Kamagate v. Ashcroft

Page 144

385 F.3d 144

Karamokotie KAMAGATE, Petitioner-Appellant, v. John ASHCROFT, United States Attorney General; James W. Ziglar, Immigration and Naturalization Service Commissioner; Christine G. Davis, New Orleans Immigration and Naturalization Service Director; Edward McElroy, New York Immigration and Naturalization Service Director; United States Immigration and Naturalization Service, Respondents-Appellees.

Docket No. 02-2433.

United States Court of Appeals, Second Circuit.

Argued: July 16, 2004.

Decided: September 21, 2004.

Appeal from the United States District Court for the Eastern District of New York, Carol Bagley Amon, J.

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Norman Trabulus, Garden City, New York, for Petitioner-Appellant.

Margaret M. Kolbe, Assistant United States Attorney (Varuni Nelson, Steven Kim, Assistant United States Attorneys, on the brief), for Roslynn R. Mauskopf, United States Attorney, Eastern District of New York, Brooklyn, New York, for Respondents-Appellees.

Before: POOLER, SACK, and RAGGI, Circuit Judges.

RAGGI, Circuit Judge.

Petitioner-Appellant Karamokotie Kamagate appeals from a judgment of the United States District Court for the Eastern District of New York (Carol Bagley Amon, Judge), entered on June 24, 2002, denying his petition pursuant to 28 U.S.C. § 2241 to vacate a final order of removal from the United States.¹ See Kamagate v. Ashcroft, No. 01-CV-4292 (CBA) (E.D.N.Y. June 24, 2002). While his appeal and a motion to stay the removal order were pending before this court, Kamagate was, in fact, removed from the United States. Because Kamagate is, nevertheless, subject to adverse collateral consequences as a result of the challenged removal order, we conclude that his appeal is not moot.

Kamagate asserts that he is entitled to § 2241 relief because the basis for his removal was an erroneous conclusion by an Immigration Judge ("IJ") and by the Board of Immigration Appeals ("BIA") that he had been convicted of an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii),² specifically, "an offense relating to ... counterfeiting," id. § 1101(a)(43)(R).³ In challenging this conclusion on appeal, Kamagate relies on an argument never raised during the administrative proceedings or before the district court: he submits that an offense relates to counterfeiting only if it involves the creation of counterfeit instruments or a scheme to do so. He asserts that his 1998 conviction in the Eastern District of New York for conspiracy to utter and possess counterfeit securities in violation of 18 U.S.C. §§ 371, 513(a), see United States v. Kamagate, No. 97-CR-0033 (CBA) (E.D.N.Y. Feb. 27, 1998), cannot evidence a crime "related to counterfeiting" because a defendant can be guilty of such a conspiracy without proof that the conspirators ever dealt in counterfeit securities, much less that they made or intended to make such instruments. We conclude that this argument misconstrues 8 U.S.C. § 1101(a)(43)(R) and misunderstands the relationship of that section to § 1101(a)(43)(U).⁴ We hold that Kamagate's 1998 conviction is for an aggravated felony, and we affirm the judgment of the district court.

Background

I. Kamagate's 1998 Conviction for Conspiring to Utter and Possess Counterfeit Securities

Karamokotie Kamagate legally entered the United States on October 11, 1989, married a United States citizen in June 1990, and became a lawful permanent resident on September 10, 1990. In 1996, he joined others in a scheme to cash various counterfeit corporate checks and fraudulent Treasury checks, thereby causing losses of approximately $179,000. Charged in the Eastern District of New York with conspiring to utter and possess counterfeit checks, see 18 U.S.C. §§ 371, 513(a), actually uttering and possessing a counterfeit check, see id. § 513(a), and fraudulently endorsing a United States Treasury check, see id. § 510(a), Kamagate pleaded guilty to the conspiracy charge on March 20, 1997, and on February 27, 1998, the district court sentenced him to, inter alia, a thirteen-month term of incarceration.⁵

Having waived direct appeal in his plea agreement, Kamagate collaterally challenged his conviction pursuant to 28 U.S.C. § 2255, claiming primarily ineffective assistance of counsel. After an evidentiary hearing, the district court denied the motion on August 23, 2000, see Kamagate v. United States, No. 00-CV-0024 (CBA) (E.D.N.Y. Aug. 24, 2000), and this court declined to grant Kamagate a certificate of appealability, see Kamagate v. United States, No. 00-2598 (2d Cir. Apr. 6, 2001).

