Amrutlal Patel v. Attorney General United State

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 15-3915
____________

AMRUTLAL MANILAL PATEL,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. 058-155-359)
Immigration Judge: Honorable Walter A. Durling

Argued: June 7, 2016

Before: CHAGARES, KRAUSE, and SCIRICA, Circuit Judges.

(Filed: July 19, 2016)

Robert D. Kolken, Esq. [ARGUED]
Kolken & Kolken
135 Delaware Avenue, Suite 101
Buffalo, New York 14202

Counsel for Petitioner

Benjamin C. Mizer, Esq.
Greg D. Mack, Esq.
Richard Zanfardino, Esq.
Manuel A. Palau [ARGUED]
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878 Ben Franklin Station
Washington, D.C. 20044

Counsel for Respondent
____________

OPINION
____________

CHAGARES, Circuit Judge.

Petitioner Amrutlal Manilal Patel1 challenges a decision by the Board of

Immigration Appeals (“BIA”) dismissing an appeal of an Immigration Judge’s (“IJ”)

determination. For the following reasons, we will dismiss Patel’s petition for lack of

jurisdiction.

I.

We write solely for the parties and therefore recite only the facts necessary to our

disposition. Patel, a native and citizen of India, was admitted into the United States as a

legal permanent resident in 2006. On June 14, 2015, Patel was ordered removed pursuant

to 8 U.S.C. § 1227(a)(2)(A)(iii)2 because he committed an “aggravated felony” pursuant

to 8 U.S.C. § 1101(a)(43)(N).


This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
In the briefing and docketing, petitioner’s first name appears as both Amrutlal and
Amrutal.
2
Section 1227(a)(2)(A)(iii) provides: “Any alien who is convicted of an aggravated
felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii)
(emphasis added).

2
 The indictment filed against Patel states that he knowingly and in reckless

disregard to the fact that an alien (“D.P.”) had remained in the United States in violation

of law, did conceal, harbor, and shield D.P. from detection for commercial advantage and

private financial gain. Patel was not charged with bringing or attempting to bring the

alien D.P. into the country.

In the plea agreement, Patel admitted that he owned several Subway restaurants in

Lexington, Kentucky. Patel employed several people including D.P. who worked for him

from June 1, 2012 to November 19, 2013. Patel admitted that he was aware that D.P. was

unlawfully present in the United States. D.P. resided with Patel at the home he owned,

and Patel drove D.P. to and from the Subway. Patel admitted that he failed to pay D.P.

overtime and paid him cash rather than by payroll.

Patel pled guilty in September 2014 to one count of harboring aliens, pursuant to 8

U.S.C. § 1324(a)(1)(A)(iii) and (a)(1)(B)(i), and an unrelated charge involving the non-

payment of overtime, in the U.S. District Court for the Eastern District of Kentucky. His

plea agreement states that he understands that the relevant count “is an aggravated felony

and therefore may result in deportation.” Appendix (“App.”) 121. Patel was sentenced

to six months of imprisonment, three years of supervised release, and payment of

$40,684.40 in restitution, representing unpaid overtime. After serving his sentence, Patel

was taken into custody by DHS.

DHS commenced removal proceedings against Patel pursuant to 8 U.S.C. §

1227(a)(2)(A)(iii) as an alien who had committed an aggravated felony under 8 U.S.C. §

1101(a)(43)(N). In July 2015, after a hearing, the IJ found that the judgment of

3
conviction showed by clear and convincing evidence that Patel was removable for having

been convicted of an aggravated felony. The IJ ordered Patel removed to India.

Patel timely appealed to the BIA, which rejected his arguments and dismissed the

appeal. He filed a timely petition for review.3

II.

We cannot exercise jurisdiction to review a final order of removal based on

commission of an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C); Restrepo v. Att’y.

Gen. of U.S., 617 F.3d 787, 790 (3d Cir. 2010) (“Congress has stripped the Court of

jurisdiction, however, to review an order to remove an alien who commits an aggravated

felony. We nonetheless retain jurisdiction to address this jurisdictional prerequisite — or,

more precisely, whether an alien was convicted of a non-reviewable aggravated felony.”

(citations and quotation marks omitted)). Our jurisdictional inquiry requires us to address

the issue Patel raises on its merits, whether his conviction is an aggravated felony. “The

question of whether an alien’s offense constitutes an aggravated felony is reviewed de

novo as it implicates a purely legal question that governs the appellate court’s

jurisdiction.” Restrepo, 617 F.3d at 790.

III.

