2nd Circuit Decisions - Costa v. Holder, __F.3d__, 2010

Costa v. Holder, __F.3d__, 2010 WL 2632186 (2d Cir. July 2, 2010): The Second Circuit upheld an Immigration Judge’s decision (affirmed by the Board) that the offense of sexual assault in the second degree under § 53a-71 of the Connecticut General Statutes was categorically an aggravated felony as a crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act. The Immigration Judge relied on the Second Circuit’s 2003 decision in Chery v. Ashcroft, 347 F.3d 404 (2d Cir. 2003), which reached the same conclusion. The court dismissed the petitioner’s argument that changes to the applicable Connecticut statute since the time of the court’s decision in Chery rendered the statute divisible and therefore subject to the modified categorical approach.

Insurance Fraud is an Aggravated Felony - 24 I&N Dec. 324, In re S-I-K- Respondent

Potential loss to the victim of the insurance fraud is considered as an actual loss for the purposes of calculation $10,000 threshold


Cite as 24 I&N Dec. 324 (BIA 2007) Interim Decision #3586

In re S-I-K- Respondent

Decided October 4, 2007

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
An alien convicted of conspiracy is removable as an alien convicted of an aggravated felony within the meaning of sections 101(a)(43)(M)(i) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(M)(i) and (U) (2000), where the substantive crime that was the object of the conspiracy was an offense that involved “fraud or deceit” and where the potential loss to the victim or victims exceeded $10,000.

FOR RESPONDENT: Alex Berd, Esquire, New York, New York

BEFORE: Board Panel: FILPPU and PAULEY, Board Members; M.C.GRANT, Temporary Board Member
PAULEY, Board Member:

In a decision dated March 12, 2007, an Immigration Judge sustained the charges of deportability against the respondent, denied his various applications for relief from removal, and ordered him removed from the United States. The respondent has appealed from that decision. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent, who is a native and citizen of Ukraine, was first admitted to the United States in February 1997 as a refugee pursuant to section 207 of the Immigration and Nationality Act, 8 U.S.C. § 1157 (1994). In April 1999his status was adjusted to that of a lawful permanent resident of the United States pursuant to section 209(a) of the Act, 8 U.S.C. § 1159(a)(Supp. V 1999). In 2004 the respondent sustained a Federal conviction for conspiracy and mail fraud in violation of 18 U.S.C. §§ 371 and 1341 (2000),respectively, based on offenses committed between 1998 and 2003. The offenses that were the illegal object of the respondent’s conspiracy were the making of false statements relating to a health care benefit program in violation of 18 U.S.C. § 1035 (2000); mail fraud in violation of 18 U.S.C. § 1341; and health insurance fraud in violation of 18 U.S.C. § 1347 (2000).
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On the basis of these facts, the Immigration Judge determined that the respondent is removable as an alien convicted of an “aggravated felony”pursuant to section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii)(2000). Specifically, the Immigration Judge concluded that the respondent’s conviction was for conspiracy to commit an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000, which is an aggravated felony within the meaning of sections 101(a)(43)(M)(i) and (U) of the Act, 8 U.S.C. §§ 1101(a)(43)(M)(i) and (U) (2000). The Immigration Judge also denied the respondent’s applications for relief, which included,inter alia, adjustment of status under section 209(a) of the Act, which he sought in conjunction with a waiver of inadmissibility under section 209(c), and withholding of removal under section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3) (2000).
The respondent appeals, arguing that the aggravated felony charge cannot be sustained in light of the applicable precedent decision of the United States Court of Appeals for the Third Circuit in Alaka v. Attorney General, 456 F.3d 88, 106 (3d Cir. 2006). In addition, the respondent contends that he is eligible for withholding of removal to Ukraine and that as a “refugee” under section 207 of the Act, he must be permitted to apply for adjustment of status under section 209(a) in conjunction with a section 209(c) waiver.
II. ISSUE
The principal issue on appeal is whether the respondent’s conviction forconspiracy to engage in various Federal fraud crimes renders him removable from the United States as an alien convicted of an aggravated felony undersections 101(a)(43)(M)(i) and (U) of the Act.
III. APPLICABLE LAW
The respondent has previously been admitted to the United States, so the Department of Homeland Security (“DHS”) must prove his removability by“clear and convincing evidence” that is “reasonable, substantial, and probative.” Section 240(c)(3)(A) of the Act, 8 U.S.C. § 1229a(c)(3)(A)(2000). The DHS charges the respondent with removability under section 237(a)(2)(A)(iii) of the Act, which provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” The term “aggravated felony” is defined at length in section 101(a)(43) of the Act and states as follows, in pertinent part:
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The term “aggravated felony” means–
. . . .
(M)
an offense that–
(i)
involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; [and] . . . .
(U)
an attempt or conspiracy to commit an offense described in this paragraph.
Whether the respondent’s offense qualifies as an aggravated felony is a question of law that we review de novo. See 8 C.F.R. § 1003.1(d)(3)(ii)(2007). Moreover, to the extent that the immigration statute requires a focus on a “conviction,” all facts tied to the elements of a predicate offense must be proven “categorically.” Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004)(citing Taylor v. United States, 495 U.S. 575 (1990)).
IV.
ANALYSIS
A.
Removability
Because the respondent is charged with removability under sections101(a)(43)(M)(i) and (U) of the Act, the DHS bears a three-fold burden in proving the aggravated felony charge. At the outset, the DHS must demonstrate by clear and convincing evidence that the respondent was convicted of engaging in a “conspiracy” within the meaning of section 101(a)(43)(U) of the Act. Having met that threshold burden, the DHS must then prove that at least one of the unlawful acts that was the object of theconspiracy was an offense involving “fraud or deceit” within the meaning of section 101(a)(43)(M)(i) of the Act. Finally, the DHS must prove that the “fraud or deceit” offense that was the object of the conspiracy resulted in or contemplated a loss to his victims of more than $10,000.
With respect to this last point, we observe that Congress’s inclusion of a separate aggravated felony category for inchoate crimes of attempt and conspiracy reflects a legislative judgment that an offense described in one or more of the sub paragraphs of section 101(a)(43) may be considered an aggravated felony, even if it was not consummated, where the DHS can prove that the alien was convicted of an “attempt” or “conspiracy” to commit such a crime. We so held as to an attempted fraud offense in Matter of Onyido, 22 I&N Dec. 552, 554 (BIA 1999), where we determined that an alien’s conviction for an attempt to defraud an insurance company was an aggravated felony under sections 101(a)(43)(M)(i) and (U) where the object of the unsuccessful fraudulent transaction was to defraud the insurance company of more than $10,000. See also Matter of Davis, 20 I&N Dec. 536, 544-45 (BIA1992) (holding that a Maryland misdemeanor conviction for conspiracy to distribute a controlled substance was an aggravated felony because the felony
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distribution offense that was the object of the conspiracy would have been an aggravated felony had it been completed).1 Thus, the proper analysis in a conspiracy case is whether the substantive crime that was the object of the conspiracy would have fit within the particular aggravated felony category had it been successfully completed. Matter of Davis, supra.
With respect to conspiracies to commit fraud crimes enumerated under section 101(a)(43)(M)(i), this necessarily means that the DHS need not prove an actual loss to victims of more than $10,000; instead, it will be sufficient if the potential loss was more than $10,000. Cf. Li v. Ashcroft, 389 F.3d 892, 896 n.8 (9th Cir. 2004) (citing Matter of Onyido, supra, at 554-55, and indicating that in an attempt case “[p]otential or intended loss” can satisfy the victim loss requirement of section 101(a)(43)(M)(i)).2 Accordingly, we reject the respondent’s appellate argument that the DHS must prove that his conspiracy offense caused an actual loss to victims of more than $10,000.
In this instance, there is no dispute that the respondent’s conviction for“conspiracy” in violation of 18 U.S.C. § 371 qualifies categorically as a “conspiracy” conviction within the meaning of section 101(a)(43)(U) of the Act.3 Furthermore, the respondent does not dispute that the offenses that
1
It is well settled that conspiracy “is ‘a distinct evil,’ which ‘may exist and be punished whether or not the substantive crime ensues.’” United States v. Jimenez Recio, 537 U.S. 270, 274-75 (2003) (quoting Salinas v. United States, 522 U.S. 52, 65 (1997)).2 Portions of the Eleventh Circuit’s decision in Obasohan v. U.S. Att’y Gen., 479 F.3d 785, 789 n.8 (11th Cir. 2007), seem to question whether a conspiracy conviction can give rise to victim loss, since the convicted conduct in a conspiracy is the agreement to commit a crime, not the commission of the substantive offense. However, it does not appear that the Obasohan court was presented with any substantial argument regarding the concept of potential loss espoused in Matter of Onyido, supra. Moreover, requiring proof of an actual loss (rather than a potential loss) exceeding $10,000 from attempts and conspiracies would defeat the very purpose behind section 101(a)(43)(U). Cf. Perez v. Elwood, 294 F.3d 552, 557 n.1 (3d Cir. 2002) (observing, in relation to a money laundering conspiracy conviction charged under sections 101(a)(43)(D) and (U), that the “amount of money to be laundered in the conspiracy for which [the alien] was convicted exceeded $10,000” (emphasis added)). Accordingly, we do not require proof of actual loss where the offense of conviction was an anticipatory offense.
3
The term “conspiracy” is not defined in the Immigration and Nationality Act. It is therefore presumed that Congress intended to adopt the common law meaning of that term. United States v. Shabani, 513 U.S. 10, 13 (1994) (citing Molzof v. United States, 502 U.S. 301, 307-08 (1992)). According to the United States Supreme Court, conspiracy is generically understood as an inchoate offense, “the essence of [which] is an ‘agreement to commit an unlawful act.’” United States v. Jimenez Recio, supra, at 274 (citing United States v. Shabani, supra, at 16, and quoting Iannelli v. United States, 420 U.S. 770, 777 (1975)). And while 18 U.S.C. § 371 defines the offense of “conspiracy” to require that the
(continued...)
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were the illegal object of his conspiracy–i.e., health insurance fraud, mail fraud, and the making of false statements relating to a health care benefit program–involved “fraud or deceit.” Valansi v. Ashcroft, 278 F.3d 203, 210 (3d Cir. 2002). Thus, the sole question remaining to be decided is whether the potential loss associated with the respondent’s incipient fraud offense was more than $10,000.
The respondent’s plea agreement contains a stipulation that the loss foreseeable to him arising from the offenses of conviction (that is, from the conspiracy and mail fraud charges to which he pled guilty) was more than $70,000, but less than $120,000, and the respondent testified to the same effect during his plea colloquy. Furthermore, the trial judge imposed sentence on the respondent based on her express determination that this $70,000 to $120,000 range represented the “intended loss” arising from his offenses of conviction. On the basis of this evidence, we agree with the Immigration Judge that the respondent’s conviction record establishes that the potential loss to victims arising from his conviction for conspiracy to commit fraud (including the mail fraud offense to which he also pled) exceeded $10,000.4 In coming to this conclusion, we observe that the Third Circuit has expressly held that the“record of conviction” in such cases includes a trial judge’s “‘explicit factualfindings’” made in the sentencing context. See Alaka v. Att’y Gen., supra, at 106 (quoting Shepard v. United States, 544 U.S. 13, 16 (2005), and holdingthat an Immigration Judge “did not err in examining the District Court’s factualfindings as articulated in the sentencing report” when seeking to ascertain the
(...continued)
illicit agreement be accompanied by the commission of an “overt act” in furtherance of the
agreement by at least one of the conspirators, the Supreme Court has held that this “overt
act” requirement is purely a function of statute and does not inhere in the common law
concept of conspiracy. United States v. Shabani, supra, at 13-16; Singer v. United States,
323 U.S. 338, 340 (1945); Nash v. United States, 229 U.S. 373, 378 (1913) (Holmes, J.).
Because the present respondent was convicted of violating 18 U.S.C. § 371 itself, the
existence of an overt act was necessarily proven, and we therefore have no present occasion
to decide whether proof of such an act is always required for a “conspiracy” conviction under
section 101(a)(43)(U) of the Act.4 Because the respondent’s conviction record contains evidence sufficient to establish the requisite amount of potential loss, evidence outside the conviction record need not be considered for this purpose. See Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007). Furthermore, because the district court expressly found that the “intended loss” arising from the respondent’s convicted conduct exceeded $10,000, we need not decide whether clear and convincing proof with respect to other measures of potential loss–such as “foreseeable” or “natural and probable” loss–would have been sufficient to satisfy the DHS’s burden. Cf. Pinkerton v. United States, 328 U.S. 640 (1946) (stating that conspirators are liable for the reasonably foreseeable criminal acts of coconspirators undertaken in furtherance of the unlawful agreement); United States v. Casiano, 113 F.3d 420 (3d Cir.) (same).
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relevant loss quantum in connection with a section 101(a)(43)(M)(i)aggravated felony charge). Moreover, unlike a restitution order, this potential loss quantum is tied directly to the counts of the indictment to which the respondent pled guilty.
Accordingly, we conclude that the DHS has established by clear and convincing evidence that the respondent was convicted of a conspiracy to commit an offense involving fraud or deceit in which the potential loss to the victims exceeded $10,000. The aggravated felony charge is therefore sustained. Moreover, in view of the fact that the respondent is deportable as an alien convicted of an aggravated felony, we need not decide whether to sustain the lodged charge that the respondent was convicted of a crime involving moral turpitude. Having sustained the aggravated felony charge, we now turn to the respondent’s arguments regarding his eligibility for relief from removal.
B. Relief From Removal
As a lawful permanent resident convicted of an aggravated felony, the respondent is statutorily barred from applying for most forms of relief from removal, including cancellation of removal, asylum, a waiver of inadmissibility, and voluntary departure.5 Furthermore, although he is not statutorily barred from seeking withholding of removal under section 241(b)(3) of the Act, the respondent has not demonstrated that he is eligible for such relief on the merits. In support of his application, the respondent contends that he experienced past persecution and faces a likelihood of future  persecution in his native Ukraine on account of his Jewish religion and ethnicity. However, in an interim decision dated March 17, 2006, the Immigration Judge concluded at length that the respondent had failed to demonstrate that his past mistreatment in Ukraine was inflicted on account of his religion or ethnicity or that he faced a clear probability of suffering future persecution in that country on account of any protected ground. We find no error in those determinations, which were based on a permissible view of the evidence. See 8 C.F.R. § 1003.1(d)(3)(i); see also Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985). Accordingly, we will not disturb the Immigration Judge’s denial of the respondent’s application for withholding of removal.
We note that although the respondent previously applied for other forms of relief before the Immigration Judge, his present appeal challenges only the denial of his applications for withholding of removal under section 241(b)(3) and adjustment of status under section 209(a).
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Finally, the respondent maintains that he remains a “refugee,” regardless of his deportability, and that he must be given an opportunity to apply (or rather, reapply) for adjustment of status pursuant to section 209(a) of the Act, in conjunction with a waiver of inadmissibility under section 209(c) of the Act. See generally Matter of H-N-, 22 I&N Dec. 1039 (BIA 1999). However, the respondent’s eligibility for such relief is foreclosed by the plain language of  the statute, which declares that a refugee admitted under section 207 of the Act can be admitted as an immigrant only if he “has not acquired permanent resident status.” Section 209(a)(1)(C) of the Act. The respondent previously acquired permanent resident status in April 1999 and is therefore prohibited from acquiring such status again by means of section 209(a) of the Act. Moreover, inasmuch as the respondent is ineligible to apply for adjustment of status under section 209(a), he cannot obtain a section 209(c) waiver, which is applicable only to an “alien seeking adjustment of status under [section 209].” Cf. also Romanishyn v. Att’y Gen., 455 F.3d 175 (3d Cir. 2006)(extending administrative deference to Matter of Smriko, 23 I&N Dec. 836 (BIA 2005), in which we held that an alien admitted as a refugee who later adjusted his status to that of a lawful permanent resident is subject to removal based on convictions, notwithstanding the fact that refugee status was never terminated).
V. CONCLUSION
In conclusion, the respondent is deportable as an alien convicted of an aggravated felony. We find no reversible error in the Immigration Judge’s decision denying or pretermitting his various applications for relief from removal. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

