Ibrahim v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 11, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_______________________ Clerk
No. 03-60420
_______________________

ABUBAKER ALI IBRAHIM

Petitioner

v.

JOHN ASHCROFT, U. S. ATTORNEY GENERAL

Respondent.

--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
--------------------

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.1

PRADO, Circuit Judge:

Abubaker Ali Ibrahim (“Ibrahim”), a citizen of Nigeria and a

permanent resident of the United States, was ordered removed from

the United States by a final order of the Board of Immigration

Appeals (“BIA”) on account of a 1987 conviction for possession of

stolen mail and a 1990 conviction for forgery. In response, he

petitions for review of a final order dismissing the appeal from

the Immigration Judge’s order denying his applications for asylum

1
Pursuant to 5th Cir. R. 47.5, this Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.

1
and withholding of deportation under § 208(a) and § 243(h) of the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158, issued

by the BIA. In response, Ibrahim filed a petition for review of

his BIA removal order in this court, challenging the BIA’s

determination that Ibrahim is removable as an aggravated felon

based on his 1986 conviction for possession of stolen mail.

Ibrahim argues that his conviction for possession of stolen mail

under 18 U.S.C. § 1708 is not a “theft offense” as defined by

section 101(a)(43)(G) of the Act. We reject this argument, and

we therefore dismiss his petition for review.

Under the transitional rules promulgated under the Illegal

Immigration Reform and Immigrant Responsibility Act of 19962 (the

“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009, we have no

jurisdiction to consider appeals from final orders of deportation

that are issued “by reason of [an alien] having committed an

2
Title III-A of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Sections 301-09, Pub. L. 104-208, 110
Stat. 3009 revises the procedure for removal of aliens, including the
provisions relating to judicial review. IIRIRA, Section 306(b).
Title III-A provisions’ effective date is April 1, 1997. Section
309(a) provides that Title III-A, and the amendments therein,
generally “shall take effect on the first day of the first month
beginning more than 180 days after the date of the enactment of this
Act. . . .” As IIRIRA was enacted on September 30, 1996, the Title
III-A provisions, except where otherwise indicated in IIRIRA, became
effective on April 1, 1997.
The IIRIRA, section 309(c) provides for transitional rules for
aliens who are in exclusion or deportation proceedings before April
1, 1997. These rules apply to aliens whose final administrative
orders of exclusion or deportation are entered on or after October
31, 1996. IIRIRA, section 309(c)(4). These transitional rules apply
to Ibrahim’s case because his Issuance to Show Cause was issued on
February 11, 1997 and the Board’s Final Deportation Order was issued
on April 14, 2003.

2
[theft and forgery] offense covered in [S]ection 212(a)(2).”

IIRIRA §309(c)(4)(G). We may, however, consider whether

Ibrahim’s conviction for “possession of stolen mail” is a theft

offense as defined by 101(a)(43)(G) of the Act.

I.

Ibrahim is a native and citizen of Nigeria. He came to the

United States in 1981. On September 20, 1984, Ibrahim became a

lawful permanent resident of the United States. On May 5, 1987,

he was convicted in the United States District Court for the

Southern District of Texas, of the offense of “possession of

stolen mail,” in violation of 18 U.S.C. § 1708, committed on or

about March 1986. He was sentenced to a two-year term of

imprisonment for this offense. On August 10, 1990, he was

convicted in the 230th District Court of Harris County, Texas,

for the offense of “forgery,” committed on or about March 28,

1990. He was sentenced to a three-year term of imprisonment for

this offense. On January 31, 1997, he was convicted in the

Superior Court of Washington for King County, Washington, for the

offense of “theft in the second degree,” in violation of RCW 9A

56 040 1A, committed on or about July 30, 1996.

