Ilchuk v. Atty Gen USA

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit

1-17-2006

Ilchuk v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 04-3094

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 04-3094

RUSLAN I. ILCHUK,

Petitioner

v.

ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA,

Respondent

ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
(No. A71 248 856)

Argued September 30, 2005

Before: ALITO and AMBRO, Circuit Judges,
and RESTANI,* Judge.

(Filed: January 17, 2006)

*
Honorable Jane A. Restani, Chief Judge of the United
States Court of International Trade, sitting by designation.
Tatiana S. Aristova, Esquire (Argued)
Law Offices of John J. Gallagher
1760 Market Street, Suite 1100
Philadelphia, PA 19103

Counsel for Petitioner

Peter D. Keisler
Assistant Attorney General, Civil Division
Emily A. Radford
Assistant Director
Linda S. Wernery, Esquire
Aviva L. Poczter, Esquire
Blair T. O’Connor, Esquire
William C. Peachey, Esquire
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044

Eric D. Miller, Esquire (Argued)
United States Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Counsel for Respondent
______________

OPINION OF THE COURT
______________

RESTANI, Judge.

Ruslan Ivanovich Ilchuk (“Petitioner”) challenges the
decision of the Department of Homeland Security (“DHS”) Board
of Immigration Appeals (“BIA”) upholding the determination of
the Immigration Judge (“IJ”) that Petitioner is subject to removal
from the United States, but reversing the IJ’s grant of withholding
of removal. We conclude that the BIA did not err in holding

2
Petitioner removable under 8 U.S.C. § 1227(a)(2)(A)(iii) (2000)
(commission of an aggravated felony, i.e., a theft crime) but did err
in reversing the IJ. Petition is remanded.

FACTS

Petitioner entered the United States in April 1994 at the age
of fifteen 1 as a refugee. His status was adjusted to that of legal
resident on April 19, 1995.

Petitioner was a member of a Pentecostal Church in the
Ukraine and, at the time of his January 13, 2004 administrative
hearing, was also a member of a Pentecostal Church in the United
States. According to the U.S. Department of State International
Religious Freedom Report 2002, Orthodox Christianity is the
majority religion in the Ukraine and non-native religions (including
the Pentecostal Church) are de jure limited, but de facto
governmental restrictions were not reported.

Petitioner and other family members testified as to
educational and work difficulties encountered in the Ukraine by
Pentecostals prior to their immigration to the United States in 1994.
Petitioner also testified that an uncle suffered persecution in the
Soviet army in the 1980's because of his religious commitments
against bearing arms and swearing oaths. The BIA concluded,
however, that respect for religious rights has been improving under
the post-Communist presidential/parliamentary government
established in 1991. While the BIA did note brutal treatment of
fellow soldiers by their peers (even leading to death), it found no
evidence that such treatment was on account of religious beliefs.
It also found that discrimination by the government in granting
conscientious objector status to members of certain religions, but
not Pentecostals, did not amount to persecution under the
appropriate legal standard. Accordingly, it concluded Petitioner’s
eligibility for military conscription until the age of 28 did not
qualify him for withholding of removal.

1
Petitioner was born on August 7, 1978.

3
 Petitioner’s immigration difficulties began with a criminal
conviction in April 2001. He was an ambulance driver who on
February 11 and 13, 2000, was dispatched to emergent incidents.
The dispatch calls, however, had been diverted from the legally
designated emergency service provider to Petitioner’s employer.
Petitioner was convicted of theft of services, 18 Pennsylvania
Consolidated Statutes Annotated (“Pa. C.S.A.”) § 3926(b) (West
1983); three counts of reckless endangerment, 18 Pa. C.S.A. §
2705 (West 2000); and one count of criminal conspiracy, 18 Pa.
C.S.A. §§ 903 and 3926(b) (West 1998). Petitioner was sentenced
to six to twenty-three months of house arrest with electronic
monitoring.

The BIA found Petitioner subject to removal under three
different statutory provisions: 8 U.S.C. § 1227 (a)(2)(A)(iii),
conviction of an aggravated felony (a theft offense with an
imprisonment term of one year or more); 8 U.S.C. §
1227(a)(2)(A)(i), conviction of a crime of moral turpitude within
five years of admission; and 8 U.S.C. § 1227(a)(2)(A)(ii),
conviction of two or more crimes of moral turpitude.

