United States Court of Appeals

For the First Circuit

No. 07-2298

SIDIKIBA MAGASOUBA,

Petitioner,

v.

MICHAEL MUKASEY, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

 Lynch, Chief Judge,

Selya and Howard, Circuit Judges.

Sidikiba Magasouba on brief pro se.

Manuel A. Palau, Trial Attorney, Jeffrey S. Bucholz, Acting

Assistant Attorney General, and Terri J. Scadron, Assistant

Director, on brief for respondent.

September 30, 2008
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Per Curiam. Petitioner Sidikiba Magasouba, a native

and citizen of Guinea, seeks review of a decision of the Board

of Immigration Appeals ("BIA"), which declared him removable as

an aggravated felon and denied his application for withholding

of removal and relief under the Convention Against Torture

("CAT"). In cases involving aggravated felons, this court has

jurisdiction to review only "colorable" claims of

constitutional or legal error, i.e., claims that have "some

potential validity." Pan v. Gonzales, 489 F.3d 80, 84 (1 Cir. st

2007) (citing 8 U.S.C. § 1252(a)(2)(D)). Two of petitioner's

claims arguably satisfy this standard, but each in the end

proves unavailing. We therefore deny the petition for review.

First. Whether petitioner's state-court conviction

actually constitutes an aggravated felony, as defined in 8

U.S.C. § 1101(a)(43), is a question of law over which this

court has jurisdiction. See, e.g., Aguiar v. Gonzales, 438

F.3d 86, 88 (1 Cir. 2006), cert. denied, 127 S. Ct. 1251 st

(2007). In conducting this inquiry, we employ a "modified

categorical approach," which focuses on the elements of the

state conviction. Conteh v. Gonzales, 461 F.3d 45, 55 (1 Cir. st

2006), cert. denied, 127 S. Ct. 3003 (2007). When the statute

of conviction necessarily involves all the elements of a §

1101(a)(43) offense, "proof of the fact of conviction suffices

to discharge the government's burden." Id. at 56. But when
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the state provision is broader in scope, "the government ...

must demonstrate, by reference only to facts that can be mined

from the record of conviction, that the putative predicate

offense constitutes a crime designated as an aggravated

felony." Id.

In 2006, after being caught selling pirated copies of

DVDs and CDs, petitioner was convicted in a Rhode Island state

court of two offenses. Of relevance here is his conviction

under a provision entitled "[f]orgery, counterfeiting, or

alteration of trademark, service mark, or identification mark,"

which provides as follows:

Any person who knowingly and willfully

sells, offer[s] to sell, or possesses with

the intent to sell goods which contain a

counterfeit trademark, service mark, or

identification mark ... shall be guilty of

the offense of trafficking in trademark

counterfeits. 

R.I.G.L. § 11-17-13(c)(1). The BIA concluded that this offense

constituted an aggravated felony under 8 U.S.C. §

1101(a)(43)(R), which refers to

an offense relating to commercial bribery,

counterfeiting, forgery, or trafficking in

vehicles the identification numbers of

which have been altered for which the term

of imprisonment is at least one year.

8 U.S.C. § 1101(a)(43)(R).

We agree that subsection (a)(43)(R) subsumes all the

elements of the Rhode Island offense. The state provision
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involves a relatively narrow category of conduct; indeed, it is

but one of fourteen provisions outlawing different forms of

counterfeiting or forgery. Subsection (a)(43)(R), by contrast,

is much more encompassing, as is made particularly evident by

its use of the term "relating to." By employing that phrase,

"Congress evidenced an intent to define [the listed offenses]

in [their] broadest sense." Park v. Attorney General, 472 F.3d

66, 72 (3d Cir. 2006) (brackets in original) (quoting Drakes v.

Zimski, 240 F.3d 246, 249 (3d Cir. 2001)); see Kamagate v.

Ashcroft, 385 F.3d 144, 154 (2d Cir. 2004) (use of that phrase

"suggest[s] Congress's intent to reach more broadly than any

single statute"); Albillo-Figueroa v. INS, 221 F.3d 1070, 1073

(9 Cir. 2000) (by using that phrase, subsection (R) th

"necessarily covers a range of activities beyond those of

counterfeiting or forgery itself"). Accordingly, the fact of

conviction alone establishes petitioner's status as an

aggravated felon.

