Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-15-2007
Strelchikov v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5577
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5577
VYACHESLAV STRELCHIKOV,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of
the Board of Immigration Appeals
No. A70-325-281
Immigration Judge: Charles M. Honeyman
Submitted under Third Circuit LAR 34.1(a)
May 11, 2007
Before: RENDELL, JORDAN and ALDISERT, Circuit Judges.
(Filed June 15, 2007)
OPINION OF THE COURT
ALDISERT, Circuit Judge.
Vyacheslav Strelchikov, a native of Belarus, petitions for review from a final order
of the Board of Immigration Appeals (“BIA”). Strelchikov argues that the Board erred
by: (1) failing to terminate removal proceedings based on his status as a refugee, and (2)
finding that he committed an aggravated felony. Strelchikov also seeks review of the
Immigration Judge’s denial of his application for asylum and withholding of removal.
For the following reasons, we will deny the Petition on all grounds.
I.
The parties are familiar with the facts and proceedings before the BIA and the
Immigration Judge (“IJ”), so we will only briefly revisit them here. Strelchikov, born in
the former Soviet Socialist Republic of Belarus, came to the United States in 1990 as a
refugee pursuant to 8 U.S.C. § 1157. He later adjusted his immigration status to that of a
lawful permanent resident. Unfortunately for Strelchikov, on June 5, 2002, the United
States District Court for the Southern District of New York convicted him of Conspiracy
to Commit Extortion in violation of 18 U.S.C. § 1951. The District Judge sentenced him
to 24 months’ imprisonment.
As a result of this conviction, the Department of Homeland Security (“DHS”)
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initiated removal proceedings against Strelchikov. DHS charged him with removability
for having been convicted of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii)
(“Any alien who is convicted of an aggravated felony . . . is deportable.”). In response,
Strelchikov filed a Motion to Terminate Removal Proceedings. He argued that the
Government could not subject him to removal because the Attorney General never
revoked his status as a refugee. He further contended that the crime he committed did not
constitute an aggravated felony. Fearing that he would be persecuted if forced to return to
Belarus, Strelchikov also filed an application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”).
On January 9, 2004, Immigration Judge Charles M. Honeyman denied
Strelchikov’s Motion to Terminate. The IJ determined that the government may place
permanent residents in removal proceedings, even if they maintain status as refugees.
The IJ also found the Petitioner removable under 8 U.S.C. § 1227 for having been
convicted of an aggravated felony, as defined by 8 U.S.C. § 1101(a)(43). Specifically,
the IJ determined that Conspiracy to Commit Extortion amounted to a crime of violence.
In a separate hearing on March 12, 2004, the IJ denied Strelchikov’s application for
asylum and withholding of removal. The IJ, however, determined that Strelchikov
merited protection under the CAT and therefore granted his application for deferral of
removal.
Both Strelchikov and DHS appealed to the BIA. Strelchikov again argued that he
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did not commit an aggravated felony and that he was not subject to removal proceedings
because of his status as a refugee. The government maintained that he did not merit
protection under the CAT. On December 1, 2005, the Board issued a lengthy opinion
dismissing the arguments of both parties.1 Strelchikov now petitions for review of the
BIA’s decision.
II.
Where, as here, the BIA renders its own decision on the merits, this Court reviews
only the decision of the Board. See Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.
2003). We review the BIA’s legal determinations de novo and its factual findings for
substantial evidence. See Balasubramanrim v. INS, 143 F.3d 157, 167 (3d Cir. 1998).
III.
Strelchikov first argues that an alien who entered the country as a refugee and
subsequently became a permanent resident may not be placed in removal proceedings if
the Attorney General has not terminated his refugee status pursuant to 8 U.S.C. §
1
The Board then remanded the case to allow DHS to complete a background
check on Strelchikov. On March 29, 2006, the IJ issued an order declaring the
background check complete. Moreover, the March 29 document reissued the order
denying Petitioner’s applications for asylum and withholding of removal, and granting
him deferral of removal under the CAT. Therefore, there is now no question that a final
order has been entered in this matter and that we have jurisdiction pursuant to 8 U.S.C. §
1252. See also Matter of Alcantara-Perez, 23 I. & N. Dec. 882, 883-885 (BIA 2006)
(holding that “when a proceeding is remanded to the immigration judge for background
checks,” the immigration judge will enter an order and “[t]hat order then becomes the
final administrative order in the case”).
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1157(c)(4). See Matter of Garcia-Alzugaray, 19 I. & N. Dec. 407, 410 (BIA 1986)
(holding that a refugee applying for legal permanent resident status could not be placed in
removal proceedings). In 2004, we asked the BIA to address this precise issue. See
Smriko v. Ashcroft, 387 F.3d 279 (3d Cir. 2004). Contrary to Strelchikov’s argument, the
BIA held that an alien’s status as a refugee does not provide complete protection from
removal. See In re Sejid Smriko, 23 I. & N. Dec. 836, 837-838 (BIA 2005). Strelchikov
asks us to hold that the “decision by the BIA is in error.” We decline to do so.
