Jose Bedolla Avila v. Attorney General United States , 826 F.3d 662 ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1860
___________
JOSE LUIS BEDOLLA AVILA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Department of Homeland Security
Agency No: A205-134-790
____________________________________
Submitted pursuant to Third Circuit L.A.R. 34.1(a)
on March 3, 2016
Before: McKEE, Chief Judge, SMITH and
HARDIMAN, Circuit Judges
Sandra L. Greene
Greene Fitzgerald Advocates and Consultants
2575 Eastern Boulevard
Suite 208
York, PA 17402
Counsel for Petitioner
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
(Opinion filed: June 23, 2016)
_________
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.
2
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
influence 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”), 28 U.S.C. § 1229a,
on the grounds that he is an alien present in the United States
without being admitted or paroled under INA
§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i) (“An alien
present in the United States without being admitted or
paroled, or who arrives in the United States at any time or
place other than as designated by the Attorney General, is
inadmissible.”). An Immigration Enforcement Agent
personally served him with a Notice to Appear on February
29, 2012.
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 INA § 212(a)(9)(C)(i)(I), 8
U.S.C. § 1182(a)(9)(C)(i)(I). Bedolla did not respond to the
motion. The Immigration Judge pretermitted the application
for adjustment of status on April 18, 2014 and set a hearing
on the issue of cancellation of removal for August 26, 2014.
3
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 35 P.S. § 780-113(a)(30).
The same day, the Court of Common Pleas of Chester
County, Pennsylvania, sentenced Bedolla to a term of
imprisonment of 282 days to 23 months pursuant to the plea
agreement.
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
INA § 238(b), 8 U.S.C. § 1228(b), and charging him as
removable under INA § 237(a)(2)(A)(iii), 8 U.S.C.
§ 1227(a)(2)(A)(iii), due to his conviction of an aggravated
felony as defined in INA § 101(a)(43)(B), 8 U.S.C.
§ 1101(a)(43)(B). The NOI advised that Bedolla must
respond to the charges in writing within 10 calendar days of
service (or 13 days if service was by mail), and that the
response may, among other things, rebut the charges or
request withholding of removal. The unsigned Certificate of
Service accompanying the NOI does not indicate the date or
manner of attempted service. A check-box indicates,
however, that Bedolla refused to acknowledge receipt of the
NOI.
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,
4
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, Bedolla 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
1
The Certificate of Service at the bottom of the FARO
appears to have been signed by the same Immigration
Enforcement Agent who signed the NOI and bears the same
date as the NOI, February 20, 2015, while the Order portion
of the FARO was signed by the Assistant Field Office
Director on March 9, 2015. It is not clear whether DHS
attempted to serve Bedolla with an unsigned copy of the
FARO on February 20, 2015 (service that Bedolla rejected) or
whether there is an error on the certificate of service on the
March 9, 2015, FARO. Although this might give rise to
confusion, Bedolla has not argued that a FARO was issued on
February 20, 2015, and he did not timely file a petition for
review of any document issued on that date. Accordingly,
this opinion considers the FARO that undisputedly was
signed by the Assistant Field Office Director on March 9,
2015, was served upon Bedolla shortly thereafter, and from
which Bedolla filed this petition for review.
5
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 moved to re-open the
proceeding and submit further evidence. The Immigration
Judge denied reopening and Bedolla did not seek review of
that decision.
2
The same Assistant Field Office Director signed both
versions of the FARO and prepared the Certified Official
Record of Proceedings on behalf of DHS. The Certified
Official Record of Proceedings does not include the copy of
the March 9, 2015, FARO that we now review. This Court
therefore has relied upon the copies of the March 9, 2015,
FARO provided by Bedolla and which appears in the
appendix to the Government’s brief. The inaccuracies in the
March 9, 2015, FARO and its omission from the official
Certified Official Record of Proceedings are troubling. This
Court requires an accurate administrative record in order to
properly consider a petition for review. Agencies must be
scrupulous in including all documents before certifying the
record.
6
We have jurisdiction over questions of law and
constitutional claims presented in this petition for review.
See INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). On June
11, 2015, Bedolla moved to have this Court stay removal.
The Government did not oppose that motion. On August 26,
2015, a panel of this Court granted a stay of removal pending
further order of the Court.
II.
Bedolla argues that DHS erred by placing him in
expedited administrative removal proceedings because his
crime is not an aggravated felony for purposes of removal
under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii)
(“Any alien who is convicted of an aggravated felony at any
time after admission is deportable.”). Whether a criminal
conviction constitutes an aggravated felony for purposes of
removal is a question of law subject to plenary review.
Thomas v. Attorney General, 625 F.3d 134, 141 (3d Cir.
2010).
INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B),
defines the term “aggravated felony” as, inter alia, “illicit
trafficking in a controlled substance (as defined in section 802
of Title 21), including a drug trafficking crime (as defined in
section 924(c) of Title 18).” To determine whether Bedolla’s
crime qualifies as an aggravated felony, we first attempt to
employ the formal categorical approach. See Singh v.
Ashcroft, 383 F.3d 144, 147 (3d Cir. 2004) (citing Taylor v.
United States, 495 U.S. 575, 600 (1990)). This involves
review of the statute of conviction without consulting other
factual evidence. There are, however, situations in which a
7
statute of conviction is divisible, i.e., it “sets out one or more
elements of the offense in the alternative.” Descamps v.
United States, 33 S. Ct. 2276, 2281 (2013). Where the statute
of conviction is divisible, a departure from the formal
categorical approach is necessary and a modified categorical
approach instead must be employed. See Evanson v. Attorney
General, 550 F.3d 284, 291 (3d Cir. 2008).
The statute under which Bedolla was convicted, 35 Pa.
Cons. Stat. § 780-113(a)(30), is divisible with regard to both
the conduct and the controlled substances to which it applies.
United States v. Abbott, 748 F.3d 154, 159 (3d Cir. 2014)
(“Because [the statute] can be violated by the possession of
and intent to distribute many different drugs, the types of
which can increase the prescribed range of penalties, the
statute includes several alternative elements and is therefore
divisible.”); Catwell v. Attorney General, 623 F.3d 199, 207
(3d Cir. 2010) (concluding the statute is divisible with regard
to conduct because it describes distinct offenses of
manufacture, delivery, and possession with intent to deliver
or manufacture); see also Garcia v. Attorney General, 462
F.3d 287, 293 n.9 (3d Cir. 2006). Accordingly, we may
“consult a limited class of documents . . . to determine which
alternative [elements] formed the basis of the . . . conviction.”
Descamps, 133 S. Ct. at 2281.
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,
8
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, 35 Pa. Cons. St. § 780-
113(a)(30), encompasses the following conduct:
“manufacture, delivery, or possession with intent to
manufacture or deliver” a controlled substance. With regard
to possession, an intent to manufacture or deliver is an
element of the offense. Cf. Gerbier v. Holmes, 280 F.3d 297,
299 (3d Cir. 2002). The relevant documents unequivocally
establish that Bedolla pleaded guilty to possession with intent
to deliver cocaine. For instance, the first charge of the
criminal complaint accuses Bedolla of “Possession With
Intent to Deliver COCAINE” in violation of 35 Pa. Stat. Ann.
§ 780-113(a)(30). The plea colloquy similarly describes the
crime to which Bedolla pleaded guilty as “Possession w/
intent to deliver cocaine,” a felony with a maximum ten-year
sentence. In support of the plea, Bedolla admitted, “From
2/14 to 4/14 defendant did give [illegible] cocaine to another
when not licensed to do so. Happened in Chester County
PA,” and his colloquy acknowledged both that his lawyer
explained the elements of the offense to him and that he
admitted that he committed the crime to which he pleaded
guilty. Finally, the Court of Common Pleas sentencing sheet
indicates that the charge was “PWID,” which is obviously an
acronym for “possession with intent to deliver,” and is again
listed as “Possession with Intent to deliver-cocaine, 2 grams,”
which is a grade “F” crime (a felony).