II. Immigration Proceedings

Meanwhile, on July 22, 1999, the Immigration and Naturalization Service ("INS") issued Kamagate a Notice to Appear for removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) on the ground that his federal conviction was for an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(R) and (U). As a result of this notice, upon Kamagate's completion of his term of incarceration, the Bureau of Prisons transferred him to INS custody. First appearing before an IJ on August 31, 1999, Kamagate was granted a continuance to allow him to secure counsel. At his next appearance on October 14, 1999, a further adjournment was granted to afford Kamagate's counsel sufficient time to prepare for the removal hearing. Sometime thereafter, Kamagate fired his attorney and on January 25, 2000, advised the IJ that he elected to proceed pro se.

At the removal hearing, Kamagate admitted his federal conviction but did not specifically concede that he was removable on this ground. Instead, he asserted a fear of persecution and torture if returned to his native country, Cote d'Ivoire (formerly known as the Ivory Coast), and applied for withholding of removal pursuant to 8 U.S.C. § 1231(b)(3) and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture").⁶ In a decision dated June 19, 2000, the IJ ruled that Kamagate had failed to establish circumstances warranting relief from removal under either United States law or the Convention Against Torture and, summarily concluding that the federal conviction was for an aggravated felony, ordered Kamagate removed from the United States. The decision was upheld by the BIA on November 29, 2000.⁷

III. The Pending § 2241 Petition

On June 22, 2001, Kamagate, again proceeding pro se, filed his second § 2241 petition in the district court, arguing that the BIA had improperly ordered his removal based on conviction for a crime that was not, in fact, an aggravated felony.⁸ He moved for a stay of removal pending disposition of his petition, which motion the district court granted.

In support of his petition, Kamagate asserted that his crime of conviction did not fall within the definition of aggravated felony provided in 8 U.S.C. § 1101(a)(43)(U) in light of our decision in Ming Lam Sui v. INS, 250 F.3d 105, 110 (2d Cir.2001), or the definition provided in § 1101(a)(43)(R), which he read as pertaining only to motor vehicle identification numbers. In an unpublished Memorandum and Order dated June 18, 2002, the district court rejected these arguments. It noted that Ming Lam Sui concluded that a conviction for one substantive crime did not necessarily establish an "attempt" to commit a different crime, an issue not presented in this case where Kamagate plainly stands convicted of "conspiracy" to violate 18 U.S.C. § 513(a). See Kamagate v. Ashcroft, No. 01-CV-4292 (CBA), at 7-9. Relying on the plain language and grammatical structure of the statute, the district court further concluded that the term "vehicles" applied to only one clause in subsection (R), identifying offenses relating to "trafficking in vehicles the identification numbers of which have been altered" as aggravated felonies. 8 U.S.C. § 1101(a)(43)(R). It ruled that the term "vehicles" did not pertain to, much less limit, three other clauses in the statute identifying other aggravated felonies, specifically, offenses relating to "`commercial bribery,' `counterfeiting,' or `forgery.'" Kamagate v. Ashcroft, No. 01-CV-4292 (CBA), at 6 (quoting § 1101(a)(43)(R)). Accordingly, the district court denied Kamagate's § 2241 petition and lifted its stay of removal.

On July 8, 2002, Kamagate filed a notice of appeal from the district court judgment, and soon thereafter moved for a stay of removal, which this court granted by order entered September 24, 2002. In fact, Kamagate had been deported from the United States on August 20, 2002, prompting respondents, in May 2003, to move for dismissal of this appeal as moot. Because respondents had a Cote d'Ivoire address for Kamagate, this court directed their counsel to inquire of Kamagate in writing whether he wished to pursue his appeal. When Kamagate responded affirmatively, we directed the appointment of counsel and ordered briefing on the following issues: (1) whether "conspiracy to utter and possess counterfeit securities" is an "aggravated felony" under § 1101(a)(43)(R) and (U); (2) if not, whether either this federal offense or Kamagate's New York State conviction involved a crime of moral turpitude under the INA; and (3) whether Kamagate's conviction of either offense renders him permanently inadmissible thereby rendering his appeal moot because his removal would present no adverse collateral consequences. Kamagate v. Ashcroft, No. 02-2433 (2d Cir. Aug. 28, 2003).

Discussion

I. Jurisdiction

IIRIRA stripped federal courts of jurisdiction to review final removal orders against aliens based on their commission of aggravated felonies. See 8 U.S.C. § 1252(a)(2)(C). This jurisdictional bar, however, does not affect the availability of federal habeas review under 28 U.S.C. § 2241. See Calcano-Martinez v. INS, 533 U.S. 348, 351-52, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001); INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); accord Kuhali v. Reno, 266 F.3d 93, 99 (2d Cir.2001)....