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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 the
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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.

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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,
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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 that
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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)
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(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.