Jacome v. Attorney Gen. U.S.

39 F.4th 111

Alexis Fernando BARRADAS JACOME, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America

No. 20-2439

United States Court of Appeals, Third Circuit.

Argued on April 26, 2022

Filed: June 30, 2022

Stephen F. Raiola [Argued], Peter St. Tienne Wolff, Pietragallo Gordon Alfano Bosick & Raspanti, 301 Grant Street, One Oxford Centre, 38th Floor, Pittsburgh, PA 15219, Counsel for Petitioner

Brian M. Boynton, John S. Hogan, Todd J. Cochran, Craig A. Newell, Jr. [Argued], U.S. Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Before: HARDIMAN, NYGAARD, and FISHER, Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Alexis Fernando Barradas-Jacome filed this petition for review challenging his expedited removal by the Department of Homeland Security (DHS) based on his Pennsylvania conviction for receiving stolen property. The petition raises two issues of precedential import, one jurisdictional and one substantive. For the reasons that follow, we hold that we have jurisdiction to review Barradas-Jacome's legal argument in the first instance because DHS's expedited removal procedures do not allow aliens to challenge the legal basis for their removal. We also hold that Barradas-Jacome's state conviction is an aggravated felony under the Immigration and Nationality Act (INA), 8 U.S.C. § 1101(a)(43)(G). So we will deny his petition for review.¹

I

A native and citizen of Mexico, Barradas-Jacome entered the United States on a tourist visa in 2004 when he was six years old. He received approval to remain under the Deferred Action for Childhood Arrivals program in October 2013, but failed to renew his DACA status after it expired. In October 2019, Barradas-Jacome pleaded guilty to receiving stolen property, in violation of 18 Pa. Cons. Stat. § 3925(a),² and was sentenced to 12–24 months' imprisonment.

In January 2020, DHS initiated expedited removal proceedings against Barradas-Jacome by serving him with a Notice of Intent to Issue a Final Administrative Removal Order (FARO). The Notice of Intent—one side of DHS Form I-851—informed Barradas-Jacome that he was charged with being deportable under the INA as an alien "convicted of an aggravated felony" because he had been convicted of receiving stolen property. App. 30 (citing 8 U.S.C. § 1227(a)(2)(A)(iii) and § 1101(a)(43)(G) ). The Notice of Intent also advised Barradas-Jacome that he would be removed under expedited procedures, "without a hearing before an Immigration Judge," and indicated that he had ten days to "respond to the [removal] charges in writing to the [DHS] address provided on the other side of this form."³ App. 30.

The same day, Barradas-Jacome responded by filling out the reverse side of Form I-851 as instructed. The form's response side includes a series of checkboxes where an alien can state whether he contests removal and, if so, the nature of his challenge. Barradas-Jacome checked two boxes, indicating (1) "I Wish to Contest and/or Request Withholding of Removal," and (2) "I request withholding or deferral of removal to Mexico."

App. 31. On his Form I-851 response, Barradas-Jacome did not indicate that he believed his Pennsylvania receiving stolen property conviction is not an "aggravated felony."

After reviewing Barradas-Jacome's I-851 response and administrative record, DHS issued a FARO in February 2020. See 8 U.S.C. § 1228(b) (expedited deportation for "aliens who are not permanent residents" and who are convicted of an aggravated felony). Because Barradas-Jacome requested withholding of removal, he obtained a reasonable fear interview with an asylum officer who concluded that Barradas-Jacome had not established a reasonable fear of persecution or torture. Barradas-Jacome appealed that determination to an IJ, who held a hearing and concurred in the asylum officer's negative reasonable fear determination. The IJ's final order specified that no administrative appeal was available, but that Barradas-Jacome could seek Third Circuit review within 30 days. See 8 U.S.C. § 1252 ; 8 C.F.R. § 1208.31(g)(1). Barradas-Jacome timely petitioned this Court.⁴

II

Under the INA, our jurisdiction to review final orders of removal is circumscribed. 8 U.S.C. § 1252(a)(1). We lack authority to review "any final order of removal against an alien who is removable by reason of having committed" an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). For those removal orders, our jurisdiction is limited to "constitutional claims or questions of law" raised in the petition. 8 U.S.C. § 1252(a)(2)(D) ; Quinteros v. Att'y Gen. , 945 F.3d 772, 780 (3d Cir. 2019). And even then, we may review a removal order only if "the alien has exhausted all administrative remedies available ... as of right." 8 U.S.C. § 1252(d)(1).

