On Petition for Review from the Board of Immigration Appeals BIA No. A041-362-379 Immigration Judge: The Honorable Andrew Arthur.
The opinion of the court was delivered by: Smith, Circuit Judge.
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 16, 2010
Before: SLOVITER, BARRY, and SMITH, Circuit Judges.
The Board of Immigration Appeals (BIA) dismissed Omar Thomas's appeal from a decision of the Immigration Judge (IJ) finding him removable. The BIA concluded that Thomas's misdemeanor convictions under New York Penal Law § 221.40 constituted aggravated felonies. Thomas then filed a petition for review with this court. Simultaneously, Thomas sought reconsideration by the BIA of its dismissal of his appeal. The BIA granted the motion for reconsideration, but adhered to the legal analysis set forth in its initial decision. Thomas did not petition for review of the BIA's second decision. We have before us only the BIA's initial decision, and must determine whether we have jurisdiction to review it. We conclude that we do, and will grant the petition.
Thomas, a native and citizen of Jamaica, entered the United States in November of 1987 at the age of 13 as a lawful permanent resident. A little more than nine years later, on December 9, 1996, Thomas was arrested. On December 10, Detective Piazza of the New York City Police Department completed a written statement, the issuance of which, if false, is punishable under New York Penal Law § 210.45. It alleged that Thomas committed the criminal sale of marijuana in the fourth degree in violation of New York Penal Law § 221.40, as well as criminal possession of marijuana in the fifth degree in violation of New York Penal Law § 221.10(1). The detective averred that he had been "informed by Undercover [informant] that . . . [Thomas] did hand to informant two plastic bags of a green, leafy substance with a distinct odor in exchange for $20[.]" Thomas, who was represented by counsel from the Legal Aid Society, appeared in the Criminal Court of the State of New York that same day in what was designated No. 96x072866. His counsel advised the Court that Thomas was "pleading guilty to 221.40 in full satisfaction" and that Thomas waived his right to prosecution by information. The Court sentenced Thomas to three days of community service.
Thomas was arrested again on December 27, 1997 for, inter alia, the criminal sale of marijuana in the fourth degree in violation of New York Penal Law § 221.40, No. 97x074755. A police officer prepared a written statement for that case, also punishable if false under New York Penal Law § 210.45, alleging that the undercover officer received from Thomas and another man one bag containing a dried, green, leafy substance in exchange for $5. According to the certificate of disposition, Thomas pleaded guilty on January 2, 1998 to violating § 221.40.*fn1
In addition, Thomas was convicted of several other controlled substance offenses. On July 31, 2007, he was served with a Notice to Appear. The Notice charged Thomas with having been convicted of the "Criminal Sale of Marijuana" in violation of § 221.40 on January 8, 1997,*fn2 and as a result thereof, being removable as a criminal alien on two grounds: (1) for having been convicted of an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii); and (2) for having been convicted of a controlled substance offense, 8 U.S.C. § 1227(a)(2)(B)(i). Aform e n ti tle dd iAti o na l ha r g C e s o f Inadmissibility/Deportability specifically cited the January 2, 1998 conviction, No. 97x074755, as well as four other convictions involving marijuana. A625.
Before the IJ, Thomas conceded he was removable on the second ground alleged in the Notice to Appear, i.e., that his convictions were controlled substance offenses. He challenged the averment that he had been convicted of an aggravated felony, and filed an application for cancellation of removal under 8 U.S.C. § 1229b(b). Because cancellation of removal requires the alien to establish, inter alia, that he has not been convicted of an aggravated felony, id. § 1229b(b)(1)(C), the IJ directed Thomas to submit additional documentation regarding his criminal history. Thereafter, the IJ determined that Thomas had failed to demonstrate that his two convictions for violating New York Penal Law § 221.40 were not aggravated felonies and therefore concluded that he was ineligible for cancellation of removal.
Thomas appealed to the BIA, challenging the IJ's determination that he was ineligible for cancellation of removal because he failed to establish that his misdemeanor convictions under New York Penal Law § 221.40 were not aggravated felonies. In a decision dated November 5, 2008, the BIA misread the IJ's adjudication as a determination that he was removable on both of the grounds set forth in the Notice to Appear, i.e., that his convictions qualified as both controlled substance offenses and aggravated felonies. Furthermore, the BIA stated that the IJ had pretermitted his application for cancellation of removal. In its consideration of the merits of Thomas's appeal, the BIA appropriately recognized that there were two routes to apply in determining whether a conviction is an aggravated felony, i.e., the illicit trafficking route, and the hypothetical federal felony route. See Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002). The BIA found support in the written statements of the police officers for the determination that Thomas had sold the marijuana for remuneration and that such conduct constituted a hypothetical federal felony under the Controlled Substances Act. As a result, the BIA agreed with the IJ that Thomas's conviction records established that he had been convicted of an aggravated felony.
This timely petition for review followed. Simultaneously, Thomas filed a motion with the BIA seeking reconsideration, which asserted, inter alia, that the BIA's procedural recitation was factually incorrect because the IJ had found him removable only on the second ground, to wit, that his convictions qualified as controlled substance offenses. During the pendency of his petition for review filed with this court, the BIA granted his motion for reconsideration in a decision dated June 12, 2009. The BIA agreed with Thomas that its initial decision mischaracterized the ground on which the IJ had determined he was removable. For that reason, the BIA granted the motion to reconsider in order to clarify that Thomas was found removable solely on the basis that his convictions were controlled substance offenses. The BIA further stated that [a]part from the aforementioned factual error, which we have now corrected, we conclude that our decision of November 5, 2008, properly evaluated the legal question presented on appeal, namely whether [Thomas's] 1996 and 1998 convictions for fourth degree criminal sale of marijuana in violation of N.Y. Penal Law § 221.40 preclude him from qualifying for cancellation of removal. For the reasons stated in our prior decision, we continue to hold that [Thomas] is ineligible for cancellation of removal . . . Specifically, the record reflects that [Thomas] was convicted of making remunerative sales of marijuana, offenses that correspond to felonies punishable under the Federal Controlled Substances Act . . . , namely marijuana distribution.
Accordingly, the BIA dismissed Thomas's appeal and affirmed the order of removal. Within days of the second BIA decision, the government filed a motion to dismiss the pending petition for review for lack of jurisdiction. Despite that action by the government, Thomas failed to file a petition for review of the BIA's second decision.
The Immigration and Nationality Act (INA), as amended, provides for "[j]udicial review of a final order of removal[.]" 8 U.S.C. § 1252(a)(1). The government contends that the BIA's June 2009 decision granting the motion for reconsideration effectively vacated the earlier November 2008 decision. The result is, according to the government, that the BIA's November 2008 decision no longer constitutes a final order of removal subject to judicial review. If the government is correct, ...