Alexis Barradas Jacome v. Attorney General United States ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 20-2439
____________
ALEXIS FERNANDO BARRADAS JACOME,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________
On Petition for Review of an
Order from the Department of Homeland Security and the
Executive Office for Immigration Review
(A204-796-985)
Immigration Judge: Kuyomars Golparvar
____________
Argued on April 26, 2022
Before: HARDIMAN, NYGAARD, and FISHER, Circuit
Judges.
(Filed: June 30, 2022)
Stephen F. Raiola [Argued]
Peter St. Tienne Wolff
Pietragallo Gordon Alfano Bosick & Raspanti
301 Grant Street
One Oxford Centre, 38th Floor
Pittsburgh, PA 15219
Counsel for Petitioner
Brian M. Boynton
John S. Hogan
Todd J. Cochran
Craig A. Newell, Jr. [Argued]
U.S. Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
___________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Alexis Fernando Barradas-Jacome filed this petition for
review challenging his expedited removal by the Department
of Homeland Security (DHS) based on his Pennsylvania
conviction for receiving stolen property. The petition raises
two issues of precedential import, one jurisdictional and one
substantive. For the reasons that follow, we hold that we have
jurisdiction to review Barradas-Jacome’s legal argument in the
first instance because DHS’s expedited removal procedures do
not allow aliens to challenge the legal basis for their removal.
2
We also hold that Barradas-Jacome’s state conviction is an
aggravated felony under the Immigration and Nationality Act
(INA), 8 U.S.C. § 1101(a)(43)(G). So we will deny his petition
for review. 1
I
A native and citizen of Mexico, Barradas-Jacome
entered the United States on a tourist visa in 2004 when he was
six years old. He received approval to remain under the
Deferred Action for Childhood Arrivals program in October
2013, but failed to renew his DACA status after it expired. In
October 2019, Barradas-Jacome pleaded guilty to receiving
stolen property, in violation of 18 Pa. Cons. Stat. § 3925(a), 2
and was sentenced to 12–24 months’ imprisonment.
In January 2020, DHS initiated expedited removal
proceedings against Barradas-Jacome by serving him with a
Notice of Intent to Issue a Final Administrative Removal Order
(FARO). The Notice of Intent—one side of DHS Form I-851—
informed Barradas-Jacome that he was charged with being
deportable under the INA as an alien “convicted of an
aggravated felony” because he had been convicted of receiving
1
The Court appointed Stephen F. Raiola of Pietragallo Gordon
Alfano Bosick & Raspanti to represent Barradas-Jacome pro
bono in this appeal. Mr. Raiola has ably discharged his
responsibilities.
2
Barradas-Jacome also pleaded guilty to (1) resisting arrest, 18
Pa. Cons. Stat. § 5104; (2) use or possession of drug
paraphernalia, 35 P.S. § 780-113(a)(32); and (3) carrying a
firearm without a license, 18 Pa. Cons. Stat. § 6106(a)(1).
3
stolen property. App. 30 (citing 8 U.S.C. § 1227(a)(2)(A)(iii)
and § 1101(a)(43)(G)). The Notice of Intent also advised
Barradas-Jacome that he would be removed under expedited
procedures, “without a hearing before an Immigration Judge,”
and indicated that he had ten days to “respond to the [removal]
charges in writing to the [DHS] address provided on the other
side of this form.” 3 App. 30.
The same day, Barradas-Jacome responded by filling
out the reverse side of Form I-851 as instructed. The form’s
response side includes a series of checkboxes where an alien
can state whether he contests removal and, if so, the nature of
his challenge. Barradas-Jacome checked two boxes, indicating
(1) “I Wish to Contest and/or Request Withholding of
Removal,” and (2) “I request withholding or deferral of
removal to Mexico.”
3
The form further instructs: “In your response you may:
request, for good cause, an extension of time; rebut the charges
stated above (with supporting evidence); request an
opportunity to review the government’s evidence; admit
deportability; designate the country to which you choose to be
removed in the event that a final order of removal is issued . . .
; and/or, if you fear persecution . . . or, if you fear torture in any
specific country or countries, you may request withholding of
removal under [the INA or the Convention Against Torture].”
App. 30.
4
App. 31. On his Form I-851 response, Barradas-Jacome did not
indicate that he believed his Pennsylvania receiving stolen
property conviction is not an “aggravated felony.”
After reviewing Barradas-Jacome’s I-851 response and
administrative record, DHS issued a FARO in February 2020.
See 8 U.S.C. § 1228(b) (expedited deportation for “aliens who
are not permanent residents” and who are convicted of an
aggravated felony). Because Barradas-Jacome requested
withholding of removal, he obtained a reasonable fear
interview with an asylum officer who concluded that Barradas-
Jacome had not established a reasonable fear of persecution or
torture. Barradas-Jacome appealed that determination to an IJ,
5
who held a hearing and concurred in the asylum officer’s
negative reasonable fear determination. The IJ’s final order
specified that no administrative appeal was available, but that
Barradas-Jacome could seek Third Circuit review within 30
days. See 8 U.S.C. § 1252; 8 C.F.R. § 1208.31(g)(1). Barradas-
Jacome timely petitioned this Court. 4
II
Under the INA, our jurisdiction to review final orders
of removal is circumscribed. 8 U.S.C. § 1252(a)(1). We lack
authority 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. § 1252(a)(2)(C). For those
removal orders, our jurisdiction is limited to “constitutional
claims or questions of law” raised in the petition. 8 U.S.C.
