have held that the question of whether a petitioner’s
conviction constitutes an “aggravated felony” within the meaning of the INA is a
question of law that falls within our jurisdiction. Balogun v. U.S. Att’y Gen., 425
F.3d 1356, 1360 (11th Cir. 2005). Because Patel’s petition raises a question of law,
namely whether his convictions under Fla. Stat. Ann. § 893.13 should be considered
deportable offenses, we have jurisdiction to review his petition.
We, however, need not resolve this question, because even if we assume all
of Patel’s convictions under Fla. Stat. Ann. § 893.13 do not constitute deportable
offenses, Patel does not challenge his removability based on his drug paraphernalia
conviction under Fla. Stat. Ann. § 893.147(1). The BIA also found Patel removable
as having been convicted of a controlled-substance offense based on the drug
paraphernalia conviction, which Patel does not contest. See 8 U.S.C.
§ 1227(a)(2)(B)(i) (providing that an alien who has been convicted of an offense
“relating to a controlled substance,” other than a single offense involving possession
of less than 30 grams of marijuana for one’s own personal use, is deportable). See
also Alvarez-Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1193 (11th Cir. 2008)
(holding that an alien with a conviction for possession of drug paraphernalia was
inadmissible under 8 U.S.C. § 1182(a)(2)(A)).
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PETITION DENIED.
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