Welfare fraud is not a “theft offense” - 24 I. & N. Dec. 436, MATTER OF LIDUINA DE FATIMA GARCIA-MADRUGA

24 I. & N. Dec. 436, Interim Decision 3596, 2008 WL 192487 (BIA)
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

MATTER OF LIDUINA DE FATIMA GARCIA-MADRUGA, RESPONDENT

Decided January 17, 2008
(1) A “theft offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2000), ordinarily requires the taking of, or exercise of control over, property without consent and with the criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent. Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000), clarified.

(2) The respondent's welfare fraud offense in violation of section 40-6-15 of the General Laws of Rhode Island is not a “theft offense” under section 101(a)(43)(G) of the Act.

FOR RESPONDENT:
John H. Ruginski, Jr., Esquire, Providence, Rhode Island

BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.

PAULEY, Board Member:

In a decision dated August 21, 2007, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), as an alien convicted of an aggravated felony “theft offense” for which the term of imprisonment was at least 1 year under section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2000). The Immigration Judge also incorporated a separate decision denying the respondent's motion to terminate the proceedings. The respondent has appealed from the Immigration Judge's decision. The Department of Homeland Security (“DHS”) has not filed a brief in this matter. [FN1] The respondent's appeal will be sustained, and the proceedings will be terminated.

I. FACTUAL AND PROCEDURAL HISTORY
The record reflects that the respondent was convicted on March 31, 2006, of welfare fraud in violation of section 40-6-15 of the General Laws of Rhode Island, for which she was sentenced to a 5-year term of imprisonment. That statute provides as follows:
Any person who by any fraudulent device obtains, or attempts to obtain, or aids or abets any person to obtain public assistance, pursuant to this chapter, to which he or she is not entitled, or who willfully fails to report income or resources as provided in this chapter, shall be guilty of larceny and, upon conviction thereof, shall be punished by imprisonment of not more than five (5) years or by a fine of not more than one thousand dollars ($1,000) or both, if the value of the public assistance to which he or she is not entitled shall exceed five hundred dollars ($500), or by imprisonment by less than one year or by a fine of not more than five hundred dollars ($500) or by both, if the value of the public assistance to which he or she is not entitled shall not exceed five hundred dollars ($500).

The conviction record reflects that the respondent was found guilty under that portion of the above statute that criminalizes fraudulently obtaining, or attempting to obtain, public assistance to which she was not entitled. Citing Matter of V-Z-S-, 22 I&N Dec. 1338, 1346 (BIA 2000), the Immigration Judge concluded that the respondent's offense of welfare fraud qualified as an aggravated felony under section 101(a)(43)(G) of the Act.

II. ISSUE
On appeal, the respondent contends that the Immigration Judge erred in finding that her Rhode Island welfare fraud offense fits within the definition of a “theft offense” as contemplated by section 101(a)(43)(G) of the Act. She asserts that the offense defined by the portion of the statute under which she was convicted-obtaining, or attempting to obtain, or aiding or abetting any person to obtain, public assistance to which she is not entitled, by fraudulent device-is not a “theft offense.” She argues that it represents instead a separate and distinct aggravated felony, i.e., “an offense that involves fraud or deceit” under section 101(a)(43)(M)(i) of the Act. [FN2]

III. ANALYSIS
In Matter of V-Z-S-, supra, we addressed the question of what constitutes a “theft offense” for purposes of section 101(a)(43)(G) of the Act and concluded, after an exhaustive analysis of relevant authorities, that “a taking of property constitutes a ‘theft’ whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.” Id. at 1346. Our focus in that case was not, however, on the meaning of a “taking” and whether theft could overlap with fraud, but on whether the deprivation must be permanent. [FN3] Specifically, we examined, among other things, Federal laws, State statutes, decisions of several Federal courts of appeals, and section 223.2(1) of the Model Penal Code, defining “theft.” However, we did not consider whether a conviction under the adjoining section of the Model Penal Code, entitled “Theft by Deception,” would represent a “theft offense.” See Model Penal Code § 223.3.