§ 1252(a)(2)(D); Quinteros v. Att’y Gen., 945 F.3d 772, 780
(3d Cir. 2019). And even then, we may review a removal order
only if “the alien has exhausted all administrative remedies
available . . . as of right.” 8 U.S.C. § 1252(d)(1).
4
Barradas-Jacome simultaneously attempted to appeal the IJ’s
order to the Board of Immigration Appeals (BIA), specifically
challenging DHS’s “improper aggravated felony holding.”
Supp App. 3. The BIA promptly rejected his appeal, noting that
it “does not have the authority to review reasonable fear
determinations made by an Immigration Judge.” Supp. App. 5
(citing 8 C.F.R. § 1208.31(g)(1)). The BIA did not
acknowledge Barradas-Jacome’s challenge to DHS’s
aggravated felony determination. Barradas-Jacome moved for
reconsideration, raising again his “challenge to his status as an
aggravated felon.” Supp. App. 7–8. The BIA again rejected
that appeal for lack of authority.
6
When Barradas-Jacome responded to DHS’s Notice of
Intent, he did not contest the agency’s determination that his
Pennsylvania conviction for receiving stolen property is an
aggravated felony. Yet Barradas-Jacome argues that he
exhausted his administrative remedies because DHS’s
expedited removal procedures allow him to contest only the
factual basis of his removal, not to raise legal arguments (e.g.,
challenging the classification of his conviction as an
aggravated felony). Barradas-Jacome thus claims that we have
jurisdiction to consider his challenge in the first instance on his
petition for review.
“The question of whether DHS’s expedited removal
procedures provide an alien with the opportunity to challenge
the legal basis of his or her removal—and thus whether we
have jurisdiction to hear such a challenge when a petitioner
fails to raise it before DHS—is one that has split our sister
circuits.” Etienne v. Lynch, 813 F.3d 135, 138 (4th Cir. 2015);
compare id. (jurisdiction lies), and Valdiviez-Hernandez v.
Holder, 739 F.3d 184, 187–88 (5th Cir. 2013) (per curiam)
(same), with Malu v. Att’y Gen., 764 F.3d 1282, 1289 (11th Cir.
2014) (no jurisdiction). 5 We now join the Fourth and Fifth
Circuits and hold that DHS has not made legal challenges
available to aliens during expedited removal proceedings. So
the INA’s exhaustion requirement does not deprive us of
5
As the Fourth Circuit observed in Etienne, the Seventh Circuit
has “arguably come out on both sides of the issue.” 813 F.3d
at 138 n.2; compare Eke v. Mukasey, 512 F.3d 372, 377–78
(7th Cir. 2008) (jurisdiction lies), with Fonseca–Sanchez v.
Gonzales, 484 F.3d 439, 444–45 (7th Cir. 2007) (no
jurisdiction).
7
jurisdiction to consider Barradas-Jacome’s legal challenge for
the first time on his petition for review.
A
Before determining our jurisdiction, we first describe
DHS’s expedited removal process. The INA declares that
“[a]ny alien who is convicted of an aggravated felony at any
time after admission is deportable.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). Before an alien can be deported on this
ground, he generally must be afforded a hearing before an IJ,
where he may contest the factual or legal basis of his
removability. See 8 U.S.C. §§ 1229, 1229a; 8 C.F.R.
§ 1240.10(c). But for aliens like Barradas-Jacome who have
not been lawfully admitted to the United States for permanent
residence, the INA authorizes an expedited removal process
without a hearing before an IJ. See 8 U.S.C. § 1228(b); 8
C.F.R. § 238.1(a). A DHS officer—who need not be an
attorney—presides over this expedited process. See id.DHS initiates expedited removal proceedings by
serving an alien with a Form I-851 Notice of Intent. See id.§ 238.1(b)(1), (b)(2)(i). The Notice of Intent must (1) notify
the alien of the “allegations of fact and conclusions of law”
supporting DHS’s preliminary determination that the alien is
removable; (2) inform the alien of DHS’s “intent to issue a . . .
Final Administrative Removal Order, without a hearing before
an [IJ]”; and (3) advise the alien, among other things, that he
“may rebut the charges within 10 calendar days after service.”
Id. § 238.1(b)(2)(i). The Notice of Intent sent to Barradas-
Jacome conforms to these regulations.
Once DHS has served an alien with the Notice of Intent,
the alien must choose whether to respond. Form I–851 offers a
8
series of checkboxes on the back of the form. Barradas-
Jacome’s completed Form I–851, replicated above, shows the
range of possible responses. App. 31.