Because withholding based on asylum is not available to one
found removable based on an aggravated felony (see 8 U.S.C. §
1158(b)(2)(A)(ii) (2000) (asylum not available to one convicted of
a particularly serious crime); 8 U.S.C. § 1158(b)(2)(B)(i)
(aggravated felony is a particularly serious crime)), the BIA
addressed Petitioner’s claims for withholding of removal under 8
U.S.C.§ 1231(b)(3)(A) (2000) and under the Convention Against
Torture (“CAT”), and denied them.

JURISDICTION AND STANDARD OF REVIEW

We have limited jurisdiction under 8 U.S.C. § 1252 (2005)
to review a final order of removal. Pursuant to 8 U.S.C. §
1252(a)(2)(C) and (D), if a petitioner is subject to removal under
8 U.S.C. § 1227(a)(2)(A)(iii) as an aggravated felon, we may
review only constitutional and other legal issues. Kamara v.
Attorney General of the U. S., 420 F.3d 202, 211 (3d Cir. 2005).
We review such pure questions of law and issues of application of
law to uncontested facts under a de novo standard. Id. Where we

4
have jurisdiction to review the IJ’s or BIA’s findings of fact, such
findings are conclusive unless “any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B).

DISCUSSION

I. Petitioner is removable as an aggravated felon

As indicated, conviction of an aggravated felony is a ground
for removal under 8 U.S.C. § 1227(a)(2)(A)(iii). 8 U.S.C. §
1101(a)(43) (2000) defines aggravated felony to include:

(G) a theft offense (including receipt of stolen
property) or burglary offense for which the term of
imprisonment [is] at least one year;

This presents two legal issues: (1) is at least one of the
crimes for which Petitioner was convicted a “theft offense” within
the meaning of 8 U.S.C. § 1101(a)(43)(G); and (2) does
Petitioner’s sentence to house arrest remove his crime from the
covered theft category because “house arrest” is not imprisonment.

We address each issue in turn.

A. Petitioner was convicted of a theft offense

The state law crime of which Petitioner was convicted, 18
Pa. C.S.A. § 3926, reads in pertinent part as follows:

§ 3926. Theft of Services
(b) Diversion of Services.– A person is guilty of
theft if, having control over the disposition of
services of others to which he is not entitled, he
knowingly diverts such services to his own benefit or
to the benefit of another not entitled thereto.

Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004), resolved
many of the preliminary issues before us. In Nugent we observed

5
that because the Immigration and Nationality Act (“INA”) does not
define a “theft offense,” and because Congress did not otherwise
supply a definition, the court could not find that a theft offense was
free from ambiguity, and thus had to determine whether the offense
at issue was a “theft offense” by the “formal categorical approach.”
Id. at 170.2 No one has argued before us that the common law
definition of “theft” incorporated the type of theft crime set forth
in the Pennsylvania statute before us. We stated in Nugent,
however, that where a traditional definition of a crime was not in
tune with modern meaning, a generic or contemporary definition,
such as one found in state statutes, may apply. Id. at 172 (citing
Drakes v. Zimski, 240 F.3d 246, 249 (3d Cir. 2001) (citing Taylor
v. United States, 495 U.S. 575, 600 (1990)). We agreed in Nugent
with our sister circuits that it was Congress’s intent for a “theft
offense” to be more broadly defined than the common law
definition of larceny, and that by using that phrase, rather than
merely the term “theft,” Congress signaled that it was not
presenting an exhaustive list of offenses, but rather, a definition
with broad meaning. Nugent, 367 F.3d at 173–74 (citing
Hernandez-Mancilla v. INS, 246 F.3d 1002, 1008 (7th Cir. 2001);
United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir.
2002) (en banc) (superseded on other grounds as recognized in
United States v. Vidal, 426 F.3d 1011, 1015 (9th Cir. 2005)). We
noted that the Hernandez-Mancilla and Corona-Sanchez courts
defined a theft offense as “a taking of property or an exercise of
control over property without consent.” Nugent, 367 F.3d at 174
(citing Hernandez-Mancilla, 246 F.3d at 1009). We relied on
Pennsylvania’s consolidated theft statute, which was taken from
section 223.0 of the Model Penal Code, and which defines property
in pertinent part as “anything of value.” Nugent, 367 F.3d at 174
(citing 18 Pa. C.S.A. § 3901 (West 1983)).3

2
That is, we look to the offense of conviction, not to the
particular facts of the underlying criminal conduct.
3
In Nugent, ultimately we concluded that although the theft
crime at issue was a “theft offense” under the Immigration and
Nationality Act of 1952 (“INA”), it was also a fraud and deceit
crime that did not satisfy the INA aggravated felony standard for
a fraud and deceit crime. Id. at 176. No contention of a hybrid

