Cite as 25 I&N Dec. 794 (BIA 2012) Interim Decision #3751
794
Matter of Alfredo DIAZ-GARCIA, Respondent
Decided May 14, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The unlawful removal of an alien during the pendency of a direct appeal from
a deportation or removal order in violation of 8 C.F.R. § 1003.6(a) (2012) does not
deprive the Board of Immigration Appeals of jurisdiction to review the appeal.
(2) Where an accomplice is defined as one who aids another in the commission
of an offense, a person convicted of being an accomplice to a crime has been convicted
of the offense as a second-degree principal.
FOR RESPONDENT: Paul H. Scott, Esquire, Baton Rouge, Louisiana
FOR THE DEPARTMENT OF HOMELAND SECURITY: Lorraine L. Griffin, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and ADKINS-BLANCH, Board
Members.
PAULEY, Board Member:
In a decision dated May 26, 2011, 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) (2006), as an alien convicted
of an aggravated felony, and ordered him removed from the United States.
The respondent has appealed from that decision. During the pendency of the
appeal, the Department of Homeland Security (“DHS”) removed the
respondent from the country. We find that we have jurisdiction and will
address the respondent’s appeal on the merits. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who was admitted to the
United States as a lawful permanent resident on January 13, 1989. On May 21,
2008, he was convicted as an accomplice to the crimes of robbery and
residential burglary in violation of sections 5-12-102 and 5-39-201 of theCite as 25 I&N Dec. 794 (BIA 2012) Interim Decision #3751
1
It is not clear from the record whether the respondent was removed during the period
allowed for taking an appeal or after his notice of appeal was filed.
2 The regulation at 8 C.F.R. § 1003.4 provides, in relevant part:
Departure from the United States of a person who is the subject of deportation
proceedings subsequent to the taking of an appeal, but prior to a decision thereon,
shall constitute a withdrawal of the appeal, and the initial decision in the case shall
be final to the same extent as though no appeal had been taken. Departure from the
United States of a person who is the subject of deportation or removal proceedings,
except for arriving aliens as defined in § 1001.1(q) of this chapter, subsequent to the
taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal
of the appeal, and the initial decision in the case shall be final to the same extent
as though no appeal had been taken.
795
Arkansas Code Annotated. For each conviction, he was sentenced to 10 years,
the imposition of which was suspended.
A notice to appear was issued on September 29, 2010, charging that the
respondent is removable based on the fact that he was convicted of a crime
of violence for which the term of imprisonment is at least 1 year, which
is an aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C.
§ 1101(a)(43)(F) (2006). Subsequently, a charge was added that the
respondent was convicted of a theft or burglary offense for which the term
of imprisonment is at least 1 year, which is also an aggravated felony under
section 101(a)(43)(G). At removal proceedings, a record of the respondent’s
convictions was entered into evidence, and he admitted that he had been
convicted of both offenses but denied removability. The Immigration Judge
found the respondent removable on both grounds. On appeal, the respondent
claims that he is not removable because, as an accomplice, he was not
convicted of the aggravated felony offenses themselves.
In its brief on appeal, the DHS admits that the respondent has been
removed from the United States to Mexico “in error.”1 Based on that removal,
the DHS asserts that the respondent’s appeal has been withdrawn pursuant
to 8 C.F.R. § 1003.4 (2012) and that we now lack jurisdiction over this matter.2
II. JURISDICTION
The first question before us is whether the unlawful removal
of a respondent during the pendency of a direct appeal from a deportation
or removal order in violation of 8 C.F.R. § 1003.6(a) (2012) results in the loss
of the Board’s jurisdiction over the appeal. According to 8 C.F.R. § 1003.6,
a deportation or removal order from which an appeal to the Board may
be taken cannot be executed during the time allowed for the filing of an appeal
(unless the right to appeal has been waived), or while an appeal is pending,Cite as 25 I&N Dec. 794 (BIA 2012) Interim Decision #3751
3 The DHS cites Cipriano v. INS, 24 F.3d 763, 764 (5th Cir. 1994), in support of its
argument that an unlawful removal constitutes a “departure” and thus a withdrawal
of an appeal that divests the Board of jurisdiction. However, that case is inapposite because
it did not address 8 C.F.R. § 1003.4, the regulation that is applicable to the Board. Rather,
it discussed former section 106(c) of the Act, 8 U.S.C. § 1105a(c) (1994), relating to review
by a court of appeals, which provided in pertinent part: “An order of deportation . . . shall
not be reviewed by any court if the alien . . . has departed from the United States after the
issuance of the order.”
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except in certain circumstances relating to bond and motions to reopen
or reconsider when no stay has been granted. See also 8 C.F.R. §§ 236.1,
1003.19(i) (2012).
The DHS argues that 8 C.F.R. § 1003.4 dictates that the removal of the
respondent constitutes a “departure,” the result of which is that the Board has
no jurisdiction over the pending appeal. We disagree. We do not consider the
regulation to be applicable where the alleged “departure” occurs because
of an unlawful removal of the alien by the DHS. Interpreting 8 C.F.R.