If the alien chooses to respond, he first decides whether
to contest deportability. To contest deportability, he must
check the box that states, “I contest my deportability because:
(Attach any supporting documentation).” Id. Indented beneath
that checkbox are four more checkboxes, only three of which
logically complete the statement. And those options present the
following three factual challenges to the basis of expedited
removal: (1) “I am a citizen or national of the United States”;
(2) “I am a lawful permanent resident of the United States”;
and (3) “I was not convicted of the criminal offense described
in allegation number 6 above.” 6 Id. The fourth checkbox, found
directly below and aligned with the three factual challenges,
reads “I am attaching documents in support of my rebuttal and
request for further review.” Id. Critically for purposes of this
case, the I-851 response form offers no specific checkbox for
an alien who wishes to challenge the legal basis of his removal.
If the alien contests deportability, the DHS officer must
determine whether his deportability is nonetheless “established
by clear, convincing, and unequivocal evidence in the record
of proceeding.” 8 C.F.R. § 238.1(d)(2)(i). If so, the officer
“shall issue . . . a Final Administrative Removal Order.” Id.6
The Notice of Intent includes six “allegations” that undergird
DHS’s expedited removal determination. App. 30. Allegation
“number 6” provides the date, court, and statute of
conviction—in this case, 18 Pa. Cons. Stat. § 3925(a)—as well
as the term of imprisonment imposed. App. 30–31. So the
“criminal offense described in allegation number 6” is not an
INA charge to be contested.
9
But if the “officer finds that the record of proceeding, including
the alien’s timely rebuttal, raises a genuine issue of material
fact regarding the preliminary findings,” that officer may either
(1) “obtain additional evidence from any source, including the
alien,” or (2) initiate full removal proceedings before an IJ. Id.§ 238.1(d)(2)(ii)(A). If the officer “finds, after considering all
additional evidence, that deportability is established by clear,
convincing, and unequivocal evidence,” the officer “shall issue
. . . a Final Administrative Removal Order.” Id.
§ 238.1(d)(2)(ii)(B). But if the officer “finds that the alien is
not amenable to [expedited] removal,” the officer “shall
terminate the expedited proceedings . . . and shall, where
appropriate, cause to be issued a notice to appear for the
purpose of initiating removal proceedings before an [IJ].” Id.
§ 238.1(d)(2)(iii).
B
Having explained the essential attributes of the
expedited removal process, we turn to the question of our
jurisdiction over Barradas-Jacome’s petition. The parties
dispute how to interpret DHS regulations governing expedited
removal procedures, specifically 8 C.F.R. § 238.1(c)–(d). The
Government makes two points. First, the regulations “contain
no limiting language that would bar the alien from raising—or
DHS considering—legal challenges to the charge of
removability.” Gov’t Br. 15–16 (citing 8 C.F.R. § 238.1(c)).
Second, the regulations authorize a DHS officer presiding over
expedited removal proceedings to consider an alien’s legal
challenge to removability. So the Government argues that
aliens must raise legal challenges or forfeit them for failing to
exhaust administrative remedies.
10
Barradas-Jacome disagrees on both fronts. First, the
“plain text of 8 CFR § 238.1(c) . . . permits the alien to rebut
the allegations supporting the charge but not the legal charge
itself.” Barradas-Jacome Br. 21. Second, the regulations do not
authorize the DHS officer to consider legal challenges; they
merely recognize that the officer may be unable to establish the
factual basis for an alien’s removability by “clear, convincing,
unequivocal evidence,” leaving the alien “not amenable” to
expedited removal (but potentially amenable to ordinary
removal proceedings before an IJ). Reply Br. 5–6 (citing 8
C.F.R. § 238.1(d)(2)).
The Fourth and Fifth Circuits agree with Barradas-
Jacome. In Valdiviez-Hernandez, the Fifth Circuit held that
“the relevant statutes and corresponding regulations . . . did not
provide [the alien] with an avenue to challenge the legal
conclusion that he does not meet the definition of an alien
subject to expedited removal.” 739 F.3d at 187. While
acknowledging that the Notice of Intent “included conclusions
of law,” the court reasoned that “the response process is geared
toward resolving only issues of fact.” Id. (citing 8 C.F.R.
§ 238.1(d)(2)). In Etienne, the Fourth Circuit “conclude[d] that
the Fifth Circuit’s approach . . . is more consistent with the
language and structure of the expedited removal regulations
. . . [and] Form I-851.” 813 F.3d at 141.
The Eleventh Circuit agrees with the Government’s
approach. In Malu, that court underscored that the relevant
regulations require the Notice of Intent to “include both
‘allegations of fact and conclusions of law’ that the alien may
rebut.” 764 F.3d at 1288 (quoting 8 C.F.R. § 238.1(b)(2)(i)).
The court read 8 C.F.R. § 238.1(d)(2)(iii) to allow “an officer
[to] transfer removal proceedings to an immigration judge if
the alien objects to the notice of removal on the ground that she
11
is ‘not amenable’ to the expedited removal proceedings.” Id.(“Whether an alien is amenable to expedited removal
proceedings could involve either an issue of law or fact.”).
Because “it would be nonsensical to limit the alien’s rebuttal
to allegations of fact, but save for later any rebuttal to
conclusions of law,” the court held that “an alien must exhaust
all administrative remedies by rebutting the charges—
including the conclusion of law that she is an aggravated
felon—before the Department.” Id. We find the Fourth and
Fifth Circuits’ reasoning more persuasive.