In disputing this conclusion, petitioner contends

that his conviction is instead, or is also, encompassed by 8

U.S.C. § 1101(a)(43)(M). That provision, in relevant part,

refers to an offense that "involves fraud or deceit in which

the loss to the ... victims exceeds $10,000," a loss amount

that allegedly was not involved here. Petitioner appears to

advance several arguments in this regard. First, he asserts
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that, since subsection (M) is applicable, subsection (R) must

be inapplicable. Yet he does not explain why this should be

so, nor does he otherwise contest subsection (R)'s

applicability.

Second, he suggests that even if both subsections

apply, the government was obligated to proceed under subsection

(M). In rejecting an analogous argument involving these same

two provisions, the Third Circuit held that the government had

the discretion to proceed "under either or both subsections."

Bobb v. Attorney General, 458 F.3d 213, 217 (3d Cir. 2006).

Such discretion would be limited only if one provision was a

subset of the other, which it found not to be the case. See

id. at 224. 

Third, by describing the offense here as a "hybrid"

crime and by earlier referring to Nugent v. Ashcroft, 367 F.3d

162 (3d Cir. 2004), petitioner possibly is attempting to argue

that both subsections needed to be satisfied. But Nugent has

been "restricted to classificational schemes in which one

classification is entirely a subset of another." Bobb, 458

F.3d at 226. As previously mentioned, that is not the case

here.

Second. Petitioner's next claim involves a due

process challenge to the manner in which the charges against
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him were amended. This claim only barely, if at all, rises to

the level of "colorable."

The notice to appear alleged that petitioner was

removable for having been convicted of (1) an aggravated felony

in the form of a "theft offense" under 8 U.S.C. §

1101(a)(43)(G), and (2) two crimes of moral turpitude.

Thereafter, in response to petitioner's motion to terminate

proceedings, the government acknowledged that neither rationale

was viable. As a result, it issued a Form I-261, entitled

"Additional Charges of Inadmissibility/Deportability," which

set forth an amended charge based solely on subsection (R). 

Petitioner did not object to the filing of this new

charge, and he received an extension of time to respond

thereto. Nonetheless, he now argues that the government could

not repair the defective notice to appear simply by filing a

new charge on Form I-261; rather, it was required to dismiss

the original notice to appear and issue a new one. Had that

sequence been followed, he contends, the government would have

been barred by res judicata from seeking removal based on the

same conviction. The BIA perceived no error, even while

describing the presentation of charges here as "slightly

awkward." 

We agree that this claim falls short. By regulation,

the government is entitled to lodge "additional or substituted
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charges" of removability "[a]t any time during the proceeding."

8 C.F.R. § 1240.10(e); accord 8 C.F.R. § 1003.30. We have

stated that "there is no requirement that the [government]

advance every conceivable basis for deportability in the

original show cause order." De Faria v. INS, 13 F.3d 422, 424

(1 Cir. 1993) (per curiam) (allowing reopening by government st

to file substitute charges after conviction underlying original

charge was vacated by state court); accord Park, 472 F.3d at 73

(declining to apply "judicial estoppel" to prevent lodging of

additional charge on remand after validity of original charge

was called into question).

In the case at hand, the BIA determined that the

filing of an amended charge on Form I-261 was the "functional

equivalent" of filing the same charge on the notice to appear.

It also held that petitioner had been given adequate notice of

the new charge and ample time to respond thereto (findings that

petitioner has not disputed). And, finally, the application of

res judicata in this context would require "a final judgment,

rendered on the merits in a separate action." Valencia-Alvarez

v. Gonzales, 469 F.3d 1319, 1323-24 (9 Cir. 2006) (emphasis th

deleted). 

Third. Petitioner's remaining claims involve factbased challenges to the withholding and CAT rulings. These

principally consist of challenges to the immigration judge's
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credibility assessments, evidentiary rulings, and other factual

determinations. Because of petitioner's status as an

aggravated felon, we lack jurisdiction to review such

assignments of error. See, e.g., Conteh, 461 F.3d at 63

("[J]udicial review of the factual findings underlying a

removal order based on an aggravated felony conviction remains

foreclosed.... This proscription extends to review of the

BIA's factual findings as to credibility, evidentiary weight,

and satisfaction of a correctly framed burden of proof.")

(citing 8 U.S.C. § 1252(a)(2)(C)). 

The petition for review is dismissed in part for lack

of jurisdiction. What remains is denied.