Novitskiy v. Ashcroft, (10th Cir. 2005)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

SERGEY GENNAD'YEVICH

NOVITSKIY,

Petitioner,

No. 04-9530

v.

(United States Board of Immigration)

JOHN ASHCROFT, United States

Attorney General,

Respondent.

(Agency No. A71 193 707)

ORDER AND JUDGMENT(*)

Before KELLY, HENRY, and TYMKOVICH, Circuit

Judges.(2)

Sergey Gennad'Yevich Novitskiy, Petitioner, asks us to review the Board

of Immigration Appeals's order finding him removable because he committed an

aggravated felony. Finding that we lack jurisdiction, we dismiss the appeal.

BACKGROUND

Novitskiy, born in Azerbaijan, is a citizen of the former Soviet Union and a

legal alien in this country. In the District Court of Arapahoe County, Colorado,

Novitskiy pled guilty to trespass of an automobile with intent to commit a crime

and possession of burglary tools in violation of C.R.S. §§ 18-4-502 and 18-4-205(1),

respectively. The court sentenced Novitskiy to eighteen months in prison.

Because Novitskiy is an alien, removal proceedings were instituted. After a

hearing, an immigration judge (IJ) found Novitskiy removable because

unequivocal evidence showed he was an alien who committed an aggravated

felony, as defined by 8 U.S.C. 1101(a)(43)(G) (2000) (defining an aggravated

felony as, among other things, a burglary conviction resulting in a prison sentence

in excess of one year). Novitskiy appealed the IJ's decision to the Board of

Immigration Appeals (BIA). The BIA affirmed the decision, finding the

government met its burden of proving Novitskiy was an alien who was removable

because he committed an aggravated felony. Thereafter, Novitskiy filed a timely

appeal with this court.

ANALYSIS

The Immigration and Nationality Act (INA) divests this court of

"jurisdiction 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) (2000). However, in determining whether this jurisdictional bar

applies, we can "decide whether [a] petitioner is (i) an alien (ii) deportable (iii) by

reason of a criminal offense listed in" 8 U.S.C. 1101. Tapia-Garcia v.

INS, 237

F.3d 1216, 1220 (10th Cir. 2001). Thus, while we can "determine whether we

have jurisdiction over deportation orders concerning alleged aggravated felons as

described in Tapia-Garcia, 'the plain language of § 1252(a)(2)(C) fairly

explicitly

strips the courts of appeals of jurisdiction to hear their claims on petitions for

direct review.'" Latu v. Ashcroft, 375 F.3d 1012, 1017 (10th Cir. 2004) (quoting

Calcano-Martinez v. INS, 533 U.S. 348, 351 (2001)).

Our limited jurisdiction under § 1252(a)(2)(C) allows us only to determine

whether Novitskiy is an alien who is deportable because he committed an

aggravated felony as defined by 8 U.S.C. 1101. Because neither party contests

Novitskiy's status as an alien, we need only examine whether Novitskiy

committed an aggravated felony.(1) The

INA specifically enumerates offenses that

constitute aggravated felonies. One such offense, found at § 1101(a)(43) is "a

theft offense . . . or burglary offense for which the term of imprisonment [is] at

least one year." Novitskiy contends he did not commit an aggravated felony

because his crimes do not constitute a theft offense or burglary under § 1101.(2)

The BIA noted Novitskiy pled guilty to "knowingly entering a motor

vehicle with the intent to steal a thing of value." Aplt. Br. Ex. A, p. 4. Based on

this plea, and the resulting eighteen-month sentence, the BIA found Novitskiy

committed an aggravated felony, and specifically a theft offense, which it defined

as the attempted "'taking of property or [] exercise of control over property

without consent [and] with the criminal intent to deprive the owner of rights and

benefits of ownership.'" Id. at 3 (quoting United States v.

Vasquez-Flores, 265

F.3d 1122, 1125 (10th Cir. 2001)).

"[W]e must defer to the [BIA's] construction of [an immigration]

statute . . . [if the statute] is subject to differing interpretations . . . [and] the

interpretation . . . is reasonable." Tapia-Garcia, 237 F.3d at 1220. The INA does

not specifically define theft offense, thus it is subject to varying interpretations.

However, the BIA's definition and interpretation of theft offense were reasonable

because they relied on applicable precedent and fairly construed the INA.

Therefore, we find Novitskiy is an alien who is deportable because he committed

a theft offense that constitutes an aggravated felony under 8 U.S.C. 1101. As a

result, we must dismiss the case for lack of jurisdiction under 8 U.S.C. 1252(a)(2)(C).

Entered for the Court

Timothy M. Tymkovich

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order is not binding precedent, except

under the doctrines of law of

the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders; nevertheless, an order may be cited under the terms and

conditions of 10th Cir. R. 36.3.

2. After examining the briefs and the appellate

record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

1. Respondent moved to dismiss the appeal

for lack of jurisdiction, arguing

that we lack jurisdiction to determine if Novitskiy committed an aggravated

felony. However, because we cannot determine whether the jurisdictional bar in

8 U.S.C. 1252(a)(2)(C) applies without examining whether Novitskiy did in

fact commit an aggravated felony, we deny the motion.

2. Novitskiy also argues the government

failed to meet its statutory burden

of proof. This argument necessarily requires us to review the merits of the case

and exceeds our jurisdiction under 8 U.S.C. 1252(a)(2)(C). Thus, we do not

address the argument.

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