FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 16, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-13543

Non-Argument Calendar

________________________

Agency No. A97-685-556

OYEDELE OREMADE,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(July 16, 2009)

Before DUBINA, Chief Judge, TJOFLAT and ANDERSON, Circuit Judges.

PER CURIAM:
Petitioner Oyedele Oremade, through counsel, seeks review of the Board of

Immigration Appeals’ (“BIA’s”) decision, affirming the immigration judge’s

(“IJ’s”) order finding him removable and denying his application for withholding

of removal, relief under the United Nations Convention on Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), and deferral of

removal under the CAT. The Final Administrative Removal Order ordered that

Oremade be removed to Nigeria pursuant to section 238(b) of the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1228(b), because he was convicted of an

aggravated felony. Oremade’s convictions included convictions for financial

identity fraud, in violation of N.C. Gen. Stat. Ann. § 14-113.20; insurance fraud, in

violation of N.C. Gen. Stat. Ann. § 58-2-161; false pretenses, in violation of N.C.

Gen. Stat. Ann. § 14-100; conspiracy to pass, utter, possess, and conceal, with

intent to defraud, counterfeit federal reserve notes, in violation of 18 U.S.C. § 371,

and possession of counterfeit federal reserve notes, in violation of 18 U.S.C. § 472.

Oremade was sentenced to three years’ probation for his federal offenses, 15 to 18

months’ imprisonment for his state offenses, and ordered to pay $800 in restitution

for his state offenses.

After he was ordered removed, Oremade requested withholding of removal,

CAT relief, and deferral of removal under the CAT. After a reasonable fear

interview, his case was referred to an IJ. The IJ then ordered Oremade removed to

2
Nigeria pursuant to the charges in the removal order and denied his three requests

for relief.

On appeal, Oremade argues that his criminal offenses were not aggravated

felonies. The government concedes that the IJ erred by finding that Oremade was

an aggravated felon. It asserts that, as a result, we must vacate the removal order

because Oremade should have been placed in removal proceedings pursuant to 8

U.S.C. § 1229a before an IJ, instead of being placed in administrative removal

proceedings pursuant to 8 U.S.C. § 1228(b).

Generally, an alien is placed into removal proceedings pursuant to 8 U.S.C.

1229a. However, when an alien has committed an aggravated felony he may be

removed in an administrative proceeding, pursuant to 8 U.S.C. § 1228(b), if: (1) he

is an alien; (2) who has not been admitted for lawful permanent residence; (3) who

has been convicted of an aggravated felony; and (4) who is removable because of

that conviction. See 8 C.F.R. § 238.1(b)(1).

An alien who has been convicted of an aggravated felony is removable. 8

U.S.C. § 1227(a)(2)(a)(iii). Aggravated felonies include theft for which the term of

imprisonment is at least one year, fraud involving a loss to a victim or victims of

over $10,000, and counterfeiting a passport for which the term of imprisonment is

at least one year. See 8 U.S.C. § 1101(43)(G), (M), (P). The BIA has clarified that

“a theft offense within the meaning of [§ 1101(43)(G)] consists of the taking of, or

3
exercise of control over, property without consent whenever there is criminal intent

to deprive the owner of the rights and benefits of ownership, even if such

deprivation is less than total or permanent.” Matter of Garcia-Madruga, 24 I&N

Dec. 436, 440-441 (BIA 2008).

Oremade and the government correctly assert that Oremade did not commit

an aggravated felony because none of his convictions fall within the definition of

an aggravated felony found in 8 U.S.C. § 1101(43). Because Oremade was not an

aggravated felon, the removal order is void and must be vacated. Because we are

vacating Oremade’s removal order, we will not consider his arguments seeking

relief from the removal order. Accordingly, we vacate the removal order and

1

grant Oremade’s petition for review.

PETITION GRANTED, REMOVAL ORDER VACATED.

Although the government concedes that the legal basis for Oremande’s removal should 1

be vacated, it requests that this court still consider Oremade’s claims for relief because he is

removable on other grounds. (See Red Brief at 26). However, neither the BIA nor the IJ made

any such findings, so this court has nothing to review as far as Oremade’s removability is

concerned. In addition, the government also acknowledges that Oremade has been removed to

Nigeria. (See id. at 17). As such, it is unclear what actions the DHS would take once this case

returns to the immigration court, as Oremade is not presently in the country. Oremade would

need to seek to return to the United States under procedures not utilized in this case, and his

success in gaining readmittance would be speculative.

4