Our decision in Matter of V-Z-S-, supra, has been well received by the Federal courts. Moreover, in the wake of Matter of V-Z-S-, every Federal court of appeals to have addressed the meaning of “theft offense” under section 101(a)(43)(G) has determined that it necessarily includes the requirement that the property have been obtained from its owner “without consent.” See Burke v. Mukasey, No. 06-60710, 2007 WL 4295386, at *2 (5th Cir. Dec. 10, 2007) (per curiam) (involving a conviction for criminal possession of stolen property); Abimbola v. Ashcroft, 378 F.3d 173, 176 (2d Cir. 2004) (involving a conviction for larceny); Nugent v. Ashcroft, 367 F.3d 162, 173-74 (3d Cir. 2004) (involving a conviction for theft by deception for having passed a bad check); United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc) (involving a conviction for petty theft of cigarettes and beer); United States v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir. 2001) (involving a conviction for attempting to knowingly receive or transfer a stolen motor vehicle); Hernandez-Mancilla v. INS, 246 F.3d 1002, 1008-09 (7th Cir. 2001) (involving a conviction for possession of a stolen motor vehicle). The Supreme Court has also observed with apparent approval that “[t]he Ninth Circuit, like other Circuits and the BIA, accepted as a generic definition of theft, the ‘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.”’ Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 820 (2007) (quoting Penuliar v. Gonzales, 435 F.3d 961, 969 (9th Cir. 2006)). Other than *439 Nugent v. Ashcroft, supra, however, none of these cases addressed whether fraud crimes may also be encompassed in the definition of theft.

In contrast, the Fourth Circuit examined the interplay between a “theft offense” and “an offense that involves fraud” in Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005). [FN4] The alien in that case was convicted of the fraudulent use of a credit card for having misrepresented that she was the holder of a credit card, without the card holder's consent, to obtain property in excess of $200. Like the respondent, the alien argued that she was not convicted of a “theft offense” under section 101(a)(43)(G) of the Act but, rather, a “fraud” offense covered by section 101(a)(43)(M)(i). The court noted our unpublished order in that case, in which we agreed with the alien that her offense “‘by its terms, involves fraud,”’ but nonetheless found that the theft and fraud provisions of sections 101(a)(43)(G) and (M)(i) were not mutually exclusive and that “‘a crime which involves fraud may also involve theft.”’ Id. at 279 (quoting the Board's decision). After determining that the plain text of section 101(a)(43) shows that Congress specifically distinguished fraud from theft, and that it meant for the two offenses to be treated differently, the court examined the Black's Law Dictionary definition of each from several editions, concluding as follows:
When a theft offense has occurred, property has been obtained from its owner “without consent”; in a fraud scheme, the owner has voluntarily “surrendered” his property, because of an “intentional perversion of truth,” or otherwise “act[ed] upon” a false representation to his injury. The key and controlling distinction between these two crimes is therefore the “consent” element-theft occurs without consent, while fraud occurs with consent that has been unlawfully obtained.
*440 Id. at 282. Thus, the court held that the alien's crime would not qualify as an aggravated felony “theft offense” under section 101(a)(43)(G) of the Act under the “modified” categorical approach, as the indictment underlying the alien's conviction for credit card fraud did not charge that she had actually obtained any property from the cardholder or taken goods without the consent of the merchant.

In sum, the Federal courts of appeals' analysis of theft offenses under section 101(a)(43)(G) of the Act requires that the stolen property be obtained from its owner “without consent,” and the courts have read Matter of V-Z-S-, supra, to include this element as well. We believe the courts' interpretation of Matter of V-Z-S- is correct, since the natural reading of the definition we adopted there, i.e., that there must be a “ taking” of property (as opposed, e.g., to an acquiring of property), is that the property must be obtained “without consent.”

We therefore find that we are in substantial agreement with Soliman v. Gonzales, supra, that the offenses described in sections 101(a)(43)(G) and (M)(i) of the Act ordinarily involve distinct crimes. Whereas the taking of property without consent is required for a section 101(a)(43)(G) “theft offense,” a section 101(a)(43)(M)(i) “offense that involves fraud or deceit” ordinarily involves the taking or acquisition of property with consent that has been fraudulently obtained [FN5] Accordingly, we now refine the definition in Matter of V-Z-S-, supra, to clarify that a theft offense within the meaning of section 101(a)(43)(G) consists of the taking of, or exercise of control over, property [FN6] without consent whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.

IV. CONCLUSION
We conclude that the respondent's offense of welfare fraud under section 40-6-15 of the General Laws of Rhode Island does not constitute the taking of, or exercise of control over, property without consent and with the criminal intent to deprive the owner of the rights and benefits of ownership. The respondent has therefore not been convicted of an aggravated felony “theft offense” as defined in section 101(a)(43)(G) of the Act. Accordingly, the respondent's appeal will be sustained, and the proceedings will be terminated.

ORDER: The appeal is sustained, and the removal proceedings are terminated.
FN1. The DHS did, however, submit a brief on the issue before the Immigration Judge.
FN2. An aggravated felony under section 101(a)(43)(M)(i) of the Act is defined as an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.
FN3. We note that the statute involved in Matter of V-Z-S-, supra, specifically required a taking “‘without the consent of the owner.”’ Id. at 1347 (quoting section 10851 of the California Vehicle Code).
FN4. In Nugent v. Ashcroft, supra, the Third Circuit likewise considered the relationship between a section 101(a)(43)(G) “theft offense” and a section 101(a)(43)(M)(i) “offense involving fraud or deceit.” The court found that Pennsylvania's theft by deception statute fell under section 101 (a)(43)(G) as a “theft offense,” but also was in the nature of an offense based on fraud or deceit under section 101(a)(43)(M)(i). Id. at 176-79. The court further held that, for such a “hybrid” offense consisting of both a theft and a fraud crime, the elements of both needed to be satisfied before an alien would be removable. See also Valansi v. Ashcroft, 278 F.3d 203, 213 n.8 (3d Cir. 2002) (“The fact that the BIA classified embezzlement as … a theft offense under § 1101(a)(43)(G) does not mean that it could not also classify it as an offense involving fraud or deceit under § 1101(a)(43)(M)(i)”). However, to date, the Third Circuit has not identified another “hybrid” offense occasioning application of Nugent v. Ashcroft, supra. See, e.g., Bobb v. Att'y Gen. of U.S., 458 F.3d 213 (3d Cir. 2006) (distinguishing Nugent v. Ashcroft).
FN5. However, the definition in Soliman v. Gonzales, supra, of a fraud offense is not before us, and we need not decide whether it is sufficiently inclusive. That is, we do not discount the possibility that the theft and fraud aggravated felony compartments are not watertight such that certain crimes, like the theft by deception offense at issue in Nugent v. Ashcroft, supra, may constitute both a theft offense and one “involv[ing] fraud.” See Valansi v. Ashcroft, supra (holding that the elements of an offense that “involves fraud” need not be coextensive with a crime of fraud); see also Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006) (same). That does not mean, however, that we subscribe to the Nugent court's holding that in such an instance the elements of both aggravated felony branches must be demonstrated. Nor need we determine in this case the precise meaning of “consent,” for example, whether it applies to consent induced by coercion. See 18 U.S.C. § 1951(b)(2) (2000).
FN6. The language “exercise of control” does not come from Matter of V-Z-S-, but we incorporate it inasmuch as the Supreme Court in Duenas-Alvarez v. Gonzalez, supra, employed that phrase in summarizing the theft definition adopted by the courts of appeals and the Board. Presumably, the “exercise of control” formulation is designed to better capture the concept of an indirect “taking” or a situation where the owner originally relinquished the property on a consensual, nonfraudulently induced basis (e.g., where it was lent to the offender for a limited time or purpose, but the offender later determined to keep it for himself).
24 I. & N. Dec. 436, Interim Decision 3596, 2008 WL 192487 (BIA)

Saint Fort v. Ashcroft, 329 F.3d 191 - Indefinite detention of criminal deportees by Haitian authorities did not constitute torture within the meaning of the relevant regulations

Holding: CAT (Convention Against Torture) claim is denied. The indefinite detention of criminal deportees by Haitian authorities did not constitute torture within the meaning of the relevant regulations, 8 C.F.R. § 208.18(a) (2002), because there was no evidence that the authorities intentionally and deliberately detain deportees in order to inflict torture.
Compare with Jean-Pierre v. Atty. Gen. 9.19.07, 500 F.3d 1315 - 11 Cir. CAT granted for Haitian.

329 F.3d 191

Kelly SAINT FORT, Petitioner, Appellant,
v.
John ASHCROFT, Attorney General, Respondent, Appellee.

No. 02-2451.

United States Court of Appeals, First Circuit.

Heard March 6, 2003.

Decided May 9, 2003.

Allan M. Tow for appellant.

Christopher C. Fuller, Senior Litigation Counsel, with whom Robert D. McCallum, Jr., Assistant Attorney General, Michael P. Lindemann, Assistant Director, and Janice R. Redfern, Attorney, Office of Immigration Litigation, were on brief for appellee.

Before LYNCH, Circuit Judge, CAMPBELL, Senior Circuit Judge, and HOWARD, Circuit Judge.

LYNCH, Circuit Judge.
1

Kelly Saint Fort, a Haitian and a legal permanent resident of the United States, committed an aggravated felony and so the Immigration and Naturalization Service initiated removal proceedings to deport him. Saint Fort claimed protection from deportation, "deferral of removal," under the United Nations Convention Against Torture ("CAT"), arguing he would be jailed and tortured if returned to Haiti. An Immigration Judge ("IJ") agreed; the Board of Immigration Appeals ("BIA"), on review, did not. Saint Fort seeks to have judicial review of his case; as a matter of statutory law, he may not petition for review in the court of appeals, given the nature of his claims. This left only habeas corpus jurisdiction, which he invoked in the district court. The district court dismissed the habeas petition for lack of jurisdiction, accepting the government's argument. The case is before us on appeal from that dismissal.
2

The respondent Attorney General argues that no court has jurisdiction, even under habeas, to review any aspect of the BIA's determination. The issue is one of first impression for this court. We reject that argument and hold that habeas jurisdiction remains available here. Reviewing Saint Fort's claims about the BIA's determination under the CAT, we reject his claim of denial of due process and so affirm, on that ground, the dismissal of his habeas petition.