On August 4, 1997, the Immigration and Naturalization

Service (“INS”) served an amended Order to Show Cause on Ibrahim,

charging him with being subject to deportation pursuant to INA §

241 (a)(2)(A)(ii), 8 U.S.C. 1251 (a)(2)(A)(ii) (1996), as an

3
alien who, at any time after entry, has been convicted of two or

more crimes involving moral turpitude, not arising out of a

single scheme of criminal misconduct. On March 19, 1998, an

immigration judge found Ibrahim deportable as charged, denied his

applications for INA § 212(c) relief, asylum and withholding of

deportation, and ordered him deported to Germany. On August 3,

1999, the BIA issued a decision finding Ibrahim statutorily

ineligible for INA § 212(c) relief and asylum, but finding that

the immigration judge erred in pretermitting Ibrahim’s

application for withholding of deportation. Thus, the Board

ordered Ibrahim’s case remanded to the immigration judge for a

full hearing on his application for that relief, and noting that

the immigration judge was to first determine whether Ibrahim had

been convicted of a particularly serious crime prior to ruling on

the application for withholding. On January 21, 2000, the

immigration judge issued an oral decision in which he found

Ibrahim ineligible for withholding of deportation because his

conviction constituted particularly serious crimes. The

immigration judge also found that Ibrahim failed to show that it

was more likely than not that he would be tortured if he returned

to Nigeria, and, consequently, denied deferral of removal under

Article III of the Convention Against Torture. Thereafter, the

immigration judge ordered Ibrahim deported to Nigeria.

On April 14, 2003, the Board dismissed Ibrahim’s appeal. In

4
its decision, the Board found Ibrahim ineligible for a waiver

under INA § 212 (c) based on the Supreme Court’s decision in INS

v. Cyr, 533 U.S. 289 (2001). Additionally, the Board affirmed

the immigration judge’s finding that Ibrahim’s conviction for

possession of stolen mail in violation of 18 U.S.C. § 1708 is a

“theft offense (including receipt of stolen property)” so as to

constitute an aggravated felony as defined in section

101(a)(43)(G)of the Act, 8 U.S.C. § 1101(a) (43) (G).

The Board rejected Ibrahim’s contention that “receipt of

stolen property” was not akin to “possession of stolen property”

based on its precedent in Matter of Bahta, 22 I. & N Dec. 1381

(BIA 2000). The Board found that Ibrahim’s convictions

constituted aggravated felonies for which he received an

aggregate term of imprisonment of at least five years. As such,

the Board affirmed the immigration judge’s finding that Ibrahim

could not apply for withholding of deportation. This petition

for review followed.

II. Standard of Review and Jurisdiction

The issue to be decided is whether this court has

jurisdiction to consider the claims presented in Ibrahim’s

petition for direct review of the BIA’s final order of removal.

The IIRIRA deprives us of jurisdiction to hear petitions for

review filed by aliens who are deportable for having been

convicted of an aggravated felony. See 8 U.S.C. § 1252(a)(1) and

5
(b) (“notwithstanding any other provision of law, no court shall

have jurisdiction to review any final order of removal against an

alien who is removable by reason of having committed a criminal

offense” including those covered by 8 U.S.C. §

1227(a)(2)(A)(iii)(aggravated felony)); Florez-Garza v. Ashcroft,

328 F.3d 797,801 (5th Cir. 2003); Jobson v. Ashcroft, 326 F.3d

367, 371 (2d Cir. 2003); Randhawa v. Ashcroft, 298 F.3d 1148,

1151 (9th Cir. 2002). We retain jurisdiction, however, to

determine whether IIRIRA’s jurisdictional bar applies. Florez-

Garza, 328 F.3d 797 at 801-02; Gousse v. Ashcroft, No. 02-4192,

2003 U.S. App. LEXIS 16056 at *8 (2d Cir. Aug. 6, 2003); Ming Lam

Sui v. INS, 250 F.3d 105, 110 (2d Cir. 2001). We have

jurisdiction to review jurisdictional facts and to determine the

proper scope of our own jurisdiction. Florez-Garza, 328 F.3d at

802; Gousse, 2003 U.S. App. at *8; Ming Lam Sui, 250 F.3d at 110.