1
When read in context with the INA and relevant
regulations, the expedited removal regulations strongly
suggest that only factual challenges to an alien’s removability
may be raised in expedited proceedings. The Government is
correct that DHS regulations require the Notice of Intent to
“include allegations of fact and conclusions of law.” 8 C.F.R.
§ 238.1(b)(2)(i). But the regulations on an alien’s response to
the Notice of Intent allow for “rebutting the allegations
supporting the charge,” not—at least, not explicitly—any
conclusions of law, id. § 238.1(c)(1). The contrast between
what is required of the Government and what is expected in
response from the alien is telling. Had DHS wanted to
adjudicate legal issues at this stage, it could have easily
required aliens to do so.
The regulations governing the presiding DHS officer’s
determination also suggest that the proceedings implicate
factual, not legal, challenges. See Valdiviez-Hernandez, 739
F.3d at 187 (citing 8 C.F.R. § 238.1(d)(2)). If the alien “raises
a genuine issue of material fact,” the officer may gather
additional evidence. 8 C.F.R. § 238.1(d)(2)(ii)(A). If the new
12
evidence enables the officer to conclude deportability by
“clear, convincing, and unequivocal evidence,” he must then
issue a Final Administrative Removal Order. Id.§ 238.1(d)(2)(ii)(B). The regulations provide the DHS officer
no guidance about legal issues. Once again, that silence is
telling.
Nor are expedited removal proceedings structured to
handle legal challenges. The DHS officer need not have any
legal training, much less be a lawyer. See 8 C.F.R. § 238.1(a).
The Government counters that the officer’s ability to transfer
proceedings to an IJ cures any structural deficiency in his
ability to consider legal challenges. See id. § 238.1(d)(2)(iii)
(requiring the DHS officer to transfer proceedings to an IJ
“where appropriate”); Malu, 764 F.3d at 1288. We disagree.
The most reasonable reading, in view of the broader regulatory
scheme, is that transfers to IJs should occur when a “genuine
issue of material fact” prevents the DHS officer from finding
deportability by “clear, convincing, and unequivocal
evidence.” 8 C.F.R. § 238.1(d)(2)(ii) (emphasis added).
Though the deciding DHS officer could not “unequivocally”
find that the alien is removable, id., an IJ might still be able to
conclude deportability, since he is not held to the same high
evidentiary standard as the DHS officer. When an IJ orders
removal after holding a hearing, the evidence must be “clear
and convincing,” but it need not be “unequivocal.” Compare
id. § 238.1(d)(2)(i), (ii)(B), with 8 U.S.C. § 1229a(c)(3)(A).
2
The regulations’ silence about legal challenges also
suggests that such challenges are not contemplated in
expedited removal proceedings. DHS practice—i.e., the form
13
it uses to facilitate expedited removal proceedings—implies
the same.
DHS Form I-851, which details the steps that aliens in
expedited removal proceedings may take to respond to
allegations against them, offers no clear opportunity to raise a
legal challenge. The Notice of Intent side of Form I-851 points
toward “the other side of this form,” where it indicates that an
alien has ten days to “respond to the [removal] charges in
writing.” App. 30. Despite noting that an alien “may . . . rebut
the charges stated above (with supporting evidence),” the
form’s “other side” limits his response. App. 30. It contains
several checkboxes for an alien to lodge factual challenges to
his removal, but offers no checkbox for lodging any specific
legal challenges, a legal challenge in general, or other
unenumerated challenges.
The Government relies on Form I-851’s fourth
checkbox, which states: “I am attaching documents in support
of my rebuttal and request for further review.” App. 31. We are
hard-pressed to think of a more opaque way to put an alien on
notice that DHS intends him to raise a legal challenge in
response to the Notice of Intent. Read plainly, that checkbox
does not create a procedure for aliens to raise any other
challenges—including legal challenges—to their removal
charges. The phrase “my rebuttal” appears to refer directly to
the three factual challenges listed immediately above that
checkbox. Id. Given the language and structure of Form I-851,
we cannot say that DHS’s expedited removal procedures offer
an alien the opportunity to challenge the legal basis of his
removal; indeed, Form I-851 “expressly prompts aliens to raise
only factual challenges to removal.” Etienne, 813 F.3d at 142.
When read alongside DHS regulations governing expedited
removal proceedings, we hold that aliens convicted of an
14
aggravated felony do not have “an avenue to challenge the
legal conclusion” that they are subject to expedited removal.
Valdiviez-Hernandez, 739 F.3d at 187; see also Woodford v.
Ngo, 548 U.S. 81, 90 (2006) (“[E]xhaustion of administrative
remedies . . . ‘means using all steps that the agency holds out.’”
(citation omitted)). 7
C
The Government disagrees with this conclusion. It
emphasizes that the Notice of Intent includes “not just
allegations, but also a ‘charge,’ which appears [on Form I-851]
as the legal provision under which DHS believes [an alien] is
removable.” Gov’t Br. 14–15; see 8 C.F.R. § 238.1(b)(2)(i). In
this case, the “charge” stated that Barradas-Jacome was
deportable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien
convicted of an “aggravated felony,” as defined in 8 U.S.C.
§ 1101(a)(43)(G). App. 30. And the Notice of Intent informed
Barradas-Jacome that he could (1) “respond to the above
charge[] in writing” and (2) “rebut the charge[] stated above
(with supporting evidence).” App. 30; see 8 C.F.R.