I.
3

Saint Fort, now 27 years old, entered the United States in 1988, at the age of 12, and settled in the Dorchester area of Boston as a lawful permanent resident. In 1999, Saint Fort was convicted in New Hampshire of second-degree assault and receiving stolen property, and was sentenced to concurrent prison terms of two to four years. Saint Fort v. Ashcroft, 223 F.Supp.2d 343, 343-44 (D.Mass.2002). Subsequently, removal proceedings were instituted against him as an aggravated felon. See Immigration and Nationality Act ("INA") § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (2000) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."); INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) (aggravated felonies include "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year").
4

Saint Fort responded by requesting asylum, withholding of deportation, and non-refoulement (non-return) under the CAT. Because of his status as an aggravated felon, he was ineligible for asylum and withholding of deportation. In a November 6, 2001 hearing before an IJ on his CAT claim, Saint Fort presented little evidence to substantiate his fear of torture. He informed the IJ that he had no family in Haiti, and that if he returned his life would be "over." He asserted that deportees were routinely tortured in Haiti. When cross-examined as to the basis for his belief, he said that at least a year earlier he had read an article in a newspaper he thought was called "U.S. Today" which said that deportees were being killed in Haiti. Saint Fort did not have a copy of this article at the hearing. Saint Fort also said that he had friends from the Dominican Republic who advised him to pray that he not be deported because, if he were, he would certainly be tortured. Saint Fort did not offer any testimony relating to himself or his family to explain why he might be targeted for mistreatment.1
5

In addition to his testimony, Saint Fort also submitted supporting documentation, including country reports on Haiti and a BIA decision on conditions in Haiti. That unpublished decision, In re Perez, was issued on October 22, 2001.2 In Perez, the BIA relied on the State Department's country report on Haiti, which noted in pertinent part that deportees are now being held indefinitely in Haitian prisons. Conditions in those prisons, the BIA stated, were "extremely poor, to the point that the health of detainees is severely compromised by lack of adequate food and medical attention. Moreover, ... police forces beat, torture, and otherwise mistreat detainees. As a direct result of these conditions, multiple detainees have died while in custody." The BIA concluded that it was "more likely than not" that the petitioner in Perez would "be subjected to torture by or with the acquiescence of a public official in Haiti." As a result, Perez was found to have met his burden of proof under the CAT, and he was granted deferral of removal to Haiti.
6

The IJ issued an oral decision in Saint Fort's case on the same day as the hearing. He found that, as an aggravated felon, Saint Fort was statutorily ineligible for asylum or withholding of removal, but eligible for deferred removal under the CAT. The IJ reviewed country reports on Haiti, the BIA's decision in Perez, and Saint Fort's hearing testimony. He noted Saint Fort's testimony that "he has no family in Haiti, and that he will be tortured if he returns to Haiti and [is] put in jail." The IJ concluded that it was more likely than not that Saint Fort would be imprisoned and tortured if returned to Haiti. The IJ reasoned,
7

The reports concerning the conditions of Haitian jails lead[ ] only to one conclusion, that the respondent's return to Haiti and being detained and placed in jail in Haiti, would subject him to torture, based on the conditions of jails in Haiti as stated in the documentation submitted ... and what is contained in [Perez].
8

The IJ granted Saint Fort's application for deferred removal under the CAT.
9

The INS appealed the IJ's decision to the BIA. The BIA reversed the IJ's decision, in reliance on an intervening published BIA decision and the absence of other evidence from Saint Fort. That published decision, In re J-E-, 23 I. & N. Dec. 291(BIA), available at 2002 WL 481156 (Mar. 22, 2002), reversed course and found that conditions in Haiti's jails did not constitute torture under the CAT. In J-E-, the BIA reviewed a case, similar to Perez, in which the petitioner argued — based on country condition reports, newspaper articles, and a letter from an official at the State Department — that prison conditions in Haiti amounted to torture. Id. at 293. In a reversal from Perez — but without citing Perez — the BIA concluded in J-E- that the indefinite detention of criminal deportees by Haitian authorities did not constitute torture within the meaning of the relevant regulations, 8 C.F.R. § 208.18(a) (2002), because there was no evidence that the authorities intentionally and deliberately detain deportees in order to inflict torture. 23 I. & N. Dec. at 299-302. Citing the decision in J-E-, the BIA dismissed Saint Fort's appeal and ordered him removed to Haiti.
10

Saint Fort did not timely apply for reconsideration by the BIA.3 He filed a petition for review of the BIA's decision in the court of appeals under 8 U.S.C. § 1252(b). This court questioned whether it had jurisdiction in the case because Saint Fort had been convicted of an aggravated felony, and there was no question as to that fact or the fact that he was not a U.S. citizen. See INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) ("[N]o 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...."). Saint Fort then voluntarily dismissed the petition for review in the court of appeals and turned to the district court.
11

On June 27, 2002, Saint Fort filed a petition for habeas corpus with the district court. He alleged that the BIA's decision violated his statutory and regulatory rights under the INA and the Administrative Procedure Act, and his constitutional rights under the Due Process and Equal Protection Clauses, because (1) it denied him the opportunity to present evidence of the possibility he will be tortured in Haiti, (2) it upset settled expectations established by In re Perez, (3) the decision-making was arbitrary and inconsistent, and (4) the application of In re J-E- was impermissibly retroactive. The government responded that the district court lacked jurisdiction because Saint Fort had failed to exhaust his administrative remedies. Saint Fort, 223 F.Supp.2d at 343.
12

The district court expressed skepticism about Saint Fort's petition, noting that a motion to reopen on the basis of new evidence would be futile because Saint Fort had conceded that he had no new evidence, and also commenting that the debate over retroactivity was "somewhat besides the point" given that In re J-E did not announce a new rule. Id. at 345. Still, on September 30, 2002, the district court remanded the case to the BIA for clarification of the grounds of its denial and continued Saint Fort's stay of removal during that period. Id. at 346. The district court said it was troubled by the BIA's holding that Saint Fort had offered no evidence to the IJ that he would be tortured when, in fact, the IJ had both Saint Fort's documentary evidence and his testimony, and when the IJ had found Saint Fort credible. Id. at 345-46.
13

The government then filed a motion to reconsider, arguing (1) that the district court had erred in its reading of the BIA's decision, and (2) that the district court lacked subject matter jurisdiction to hear Saint Fort's claim because the CAT is not self-executing. It raised the lack of jurisdiction argument for the first time. Specifically, the government argued that Congress had authorized the Attorney General to promulgate regulations for implementing the CAT when it passed the Foreign Affairs Reform and Restructuring Act ("FARRA"), Pub.L. No. 105-227, Div. G., § 2242(b), 112 Stat. 2681-761, 2681-822 (1998). Congress also explicitly limited federal court jurisdiction to review any decision on a claim for protection under the CAT, by limiting jurisdiction "except as part of the review of a final order of removal pursuant to section 242 of the [INA]." Id. § 2242(d), 116 Stat. at 2681-822. Here, there was no review of a final order of removal because of Saint Fort's uncontested status as an aggravated felon; as a result, the government contended, there could be no jurisdiction over his claim under the CAT. The government attempted to distinguish INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), by arguing that, because the CAT is not a self-executing treaty, Congress never affirmatively granted such jurisdiction in the first place. On October 29, 2002, the district court allowed the motion to reconsider and dismissed Saint Fort's habeas petition. Saint Fort now appeals this ruling.

II. Background

A. Convention Against Torture
14

The United Nations Convention Against Torture and Other, Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984), 23 I.L.M. 1027 (1984), provides that "[n]o State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." Id. Art. 3, § 1.
15

The CAT was ratified by the United States Senate in 1990 and entered into force for the United States in November 1994. See Regulations Concerning the Convention Against Torture, 64 Fed.Reg. 8478, 8478 (Feb. 19, 1999) (background). In October 1998, Congress passed FARRA, which states:
16

It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture....
17

FARRA § 2242(a), 112 Stat. at 2681-822. FARRA also delegates the responsibility for "prescrib[ing] regulations to implement the obligations of the United States" under the CAT to "heads of the appropriate agencies." Id. § 2242(b).
18

FARRA also, under the title "Review and Construction," contains a jurisdiction-limiting provision and a "zipper clause."4
19

[N]o court shall have jurisdiction to review the regulations adopted to implement this section, and nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, or any other determination made with respect to the application of the policy set forth in subsection (a), except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U.S.C. [§] 1252).
20

Id. § 2242(d). The jurisdiction-limiting provision denies jurisdiction over review of the regulations, and the zipper clause purports to confine review of claims to the specific context of a review of a final order of deportation. Thus, for aliens like Saint Fort who have been convicted of aggravated felonies, the court of appeals' jurisdiction to engage in direct review is foreclosed because § 242 review is unavailable to such aliens. See Calcano-Martinez v. INS, 533 U.S. 348, 349-50, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001).
21

The Justice Department has promulgated a set of regulations implementing FARRA, in accordance with Congressional direction. See 64 Fed.Reg. 8478, codified at scattered sections of 8 C.F.R. Specifically, these regulations define torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ... when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." 8 C.F.R. § 208.18(a)(1). The burden of proof is on the applicant to show that he or she is more likely than not to be tortured if removed. Id. § 208.16(c)(2); see id. § 208.17(a) (application of standard to deferral of removal). The regulations instruct immigration officials to consider inter alia evidence of past torture inflicted on the applicant and evidence of "gross, flagrant or mass violations of human rights within the country of removal." Id. § 208.16(c)(3); see id. § 208.17(a) (application to deferral of removal).
22

B. Habeas Corpus Jurisdiction in Immigration Cases
23

The writ of habeas corpus has been employed by non-citizens for centuries in both the United States and Britain. See J.L. Hafetz, Note, The Untold Story of Non-criminal Habeas Corpus and the 1996 Immigration Acts, 107 Yale L.J. 2509, 2524 & n. 115 (1998) (citing eighteenth-century cases and noting that "aliens in the United States have ... been able to challenge their confinement through habeas corpus since the nation's founding"). "Even before the federal government took on the task of regulating immigration, federal courts employed the writ of habeas corpus to inquire into the lawfulness of the return of foreign sailors who had allegedly deserted their ships, extradition of aliens accused of crime, and detention of enemy aliens during the War of 1812." G.L. Neuman, Jurisdiction and the Rule of Law After the 1996 Immigration Act, 113 Harv. L.Rev. 1963, 1966 (2000).
24

Before 1996, aliens had a broad right to judicial review in the courts of appeal. Aliens facing deportation possessed a general right of appeal from final orders of the BIA to the court of appeals under the "old" INA.5 8 U.S.C. § 1105a(a)(7) (1994) (repealed 1996). Aliens also had two routes to challenge a final order of deportation through employing the writ of habeas corpus. First, "old" INA itself provided for specific habeas corpus review. 8 U.S.C. § 1105a(a)(10) (1994) (repealed 1996). Second, aliens could challenge a deportation order under the general habeas corpus statute, 28 U.S.C. § 2241 (2000), which provides habeas review for individuals "in custody in violation of the Constitution or laws or treaties of the United States." Id. § 2241(c)(3).
25