On appeal, Patel argues that the BIA erred as a matter of law in determining that

his conviction under § 1324(a)(1)(A)(iii) is an aggravated felony. He points out that the

relevant definition of aggravated felony is “an offense described in paragraph (1)(A) or

(2) of section 1324(a) of this title (relating to alien smuggling).” 8 U.S.C. §

3
We have since been informed that Patel has been removed to India.
4
1101(a)(43)(N) (emphasis added). Patel urges that his conviction for harboring aliens is

excluded from this definition by the parenthetical phrase, “(relating to alien smuggling).”

A.

Our court has previously rejected the very same argument Patel has raised in Patel

v. Ashcroft, 294 F.3d 465 (3d Cir. 2002), superseded by statute on other grounds as

recognized by Kamara v. Att’y Gen. of U.S., 420 F.3d 202, 209 (3d Cir. 2005).4 In Patel,

we explained that the “relating to alien smuggling” parenthetical in section

1101(a)(43)(N) is “descriptive and not restrictive.” Id. at 470. We explained that “[t]he

phrase is nothing more than a shorthand description of all of the offenses listed in [§

1324(a)(1)(A)].” Id. We reasoned that the parentheticals were to assist a reader in

determining whether a certain offense was an aggravated felony:

Section 1101(a)(43) contains a long list of aggravated felonies that it references by
section number. Without any descriptions of what this “litany of numbers”
referred to, determining whether an offense qualified as an aggravated felony
would be a long and arduous process. One would need to look up each section
number in the Code to get to the right one. The parentheticals here provide an
“aid to identification” only.

Id. at 471 (quoting United States v. Monjaras-Castaneda, 190 F.3d 326, 330 (5th Cir.

1999)).

4
Our decision in Patel, as we have noted, was partly superseded by the passage of the
REAL ID Act of 2005, which “radically overhauled” the jurisdictional framework in the
matter. See, e.g., Kamara v. Att’y Gen. of U.S., 420 F.3d 202, 209 (3d Cir. 2005). As
we discussed in Kamara, the Real ID Act of 2005 stripped district courts of habeas corpus
jurisdiction over final orders of removal in almost all cases. Those jurisdictional
concerns, however, do not affect the holding in Patel about the descriptive nature of the
parenthetical “relating to alien smuggling.” That holding remains good law. See, e.g.,
Restrepo v. Att’y Gen. of U.S., 617 F.3d 787, 792 (3d Cir. 2010).
5
 Finally, we determined in Patel that “(relating to alien smuggling)” must be

descriptive because conventions of grammar demonstrate that it modifies the phrase

“paragraph (1)(A) or (2) of section 1324(a) of this title,” which immediately precedes it,

not the term “offense.” See 8 U.S.C. § 1101(a)(43)(N) (“[T]he term ‘aggravated felony’

means … an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title

(relating to alien smuggling)).” If the parenthetical was meant to be restrictive, and

modify “offense,” the statute would have instead read, “an offense (relating to alien

smuggling) described in paragraph (1)(A) or (2) of section 1324(a).” Patel, 294 F.3d at

472. After this statutory analysis, Patel also explained that “we think it obvious that even

the nontechnical offense of ‘harboring an alien’ does relate to alien smuggling.” Id. at

473 n.8. (emphasis in original).

The BIA has reached the same conclusion. It has explained that it “disagree[s]

with the . . . view that the parenthetical, ‘relating to alien smuggling,’ in section

1101(a)(43)(N) is language limiting the type of convictions under sections 1324(a)(1)(A)

and (2) that may be regarded as an aggravated felony.” In re Ruiz-Romero, 22 I. & N.

Dec. 486, 489 (BIA 1999). Instead, the BIA has determined “we find that the

parenthetical is merely descriptive.” Id.

Our case law compels us to hold that Patel’s offense is an aggravated felony

because the alien smuggling parenthetical is descriptive and not limiting.

B.

Patel also argues that intervening Supreme Court case law requires that we

reconsider the BIA’s decision. There is no merit to these arguments.

6
 Patel points first to a recent Supreme Court case, Mellouli v. Lynch, 135 S. Ct.

1980 (2015), involving an interpretation of an unrelated statute, 8 U.S.C. §

1227(a)(2)(B)(i), which authorizes removal of an alien “convicted of a violation of [state

law] relating to a controlled substance (as defined in section 802 of Title 21).” In

Mellouli, the Supreme Court held that a state law conviction for possession of drug

paraphernalia did not trigger removal under § 1227(a)(2)(B)(i) because the Government

must “connect” an element of the conviction to a drug defined in the explicitly mentioned

schedule at § 802. Id. at 1990-91. No “controlled substance (as defined in [section

802])” existed in Mellouli, so petitioner’s drug paraphernalia conviction did not trigger

his removal. Id.