The law on this issue is settled. In Romanishyn v. Attorney General, 455 F.3d 175
(3d Cir. 2006), we explicitly upheld the BIA’s reasoning in In re Sejid Smriko. Indeed,
we noted our satisfaction with the Board’s conclusion that an alien who has been admitted
as a refugee and has adjusted his or her status may be placed in removal proceedings for
committing an aggravated felony. Romanishyn, 455 F.3d at 185. Strelchikov’s case is on
all fours with Romanishyn, and accordingly we will deny this part of the petition for
review.
IV.
We are next asked to decide if Strelchikov’s conviction for Conspiracy to Commit
Extortion constitutes an aggravated felony. Strelchikov argues that because he did not
actually engage in extortion or physically harm anyone, he did not commit an aggravated
felony. Although this argument packs some theoretical punch, the law does not support
Strelchikov’s view of the case.
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As always, our analysis begins with the relevant statutory language. The
Immigration and Nationality Act defines an aggravated felony as “a crime of violence . . .
for which the term of imprisonment is at least one year.” See 8 U.S.C. § 1101(a)(43)(F).
The law also states, clearly, that “conspiracy to commit” a crime of violence qualifies as
an aggravated felony. See 18 U.S.C. § 1101(a)(43)(U). We further note that a crime of
violence is any offense:
(a) . . . that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(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.
18 U.S.C. § 16.
In determining whether a petitioner’s wrongdoing meets this standard, we use the
“categorical approach.” See Taylor v. United States, 495 U.S. 575 (1990); Tran v.
Gonzales, 414 F.3d 464, 469 (3d Cir. 2005). That is, we examine “the elements and the
nature of the offense of conviction, rather than . . . the particular facts relating to
petitioner’s crime.” Leocal v. Ashcroft, 543 U.S. 1, 7 (2004). However, where the
statute is divisible—where it consists of some offenses which include an element of force
and others that do not—we look to the charging documents to determine which section of
the statute was violated. United States v. Remoi, 404 F.3d 789, 793 (3d Cir. 2005).
With these teachings in mind, we turn to the specifics of the case. The law defines
extortion as “the obtaining of property from another, with his consent, induced by
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wrongful use of actual or threatened force, violence, or fear, or under the color of official
right.” 18 U.S.C. § 1951(b)(2). Both parties agree that the plain meaning of the statute
prohibits conduct that amounts to a crime of violence (“obtaining property from another. .
. induced by . . . use of actual . . . force”) and conduct that does not (“obtaining property
from another, with his consent . . . under color of official right”). As a result, we must
look to the charging documents for clarification. Strelchikov pleaded guilty to the charge
of: “[U]nlawfully, willfully, and knowingly . . . conspir[ing] . . . to commit extortion . . .
by the obtaining of property from and with the consent of another person . . . which
consent was induced by wrongful use of actual and threatened force, violence, and fear.”
App. 1353. This plea, on its face, establishes that Strelchikov willfully conspired to
commit an offense that had as an element the “use . . . or threatened use of physical force
against the person or property of another.” 18 U.S.C. § 16(a). Accordingly, we agree
with the BIA that Strelchikov’s conviction constitutes an aggravated felony under 8
U.S.C. § 1101(a)(43)(F).
V.
Strelchikov also petitions this Court to review the IJ’s denial of his application for
asylum and withholding of removal. Strelchikov complains that the IJ incorrectly
determined that his conviction constituted a “particularly serious crime” under 8 U.S.C. §
1231(b)(3)(B)(ii). The government argues that we do not have jurisdiction to hear
Petitioner’s contentions because he did not raise them before the BIA. We agree.
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As a general rule, an alien must exhaust all of his administrative remedies before
raising a claim before this Court. 8 U.S.C. § 1252(d)(1); Yan Lan Wu v. Ashcroft, 393
F.3d 418, 422 (3d Cir. 2005). To exhaust a claim, an alien must first raise the issue
before the BIA, Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989), so as to give the
Board “the opportunity to resolve a controversy or correct its own errors before judicial
intervention.” Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004). After a thorough
search of the record, we find no evidence that Strelchikov presented the BIA with any
argument on whether his conviction constituted a “particularly serious crime.”
Accordingly, this Court lacks jurisdiction to consider Strelchikov’s argument.
VI.
Finally, Strelchikov maintains that the government violated his rights under the
Due Process Clause. Specifically, he contends he was denied the opportunity to be heard
at a meaningful time and in a meaningful manner. See Mathews v. Eldridge, 424 U.S.
319, 333 (1976). This argument is utterly devoid of merit. Where, as here, an alien had
an opportunity to present evidence before the IJ, and the BIA had the administrative
record before it on review and considered all of the claims, due process is satisfied.
United States v. Torres, 383 F.3d 92, 104 (3d Cir. 2004); Chong v. District Director, 264
F.3d 378, 387 (3d Cir. 2001).
******
We have considered all of the arguments advanced by the parties and conclude that
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no further discussion is necessary. Accordingly, the petition for review will be denied.
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