In 1996, Congress passed two laws that dramatically changed judicial review of immigration decisions. See generally Goncalves v. Reno, 144 F.3d 110 (1st Cir.1998), cert. denied 526 U.S. 1004, 119 S.Ct. 1140, 143 L.Ed.2d 208 (1999). The first of these was the Antiterrorism and Effective Death Penalty Act ("AEDPA"), enacted on April 24, 1996. Pub.L. No. 104-132, 110 Stat. 1214 (1996). AEDPA repealed "old" INA's habeas provision. Id. § 401(e), 110 Stat. at 1268. In its stead, AEDPA added a new provision reading, "Any final order of deportation against an alien who is deportable by reason of having committed [an enumerated crime] shall not be subject to review by any court." Id. § 440(a), 110 Stat. at 1276 (now codified at 8 U.S.C. § 1252(a)(2)(C)). As in the present case, aliens who had been convicted of a wide range of crimes were thereby barred from petitioning courts of appeal for direct judicial review of their final orders of deportation.
26

Then, on September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). Pub.L. No. 104-208, Div. C, 110 Stat. 3009-546 (1996). Under IIRIRA, deportation proceedings were restyled removal proceedings. IIRIRA provided for two sets of rules: "transitional" rules applicable to aliens whose deportation proceedings had commenced prior to April 1, 1997, but who had not received a final order until after October 30, 1996, and "permanent" rules applying to aliens whose deportation or removal proceeding commenced on or after April 1, 1997. Id. § 306(c), 110 Stat. at 3009-612; id. § 309, 110 Stat. at 3009-625. We have discussed IIRIRA's transitional rules elsewhere. See Goncalves, 144 F.3d at 116-18. The permanent rules govern this case.
27

Under the permanent rules, IIRIRA perpetuated AEDPA's jurisdictional ban prohibiting review "by any court" of an order of removal against an alien aggravated felon. IIRIRA § 306(a)(2), 110 Stat. at 3009-607 (relocating AEDPA's jurisdiction-limiting language to 8 U.S.C. § 1252). It provides, in 8 U.S.C. § 1252(a)(1), that "judicial review of a final order of removal... is governed only by" the procedures for review of agency orders in the court of appeals under 28 U.S.C. §§ 2341-2351. A section entitled "Consolidation of questions for judicial review" provides that "[j]udicial review of all questions of law and fact ... arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section." 8 U.S.C. § 1252(b)(9).
28

IIRIRA also added a new subsection, entitled "Exclusive Jurisdiction," which removed jurisdiction from all courts to hear claims arising from the Attorney General's decision or action to commence proceedings, adjudicate cases, or execute removal orders. IIRIRA § 306(a)(2), 110 Stat. at 3009-612, (codified at 8 U.S.C. § 1252(g)). This provision had the effect of shielding certain of the Attorney General's exercises of discretion from judicial scrutiny. The Supreme Court has since been explicit that this limit on judicial scrutiny applies only to the three discrete actions described in § 1252(g). See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482-83, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999).
29

In the wake of AEDPA and IIRIRA, federal courts have recognized the redrawn contours of their jurisdiction. Because the principles developed in these cases control our interpretation of FARRA's jurisdiction-limiting provision and zipper clause, we review them briefly. In Goncalves, as here, there was no direct appeal to appellate courts for individuals like Goncalves (who had been convicted of crimes of moral turpitude). 144 F.3d at 117 & n. 6. We then turned to the question of habeas jurisdiction in the district courts. Relying on Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), we found it "clear that if Congress intends to repeal or restrict habeas jurisdiction under § 2241, it must say so explicitly. Thus, we will not find a repeal of § 2241 merely by implication, but only by express congressional command." Goncalves, 144 F.3d at 119. We concluded that there had been no express repeal of § 2241 under either AEDPA or IIRIRA, id. at 120, and that there was no implicit repeal in conjunction with AEDPA's repeal of habeas corpus jurisdiction under old INA, id. at 120-22. This holding avoided questions about the outer limits of Congress's power under Article III to control the jurisdiction of the federal courts. It also obviated the need to address possible Suspension Clause issues raised by Congress's actions. Id. at 122-23.
30

In Mahadeo v. Reno, 226 F.3d 3 (1st Cir.2000), this court extended Goncalves to the permanent rules under IIRIRA, and held that the jurisdiction-limiting provisions of IIRIRA precluded direct review in the court of appeals but did not divest district courts of their § 2241 habeas corpus jurisdiction.6 Without an express reference to § 2241, we held, there could be no repeal, id. at 12, particularly because Congress had been placed on notice by the decision in Felker, three months before IIRIRA was enacted, id. at 14. "Congress has shown in enacting IIRIRA that it knows how to use explicit language when it intends to place limitations on judicial review under particular statutes." Id. at 13-14. Mahadeo also rejected the argument that a zipper clause was meant to repeal habeas jurisdiction. Id. at 12.
31

Most importantly, the Supreme Court decided two cases in 2001 addressing the question of habeas corpus review after the 1996 legislation. In St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347, the Court considered the impact of AEDPA's jurisdiction-limiting provision, AEDPA § 401(e), as well as three provisions under the permanent rules in IIRIRA, including a zipper clause, 8 U.S.C. §§ 1252(a)(1), 1252(a)(2)(C), 1252(b)(9). The Court began with the "strong presumption in favor of judicial review of administrative action and the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction," 533 U.S. at 298, 121 S.Ct. 2271, and canons obligating avoidance of serious constitutional questions by an alternative construction, id. at 299-300, 121 S.Ct. 2271. It concluded that "a construction of the amendments at issue that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions." Id. at 300, 121 S.Ct. 2271.
32

Noting that "at the absolute minimum, the Suspension Clause protects the writ `as it existed in 1789,'" the St. Cyr Court then turned to historical evidence. Id. at 301, 121 S.Ct. 2271 (quoting Felker, 518 U.S. at 663-64, 116 S.Ct. 2333). It found that the "historical core" of the writ of habeas corpus has been review of the legality of executive detention, and "it is in that context that its protections have been strongest." Id. It also noted that "to conclude that the writ is no longer available in this context would represent a departure from historical practice in immigration law." Id. at 305, 121 S.Ct. 2271.
33

Examining the statutory provisions, the Court drew a distinction between "judicial review" and "habeas corpus." The term "judicial review" is the focus of each of the three IIRIRA jurisdiction-limiting provisions. In the immigration context, the Court reasoned, "judicial review" and "habeas corpus" "have historically distinct meanings." Id. at 311, 121 S.Ct. 2271 (citing Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972 (1953)). In Heikkila, the Court noted, preclusion of judicial review did not entail cessation of habeas review. Id. at 311-12, 121 S.Ct. 2271. As to the zipper clause, the Court held that it was an attempt to consolidate judicial review of immigration proceedings into one action, and did not bar habeas jurisdiction of orders not subject to judicial review. Id. at 313, 121 S.Ct. 2271. The absence of an alternative judicial forum also troubled the Court:
34

If it were clear that the question of law could be answered in another judicial forum, it might be permissible to accept the INS' reading of § 1252. But the absence of such a forum, coupled with the lack of a clear, unambiguous, and express statement of congressional intent to preclude judicial consideration on habeas of such an important question of law, strongly counsels against adopting a construction that would raise serious constitutional questions. Accordingly, we conclude that habeas jurisdiction under § 2241 was not repealed by AEDPA and IIRIRA.
35

Id. at 314, 121 S.Ct. 2271(citation omitted).
36

In a companion case issued the same day, the Court affirmed that criminal aliens were precluded from seeking direct review on questions of law in the court of appeals, and must therefore be able to proceed with their habeas petitions:
37

We agree with petitioners that leaving aliens without a forum for adjudicating claims such as those raised in this case would raise serious constitutional questions. We also agree ... that these concerns can best be alleviated by construing the jurisdiction-stripping provision of [IIRIRA] not to preclude aliens such as the petitioners from pursuing habeas relief pursuant to § 2241.
38

Calcano-Martinez, 533 U.S. at 351, 121 S.Ct. 2268; see also Zadvydas v. Davis, 533 U.S. 678, 687-88, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (§ 2241 habeas corpus jurisdiction not repealed by provisions of AEDPA and IIRIRA).
39

More recently, in Demore v. Kim, ___ U.S. ___, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), the Court rejected the argument that jurisdiction-limiting provisions of 8 U.S.C. § 1226(e) deprived federal courts of jurisdiction to entertain a habeas petition from a legal permanent resident detained without bail pending his removal proceeding. The Court examined the language of § 1226(e), which provides:
40

(e) Judicial review
41

The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.
42

It then found that the respondent's challenge to the statutory scheme was not an attack on a discretionary judgment by the Attorney General or on a decision made by the Attorney General regarding detention, and that habeas review was not barred under § 1226(e). The Court made three rulings significant for our purposes: (1) it emphasized that, where review of constitutional issues is said to be precluded, Congress must be clear in its intent, see Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988); (2) it reiterated its requirement in St. Cyr that any repeal of habeas review requires a particularly clear statement that such is Congress's intent; and (3) it read the jurisdiction-limiting provision in § 1226(e) as applying only to review of the Attorney General's discretionary judgment. Demore, ___ U.S. ___, 123 S.Ct. 1708, 1713-14, 155 L.Ed.2d 724, 2003 WL 1960607, at *5 (Rehnquist, C.J.).

