Sudol v. Atty Gen USA , 300 F. App'x 157 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
11-17-2008
Sudol v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4585
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4585
PIOTR SUDOL,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A12-751-377)
Immigration Judge: Honorable Frederic Leeds
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 30, 2008
Before: AMBRO, FISHER and JORDAN, Circuit Judges
(Opinion filed: November 17, 2008)
OPINION
PER CURIAM
Piotr Sudol petitions for review of an order of the Board of Immigration Appeals
(BIA). For the reasons below, we will deny the petition for review.
In May 2007, Sudol, a native of Poland, was charged as removable as an
aggravated felon. Sudol denied the charge of removability and applied for a discretionary
waiver of removal pursuant to 8 U.S.C. § 1182(c) (also known as “§ 212(c) relief”).
After a hearing, the Immigration Judge (IJ) sustained the charge that Sudol committed an
aggravated felony related to the sexual abuse of a minor.1 The IJ determined that Sudol
was not eligible for § 212(c) relief and ordered Sudol removed to Poland. The BIA
adopted and affirmed the IJ’s decision and dismissed the appeal. Through counsel, Sudol
filed a timely petition for review.
We have jurisdiction to consider whether Sudol is an aggravated felon and exercise
plenary review over the BIA’s conclusion. Garcia v. Att’y Gen., 462 F.3d 287, 290-91 (3d
Cir. 2006). We have jurisdiction to review any constitutional claims or questions of law
de novo. Caroleo v. Gonzales, 476 F.3d 158, 162 (3d Cir. 2007).
Sudol argues that the IJ erred in finding that he had been convicted of an
aggravated felony because he was committed to a mental health facility for psychiatric
treatment. However, pursuant to 8 U.S.C. § 1101(a)(48)(A), the definition of a
conviction includes a formal judgment of guilt entered by a court or a guilty plea by an
alien and the imposition of restraint on the alien’s liberty. Here, Sudol pleaded guilty to
aggravated sexual assault and aggravated sexual contact and was sentenced to fifteen
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Sudol committed aggravated sexual assault against one of his daughters when she
was between thirteen and sixteen years old.
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years of confinement at Avenel Adult Diagnostic and Treatment Center. Such
confinement was a restraint on his liberty.2 Thus, he was “convicted” of an aggravated
felony and is removable.
In order for Sudol to establish eligibility for relief under § 212(c), he must
demonstrate, inter alia, that the basis for his removal has a “statutory counterpart” ground
for exclusion in § 212(a) of the Immigration and Nationality Act. Caroleo, 476 F.3d at
162. Sudol argues that he committed a crime of moral turpitude which is listed in §
212(a). While Sudol’s crime could be characterized as a crime involving moral turpitude,
the statutory counterpart analysis looks at the ground for removal, which here is the
aggravated felony of sexual abuse of a minor. Caroleo, 476 F.3d at 164. This categorical
approach does not violate equal protection. Id. at 165-67. The aggravated felony for
which Sudol has been found removable, sexual abuse of a minor, does not have a
statutory counterpart in § 212(a). Zamora-Mallari v. Mukasey, 514 F.3d 679, 692-93 (7th
Cir. 2008); Abebe v. Gonzales, 493 F.3d 1092, 1105 (9th Cir. 2007); Avilez-Granados v.
Gonzales, 481 F.3d 869, 872 (5th Cir. 2007). But see Blake v. Carbone, 489 F.3d 88, 104
(2d Cir. 2007)(holding an aggravated felon is eligible for § 212(c) waiver if his offense
2
Sudol relies on Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958), in which the
alien’s prison sentence was suspended, and he was placed on probation with psychiatric
treatment as a condition of probation. However, in Holzapfel, the alien was charged as
removable for being convicted of a crime of moral turpitude and sentenced to
confinement for a year or more. Here, Sudol is charged as removable for being an
aggravated felon – the definition of which does not depend on any sentence received.
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could form the basis for exclusion as a crime of moral turpitude under § 212(a)). Thus,
the BIA did not err in concluding that Sudol is not eligible for § 212(c) relief.
For the above reasons, we will deny the petition for review.
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