6
 As to the facts now before us, it is clear that ambulance calls
are not valueless. Private ambulance companies were alleged in
the state criminal proceeding to charge in the range of $300.00 to
$500.00 for transporting a patient to a hospital. Even assuming
that this valuation may not be completely accurate, it is apparent
that the reason the calls at issue were diverted was because they
had value. Further, conviction under 18 Pa. C.S.A. § 3926(b)
requires the perpetrator to have had control over the disposition of
services of others. Services are defined at 18 Pa. C.S.A. § 3926(h)
to include transportation services. Also, the perpetrator must not
have been entitled to dispose of those services, and must have had
knowing criminal intent, defined by Pennsylvania law as awareness
of the fact that it was “practically certain that his conduct will
cause such a result.” 18 Pa. C.S.A. § 302(b)(2)(ii) (West 1998);
Cf. Williams v. INS, 54 Fed. App’x 55, 58 (3d Cir. 2002) (finding
conviction for possession of stolen property in the fifth degree, a
class A misdemeanor under New York law requiring “knowing[]
possess[ion of] stolen property,” an “aggravated felony” under
§ 1101(43)(G)). In this case, the term “knowingly” requires proof
that Petitioner was aware of the practical certainty that his
acceptance of the ambulance call would result in diversion of its
benefits to someone not entitled to them. Thus, we conclude that
the modern sense of the term “theft offense” under 8 U.S.C.
§ 1101(a)(43)(G) includes the crime described in 18 Pa. C.S.A. §
3926, because it requires the taking or exercise of control over
something of value knowing that its owner has not consented.

B. House arrest with electronic monitoring is
“imprisonment” for purposes of 8 U.S.C. § 1227(a)(2)(A)

“Imprisonment” is explained partially by 8 U.S.C. §
1101(a)(48) as follows:

(B) Any reference to a term of imprisonment or a
sentence with respect to an offense is deemed to
include the period of incarceration or confinement
ordered by a court of law regardless of any

crime was made here.

7
 suspension of the imposition or execution of
thatimprisonment or sentence in whole or in part.

The actual term of the sentence imposed is ordinarily the
definitional touchstone. United States v. Graham, 169 F.3d 787,
790 (3d Cir. 1999). Petitioner does not argue that the range of
sentence is disqualifying, but rather that house arrest, with
permission to work and receive medical treatment outside the
home, is not imprisonment.

There is nothing in the INA indicating that the site or mode
of imprisonment is determinative. Our sister circuit has opined that
home confinement may constitute custody. See Rodriguez v.
Lamer, 60 F.3d 745, 749 (11th Cir. 1995); see also Salim v. Reno,
No. Civ. A. 2000-CV-4603, 2000 WL 33115910, at *4–*5 (E.D.
Pa. Jan. 16, 2001) (finding that a convict whose sentence was
suspended in favor of mental treatment in a state hospital and later
in his home “was sentenced and imprisoned within the meaning of
the INA”). Certainly home confinement with monitoring is a
serious restriction of liberty. Given that “imprisonment” under the
INA includes the suspension of imposition or execution of the
sentence, a restrictive definition is not in order.4 Indeed, the
statute’s disjunctive phrasing – “imprisonment . . . include[s] the
period of incarceration or confinement” – suggests that congress
intended for “imprisonment” to cover more than just time spent in
jail. See Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)
(“Canons of construction ordinarily suggest that terms connected
by a disjunctive be given separate meanings, unless the context
dictates otherwise . . . .”). Accordingly, we conclude the sentence
here was a term of “imprisonment” in the broad sense intended by
the INA.

4
It should be noted that, for purposes of the United States
Sentencing Guidelines, home confinement has been found not to
constitute imprisonment. See, e.g., United States v. Phipps, 68
F.3d 159, 162 (7th Cir. 1995). Although we have accepted the
Guidelines as a tool for interpreting the INA in some
circumstances, see Valansi v. Ashcroft, 278 F.3d 203, 213 (3d Cir.
2002), here Congress evinces a different meaning.

8
 There are serious questions as to whether the Petitioner was
convicted of a crime of moral turpitude within five years of
admission under 8 U.S.C. § 1227(a)(2)(A)(i), or of multiple crimes
of moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii), so as to be
subject to removal under those provisions. It is sufficient that the
BIA’s determination of removability is sustained under one of the
three grounds relied on. Thus, we do not address these provisions.
We conclude, rather, on the basis of 8 U.S.C. § 1227(a)(2)(A)(iii),
that Petitioner is subject to removal as an aggravated felon, and as
such his claim for withholding of removal must be established
under the withholding of removal statute, 8 U.S.C.
§ 1231(b)(3)(A), or the CAT.5

II. The BIA erred in denying withholding of removal or
relief under CAT

To be eligible for a grant of withholding of removal to any
country, an alien must show that his life or freedom would be
threatened in such a country on account of race, religion,
nationality, membership in a particular social group, or political
opinion. 8 U.S.C. § 1231(b)(3)(A).6 This statutory provision
requires him or her to demonstrate a clear probability of
persecution on one of these five grounds. INS v. Stevic, 467 U.S.