III. Existence of Habeas Jurisdiction
43

The initial question presented is whether federal courts possess § 2241 habeas jurisdiction over claims that arise under the implementing legislation and regulations of the CAT, and that are asserted by aliens who are statutorily ineligible for judicial review of their final orders of removal because they have been convicted of aggravated felonies. This is a question of first impression for this circuit. The Supreme Court's decisions in St. Cyr and Demore mandate the conclusion that habeas jurisdiction has not been repealed in such cases, as do the controlling precedents in this circuit: Goncalves and Mahadeo. Here, there is no statement of congressional intent to preclude review of constitutional claims. There is the absence of explicit language by Congress repealing § 2241 jurisdiction. There is also implied congressional knowledge of judicial precedents interpreting similar provisions; the distinction between "judicial review" and "habeas corpus" in the immigration context; the weight of historical precedent supporting continued habeas review in immigration cases; the problem of lack of an alternative forum; and the importance of avoiding a construction of FARRA that would give rise to grave constitutional concerns. The Second Circuit has also concluded that habeas jurisdiction exists in these circumstances. Wang v. Ashcroft, 320 F.3d 130, 142 (2d Cir.2003).
44

FARRA's jurisdiction-limiting provision refers only to review of regulations; its zipper clause provides only that "nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, or any other determination made with respect to the application of the policy set forth" concerning the CAT. FARRA, § 2242(d), 112 Stat. at 2681-822. We read this section in terms of its language and no more broadly. See Demore, ___ U.S. ___ 123 S.Ct. 1708, 1713-14, 155 L.Ed.2d 724. FARRA does not expressly refer to 28 U.S.C. § 2241 or to habeas review and we would not imply an intent to repeal habeas jurisdiction from silence. See Demore, ___ U.S. ___, 123 S.Ct. 1708, 1713-14, 155 L.Ed.2d 724; Mahadeo, 226 F.3d at 11; Goncalves, 144 F.3d at 119.
45

Since no challenge is made in this case to the FARRA regulations, we assume the government is relying on the zipper clause. There are a number of problems with that reliance. First, it ignores the teaching set forth in St. Cyr and reinforced in Demore that "judicial review" and "habeas" are distinct processes. St. Cyr, 533 U.S. at 311, 121 S.Ct. 2271; see Demore ___ U.S. ___, 123 S.Ct. 1708, 1723-24, 155 L.Ed.2d 724 (O'Connor, J., concurring in part). Second, the zipper clause is a consolidation of statutory jurisdiction, not a repeal of habeas jurisdiction. Third, by its literal terms, the clause says it "does not provide" jurisdiction, not that it repeals jurisdiction.
46

In addition, the government's reading would leave no forum available to hear any CAT-based claims, a disfavored situation. See St. Cyr, 533 U.S. at 314, 121 S.Ct. 2271. The government apparently finds nothing troubling about this prospect. But it is easy to imagine a scenario in which problems in the BIA's review amounted to a constitutional violation — or, indeed, a scenario in which the BIA provided no review at all. Instead, by finding the existence of habeas review for claims arising under the implementing legislation of the CAT, we are able once again to avoid the pitfalls of a construction of the statute that would entirely preclude judicial review, giving rise to substantial constitutional questions.
47

Moreover, the consequences of finding that there was no habeas review available in Saint Fort's case would run contrary to a long history of use of habeas by aliens to challenge confinement in violation of treaty obligations. See, e.g., Mali v. Keeper of the Common Jail (Wildenhus's Case), 120 U.S. 1, 7 S.Ct. 385, 30 L.Ed. 565 (1887) (petition for habeas pursuant to consular agreement between the United States and Belgium). American courts have exercised habeas review over claims of aliens based on treaty obligations since the earliest days of the republic. See W.F. Duker, A Constitutional History of Habeas Corpus 200-01 (1980); Brief Amici Curiae of Legal Historians in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 16 Geo. Immigr. L.J. 465, 482 (2002) (listing cases considering habeas petitions from deserting sailors pursuant to treaty and federal legislation). History is important here because the Suspension Clause's protections are at their greatest height when guarding usages of the writ that date to the founding. See St. Cyr, 533 U.S. at 300-02, 121 S.Ct. 2271.
48

The Attorney General argues that the issue presented here is qualitatively different. He contends that St. Cyr and the other earlier cases are distinguishable because the CAT is not a self-executing treaty, and so it does not create in any individual a right to bring a cause of action in federal court unless and until Congress expressly grants jurisdiction for the courts to hear such a claim. This argument misses the point in several ways. As framed by the Attorney General, the real question is not one of a grant of jurisdiction (habeas jurisdiction exists), but whether there is some sort of right actionable under existing grants of jurisdiction. The CAT — considered in isolation — clearly is not a self-executing treaty. See Wang, 320 F.3d at 140. And it is also true that treaties that are not self-executing "could not therefore give rise to privately enforceable rights under United States law." Igartua de la Rosa v. United States, 32 F.3d 8, 10 n. 1 (1st Cir.1994) (per curiam).
49

But this case is not a question of a claim simply arising under treaty that is not self-executing. The CAT has been implemented in the United States through FARRA and the subsequent regulations. FARRA gives the CAT domestic effect. FARRA and the regulations are now the positive law of the United States, and, as such, are cognizable under habeas. "When the stipulations [of a treaty] are not self-executing they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress as legislation upon any other subject." Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 31 L.Ed. 386 (1888); see also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C.Cir.1984) (Bork, J., concurring) ("Absent authorizing legislation, an individual has access to courts for enforcement of a treaty's provisions only when the treaty is self-executing, that is, when it expressly or impliedly provides a private right of action.") (citing Head Money Cases, 112 U.S. 580, 5 S.Ct. 247, 28 L.Ed. 798 (1884)).
50

Here, authorizing legislation and implementing regulations have been enacted. Saint Fort's claims do not rest solely on a treaty that is not self-executing; they rest on the CAT through the FARRA and the regulations, and on a claim of violation of constitutional rights. See Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1011 n. 6 (9th Cir.2000) ("Because Congress passed legislation implementing Article 3 of the Torture Convention in the extradition context, we need not reach the issue of whether that portion of the treaty is self-executing."); see also Wang, 320 F.3d at 141 n. 17 ("Once Congress created rights under CAT by enacting FARRA, § 2241 necessarily became a proper avenue of relief for individuals in custody in violation of FARRA and its implementing regulations.").
51

For these reasons, we find that the district court had jurisdiction over Saint Fort's habeas petition, and that we have jurisdiction to review the denial of that petition.

IV.
52

Our review of the district court's denial of a habeas petition is de novo. Nadeau v. Matesanz, 289 F.3d 13, 15 (1st Cir.2002). As petitioner says, "the claim that Mr. Saint Fort is making [is] a legal claim that the BIA deprived him of due process by retroactively applying Matter of J-E-."7
53

The scope of habeas review is not the same as the scope of statutory judicial review in the courts of appeal. Heikkila, 345 U.S. at 236, 73 S.Ct. 603. At a minimum, habeas review encompasses constitutional claims that are at least colorable. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268, 74 S.Ct. 499, 98 L.Ed. 681 (1954). This includes an assessment of whether a particular set of facts amounts to a constitutional violation. E.g., Zadvydas, 533 U.S. at 699, 121 S.Ct. 2491. Habeas also encompasses colorable claims that an alien's statutory rights have been violated. Id. at 688, 121 S.Ct. 2491; Carranza, 277 F.3d at 71. Included in this category are issues of the proper construction of a statute, which is an issue of law. Goncalves, 144 F.3d at 124-25. As a result, if a statute makes an alien eligible to be considered for a certain form of relief, he may raise on habeas the refusal of the agency to even consider him. But he may not challenge the agency's decision to exercise or not exercise its discretion to grant relief. Carranza, 277 F.3d at 71 (citing Goncalves, 144 F.3d at 125).
54

We have also said generally that "pure issue[s] of law" may be raised in habeas. Goncalves, 144 F.3d at 113; see also Ruckbi v. INS, 285 F.3d 120, 124 n. 6 (1st Cir.2002); Carranza, 277 F.3d at 72. The entire content of that phrase has not been worked out. In St. Cyr, the Supreme Court referred to the use of habeas to correct "errors of law, including the erroneous application ... of statutes." 533 U.S. at 302, 121 S.Ct. 2271. In Demore, the Court upheld the use of habeas to challenge on constitutional grounds "the statutory framework" permitting detention without bail. ___ U.S. ___, 123 S.Ct. 1708, 1713-14, 155 L.Ed.2d 724. The Second Circuit in Wang has suggested that habeas jurisdiction encompasses at least the situation in which what is at stake is the BIA's application of legal principles to undisputed facts. 320 F.3d at 143. See also 8 C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law and Procedure § 104.04[4][b], at 104-48.9 to 48.10 (2003) (collecting variety of situations in which courts have found jurisdiction under § 2241). We need not reach that issue because it is not presented by the claim here, which is a constitutional one.
55

Saint Fort's claims boil down to an argument that his constitutional rights to due process have been violated by the retroactive application of In re J-E-. This retroactive application, Saint Fort argues, disrupted his settled expectations, was arbitrary, and denied him the opportunity to be heard, all in violation of due process.
56

This is not a question of whether, as in St. Cyr, a statute is to be given retroactive effect. It is quite clear that decisions of the Supreme Court apply to all cases then pending before the courts on direct appeal, see Harper v. Va. Dept. of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993), and the same rule is permissible for administrative agencies.8
57

We understand Saint Fort's due process argument to have two prongs. The first is that an agency may not simply reverse course and depart from its prior precedent; such an action may be arbitrary and may violate due process. That is true up to a point. "Agencies do have leeway to change their interpretations of laws, as well as of their own regulations, provided they explain the reasons for such change and provided that those reasons meet the applicable standard of review." Harrington v. Chao, 280 F.3d 50, 59 (1st Cir.2002). We have applied this rule to the BIA. See, e.g., Davila-Bardales v. INS, 27 F.3d 1, 5 (1st Cir.1994).9 Here, there is an ample explanation for the position taken in In re J-E-. There is no claim that the new position violates the statute.
58

It is true that In re J-E- does not reference Perez, but J-E- contains a full explanation for the rule it adopts. Had the Perez approach been embodied in a formal rule of the BIA, the burden of explaining that the BIA was making an "avowed alteration" of the Perez approach might be greater, in order to avoid a finding that the shift in direction was arbitrary. See INS v. Yang, 519 U.S. 26, 32, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996); Johnson v. Ashcroft, 286 F.3d 696, 705 (3d Cir.2002). But here, the fact that the overruling of an unpublished opinion was done sub silentio does not make the change in approach arbitrary where there is a full explanation of the reasons for the new approach. See generally 8 C.F.R. § 3.1(g).
59

Alternatively, there might be an argument that Saint Fort relied on the rule as set forth in Perez and did not produce evidence he would otherwise have produced. Cf. Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) ("[R]etroactivity is a matter on which judges tend to have `sound instincts' and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.") (citation omitted). Whether failure to put on evidence in reliance on an unpublished opinion, said by the agency to have no precedential value, could ever raise an independent due process claim is doubtful. Still, the BIA has itself recognized on occasion that a change in its approach may cause unfairness and has allowed reopening of proceedings to pursue asylum claims. In re G-C-L-, 23 I. & N. Dec. 359, 362(BIA), 2002 WL 1001051 (Apr. 10, 2002); In re X-G-W-, 22 I. & N. Dec. 71(BIA), 1998 WL 378104 (June 25, 1998). But the BIA has chosen not to do so here of its own accord. The facts here do not present the question of whether the due process clause requires a court to order the BIA to reopen here. Saint Fort admits that he has no further evidence to put in, and he did not rely on Perez in that sense.
60

There being no due process violation, we affirm the denial of the writ of habeas corpus.