§ 1003.4 as the DHS proposes would allow an unlawful deportation
or removal by the DHS, whether intentional or not, to unilaterally deprive the
Board of further jurisdiction over the case. See generally Nken v. Holder,
556 U.S. 418, 436 (2009) (noting, in the context of a stay of removal, that
“there is a public interest in preventing aliens from being wrongfully
removed”).3
The United States Court of Appeals for the Fifth Circuit, in whose
jurisdiction this case arises, has not ruled on the issue of the unlawful
deportation or removal of an alien while a direct appeal is pending before the
Board. See Long v. Gonzales, 420 F.3d 516, 520 n.6 (5th Cir. 2005) (finding
that the alien waived appeal through his own actions, which resulted
in a departure that was sufficient to withdraw his appeal pursuant to the
regulation, but reserving the question whether a forcible removal would result
in the withdrawal of an appeal); cf. Rodriguez-Barajas v. Holder, 624 F.3d 678
(5th Cir. 2010) (holding that a departure after the Board issued a decision but
while a habeas petition was pending was not “prior to a decision” within the
meaning of 8 C.F.R. § 1003.4 and therefore did not deprive the Board
of jurisdiction on remand).
However, the Ninth Circuit has held that a removal must be lawful for the
withdrawal of the appeal to be effective under 8 C.F.R. § 1003.4. Wiedersperg
v. INS, 896 F.2d 1179, 1181-82 (9th Cir. 1990) (citing Mendez v. INS,
563 F.2d 956, 958 (9th Cir. 1977), for the proposition that the jurisdictional
bar applies only where the “departure” was a “legally executed” one);
cf. Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 838 (9th Cir. 2003) (finding thatCite as 25 I&N Dec. 794 (BIA 2012) Interim Decision #3751
4 Where an appeal has been waived or there is no entitlement to an automatic stay
of execution of deportation or removal, and where no stay has been affirmatively granted,
it would not be unlawful for the DHS to deport or remove a respondent during an appeal
period or during the pendency of an appeal. See 8 C.F.R. §§ 1003.2(f), 1003.6(b),
1003.23(b)(1)(v), (4)(ii), (iii)(C) (2012). We express no view on the question whether
a lawful deportation or removal during an appeal period or during the pendency of an appeal
would constitute a “departure.” Cf. Matter of Armendarez, 24 I&N Dec. 646 (BIA 2008)
(addressing our jurisdiction to reopen proceedings following a departure pursuant to a final
order of removal).
5 This is not a situation where an unrepresented alien is unable to effectively pursue
an appeal and may be prejudiced by being absent from the United States as a result
of an unlawful deportation or removal.
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the Board lacked jurisdiction where the alien’s departure was “entirely
voluntary”). The Sixth Circuit has also held that a forcible removal is not
a “departure.” See Madrigal v. Holder, 572 F.3d 239, 244-45 (6th Cir. 2009).
Based on our reading of the regulations, we find that an unlawful
deportation or removal does not constitute a “departure” for purposes
of 8 C.F.R. § 1003.4.4 Fundamental fairness dictates that an unlawful act
by the DHS should not serve to deprive us of jurisdiction to review an alien’s
appeal. Consequently, because the respondent was unlawfully removed,
we find that we have jurisdiction to decide this appeal. Moreover, given the
circumstances of this case, where the respondent is represented on appeal and
has filed a cogent brief, we find it appropriate to address the appeal on its
merits.5
III. REMOVABILITY
The question raised by the respondent on appeal is whether his convictions
are for aggravated felonies within the meaning of sections 101(a)(43)(F) and
(G) of the Act because he was only convicted of being an accomplice to the
crimes of residential burglary and robbery. We find that because the
respondent acted as an aider and abetter in the commission of his offenses,
he was convicted of an aggravated felony and is therefore removable. See
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189-90 (2007) (finding
no distinction between principals and second-degree principals, who are aiders
and abettors present at the scene of the crime).
Section 5-2-403(a) of the Arkansas Code Annotated includes within the
definition of an “accomplice” a person who (1) “solicits” another to commit
an offense, (2) aids another in the commission of the offense, or (3) fails
to prevent the commission of the offense. Because this definition encompasses
both actors who are and those who are not aiders and abetters, we find that the
statute is divisible. See Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012)Cite as 25 I&N Dec. 794 (BIA 2012) Interim Decision #3751
798
(explaining when a statute is deemed divisible for purposes of applying the
modified categorical approach). Therefore, under the modified categorical
approach, we may consider the contents of a law enforcement report as part
of the record of conviction if it was specifically incorporated into the guilty
plea, was admitted by the alien during the criminal proceedings, or served
as the factual basis for the plea. See Matter of Milian, 25 I&N Dec. 197 (BIA
2010); see also Shepard v. United States, 544 U.S. 13 (2005).
According to the judgment and commitment order included in the
respondent’s record of conviction, he entered a “negotiated plea of guilty
or nolo contendere” to the offenses of being an accomplice to residential
burglary and robbery. In accepting the pleas, the judge relied on the
prosecutor’s “short report of circumstances” attached to the order. See Matter
of Milian, 25 I&N Dec. at 200-01. That document identifies the respondent
as the defendant and states: “On 1/26/08, defendant and an accomplice were
attempting to steal property from a home then struck the homeowner several
times when the owner arrived home and confronted the defendant and his
accomplice.” This makes clear that the respondent was present at the scene
of the crime and committed the offense with another accomplice, that is,
he was a second-degree principal as an aider and abettor present at the scene
of the crime. See Gonzales v. Duenas-Alvarez, 549 U.S. at 189.
Based on these facts, we find that the respondent’s conviction for being
an accomplice to residential burglary is for a “burglary offense” within the
meaning of section 101(a)(43)(G) of the Act. Since his suspended sentence
was to a year or more of imprisonment, we conclude that the respondent
is removable as an alien convicted of an aggravated felony based on that
offense. See section 101(a)(48)(B) of the Act; Matter of S-S, 21 I&N Dec. 900
(BIA 1997). We therefore find it unnecessary to determine whether the
respondent was also convicted of a theft offense or a crime of violence.
Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.