United States Court of Appeals
For the First Circuit
No. 07-2298
SIDIKIBA MAGASOUBA,
Petitioner,
v.
MICHAEL MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
Sidikiba Magasouba on brief pro se.
Manuel A. Palau, Trial Attorney, Jeffrey S. Bucholz, Acting
Assistant Attorney General, and Terri J. Scadron, Assistant
Director, on brief for respondent.
September 30, 2008
Per Curiam. Petitioner Sidikiba Magasouba, a native
and citizen of Guinea, seeks review of a decision of the Board
of Immigration Appeals ("BIA"), which declared him removable as
an aggravated felon and denied his application for withholding
of removal and relief under the Convention Against Torture
("CAT"). In cases involving aggravated felons, this court has
jurisdiction to review only "colorable" claims of
constitutional or legal error, i.e., claims that have "some
potential validity." Pan v. Gonzales, 489 F.3d 80, 84 (1st Cir.
2007) (citing 8 U.S.C. § 1252(a)(2)(D)). Two of petitioner's
claims arguably satisfy this standard, but each in the end
proves unavailing. We therefore deny the petition for review.
First. Whether petitioner's state-court conviction
actually constitutes an aggravated felony, as defined in 8
U.S.C. § 1101(a)(43), is a question of law over which this
court has jurisdiction. See, e.g., Aguiar v. Gonzales, 438
F.3d 86, 88 (1st Cir. 2006), cert. denied, 127 S. Ct. 1251
(2007). In conducting this inquiry, we employ a "modified
categorical approach," which focuses on the elements of the
state conviction. Conteh v. Gonzales, 461 F.3d 45, 55 (1st Cir.
2006), cert. denied, 127 S. Ct. 3003 (2007). When the statute
of conviction necessarily involves all the elements of a §
1101(a)(43) offense, "proof of the fact of conviction suffices
to discharge the government's burden." Id. at 56. But when
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the state provision is broader in scope, "the government ...
must demonstrate, by reference only to facts that can be mined
from the record of conviction, that the putative predicate
offense constitutes a crime designated as an aggravated
felony." Id.
In 2006, after being caught selling pirated copies of
DVDs and CDs, petitioner was convicted in a Rhode Island state
court of two offenses. Of relevance here is his conviction
under a provision entitled "[f]orgery, counterfeiting, or
alteration of trademark, service mark, or identification mark,"
which provides as follows:
Any person who knowingly and willfully
sells, offer[s] to sell, or possesses with
the intent to sell goods which contain a
counterfeit trademark, service mark, or
identification mark ... shall be guilty of
the offense of trafficking in trademark
counterfeits.
R.I.G.L. § 11-17-13(c)(1). The BIA concluded that this offense
constituted an aggravated felony under 8 U.S.C. §
1101(a)(43)(R), which refers to
an offense relating to commercial bribery,
counterfeiting, forgery, or trafficking in
vehicles the identification numbers of
which have been altered for which the term
of imprisonment is at least one year.
8 U.S.C. § 1101(a)(43)(R).
We agree that subsection (a)(43)(R) subsumes all the
elements of the Rhode Island offense. The state provision
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involves a relatively narrow category of conduct; indeed, it is
but one of fourteen provisions outlawing different forms of
counterfeiting or forgery. Subsection (a)(43)(R), by contrast,
is much more encompassing, as is made particularly evident by
its use of the term "relating to." By employing that phrase,
"Congress evidenced an intent to define [the listed offenses]
in [their] broadest sense." Park v. Attorney General, 472 F.3d
66, 72 (3d Cir. 2006) (brackets in original) (quoting Drakes v.
Zimski, 240 F.3d 246, 249 (3d Cir. 2001)); see Kamagate v.
Ashcroft, 385 F.3d 144, 154 (2d Cir. 2004) (use of that phrase
"suggest[s] Congress's intent to reach more broadly than any
single statute"); Albillo-Figueroa v. INS, 221 F.3d 1070, 1073
(9th Cir. 2000) (by using that phrase, subsection (R)
"necessarily covers a range of activities beyond those of
counterfeiting or forgery itself"). Accordingly, the fact of
conviction alone establishes petitioner's status as an
aggravated felon.