5
Petitioner does not dispute that ineligibility for asylum is
the result of being found subject to removal under 8 U.S.C. §
1227(a)(2)(A)(iii). See 8 U.S.C. § 1158(b)(2)(B).
6
8 U.S.C.A. § 1231(b)(3)(A) reads as follows:

(b) Countries to which aliens may be removed
(3) Restriction on removal to a country where alien’s life
or freedom would be threatened
(A) In general
Notwithstanding paragraphs (1) and (2), the Attorney
General may not remove an alien to a country if the
Attorney General decides that the alien’s life or
freedom would be threatened in that country because
of the alien’s race, religion, nationality, membership
in a social group, or political opinion.

9
407, 430 (1984). An alien must demonstrate that it is more likely
than not he would be subject to such persecution if returned to his
native land. Id. This is a more stringent standard than that required
to establish eligibility for asylum. Paripovic v. Gonzales, 418 F.3d
240, 246 (3d Cir. 2005).

We have no jurisdiction to opine as to whether, as a factual
matter, Petitioner is likely to be persecuted upon his return to the
Ukraine. 8 U.S.C. § 1252(a)(2)(C). Rather, we must determine if
the BIA made a legal error in arriving at its conclusion that
Petitioner did not meet his burden of establishing a clear likelihood
of persecution on account of his religious beliefs. 8 U.S.C. §
1252(a)(2)(D). The crux of the dispute is the BIA’s reversal of the
IJ’s finding that Petitioner qualified for withholding of removal.
That is, the IJ found that Petitioner likely would suffer persecution
because his religious beliefs require him to decline combat status.
Although the IJ’s factual conclusions were not completely clear, it
appears he concluded that imprisonment or other persecution in the
military was a likely consequence of Petitioner’s adherence to his
religion, because alternative service is not available to him, while
it is to members of other religions.

While the BIA concluded that general abuse in the military
on account of religious beliefs was not demonstrated, it appeared
to adopt the factual finding of the IJ that alternative service is not
available to Pentecostals. See BIA Opinion at AR 4.7 The
government’s suggestion in its brief that Petitioner may establish
his right to alternative service, even though he is not a member of
one of the religions with an “automatic exemption,” is nowhere
supported by the record, nor did the BIA so conclude.

7
The record shows that “the right to refuse service” is
guaranteed to “congregations having legal status in Ukraine, which
are the following: Adventists, Lutherans, Baptists, Jehovah’s
Witnesses and Charismatic Christian Church [sic].” (AR 372).
The BIA did not address whether “Charismatic Christian Church,”
or any other religion on the list, would include the Pentecostal
Church under Ukrainian law.

10
 There is no dispute that military service itself is not
persecution, nor are reasonable penalties for failure to serve. See
Lukwago v. Ashcroft, 329 F.3d 157, 168–69 (3d Cir. 2003); Matter
of A-G-, 19 I. & N. Dec. 502, 506 (BIA 1987). From that basic
tenet the BIA concludes that only if Petitioner can establish that he
likely will be seriously abused for his religious beliefs while in the
army or in prison can he qualify for relief. This ignores the statute
that includes deprivation of freedom, not just physical harm, on
account of religion as a ground for relief. We found no case that
directly addresses the issue at hand. Most instructive for our
purposes is Foroglou v. INS, 170 F.3d 68 (1st Cir. 1999). In that
case, a non-religious conscientious objector did not qualify for
refugee status. The court accepted that a country could provide for
no exemptions from military service without engaging in
persecution. Id. at 71. In finding no claim even if religious
adherents, but not other conscientious objectors, could qualify for
conscientious objector status, it stated “[t]he asylum statute does
not inflict on foreign governments the obligation to construct their
own draft laws to conform to this nation’s own highly complex
equal protection jurisprudence.” Id. at 72.