§ 238.1(b)(2)(i). The Government thus argues: “the [Notice of
7
This discussion should make plain the limits of our holding.
Nothing in our opinion prevents DHS from revising the I-851
response form to clarify that DHS wishes to require aliens to
raise legal challenges in expedited removal proceedings. Such
a revision would provide clear notice to aliens of their right to
raise legal arguments in a manner that the present response
form does not. The opportunity to raise a legal challenge would
then become one of the “steps that the agency holds out,” an
administrative remedy that must be exhausted. Woodford, 548
U.S. at 90; cf. Etienne, 813 F.3d at 142.
15
Intent] provided Barradas with the ability to rebut the legal
basis of the removal charge, and the regulations provided the
deciding officer with a mechanism for considering and
addressing such a challenge.” Gov’t Br. 15; see 8 C.F.R.
§ 238.1(d)(2)(iii) (DHS officer may conclude that the alien is
“not amenable” to expedited removal and transfer to regular
removal proceedings).
But were legal challenges available to Barradas-Jacome
during expedited removal proceedings? It is true that neither
the regulations nor Form I-851 expressly precludes Barradas-
Jacome from raising, or DHS from considering, a legal
challenge to his charge of removability. But that does not mean
a remedy was available. We have previously expounded upon
remedies available in 8 U.S.C. § 1252(d)(1). An administrative
remedy is available as of right if “(1) the alien’s claim was
within the jurisdiction of the [agency] to consider and
implicated agency expertise, and (2) the agency was capable of
granting the remedy sought by the alien.” Bonhometre v.
Gonzales, 414 F.3d 442, 447 (3d Cir. 2005) (citations omitted);
see also Nkomo v. Att’y Gen., 986 F.3d 268, 272 (3d Cir. 2021)
(describing our “liberal” exhaustion policy: “so long as an
immigration petitioner makes some effort, however
insufficient, to place the [agency] on notice of a
straightforward issue being raised on appeal, he meets the
exhaustion requirement” (cleaned up)).
Since we decided Bonhometre, the Supreme Court has
considered the Prison Litigation Reform Act’s exhaustion
provision (42 U.S.C. § 1997e(a)). In Ross v. Blake, 578 U.S.
632 (2016), the Court held that an administrative remedy is
“unavailable” when (1) “it operates as a simple dead end—with
officers unable or consistently unwilling to provide any relief,”
id. at 643; or (2) “an administrative scheme [is] so opaque that
16
it becomes, practically speaking, incapable of use,” id. The
INA’s exhaustion provision seems even more favorable to
petitioners, as it requires exhaustion of remedies “available . . .
as of right,” not just “available” remedies, as in the PLRA.
Compare 8 U.S.C. § 1252(d)(1), with 42 U.S.C. § 1997e(a).
Under this definition, it is hard to see how legal
challenges made by aliens in expedited removal proceedings
could reasonably be considered anything but a “dead end.” In
many appellate cases involving legal challenges to DHS
“aggravated felony” determinations, aliens in expedited
proceedings consistently received Final Administrative
Removal Orders—no matter if, or how, they responded on
Form I-851. See, e.g., Quinteros, 945 F.3d at 781 (although
alien checked box indicating “I Wish to Contest and/or to
Request Withholding of Removal,” BIA concluded alien could
not challenge whether conviction was aggravated felony in
expedited proceedings); Victoria-Faustino v. Sessions, 865
F.3d 869, 871–72 (7th Cir. 2017) (alien checked box indicating
desire to “Contest and/or Request Withholding of Removal”);
Etienne, 813 F.3d at 137–38 (alien checked boxes indicating “I
Wish to Contest,” “I contest my deportability because,” and
even “I am attaching documents in support of my rebuttal and
request further review”); Malu, 764 F.3d at 1287 (did not
complete I-851 response form); Valdiviez-Hernandez, 739
F.3d at 186 (did not complete I-851 response form); Escoto-
Castillo v. Napolitano, 658 F.3d 864, 865 (8th Cir. 2011)
(checked box indicating admitted charges and removable);
Graham v. Mukasey, 519 F.3d 546, 548–49 (6th Cir. 2008)
(alien did not complete I-851 response form, but attorney
called DHS indicating that he would contest “crime of
violence” classification); Flores-Ledezma v. Gonzales, 415
F.3d 375, 378–79 (5th Cir. 2005). In Flores-Ledezma, “counsel
17
[even] sent a letter to the INS formally contesting the charges”
against his alien client, requesting that he “be placed in
‘general’ removal proceedings under . . . 8 U.S.C. § 1229a.”
415 F.3d at 378. Less than two weeks later, before counsel
received any response, the Final Administrative Removal
Order issued. Id. at 378–79.