Having identified Bedolla’s crime as the felony of
possession with intent to deliver cocaine, we next employ the
9
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 he 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 to 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 21 U.S.C. § 841(a)(1) of the
Controlled Substances Act. See Catwell, 623 F.3d at 207-08;
Jeune v. Attorney General, 476 F.3d 199, 205 (3d Cir. 2007).
The Controlled Substances Act, 21 U.S.C. § 841(a)(1),
provides that it is a crime to “manufacture, distribute, or
10
dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance.” Where the controlled
substance in question is cocaine, the crime is punishable by a
term of imprisonment of “not more than twenty years,” which
qualifies as a felony.3 21 U.S.C. § 841(b)(1)(C) (“[I]n the
case of a controlled substance in schedule I or II . . . such
person shall be sentenced to a term of imprisonment of not
more than 20 years. . . .”); see also 21 U.S.C. § 812 Schedule
II (listing cocaine); 18 U.S.C. § 3559(a)(3) (providing that an
offense for which the maximum term of imprisonment is less
than twenty-five years but ten or more years is a Class C
felony).
Because Bedolla was convicted of a crime analogous
to the federal felony of possession with intent to distribute
cocaine prohibited by § 841(a)(1) of the Controlled
Substances Act, he committed an aggravated felony. Thus,
3
Although Bedolla’s crime involved a relatively small
quantity of cocaine (2 grams), the federal Controlled
Substances Act does not contain an exception for a conviction
involving a small quantity of cocaine. In contrast, state
convictions for possession with intent to deliver small
amounts of marijuana for no remuneration may be subject to
an express exception to the Controlled Substances Act. See
21 U.S.C. 841(b)(4); Catwell, 623 F.3d at 206-07 (a state
conviction for distributing a small amount of marijuana
without remuneration may not be analogous to a felony
conviction under the Controlled Substances Act and therefore
may not qualify as an aggravated felony under the
hypothetical federal felony route).
11
Bedolla was properly subject to expedited administrative
removal under INA § 238(b), 28 U.S.C. § 1228(b).
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 Judge 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 removal
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
12
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 INA § 237, 8 U.S.C.
§ 1227, which applies to “deportable aliens.” Rather,
Bedolla’s removal proceeding before the Immigration Judge
was based on INA § 212(a)(6)(A)(i), 8 U.S.C.
§ 1182(a)(6)(A)(i), which applies to “inadmissible aliens,”
due to his status as an alien who had not been admitted or
paroled. He was not the subject of a Section 237 proceeding;
therefore, by its terms, 8 C.F.R. § 238.1 does not control.
Bedolla next looks to the regulations at 8 C.F.R.
§§ 239.1 and 239.2, which govern the issuance and
13
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 dismissal 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 before 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
14
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 proceedings 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 proceedings. 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.
15
at 284. It does not undermine our conclusion that 8 C.F.R.
§ 239.2 is silent as to whether concurrent removal
proceedings may be permitted to proceed. Indeed, G-N-C
recognizes that an Immigration Judge has the authority to
deny a motion to terminate, which implies that two
proceedings could be allowed to go forward simultaneously.
See 22 I & N Dec. at 284 (“[T]he 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.”).
Finally, Bedolla looks to INA § 238(b)(1), 8 U.S.C.
§ 1228(b)(1), which provides, “[t]he Attorney General may,
in the case of an alien described in paragraph (2), determine
the deportability of such alien under section
1227(a)(2)(A)(iii) of this title (relating to conviction of an
aggravated felony) and issue an order of removal pursuant to
the procedures set forth in this subsection or section 1229a of
this title.” (emphasis added). According to Bedolla, the “or”
at the end of this provision reflects a congressional intent to
prohibit concurrent proceedings under both sets of
procedures.
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 INA § 238(b), 8 U.S.C.
§ 1228(b), rather than under INA § 240, 8 U.S.C. § 1229a.
This is consistent with the terms of the statute, and does not
16
compel a conclusion that the FARO is invalid solely because
it was issued while a proceeding before an Immigration Judge
remained pending.
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
prevented 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.
17