In disputing this conclusion, petitioner contends
that his conviction is instead, or is also, encompassed by 8
U.S.C. § 1101(a)(43)(M). That provision, in relevant part,
refers to an offense that "involves fraud or deceit in which
the loss to the ... victims exceeds $10,000," a loss amount
that allegedly was not involved here. Petitioner appears to
advance several arguments in this regard. First, he asserts
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that, since subsection (M) is applicable, subsection (R) must
be inapplicable. Yet he does not explain why this should be
so, nor does he otherwise contest subsection (R)'s
applicability.
Second, he suggests that even if both subsections
apply, the government was obligated to proceed under subsection
(M). In rejecting an analogous argument involving these same
two provisions, the Third Circuit held that the government had
the discretion to proceed "under either or both subsections."
Bobb v. Attorney General, 458 F.3d 213, 217 (3d Cir. 2006).
Such discretion would be limited only if one provision was a
subset of the other, which it found not to be the case. See
id. at 224.
Third, by describing the offense here as a "hybrid"
crime and by earlier referring to Nugent v. Ashcroft, 367 F.3d
162 (3d Cir. 2004), petitioner possibly is attempting to argue
that both subsections needed to be satisfied. But Nugent has
been "restricted to classificational schemes in which one
classification is entirely a subset of another." Bobb, 458
F.3d at 226. As previously mentioned, that is not the case
here.
Second. Petitioner's next claim involves a due
process challenge to the manner in which the charges against
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him were amended. This claim only barely, if at all, rises to
the level of "colorable."
The notice to appear alleged that petitioner was
removable for having been convicted of (1) an aggravated felony
in the form of a "theft offense" under 8 U.S.C. §
1101(a)(43)(G), and (2) two crimes of moral turpitude.
Thereafter, in response to petitioner's motion to terminate
proceedings, the government acknowledged that neither rationale
was viable. As a result, it issued a Form I-261, entitled
"Additional Charges of Inadmissibility/Deportability," which
set forth an amended charge based solely on subsection (R).
Petitioner did not object to the filing of this new
charge, and he received an extension of time to respond
thereto. Nonetheless, he now argues that the government could
not repair the defective notice to appear simply by filing a
new charge on Form I-261; rather, it was required to dismiss
the original notice to appear and issue a new one. Had that
sequence been followed, he contends, the government would have
been barred by res judicata from seeking removal based on the
same conviction. The BIA perceived no error, even while
describing the presentation of charges here as "slightly
awkward."
We agree that this claim falls short. By regulation,
the government is entitled to lodge "additional or substituted
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charges" of removability "[a]t any time during the proceeding."
8 C.F.R. § 1240.10(e); accord 8 C.F.R. § 1003.30. We have
stated that "there is no requirement that the [government]
advance every conceivable basis for deportability in the
original show cause order." De Faria v. INS, 13 F.3d 422, 424
(1st Cir. 1993) (per curiam) (allowing reopening by government
to file substitute charges after conviction underlying original
charge was vacated by state court); accord Park, 472 F.3d at 73
(declining to apply "judicial estoppel" to prevent lodging of
additional charge on remand after validity of original charge
was called into question).
In the case at hand, the BIA determined that the
filing of an amended charge on Form I-261 was the "functional
equivalent" of filing the same charge on the notice to appear.
It also held that petitioner had been given adequate notice of
the new charge and ample time to respond thereto (findings that
petitioner has not disputed). And, finally, the application of
res judicata in this context would require "a final judgment,
rendered on the merits in a separate action." Valencia-Alvarez
v. Gonzales, 469 F.3d 1319, 1323-24 (9th Cir. 2006) (emphasis
deleted).
Third. Petitioner's remaining claims involve fact-
based challenges to the withholding and CAT rulings. These
principally consist of challenges to the immigration judge's
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credibility assessments, evidentiary rulings, and other factual
determinations. Because of petitioner's status as an
aggravated felon, we lack jurisdiction to review such
assignments of error. See, e.g., Conteh, 461 F.3d at 63
("[J]udicial review of the factual findings underlying a
removal order based on an aggravated felony conviction remains
foreclosed.... This proscription extends to review of the
BIA's factual findings as to credibility, evidentiary weight,
and satisfaction of a correctly framed burden of proof.")
(citing 8 U.S.C. § 1252(a)(2)(C)).
The petition for review is dismissed in part for lack
of jurisdiction. What remains is denied.
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