The Government’s argument—that nothing bars
Barradas-Jacome from challenging the removal charge against
him or prevents DHS from considering it—is difficult to square
with the empirical reality of these cases. 8 Finding legal
challenges unavailable on his I-851 response form, Barradas-
Jacome tried to challenge DHS’s aggravated felony
determination before the BIA, both during the appeal of his
withholding of removal decision and upon his motion for
reconsideration. The BIA rejected each appeal for lack of
authority. If, among the legion of expedited removal cases,
DHS can’t cite a single favorable response to a legal challenge
by an alien in expedited removal proceedings, how can we
conclude that “the agency was capable of granting the remedy
sought by the alien”? Bonhometre, 414 F.3d at 447; cf. Ross,
578 U.S. at 642 (“[T]he ordinary meaning of the word
‘available’ is ‘capable of use for the accomplishment of a
purpose,’ and that which ‘is accessible or may be obtained.’”
8
At oral argument, the Government pointed to Bedolla-Zarate
v. Sessions, 892 F.3d 1137 (10th Cir. 2018), in support of its
assertion that aliens in expedited removal proceedings can
raise legal challenges before DHS. But Bedolla-Zarate did not
discuss precisely when, or exactly how, the alien challenged
his aggravated felony conviction, see id. at 1139; and the Tenth
Circuit simply asserted its jurisdiction over the FARO, without
explaining the basis of its review, see id. at 1138.
18
(cleaned up)). Because we find that legal challenges are
unavailable to aliens during expedited removal proceedings,
we conclude that Barradas-Jacome did not fail to exhaust his
administrative remedies before DHS. We therefore have
jurisdiction to consider his challenge to DHS’s aggravated
felony determination.
III
We now address whether Barradas-Jacome is
deportable because of his criminal conviction. Specifically,
Barradas-Jacome challenges DHS’s determination that his
state conviction for receiving stolen property is an aggravated
felony under the INA. See 18 Pa. Cons. Stat. § 3925(a); 8
U.S.C. § 1227(a)(2)(A)(iii). We review this question of law de
novo. See Mateo v. Att’y Gen., 870 F.3d 228, 231 (3d Cir.
2017). We apply the categorical approach to determine
whether Barradas-Jacome’s statute of conviction “fits” the
generic “receipt of stolen property” definition contemplated
under 8 U.S.C. § 1101(a)(43)(G). Lewin v. Att’y Gen., 885 F.3d
165, 167 (3d Cir. 2018) (citations omitted). Barradas-Jacome’s
“actual conduct is irrelevant to the inquiry,” and we must
“presume that the conviction rested upon nothing more than
the least of the acts criminalized under the state statute.”
Mellouli v. Lynch, 575 U.S. 798, 805 (2015) (cleaned up). But
“our focus on the minimum conduct criminalized by the state
statute is not an invitation to apply ‘legal imagination’ to the
state offense; there must be ‘a realistic probability, not a
theoretical possibility, that the State would apply its statute to
conduct that falls outside the generic definition of a crime.’”
Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (citation
omitted).
19
Pennsylvania’s statutory definition of receiving stolen
property mirrors the Model Penal Code: “A person is guilty of
theft if he intentionally receives, retains, or disposes of
movable property of another knowing that it has been stolen,
or believing that it has probably been stolen, unless the
property is received, retained, or disposed with intent to restore
it to the owner.” 18 Pa. Cons. Stat. § 3925(a); see M.P.C.
§ 223.6.
The INA includes within its defined list of aggravated
felonies “a theft offense (including receipt of stolen property)
. . . for which the term of imprisonment [is] at least one year.”
8 U.S.C. § 1101(a)(43)(G). The “INA itself does not define
‘theft’ or ‘receipt of stolen property,’” so we use the generic
definition: “the ‘taking of property or an exercise of control
over property without consent with the criminal intent to
deprive the owner of rights and benefits of ownership, even if
such deprivation is less than total or permanent.’” Lewin, 885
F.3d at 168 (quoting Gonzalez v. Duenas-Alvarez, 549 U.S.
183, 189 (2007)). Under the INA, “‘receipt of stolen property’
is not merely a subset of ‘theft’ as that term is used in [8 U.S.C.
§ 1101(a)(43)(G)], because each can be considered to be a
distinct and separate offense.” In re Cardiel-Guerrero, 25 I. &
N. Dec. 12, 14 (2009) (“[A] thief may not receive property
from himself.”); see also In re Enrique Alday-Dominguez,
Respondent, 27 I. & N. Dec. 48, 49–50 (2017) (reaffirming In
re Cardiel-Guerrero).
Barradas-Jacome was convicted of receiving stolen
property in violation of 18 Pa. Cons. Stat. § 3925(a). Because
the elements of that crime fit the generic definition of receiving
stolen property under 8 U.S.C. § 1101(a)(43)(G), it qualifies as
an aggravated felony under the INA.
20
A
Barradas-Jacome argues that the mens rea element of 18
Pa. Cons. Stat. § 3925(a) is categorically insufficient to
constitute an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(G). The generic definition of “theft offense”—
the relevant comparator for the Pennsylvania statute—requires
actual knowledge or belief that the property was stolen. Lewin,
885 F.3d at 168–69. But according to Barradas-Jacome, the
Pennsylvania offense is broader because “trial courts in
Pennsylvania have both accepted guilty pleas and sustained
convictions for . . . receipt of stolen property based only on a
mens rea of ‘reason to believe’ or ‘should have known.’”
Barradas-Jacome Br. 32.