Specifically, to determine whether we are precluded from

reviewing this petition, we must inquire, first whether Ibrahim

is an alien and then, if he is, whether he is removable for

having committed a crime covered by 8 U.S.C. §

1252(a)(2)(A)(iii).3 Because we must review whether Ibrahim’s

offense qualifies as an aggravated felony, the jurisdictional

inquiry and the analysis on the merits merge. The BIA’s

interpretation of the INA is, however, subject to established

3
It is undisputed that Ibrahim is a citizen of Nigeria and thus
an alien of the United States.

6
principles of deference. United States v. Aguirre-Aguirre, 526

U.S. 415, 424-25 (1999).

III. DISCUSSION

In this appeal, Ibrahim seeks review regarding whether or

not Petitioner’s convictions are of a nature that would

ultimately preclude jurisdiction in this court.4 While Ibrahim

fails to advance any specific argument as to why his theft and

forgery offenses are not aggravated felonies under INA §

241(a)(2)(A)(iii) as defined at INA § 1101(a)(43)(G) and (R)5, we
will address the argument he made before the BIA - that Ibrahim’s

conviction for “possession of stolen goods” is not akin to

“receipt of stolen goods” as defined by INA § 1101(a)(43)(G).

Ibrahim was convicted of possession of stolen mail in

violation of Title 18 U.S.C. § 1708. We hold that a conviction

obtained under § 1708 is categorically a “theft offense” – and

therefore an aggravated felony – within the meaning of 8 U.S.C. §

4
Section 309(c)(4) of the IIRIRA states:

[T]here shall be no appeal permitted in the case
of an alien who is inadmissible . . . by reason
of having committed a criminal offense covered
in [S]ection 212(a)(2) . . .
5
That statute states:

(43) The term “aggravated felony” means –
. . . (G) a theft offense (including receipt of
stolen property) or burglary offense for which
the term of imprisonment at [sic] least one year
. . .(R) 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.

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1101(a)(43)(G).

The BIA found Ibrahim deportable because his conviction for

possession of stolen mail was a “theft offense” as defined by 8

U.S.C. 1101(a)(43)(G). In determining whether an offense

qualifies as an aggravated felony, we look to the statute under

which the person was convicted and compare its elements to the

definition of an aggravated felony in 8 U.S.C. § 1101(a)(43).

See Taylor v. United States, 495 U.S. 575, 602, 109 L.Ed. 2d 607,

110 S.Ct. 2143 (1990); Randhawa, 298 F.3d at 1152; United States
v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002). We must

therefore determine whether “possession of stolen mail” is a

“theft offense” and thus an aggravated felony under the 8 U.S.C.

§ 1101(a)(43).

In our determination, we apply the categorical approach.

Gousse, 2003 U.S. App. at *9-10; Randhawa 298 F.3d at 1152.

The categorical approach analysis asks whether the statutory

definition of the offense of conviction is any broader than an

offense defined as an "aggravated felony" under federal law.

Gousse, 2003 U.S. App. LEXIS 16056 at *10. See Jobson, 326 F.3d

at 371-72 (applying categorical approach to determining whether

offense is removable "crime of violence" under 18 U.S.C. §§ 16);

Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 2001)(same); Ming

Lam Sui, 250 F.3d at 109, 116-18 (applying categorical approach

to whether offense is a removable offense that "involves fraud or

deceit in which the loss to . . . victims exceeds $ 10,000" under

8
8 U.S.C. §§ 1101(a)(43)(M)(i)); Michel v. INS, 206 F.3d 253, 263

(2d Cir. 2000) (applying categorical approach to whether offense

is crime involving "moral turpitude" under 8 U.S.C. §§

1227(a)(2)(A)(ii)). Unless the offense of conviction is broader,

the petitioner has committed an "aggravated felony" irrespective

of the particular circumstances of his crime. Gousse, 2003 U.S.

