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Almeida v. Holder

December 8, 2009

FERNANDO F. ALMEIDA, PETITIONER,
v.
ERICH. HOLDER, JR.,*FN1 RESPONDENT.



SYLLABUS BY THE COURT

On a petition for review of an order of the Board of Immigration Appeals upholding an Immigration Judge's finding of removability and denial of cancellation of removal, Fernando F. Almeida challenges the agency's determination that his 2004 Connecticut convictions for larceny and narcotics possession were for aggravated felonies under 8 U.S.C. § 1101(a)(43). We conclude that petitioner's larceny conviction was an aggravated felony rendering him ineligible for cancellation of removal.

Petition for review DENIED.

The opinion of the court was delivered by: Reena Raggi, Circuit Judge

Argued: October 31, 2008

Before: WALKER, B.D. PARKER, and RAGGI, Circuit Judges.

Fernando F. Almeida, a native of Portugal, petitions for review of a March 11, 2008 order of the Board of Immigration Appeals ("BIA") dismissing his appeal from the decision of Immigration Judge ("IJ") Michael W. Straus finding him removable under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1227(a)(2)(B)(i) and ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3). Almeida alleges error based on the agency's determination that two state convictions qualified as aggravated felonies. Specifically, he challenges the IJ's conclusions that (1) a 2004 second conviction for simple possession of narcotics in violation of Conn. Gen. Stat. § 21a-279(a) constituted "illicit trafficking in a controlled substance," an aggravated felony under 8 U.S.C. § 1101(a)(43)(B); and (2) a 2004 conviction for second-degree larceny in violation of Conn. Gen. Stat. §§ 53a-48 and 53a-123 was a "theft offense," and thus an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). Almeida also complains of various procedural errors. While our decision in Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008), announced after the BIA's challenged decision in this case, casts doubt on the characterization of Almeida's narcotics conviction as an aggravated felony, we nevertheless deny the petition for review because we conclude that Almeida's larceny conviction by itself renders him removable as an aggravated felon. Nor need we consider Almeida's procedural challenges based on the review of his application for cancellation of removal, because aggravated felons are statutorily ineligible for such cancellation. See 8 U.S.C. § 1229b(a)(3).

I. Background

Almeida was admitted to the United States as a lawful permanent resident on or about August 14, 1969.More than thirty years later, on November 29, 2001, he pleaded guilty in Connecticut state court to narcotics possession in violation of Conn. Gen. Stat. § 21a-279(a). On October 27, 2004, he pleaded guilty to a second violation of the same statute, as well as to conspiring to commit second-degree larceny in violation of Conn. Gen. Stat. §§ 53a-48 and 53a-123. On the 2004 plea, Almeida was sentenced to three years' imprisonment.

On May 17, 2007, the Department of Homeland Security ("DHS") charged Almeida with removability under 8 U.S.C. § 1227(a)(2)(B)(i) based on his violation of a law "relating to a controlled substance." It alleged further that he was removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii) because (1) his second narcotics conviction constituted "illicit trafficking in a controlled substance" within the meaning of 8 U.S.C. § 1101(a)(43)(B), and (2) his larceny conviction constituted a "theft offense" within the meaning of 8 U.S.C. § 1101(a)(43)(G).*fn2

Almeida appeared before the IJ on August 23, 2007. DHS introduced into evidence his conviction record, which noted the statutes he had violated without describing the underlying conduct. Almeida conceded his general removability but denied that he was an aggravated felon,a status that precludes cancellation of removal. See 8 U.S.C. § 1229b(a)(3).*fn3

On September 21, 2007, Almeida filed for cancellation of removal, urging the IJ to apply the "categorical" approach endorsed by this court in Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. 2003), and to conclude that his crimes were not aggravated felonies. See id. at 48 (providing for examination of "intrinsic nature of the offense" rather than "particular set of facts underlying... conviction" (internal quotation marks omitted)). Almeida argued that his second drug conviction did not satisfy the recidivist provision of 21 U.S.C. § 844(a), and thus was not an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). He argued further that his 2004 larceny conviction did not qualify as a "theft offense" under 8 U.S.C. § 1101(a)(43)(G) because the BIA had interpreted "theft offense" to require an "intent to deprive," see In re V-Z-S-, 22 I. & N. Dec. 1338, 1346 (BIA 2000), and Connecticut's definition of larceny is satisfied by either intent to "deprive" or intent to "appropriate," Conn. Gen. Stat. § 53a-119.

On November 7, 2007, the IJ rejected these argumentsin an oral decision finding Almeida removable as charged. The IJ held that, "at a minimum," Almeida was removable based on his conviction for narcotics possession. In re Fernando Almeida de Ferreira, No. A18 564 939, slip op. at 1-2 (Immig. Ct. Hartford Nov. 7, 2007). The IJ held further that Almeida was removable as an aggravated felon based on his second-degree larceny conviction, in light of our decision in Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d Cir. 2004) (holding third-degree larceny under Connecticut law to be aggravated felony). Finally, the IJ held that Almeida was also removable as an aggravated felon based on the second of his drug convictions.

On March 11, 2008, the BIA dismissed Almeida's appeal from the IJ's decision. The BIA reasoned that because Almeida's 2004 drug possession occurred after his 2001 conviction under the same statute became final, the second possession "would have been punishable as a felony under the recidivist provision of 21 U.S.C. § 844(a)." In re Fernando Almeida de Ferreira, No. A18 564 939, slip op. at 2 (BIA Mar. 11, 2008) (emphasis in original).*fn4 As for Almeida's larceny conviction, the BIA relied on Abimbola to affirm the IJ's aggravated felony determination. It rejected Almeida's argument that, under Connecticut law, it was possible to commit second-degree larceny without the intent to deprive required for a theft offense, explaining that "larceny by 'appropriation' necessarily entails a deprivation of the owner's rights and interests in the property" at issue. Id. at 3. Having determined that Almeida was statutorily ineligible for cancellation, the BIA did not address his procedural challenges.

II. Discussion

A. Jurisdiction and Standard ...


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