That said, the BIA has suggested that overt discrimination
in the enforcement of conscription laws may reflect a government’s
intent to persecute members of a given religion. Matter of Canas,
19 I. & N. Dec. 697, 709 (BIA 1988). In that case, the BIA denied
asylum for a petitioner who claimed that, as a Jehovah’s Witness,
he would be persecuted for failure to comply with El Salvador’s
conscription laws. Id. at 700–01. The BIA dismissed his petition
for review for failure to show that “the Government’s conscription
laws are carried out in a manner which punishes a person because
of his particular religious beliefs or religious affiliation.” Id. at
709. The BIA noted, however, that the case might be different
“[i]f, for example, a law provided exceptions for all but those with
particular religious beliefs, or was neutral on its face but enforced
only against those with particular religious convictions . . . .” Id.
at 709 n.12.

Other cases recognize narrow grounds for refugee status
based on avoidance of military service. For example,
disproportionately severe punishment based on the statutorily

11
recognized grounds resulting from failure to serve, M.A. v. INS,
899 F.2d 304, 312 (4th Cir. 1990), or “if the alien would be
associated with a military whose acts are condemned by the
international community as contrary to the basic rules of human
conduct.” Id. These exceptions were also recognized in
Mekhoukh v. Ashcroft, 358 F.3d 118, 126 (1st Cir. 2004), but
found not to apply.

Cases generally recognize that requiring alternative service
for refusal to serve is not persecution. See, e.g., Krastev v. INS,
101 F.3d 1213, 1217 (7th Cir. 1996) (alternative service of
dangerous work in a steel plant upon refusal to join military is not
persecution). The parties do not cite nor have we found any case,
however, involving an outright bar to conscientious objector status
for adherents of some religions where it is available to adherents of
other faiths. Even a clear statement as to withholding of removal
for politically based, as opposed to religiously based, conscription
or related persecution is lacking. See, e.g., Nenadovic v. INS, 108
F.3d 124, 127 (7th Cir. 1997) (noting question of whether
politically motivated conscription is persecution but resolving case
on different grounds). Of course, it is the political or religious
belief of the persecuted person that is at issue, not the belief of the
persecutor. See INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992)
(upholding BIA conclusion that petitioner did not establish
conscription into guerilla army would be on account of petitioner’s
political beliefs).

The record before us does not present the issue of whether
any differences in the level of proof required of different religious
adherents to establish a right to alternative service is persecution on
account of religion. The BIA did not rely on Petitioner’s ability in
some way to establish his eligibility for alternative service, or even
his failure to produce evidence on this point. Rather, without
deciding if Petitioner would decline to bear arms and would be
imprisoned or otherwise punished therefor, the BIA, in essence,
concluded that imprisonment based on religious beliefs is not
persecution. This is an error of law. Cf. Guo v. Ashcroft, 361 F.3d
1194, 1203 (9th Cir. 2004) (fifteen-day detention and physical
abuse for resistance to discriminatory government action based on
religion constitutes persecution).

12
 We conclude from the plain words of the statute that if the
Petitioner has established that he will be imprisoned because of his
Pentecostal beliefs that he will qualify for withholding of removal.
That this involves a two-step process, in that here he must establish
that imprisonment is a result of denial of alternative service
because of his membership in a particular religion, is not a bar.
That is, if no exemptions for conscientious objection are available
to anyone, imprisonment for failure to serve is on account of failure
to perform a legal duty. This is not cognizable persecution. On the
other hand, if members of some religions may avoid service
without penalty based on conscientious objection, but adherents of
other religions are denied the exemption outright, resulting
imprisonment is on account of religion, not just failure to serve.

The BIA found that “the evidence is insufficient to show a
clear probability that harm would be inflicted on the respondent on
account of his religion,” and therefore dismissed Petitioner’s CAT
claim because “it follows that the respondent has not demonstrated
that he more likely than not would be tortured if removed to the
Ukraine.” Because we remand for reconsideration of withholding
of removal, we also remand for reconsideration of Petitioner’s
CAT claim. We note that should the BIA deny withholding under
§ 1231(b)(3)(A) for failure to show persecution on the basis of a
protected ground, it should also consider whether beatings
administered in prison or military service, which the BIA
recognized may result in death, constitute torture under CAT.
Because withholding under CAT does not require proof that torture
was inflicted on the basis of a protected ground, such as religion,
a finding that Petitioner would not be persecuted on account of his
religion does not extinguish a CAT claim as a matter of law. See
Lukwago, 329 F.3d at 183.

As the BIA truncated its analysis and the IJ’s ruling was not
clear as to the factual findings leading to the ultimate granting of
the petition, therefore, the petition for review is granted. We
remand this matter for application of the correct legal standard as
set forth herein.

13
___________________________