Notes:
1

In his initial claim for asylum, Saint Fort wrote that his grandfather had been active in the Tonton Macoutes, and that he would be tortured as a result. The Tonton Macoutes were the personal police force of Haitian dictator Francois (Papa Doc) Duvalier, and served his son Jean-Claude (Baby Doc) Duvalier until Jean-Claude's overthrow in 1986. At the IJ hearing on his CAT claim, Saint Fort did not return to this argument
2

As an unpublished decision, it does not "serve as precedent[ ] in all proceedings involving the same issue or issues." 8 C.F.R. § 3.1(g) (2002)
3

Saint Fort did submit a motion to reconsider, but it was filed one day after the 30-day deadline. The BIA accordingly rejected the motion as untimely
4

A zipper clause "consolidates or `zips' `judicial review' of immigration proceedings into one action in the court of appeals."Mahadeo v. Reno, 226 F.3d 3, 12 (1st Cir.2000).
5

"Old" INA refers to the Immigration and Nationality Act as of March 1996, before the changes promulgated by the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), and the Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. No. 104-208, Div. C, 110 Stat. 3009-546 (Sept. 30, 1996)
6

We have previously held that the court of appeals maintains a very limited jurisdiction to determine its own jurisdiction in cases where direct review is precluded because of the alien's status as an aggravated felonMahadeo, 226 F.3d at 9-10 ("We agree that § 242(a)(2)(C) would not preclude us from reviewing that provision's applicability to Mahadeo — i.e., whether Mahadeo is an alien, removable, and removable because of a conviction for a qualifying crime."); see, e.g., Emile v. INS, 244 F.3d 183 (1st Cir.2001) (examining whether an alien's crimes met the definition of an aggravated felony despite statutory ineligibility for direct review); see also Sousa v. INS, 226 F.3d 28, 31 (1st Cir.2000). See generally 8 C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law and Procedure § 104.13[3][c], at 104-181 to 104-182 (2003) ("Courts have jurisdiction to determine if they have jurisdiction.").
7

There is no colorable equal protection claim here
8

Saint Fort relies heavily onChevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), a case which "the Supreme Court has largely rejected." Herman v. Hector I. Nieves Transport, Inc., 244 F.3d 32, 37 (1st Cir.2001).
9

In this circuit, the fact that the prior BIA precedent was unpublished does not remove it from review for arbitrariness when the agency changes course. InDavila-Bardales, we noted that "we see no earthly reason why the mere fact of nonpublication should permit an agency to take a view of the law in one case that is flatly contrary to the view it set out in the earlier ... cases, without explaining why it is doing so." 27 F.3d at 5-6.

Richards v. Ashcroft, 400 F3d 125 - Connecticut General Statute 53a-139 - Forgery 2nd Degree is an Aggravated Felony for Immigration Purposes

Holding: Connecticut General Statute 53a-139 - Forgery 2nd Degree is an Aggravated Felony for Immigration Purposes

400 F.3d 125

Mark RICHARDS, Petitioner-appellant,
v.
John ASHCROFT, Respondent-appellee.

Docket No. 03-2503.

United States Court of Appeals, Second Circuit.

Argued: October 22, 2004.

Decided: March 3, 2005.

Roberto Tschudin Lucheme, Glastonbury, CT, for petitioner-appellant.

Patrick F. Caruso, Assistant United States Attorney (Kevin J. O'Connor, United States Attorney, Jeffrey A. Meyer, Assistant United States Attorney, on the brief), Hartford, CT, for respondent-appellee.

Before: JACOBS, SOTOMAYOR and HALL, Circuit Judges.

SOTOMAYOR, Circuit Judge:
1

Petitioner Mark Richards ("Richards") appeals from a judgment of the United States District Court for the District of Connecticut (Hall, J.), entered on July 23, 2003, denying his petition pursuant to 28 U.S.C. § 2241 to vacate an order of removal. Richards asserts that he is entitled to § 2241 relief because an Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") erroneously concluded that he had been convicted of an "aggravated felony," specifically, "an offense relating to ... forgery," 8 U.S.C. § 1101(a)(43)(R). Richards argues that his 2001 conviction for second-degree forgery under Connecticut General Statute § 53a-139 did not constitute "an offense relating to ... forgery" because the Connecticut statute criminalizes mere possession of a forged document. We conclude that possession of a forged document with intent to defraud, deceive or injure is "an offense relating to ... forgery" within the meaning of § 1101(a)(43)(R), and affirm the judgment of the district court.

BACKGROUND
2

Richards, a citizen of Jamaica, entered the United States on March 13, 1981. On April 2, 2001, Richards was issued a notice of removal proceedings charging him with removability based on a 1995 conviction under Connecticut law for third-degree assault, which the INS alleged constituted an aggravated felony as defined by subparagraph (F) of the aggravated felony definition of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43). On April 26, 2001, Richards was convicted in Connecticut Superior Court of second-degree forgery under Connecticut General Statute § 53a-139 and sentenced to two years imprisonment. The INS subsequently amended the charge of removability to include the forgery conviction as an additional aggravated felony under subparagraph (R) of § 1101(a)(43).
3

On January 9, 2003, IJ Michael W. Straus determined that both the assault and the forgery conviction were removable offenses. The IJ found, in relevant part, that second degree forgery under Connecticut General Statute § 53a-139 is an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(R). On April 10, 2003, the BIA dismissed Richards' appeal, finding, without further elaboration, that the IJ "correctly concluded that the respondent is removable as an alien convicted of an aggravated felony" based on both of his convictions. Richards filed a habeas petition in the United States District Court for the District of Connecticut on May 2, 2003, asserting in relevant part that the forgery conviction was not an aggravated felony.1 That petition was denied on July 22, 2003. This appeal timely followed.

DISCUSSION

I. Jurisdiction and standard of review
4

The district court had subject matter jurisdiction over Richards' habeas petition under 28 U.S.C. § 2241.2 This Court has appellate jurisdiction over the denial of that petition pursuant to 28 U.S.C. §§ 1291 and 2253(a).
5

On appeal from a denial of a habeas corpus petition, we review the petition de novo. Evangelista v. Ashcroft, 359 F.3d 145, 150 (2d Cir.2004). To the extent that this review involves interpretation of the INA, "we accord considerable deference to the BIA's interpretation of ambiguous provisions" of the statute. Kamagate v. Ashcroft, 385 F.3d 144, 151 (2d Cir.2004). In contrast, we do not defer to the BIA's interpretation of state law or of federal criminal laws, which the BIA does not administer. See Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir.2004); Evangelista, 359 F.3d at 150. Thus, to the extent a determination of whether a given criminal conviction falls within the INA's definition of "aggravated felony" turns on the meaning of state or federal criminal law, we review the BIA's determination de novo. See Kamagate, 385 F.3d at 151; Sui v. INS, 250 F.3d 105, 112-13 (2d Cir.2001).
6

II. Connecticut second-degree forgery is an "offense relating to ... forgery" under the INA
7

Section 237 of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), authorizes the removal of aliens who have committed an "aggravated felony," as defined at 8 U.S.C. § 1101(a)(43). Subparagraph (R) of § 1101(a)(43) includes any "offense relating to ... forgery ... for which the term of imprisonment is at least one year." In determining whether a given state conviction constitutes an aggravated felony under the INA, we do not look to the facts surrounding the particular conviction, but rather take a "categorical approach," examining the generic elements of the offense of conviction to determine whether it is "any broader than an offense defined as an `aggravated felony' under federal law." Gousse v. Ashcroft, 339 F.3d 91, 95-96 (2d Cir.2003) (some internal quotation marks omitted); see also Jobson v. Ashcroft, 326 F.3d 367, 371-72 (2d Cir.2003). If the criminal statute punishes conduct that falls outside the INA's definition, then the crime does not constitute an aggravated felony. Gousse, 339 F.3d at 96. Applying this categorical approach, Richards argues that Connecticut General Statute § 53a-139 is broader than the federal definition of "forgery" because it penalizes the mere possession, as opposed to the making or uttering, of a forged instrument.
8

Section 53a-139 provides, in relevant part, that "[a] person is guilty of forgery in the second degree when, with intent to defraud, deceive, or injure another, he falsely makes, completes or alters a [specified] written instrument or issues or possesses any [such] written instrument which he knows to be forged." Conn. Gen.Stat. § 53a-139. The fact that Connecticut punishes a given act under the rubric of "forgery" is not dispositive of whether a conviction under that statute is "an offense relating to ... forgery" under the federal definition; absent clear evidence to the contrary, we presume that Congress did not intend the meaning of the INA to hinge on state law. See Sui, 250 F.3d at 114 (citing Drakes v. Zimski, 240 F.3d 246, 248 (3d Cir.2001)) (holding that "[t]he language of [the INA] must be construed to have the meaning intended by Congress, not the [state] legislature"). There is no readily available federal definition of "forgery" or an offense "relating to ... forgery," however. The terms are not defined at § 1101(a)(43)(R) or elsewhere in the INA; so far as we are aware, the BIA has not settled on a general interpretation of either of these terms as employed at § 1101(a)(43).3 Nor, as the Third Circuit observed in Drakes, has Congress defined the term "forgery" in any of the numerous criminal statutes in which the term appears. See Drakes, 240 F.3d at 249 (reviewing federal statutes addressing forgery).
9