We recently confronted an identical claim about New
Jersey’s receiving stolen property statute in Lewin and
concluded that “the mens rea element of New Jersey’s
receiving stolen property statute is categorically sufficient to
constitute an aggravated felony under § 1101(a)(43)(G).” 885
F.3d at 169–70. The statutory mens rea requirement for
receiving stolen property is nearly identical in New Jersey and
Pennsylvania, since both definitions are patterned on the
Model Penal Code. Compare 18 Pa. Cons. Stat. § 3925(a)
(“knowing that it has been stolen, or believing that it has
probably been stolen”), with N.J. Stat. Ann. § 2C:20-7(a)
(“knowing that it has been stolen, or believing that it is
probably stolen”).
We also considered an analogous claim about § 3925(a)
in De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 636–37 (3d Cir.
2002). There, an alien challenged his deportability for
committing a crime of moral turpitude under 8 U.S.C.
§ 1227(a)(2)(A)(i). Analyzing the statute’s language in light of
21
two Pennsylvania Superior Court decisions, we concluded that
§ 3925(a) “is purely subjective.” Id. at 636–37. In doing so, we
rejected the argument that “[§ 3925(a)] has been interpreted by
the Pennsylvania courts as having an objective element.” Id. at
636–37.
Despite § 3925(a)’s clear text, Barradas-Jacome claims
that Pennsylvania courts routinely apply a lower mens rea
threshold for receiving stolen property. See Barradas-Jacome
Br. 29–33 (citing Commonwealth v. Morrissey, 654 A.2d 1049(Pa. 1995); and Commonwealth v. Scudder, 416 A.2d 1003 (Pa.
1980)). Barradas-Jacome has a point to the extent that the
Pennsylvania Supreme Court opinions in Morrissey and
Scudder use outdated, objective mens rea language. 9 See
Morrissey, 654 A.2d at 1054 (“To prove the crime of receiving
stolen property, the Commonwealth must establish . . . that the
possessor knew, or had reason to know, that the item was
stolen.”); Scudder, 416 A.2d at 1006 (“[W]e must look to
determine whether . . . appellant knew or should have known
that the van was stolen.”). But despite the court’s loose
9
The text of § 3925(a) was amended in 1972 when
Pennsylvania enacted its new Crimes Code. See Act of Dec. 6,
1972, No. 334, 1972 Pa. Laws 1482, 1538–39. A prior version
of the statute required that individuals “knew or had reason to
know the item was stolen.” Commonwealth v. Peluso, 393 A.2d
344, 347 (Pa. 1978) (emphasis added). This earlier statutory
language led the Pennsylvania Superior Court to enunciate an
objective mens rea standard that asked whether “a reasonably
prudent [person]” would suspect the property was stolen. See,
e.g., Commonwealth v. Gazal, 166 A.2d 314, 316 (Pa. Super.
Ct. 1960); Commonwealth v. Frankina, 39 A.2d 628, 630 (Pa.
Super. Ct. 1944).
22
language, neither decision involves a defendant who was
prosecuted, or convicted, for receiving stolen property under
an objective, reasonable-person standard, rather than the
subjective standard defined by Section 3925(a). In fact,
Scudder cites another Pennsylvania Supreme Court decision—
from before the statute’s amendment in 1972—to clarify the
subjective nature of Section 3925(a)’s mens rea requirement.
Id. at 1005 (citing Commonwealth v. Davis, 280 A.2d 119 (Pa.
1971)) (Commonwealth must establish that defendant “either
‘intentionally received’ or ‘knew’ that the property had been
stolen . . . to sustain the charges” for receiving stolen property
(emphasis added)). The Pennsylvania Supreme Court has also
affirmed at least one Pennsylvania Superior Court case that
correctly stated the subjective, post-1972 mens rea requirement
for § 3925(a). See Commonwealth v. Stafford, 623 A.2d 838,
840 (Pa Super. Ct. 1993), aff’d, 652 A.2d 297 (Pa. 1995) (per
curiam); see also Commonwealth v. Matthews, 632 A.2d 570,
572 (Pa. Super. Ct. 1993) (citing Stafford for § 3925(a)’s mens
rea requirement). 10
10
Barradas-Jacome highlights some confusion in the
Pennsylvania lower courts over application of § 3925(a)’s
mens rea standard. Some of these lower court decisions apply
§ 3925(a)’s subjective mens rea requirement as written in the
statute and so do not support his argument, see, e.g.,
Commonwealth v. Robbins, 647 A.2d 555, 557–58 (Pa. Super.
Ct. 1994); others cite outdated mens rea language, even though
the court concludes that defendants actually knew they were
receiving stolen property, see, e.g., Commonwealth v.
Foreman, 797 A.2d 1005, 1012–13 (Pa. Super. Ct. 2002);
Commonwealth v. Grabowski, 452 A.2d 827, 830 (Pa. Super.
Ct. 1982); still others incorporate outdated mens rea language
without clarifying whether the evidence would support
23
We are bound by the Pennsylvania Supreme Court’s
interpretation of current state law. See Johnson v. United
States, 559 U.S. 133, 138 (2010); Johnson v. Fankell, 520 U.S
911, 916 (1997) (“Neither this Court nor any other federal
tribunal has any authority to place a construction on a state
statute different from the one rendered by the highest court of
the State.”). We therefore hold that the mens rea element of
Pennsylvania’s receiving stolen property statute, 18 Pa. Cons.