App. at *10 See, also, Sui, 250 F.3d at 116.

Congress did not define the term “theft offense” in 8

U.S.C. 1101(a)(43)(G). Thus, under Taylor, we must construe and

define the meaning of the phrase. Corona-Sanchez, 291 F.3d at

1204. Other circuits have considered this issue and this Court

finds their conclusions persuasive.

The Seventh, Ninth and Tenth Circuits have adopted a generic

definition of “theft offense” in the context of 8 U.S.C.

1101(a)(43)(G). That definition reads:

[A theft offense] is a 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.

Corona-Sanchez,291 F.3d at 1205 (quoting Hernandez-Mancilla v.

INS, 246 F.3d 1002, 1009 (7th Cir. 2001), see also United States

v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir. 2001). Relying

on the Seventh Circuit’s determination that this “definition is

closer to the ‘the generic sense in which the term is now used in

the criminal codes of most states’ and as ‘envisioned by the

9
Supreme Court,’” the Ninth and Tenth Circuits adopted this

definition.6 Corona-Sanchez, 291 F.3d at 1205. This Court

recognizes the desirability of a uniform national definition as

suggested by the Supreme Court in Taylor. Id. As such, we also

adopt the Seventh Circuit’s construction.

Having adopted a definition of “theft offense,” we continue

our categorical inquiry by looking to the statute under which

Ibrahim was convicted. Randhawa,298 F.3d at 1153. The Ninth

Circuit considered this very issue and we agree with their

determination that a conviction under 18 U.S.C. § 1708 facially

qualifies as a conviction for a theft offense (and thus an

aggravated felony) because that statute criminalizes only that

conduct that fits within Corona-Sanchez’s [our] definition of a

theft offense.” Id. Title 18 U.S.C. § 1708 provides as follows:

Whoever steals, takes, or abstracts, or by fraud or
deception obtains, or attempts so to obtain, from or
out of any mail, post office, or station thereof,
letter box, mail receptacle, or any mail route or other
authorized depository for mail matter, or from a letter
or mail carrier, any letter, postal card, package, bag,
or mail, or abstracts or removes from any such letter,
package, bag, or mail, any article or thing contained
therein, or secretes, embezzles, or destroys any such

6
This definition is also consistent with the BIA’s
determination that:

the reference to “receipt of stolen property” in section
1101(a)(43)(G) of the INA was intended in a generic sense
to include the category of offenses involving knowing
receipt, possession, or retention of property from its
rightful owner.

Matter of Bahta, 22 I.& N. Dec.at *23-24.

10
 letter, postal card, package, bag, or mail, or any
article or thing contained therein; or

Whoever steals, takes, or abstracts, or by fraud or
deception obtains any letter, postal card, package,
bag, or mail, or any article or thing contained therein
which has been left for collection upon or adjacent to
a collection box or other authorized depository of mail
matter; or

Whoever buys, receives, or conceals, or unlawfully has
in his possession, any letter, postal card, package,
bag, or mail, or any article or thing contained
therein, which has been so stolen, taken, embezzled, or
abstracted, as herein described, knowing the same to
have been stolen, taken, embezzled, or abstracted --
Shall be fined under this title or imprisoned not more
than five years, or both.

Both 18 U.S.C. § 1708 and our definition require a showing that a

defendant knowingly possess stolen mail. Randhawa, 298 F.3d at

1153-54 . As such, we agree with the Ninth Circuit that § 1708

is no more broad on its face than our settled definition of a

“theft offense.” Id. at 1154.

Accordingly, because we are without jurisdiction to consider

Ibrahim’s petition, respondent’s motion to dismiss petition for

lack of jurisdiction is GRANTED and the petition is DISMISSED.

Further, respondent’s alternative motion for an extension of

sixty (60) days after disposition of motion to dismiss petition

in which to file the administrative record is DENIED as MOOT.

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