In general, when a federal statute uses, but does not define, a term of art that carries an established common law meaning, we will give that term its common law definition (unless, again, Congress has clearly evinced intent to the contrary). Moskal v. United States, 498 U.S. 103, 114, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990); Gilbert v. United States, 370 U.S. 650, 655, 82 S.Ct. 1399, 8 L.Ed.2d 750 (1962); see, e.g., Drakes, 240 F.3d at 249 (examining common law definition of forgery for the purpose of determining whether Delaware statute constituted "an offense relating to ... forgery" under § 1101(a)(43)(R)). The sparse case law discussing the scope of forgery at common law tends to support Richards' contention that forgery itself requires a "false making." Gilbert, 370 U.S. at 656, 82 S.Ct. 1399 (internal quotation and citation omitted); see also United States v. McGovern, 661 F.2d 27, 29 (3d Cir.1981) ("Common law forgery has three elements: (a) The false making or material alteration (b) with intent to defraud (c) of a writing which, if genuine, might be of legal efficacy."); United States v. Maybury, 274 F.2d 899, 903 (2d Cir.1960) (noting that "an essential element of the crime of forgery is making the false writing"); accord 36 Am.Jur.2d Forgery § 1 (2001) (defining forgery as "the fraudulent making or alteration of a writing to the prejudice of another's rights"); 37 C.J.S. Forgery § 2 (1997) (defining forgery as the "false making or materially altering ... of any writing"). In addition, the Model Penal Code, to which we have also referred for definitions of terms that the INA does not define, see Sui, 250 F.3d at 115, does not define "forgery" to include possessory offenses. Model Penal Code § 224.1 (1980).
10

Thus, if subparagraph (R) defined "aggravated felony" to include only "forgery" offenses, Richards' argument would present a close question. But the aggravated felony definition encompasses "offense[s] relating to ... forgery." 8 U.S.C. § 1101(a)(43)(R). In Kamagate v. Ashcroft, decided subsequent to the district court's decision and the briefing of this appeal, we considered whether conviction under a federal counterfeiting statute for possession of counterfeit securities was "an offense relating to counterfeiting" under subparagraph (R). 385 F.3d at 153-56. In holding that § 1101(a)(43)(R) encompassed the possessory crime, we rejected a narrow interpretation of the term "relating to" under which it would reach only crimes involving counterfeiting itself. Id. In particular, we relied on the Supreme Court's analysis of the term "relating to" in Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), in which the Court observed that Black's Law Dictionary defines the words expansively: "`to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.'" Kamagate, 385 F.3d at 154 (quoting Morales, 504 U.S. at 383, 112 S.Ct. 2031 (quoting Black's Law Dictionary 1158 (5th ed.1979)) (further internal quotation marks omitted)). We also looked to the BIA's interpretation of the phrase "relating to a controlled substance" in the predecessor statute to 8 U.S.C. § 1227(a)(2)(B)(I). Id. (citing In re Beltran, 20 I. & N. Dec. 521, 525-26 (BIA 1992) ("[T]he phrase `relating to' ... has long been construed to have broad coverage.... Congress intended to give inclusive meaning in the immigration laws to the phrase `relating to.'")). Finally, we indicated our agreement with the Ninth Circuit's conclusion in Albillo-Figueroa v. INS, 221 F.3d 1070, 1073 (9th Cir.2000), that the inclusion of the term "relating to" in subsection (R) "`necessarily' signaled Congress's intent to cover `a range of activities beyond those of counterfeiting or forgery itself,'" including those activities made illegal in order to discourage counterfeiting or forgery "`through the criminalization of the use of [their] end product [s].'" Kamagate, 385 F.3d at 155 (quoting Albillo-Figueroa, 221 F.3d at 1073).
11

The analysis in Kamagate controls the result here: Criminalization of possession of forged instruments with the intent to deceive, defraud or injure, like possession of counterfeit instruments with similar intent, discourages the underlying crime. Cf. 18 U.S.C. §§ 477, 480 (criminalizing possession of specified forged instruments); Cal.Penal Code § 475 (same); Del.Code Ann. tit. 11, § 861 (same); Idaho Code § 18-3603 (same); Me.Rev.Stat. Ann. tit. 17-A § 703 (same). Even if possession of a forged instrument with intent to defraud, deceive or injure is not "forgery" as defined at common law, it is unarguably an offense "relating to" forgery within the broad construction we have given that term.4 See Kamagate, 385 F.3d at 154-56; see also Drakes, 240 F.3d at 250 (reaching the same conclusion with respect to a materially identical Delaware statute). We therefore hold that Connecticut General Statute § 53a-139 punishes only conduct that is covered by 8 U.S.C. § 1101(a)(43)(R), and that a conviction under this statute for which a sentence of one year or more is imposed constitutes an aggravated felony.

CONCLUSION
12

For the foregoing reasons, the judgment of the district court is AFFIRMED.

Notes:
1

Richards also contested the BIA's determination that he was removable for the assault conviction. The government conceded that the assault conviction no longer constituted a ground for removal under this Court's opinion inChrzanoski v. Ashcroft, 327 F.3d 188, 197 (2d Cir.2003). Thus, the district court focused exclusively on whether Richards was subject to removal for the forgery conviction. That is the only issue presented in this appeal.
2

Although federal courts lack jurisdiction directly to review final removal orders entered on the basis of conviction for an aggravated felony, they retain jurisdiction under § 2241 to review whether an alien has, as a matter of law, committed such an aggravated felonyKamagate v. Ashcroft, 385 F.3d 144, 149 (2d Cir.2004); Kuhali v. Reno, 266 F.3d 93, 99 (2d Cir.2001); see 8 U.S.C. § 1252(a)(2)(C).
3

In both the instant case and inIn re Aldabesheh, 22 I. & N. Dec. 983, 987 (1999), the BIA determined that a given state offense met the definition of an "offense relating to ... forgery" without elaborating in any way on the meaning of that term.
4

As the district court correctly found, Richards' contention that conviction under § 53a-139 requires only knowing possession of forged instruments is a patent misreading of the statute. The phrase "with intent to defraud, deceive or injure" in § 53a-139 modifies both the "make [ ], complete[] or alter[ ]" clause and the "possess[ ]" clauseSee State v. DeCaro, 252 Conn. 229, 745 A.2d 800, 811 (2000) (noting that "[a] defendant may be found guilty of forgery in the second degree ... if the state establishes that the defendant, with intent to deceive another, falsely made, possessed or altered a written instrument that he knew to be forged" (emphasis added)); State v. Henderson, 47 Conn.App. 542, 706 A.2d 480 (1998) (squarely so holding); cf. State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995) (so holding with respect to materially identical third-degree forgery statute). We express no view on the considerably more difficult question of whether a statute that punished mere knowing possession of a forged instrument would be an offense "relating to ... forgery."

TEXAS CONTROLLED SUBSTANCE CONVICTION NOT AN "AGGRAVATED FELONY"

BIA: TEXAS CONTROLLED SUBSTANCE CONVICTION NOT AN "AGGRAVATED FELONY" (MATTER OF K-V-D-)
Immigrants’ Rights Update, Vol. 13, No. 8, December 28, 1999

The Board of Immigration Appeals has issued a precedent decision finding that a Texas conviction for simple possession of a controlled substance is not an "aggravated felony" under immigration law, even though the conviction constitutes a felony under Texas law. In reaching its decision, the BIA found that it was not bound by Fifth Circuit precedent interpreting the "drug trafficking crime" element of the "aggravated felony" definition of the Immigration and Nationality Act for purposes of enhancing criminal sentences, because that precedent did not concern the implementation of immigration law. The BIA concluded that, in order to constitute a conviction for an aggravated felony under the INA, a state felony conviction involving a controlled substance offense must be for a crime that would be punishable as a felony under federal law.

The respondent in this case is a national of Vietnam who has been a lawful permanent resident of the United States since 1987. In 1992 he pled guilty to a charge of simple possession of a controlled substance, namely, less than 28 grams of cocaine. He was placed on probation, and the adjudication of the charge was deferred. However, on Dec. 2, 1997, he was sentenced to five years in prison for failing to report to his probation officer, and the deferred adjudication was nullified. Under Texas law, the respondent’s conviction for a violation of Texas Health and Safety Code section 481.115(d) is classified as a second degree felony.

The Immigration and Naturalization Service issued the respondent a notice to appear for removal proceedings, charging him with being removable both for a controlled substance conviction and an aggravated felony conviction. The immigration judge in the removal proceeding concluded that the conviction constitutes an aggravated felony, relying on the Fifth Circuit’s decisions in United States v. Hinojosa-Lopez,130 F.3d 691 (5th Cir. 1997), and United States v. Reyna-Espinosa, 117 F.3d 826 (5th Cir. 1997). Those cases concern the application of criminal sentence enhancement under the United States Sentencing Guidelines, which reference INA section 101(a)(43)(B). That section, in turn, defines "aggravated felony" (in the immigration context), and it provides that a "drug trafficking crime" is an aggravated felony.

On appeal, the BIA concluded that the above-cited Fifth Circuit decisions are not controlling in this case, because those cases concerned a completely different issue. The BIA noted that while several other circuits have also interpreted section 101(a)(43)(B) in the criminal sentence enhancement context, they have expressly noted that a different interpretation may apply in the immigration law context. See, e.g., United States v. Briones-Mata, 116 F.3d 308, 309–10 (8th Cir. 1997); United States v. Restrepo-Aguilar, 74 F.3d 361, 366 (1st Cir. 1996). Moreover, the Second Circuit, which is the only circuit that has interpreted the statute for both sentence enhancement and immigration purposes, reached different conclusions regarding what constitutes a "felony" in the two contexts. Compare United States v. Polanco, 29 F.3d 35 (2d Cir. 1994) (interpreting statute for purposes of sentence enhancement), with Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996) (following the BIA’s decision in Matter of L-G-, 21 I. & N. Dec. 89 (BIA 1995) in interpreting the statute for immigration purposes); see also United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 199{??}), cert. denied, 120 S.Ct. 191 (1999) (reaffirming and explaining the circuit’s differing interpretations in the sentence enhancement and immigration law contexts). The above-cited Fifth Circuit cases relied on the reasoning of these cases, which expressly distinguished between the sentence enhancement context and the BIA’s well established precedent in the immigration law context.

The BIA concluded that its prior decisions, most recently set forth in Matter of L-G-, continue to apply in the immigration context, notwithstanding the Fifth Circuit decisions regarding sentence enhancement. Under Matter of L-G-, a state felony conviction for a controlled substance offense constitutes a "felony" for purposes of the "aggravated felony" definition only if the offense would be punishable as a felony under federal law. The BIA noted that this interpretation serves the important policy of ensuring the uniform application of federal immigration law.

The BIA concluded that since the respondent’s conviction for simple possession of cocaine did not specifically indicate that he was in possession of more than five grams of cocaine base, his offense would constitute a misdemeanor under federal law. Therefore, his conviction does not constitute conviction of an "aggravated felony," and he is eligible for the relief of cancellation of removal. The BIA sustained the appeal and remanded the case to the immigration judge for further proceedings.

Matter of K-V-D-, Int. Dec. 3422 (BIA, Dec. 10, 1999).