Stat. § 3925(a), is not broader than the generic offense
contemplated by 8 U.S.C. § 1101(a)(43)(G).
B
Barradas-Jacome makes two more arguments
challenging DHS’s aggravated felony determination. Neither
has merit.
First, Barradas-Jacome claims his conviction for receipt
of stolen property cannot categorically qualify as an
aggravated felony because Pennsylvania consolidates all theft
offenses under 18 Pa. Cons. Stat. § 3902, and those theft
offenses criminalize more than 8 U.S.C. § 1101(a)(43)(G). His
argument relies on an erroneous belief that Pennsylvania’s
generic definition of “theft” applies equally to “receipt of
stolen property” offenses, based on the text of § 3902. In fact,
§ 3902 does not permit the Commonwealth to prosecute an
individual for receiving stolen property under § 3925(a) by
proving the elements of other theft offenses. Rather, it permits
conviction under § 3925(a)’s subjective statutory standard,
see, e.g., Crespo v. Hughes, 167 A.3d 168, 188 (Pa. Super. Ct.
2017); Commonwealth v. Parker, 847 A.2d 745, 752 (Pa.
Super. Ct. 2004).
24
the Commonwealth to present evidence supporting theft
“committed in any manner . . . under this chapter,” even if the
initial complaint or indictment specified a different theft crime.
18 Pa. Cons. Stat. § 3902. It does not alter the elements of each
individual theft offense under Pennsylvania law. See, e.g.,
Commonwealth v. Peduzzi, 488 A.2d 29, 31 (Pa. Super. Ct.
1985).
Second, Barradas-Jacome argues that, unlike the
generic theft offense, § 3925(a) “does not require there to be a
taking or possession of property without consent,” Reply Br.
21, and “does not require the specific intent to deprive the
owner of the rights or benefits of ownership,” Barradas-Jacome
Br. 38. But the Pennsylvania Supreme Court has affirmed that
§ 3925(a) requires the Commonwealth to “establish that the
goods in question are actually stolen in order to sustain a
conviction for receiving stolen property.” Stafford, 623 A.2d at
840, aff’d, 652 A.2d 297 (Pa. 1995) (per curiam) (emphasis
added). Likewise, Pennsylvania Superior Court cases have
consistently held that “intent to deprive permanently” is an
element of receiving stolen property. Commonwealth v.
Gomez, 224 A.3d 1095, 1099 (Pa. Super. Ct. 2019) (quoting
Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa. Super Ct.
2015)). So Barradas-Jacome’s arguments prove more of “a
theoretical possibility” than “a realistic probability” that
Pennsylvania would apply § 3925(a) to conduct falling outside
the generic definition of receiving stolen property. Moncrieffe,
569 U.S. at 191.
C
Finally, Barradas-Jacome argues for the first time in his
petition for review that DHS’s expedited removal regulations
and Form I-851 “unconstitutionally deprived him of ‘the
25
opportunity to be heard at a meaningful time and in a
meaningful manner’ in violation of the INA and the
constitutional guarantee of due process.” Barradas-Jacome Br.
44 (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
He bases his due process claim on the same arguments made
about exhaustion—that DHS did not provide him a reasonable
opportunity to rebut its aggravated felony determination during
his expedited removal proceedings.
We have recognized that aliens subject to removal have
a Fifth Amendment right to due process in their removal
proceedings. See Serrano-Alberto v. Att’y Gen., 859 F.3d 208,
213 (3d Cir. 2017). To prevail on his due process claim,
Barradas-Jacome has to “show (1) that he was prevented from
reasonably presenting his case, and (2) that substantial
prejudice resulted.” Id. (cleaned up). But he “must first state a
liberty or property interest” to be protected. Darby v. Att’y
Gen., 1 F.4th 151, 165 (3d Cir. 2021). Here, there is no legally
protected interest. Barradas-Jacome did not contest that he was
present without admission, or that he failed to present a claim
for protection; and DHS properly determined that he was
convicted of an aggravated felony. So the sole advantage he
could hope to receive from removal proceedings before an IJ
is the possibility of obtaining discretionary relief. But to the
extent his aggravated felony conviction does not categorically
bar discretionary relief, Barradas-Jacome lacks any legally
protected interest in that relief. See id. (“[A]liens do not have a
liberty or property interest in discretionary relief.”); see also 8
U.S.C. § 1158(b)(2)(A)(ii), (B)(i) (aggravated felony bars
asylum); id. § 1229b(b)(1)(C) (aggravated felony bars
cancellation of removal).
Moreover, to prevail on a procedural due process
challenge, an alien must make an initial showing of substantial
26
prejudice by the alleged procedural error. Bonhometre, 414
F.3d at 448. But here, there is no reason to conclude that
Barradas-Jacome could establish prejudice: he is not a lawful
permanent resident, and he was convicted of an aggravated
felony. Even if we were to find a due process violation,
Barradas-Jacome would still be removable under 8 U.S.C.
§ 1228(b).
* * *
For the reasons stated, we will deny Barradas-Jacome’s
petition for review.
27