Patel makes an oversimplified argument that the Mellouli Court read “relating to a

controlled substance (as defined in section 802 of title 21)” narrowly to require an offense

related to a federally controlled substance and that there is no practical difference with

the “(relating to alien smuggling)” language in 8 U.S.C. § 1101(a)(43)(N). Patel Br. 12.

This reasoning is incorrect.

The statute in question in Mellouli concerned a different provision in a different

context. That provision, § 1227(a)(2)(B)(i) provides that a drug conviction is reason for

deportation, whereas § 1101(a)(43)(N) exists in a definition section for the term

aggravated felony. Patel was specifically convicted under § 1324(a), which is explicitly

incorporated into § 1101(a)(43)(N). In contrast, the Mellouli petitioner was not convicted

of a crime that connected to the incorporated section, § 802. Therefore, the very defect

identified by Mellouli — that the § 1227(a)(2)(B)(i) removal provision was not satisfied

7
because the conviction did not satisfy the incorporated section, § 802 — does not exist

here. Patel was convicted under the precise section referenced by the definition of

aggravated felony.

The parenthetical in Mellouli is different from the descriptive one before us

because it points to a specific section to incorporate — it does not merely summarize (or

describe) the crime to be found in that section. The parenthetical in Mellouli identifies

the controlled substances that are covered, those “as defined” in “section 802 of Title 21.”

See 8 U.S.C. § 1227(a)(2)(B)(i). The parenthetical must restrict “controlled substances,”

because it points to the section that provides a schedule of such substances.

In contrast to Mellouli, “(relating to alien smuggling)” in § 1101(a)(43)(N) is

merely a description of the crimes listed in § 1324, which is incorporated outside the

parenthetical. Unlike the parenthetical in Mellouli, “(relating to alien smuggling)” is a

descriptive finding aid. These significant differences mean that Mellouli does not disturb

our precedent in Patel.

In addition to Mellouli, Patel points to several other recent Supreme Court cases in

a perfunctory manner. See Descamps v. United States, 133 S. Ct. 2276 (2013);

Moncrieffe v. Holder, 133 S. Ct. 1678 (2013); Leocal v. Ashcroft, 543 U.S. 1 (2004). It

is difficult to see how these cases support his argument. Each of then relate to

comparisons between state law claims and generic federal offenses to determine whether

an “aggravated felony” for deportation purposes has been triggered. Descamps, 133 S.

Ct. at 2285-86 (holding that a burglary conviction under California law was not a violent

felony for purposes of the Armed Career Criminal Act); Moncrieffe, 133 S. Ct. at 1682-

8
83 (holding that a state controlled substance offense did not correspond to a federal

felony offense and was therefore not an aggravated felony triggering deportation under

the INA); Leocal, 543 U.S. at 3-4 (holding that a Florida state DUI is not a crime of

violence and therefore not an aggravated felony triggering deportation under INA).

Because we conclude, as we did in Patel, that the phrase “relating to alien

smuggling” is descriptive, we do not reach Patel’s argument that we should apply the

categorical approach to determine whether his alien-harboring conviction qualifies him

for removal. But even if we did, his argument would be meritless. The categorical

approach is used to determine whether a predicate conviction qualifies an alien for

removal.5 However, where, as here, the federal removal statute references the statute of

conviction by citation, the categorical approach does not apply. Furthermore, we have

already noted that “the nontechnical offense of ‘harboring an alien’ does relate to alien

smuggling.” Patel, 294 F.3d at 473 n.8. (emphasis in original).

IV.

For the foregoing reasons, we will dismiss the petition for review.

5
“When the Government alleges that a state conviction qualifies as an ‘aggravated
felony’ under the INA, we generally employ a ‘categorical approach’ to determine
whether the state offense is comparable to an offense listed in the INA. Under this
approach we look ‘not to the facts of the particular prior case,’ but instead to whether ‘the
state statute defining the crime of conviction’ categorically fits within the ‘generic’
federal definition of a corresponding aggravated felony. By ‘generic,’ we mean the
offenses must be viewed in the abstract, to see whether the state statute shares the nature
of the federal offense that serves as a point of comparison. Accordingly, a state offense is
a categorical match with a generic federal offense only if a conviction of the state offense
necessarily involved facts equating to the generic federal offense.” Moncrieffe, 133 S.
Ct. at 1684 (citations and quotation marks omitted).
9