When Barradas-Jacome responded to DHS's Notice of Intent, he did not contest the agency's determination that his Pennsylvania conviction for receiving stolen property is an aggravated felony. Yet Barradas-Jacome argues that he exhausted his administrative remedies because DHS's expedited removal procedures allow him to contest only the factual basis of his removal, not to raise legal arguments (e.g. , challenging the classification of his conviction as an aggravated felony). Barradas-Jacome thus claims that we have jurisdiction to consider his challenge in the first instance on his petition for review.

"The question of whether DHS's expedited removal procedures provide an alien with the opportunity to challenge the legal basis of his or her removal—and thus whether we have jurisdiction to hear such a challenge when a petitioner fails to raise it before DHS—is one that has split our sister circuits." Etienne v. Lynch , 813 F.3d 135, 138 (4th Cir. 2015) ; compare id. (jurisdiction lies), and Valdiviez-Hernandez v. Holder , 739 F.3d 184, 187–88 (5th Cir. 2013) (per curiam) (same), with Malu v. Att'y Gen. , 764 F.3d 1282, 1289 (11th Cir. 2014) (no jurisdiction).⁵ We now join the Fourth and Fifth Circuits and hold that DHS has not made legal challenges available to aliens during expedited removal proceedings. So the INA's exhaustion requirement does not deprive us of jurisdiction to consider Barradas-Jacome's legal challenge for the first time on his petition for review.

A

Before determining our jurisdiction, we first describe DHS's expedited removal process. The INA declares that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). Before an alien can be deported on this ground, he generally must be afforded a hearing before an IJ, where he may contest the factual or legal basis of his removability. See 8 U.S.C. §§ 1229, 1229a ; 8 C.F.R. § 1240.10(c). But for aliens like Barradas-Jacome who have not been lawfully admitted to the United States for permanent residence, the INA authorizes an expedited removal process without a hearing before an IJ. See 8 U.S.C. § 1228(b) ; 8 C.F.R. § 238.1(a). A DHS officer—who need not be an attorney—presides over this expedited process. See id.

DHS initiates expedited removal proceedings by serving an alien with a Form I-851 Notice of Intent. See id. § 238.1(b)(1), (b)(2)(i). The Notice of Intent must (1) notify the alien of the "allegations of fact and conclusions of law" supporting DHS's preliminary determination that the alien is removable; (2) inform the alien of DHS's "intent to issue a ... Final Administrative Removal Order, without a hearing before an [IJ]"; and (3) advise the alien, among other things, that he "may rebut the charges within 10 calendar days after service." Id. § 238.1(b)(2)(i). The Notice of Intent sent to Barradas-Jacome conforms to these regulations.

Once DHS has served an alien with the Notice of Intent, the alien must choose whether to respond. Form I–851 offers a series of checkboxes on the back of the form. Barradas-Jacome's completed Form I–851, replicated above, shows the range of possible responses. App. 31.

If the alien chooses to respond, he first decides whether to contest deportability. To contest deportability, he must check the box that states, "I contest my deportability because: (Attach any supporting documentation). " Id. Indented beneath that checkbox are four more checkboxes, only three of which logically complete the statement. And those options present the following three factual challenges to the basis of expedited removal: (1) "I am a citizen or national of the United States"; (2) "I am a lawful permanent resident of the United States"; and (3) "I was not convicted of the criminal offense described in allegation number 6 above."⁶ Id. The fourth checkbox, found directly below and aligned with the three factual challenges, reads "I am attaching documents in support of my rebuttal and request for further review." Id. Critically for purposes of this case, the I-851 response form offers no specific checkbox for an alien who wishes to challenge the legal basis of his removal.

If the alien contests deportability, the DHS officer must determine whether his deportability is nonetheless "established by clear, convincing, and unequivocal evidence in the record of proceeding." 8 C.F.R. § 238.1(d)(2)(i). If so, the officer "shall issue ... a Final Administrative Removal Order." Id. But if the "officer finds that the record of proceeding, including the alien's timely rebuttal, raises a genuine issue of material fact regarding the preliminary findings," that officer may either (1) "obtain additional evidence from any source, including the alien," or (2) initiate full removal proceedings before an IJ. Id. § 238.1(d)(2)(ii)(A). If the officer "finds, after considering all additional evidence, that deportability is established by clear, convincing, and unequivocal evidence," the officer "shall issue ... a Final Administrative Removal Order." Id. § 238.1(d)(2)(ii)(B). But if the officer "finds that the alien is not amenable to [expedited] removal," the...