Ricardo McIntyre v. Atty Gen USA ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3785
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RICARDO ANDRE MCINTYRE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A44 135 619)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 21, 2012
Before: CHAGARES, VANASKIE and STAPLETON, Circuit Judges
(Opinion filed: February 24, 2012)
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OPINION
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PER CURIAM
Ricardo Andre McIntyre, a native and citizen of Jamaica, entered the United States
in 1993 at age eleven as a lawful permanent resident. In 2009, he pleaded guilty in
Pennsylvania to aggravated assault with a deadly weapon. 18 Pa. Cons. Stat. Ann.
§ 2702(a)(4). McIntyre was sentenced to nine to 23 months in prison.
Proceeding pro se before an Immigration Judge (“IJ”), McIntyre conceded
removability as charged for having been convicted of an aggravated felony as defined in
Immigration and Nationality Act (“INA”) § 101(a)(43)(F) [8 U.S.C. § 1101(a)(43)(F)]
(crime of violence), see INA § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)].
McIntyre did not apply for relief from removal. Instead, he argued that the IJ should
continue the proceeding while he pursued a Post Conviction Relief Act (“PCRA”)
challenge to the 2009 conviction under Padilla v. Kentucky, 130 S. Ct. 1473 (2010)
(holding that right to effective assistance of counsel requires that defendant be advised of
immigration consequences of plea). The IJ implicitly refused to continue the case for a
fourth time and ordered removal to Jamaica.
The Board of Immigration Appeals (“BIA”) dismissed McIntyre‟s appeal. It
agreed with the denial of a further continuance, noting that the pursuit of PCRA relief
does not affect the finality of a conviction for immigration purposes. The BIA observed
that no court had called the 2009 conviction into question, and that McIntyre‟s offense
qualified as an aggravated felony. It also rejected the suggestion that McIntyre‟s removal
proceeding was “unfair” or violated due process, and it added that it had no power to
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grant equitable or general humanitarian relief from removal. McIntyre timely filed a pro
se petition for review.
Because McIntyre is removable as an aggravated felon, our jurisdiction is limited
to review of constitutional claims or questions of law. See INA § 242(a)(2)(D) [8 U.S.C.
§ 1252(a)(2)(D)]. The Government moves to dismiss for lack of jurisdiction on the
ground that McIntyre does not raise a colorable constitutional claim or legal question. It
argues that McIntyre‟s “vague assertion” that his due process rights were violated is not a
colorable claim, and that the “denial of a continuance is a discretionary determination
which cannot constitute a due process violation.” Although those arguments are not
without some force, we will deny the motion to dismiss. In his Informal Brief, McIntyre
challenges the determination that his conviction is an aggravated felony--an issue that the
BIA addressed and which presents a question of law subject to review under INA
§ 242(a)(2)(D). See Jeune v. Att‟y Gen., 476 F.3d 199, 201 (3d Cir. 2007).
Nevertheless, while McIntyre‟s challenge to the aggravated felony determination is
subject to review, the issue lacks merit, for the reasons discussed below.
The term “aggravated felony” is defined by INA § 101(a), and includes “a crime
of violence (as defined in section 16 of Title 18 . . .) for which the term of imprisonment
[is] at least one year.” INA § 101(a)(43)(F). Pursuant to 18 U.S.C. § 16, a “crime of
violence” means
(a) an offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
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(b) any other offense that is a felony and that, by its nature, involves a substantial
risk that physical force against the person or property of another may be used in
the course of committing the offense.
To determine whether a given offense fits this definition, this Court must “look to the
elements and the nature of the offense of conviction, rather than to the particular facts
relating to petitioner‟s crime.” Leocal v. Ashcroft, 543 U.S. 1, 7 (2004). “It is now
settled law in this Circuit that an offender has committed a „crime of violence‟ under 18
U.S.C. § 16(a) only if he acted with an intent to use force.” Popal v. Gonzales, 416 F.3d
249, 254 (3d Cir. 2005).
McIntyre was convicted under 18 Pa. Cons. Stat. Ann. § 2702(a)(4), which
provides that a person commits an aggravated assault if he “attempts to cause or
intentionally or knowingly causes bodily injury to another with a deadly weapon . . . .”
Because § 2702(a)(4) requires attempting to or intentionally or knowingly causing bodily
injury, the BIA properly concluded that McIntyre‟s conviction was a crime of violence
under 18 U.S.C. § 16. Wilks v. Att‟y Gen., 273 F. App‟x 196, 198-99 (3d Cir. 2008) (not
precedential) (holding that conviction under § 2702(a)(3) or (4) is an aggravated felony
under § 101(a)(43)(F)). Moreover, McIntyre‟s sentence of nine to 23 months qualifies as
a “term of imprisonment [of] at least one year.” INA § 101(a)(43)(F). Indeed, we have
held that indeterminate sentences are functionally equivalent to sentences at the
maximum of the range. Bovkun v. Ashcroft, 283 F.3d 166, 170-71 (3d Cir. 2002). Thus,
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we conclude that McIntyre was properly found removable for having been convicted of
an aggravated felony as defined in INA § 101(a)(43)(F).
In his Informal Brief, McIntyre relies on Pierre v. Holder, where we held that a
prejudicial due process violation occurs when an alien is found removable based on a
charge not included in the Notice to Appear. 588 F.3d 767, 776-77. Here, however, the
Notice to Appear charged McIntyre as removable under § 237(a)(2)(A)(iii), specifically
on the ground that his conviction qualified as an aggravated felony as defined by
§ 101(a)(43)(F). Both the IJ and the BIA concluded that McIntyre was removable as
charged under that provision. Thus, because McIntyre was not deprived of the right to
notice of the charges and an opportunity to be heard, no due process violation occurred.
Pierre, 588 F.3d at 776-77.1
For the foregoing reasons, we will deny the petition for review.
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McIntyre also suggests that he was prejudiced because he was not granted a further
continuance to obtain an attorney and to pursue PCRA relief. We have no jurisdiction to
review this challenge because there is no indication that either the IJ or BIA considered
this issue.
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