2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-24-2012

Ricardo McIntyre v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3785

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3785

___________

RICARDO ANDRE MCINTYRE,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A44 135 619)

Immigration Judge: Honorable Walter A. Durling

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 21, 2012

Before: CHAGARES, VANASKIE and STAPLETON, Circuit Judges

(Opinion filed: February 24, 2012)

___________

OPINION

___________

PER CURIAM
2

Ricardo Andre McIntyre, a native and citizen of Jamaica, entered the United States 

in 1993 at age eleven as a lawful permanent resident. In 2009, he pleaded guilty in 

Pennsylvania to aggravated assault with a deadly weapon. 18 Pa. Cons. Stat. Ann. 

§ 2702(a)(4). McIntyre was sentenced to nine to 23 months in prison. 

Proceeding pro se before an Immigration Judge (“IJ”), McIntyre conceded 

removability as charged for having been convicted of an aggravated felony as defined in 

Immigration and Nationality Act (“INA”) § 101(a)(43)(F) [8 U.S.C. § 1101(a)(43)(F)] 

(crime of violence), see INA § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)]. 

McIntyre did not apply for relief from removal. Instead, he argued that the IJ should 

continue the proceeding while he pursued a Post Conviction Relief Act (“PCRA”)

challenge to the 2009 conviction under Padilla v. Kentucky, 130 S. Ct. 1473 (2010) 

(holding that right to effective assistance of counsel requires that defendant be advised of 

immigration consequences of plea). The IJ implicitly refused to continue the case for a 

fourth time and ordered removal to Jamaica. 

The Board of Immigration Appeals (“BIA”) dismissed McIntyre‟s appeal. It 

agreed with the denial of a further continuance, noting that the pursuit of PCRA relief

does not affect the finality of a conviction for immigration purposes. The BIA observed

that no court had called the 2009 conviction into question, and that McIntyre‟s offense 

qualified as an aggravated felony. It also rejected the suggestion that McIntyre‟s removal 

proceeding was “unfair” or violated due process, and it added that it had no power to 
3

grant equitable or general humanitarian relief from removal. McIntyre timely filed a pro 

se petition for review.

Because McIntyre is removable as an aggravated felon, our jurisdiction is limited 

to review of constitutional claims or questions of law. See INA § 242(a)(2)(D) [8 U.S.C. 

§ 1252(a)(2)(D)]. The Government moves to dismiss for lack of jurisdiction on the 

ground that McIntyre does not raise a colorable constitutional claim or legal question. It 

argues that McIntyre‟s “vague assertion” that his due process rights were violated is not a 

colorable claim, and that the “denial of a continuance is a discretionary determination 

which cannot constitute a due process violation.” Although those arguments are not 

without some force, we will deny the motion to dismiss. In his Informal Brief, McIntyre 

challenges the determination that his conviction is an aggravated felony--an issue that the 

BIA addressed and which presents a question of law subject to review under INA

§ 242(a)(2)(D). See Jeune v. Att‟y Gen., 476 F.3d 199, 201 (3d Cir. 2007). 

Nevertheless, while McIntyre‟s challenge to the aggravated felony determination is 

subject to review, the issue lacks merit, for the reasons discussed below. 

The term “aggravated felony” is defined by INA § 101(a), and includes “a crime 

of violence (as defined in section 16 of Title 18 . . .) for which the term of imprisonment 

[is] at least one year.” INA § 101(a)(43)(F). Pursuant to 18 U.S.C. § 16, a “crime of 

violence” means

(a) an offense that has as an element the use, attempted use, or threatened use of 

physical force against the person or property of another, or
4

(b) any other offense that is a felony and that, by its nature, involves a substantial 

risk that physical force against the person or property of another may be used in 

the course of committing the offense. 

To determine whether a given offense fits this definition, this Court must “look to the 

elements and the nature of the offense of conviction, rather than to the particular facts 

relating to petitioner‟s crime.” Leocal v. Ashcroft, 543 U.S. 1, 7 (2004). “It is now 

settled law in this Circuit that an offender has committed a „crime of violence‟ under 18 

U.S.C. § 16(a) only if he acted with an intent to use force.” Popal v. Gonzales, 416 F.3d 

249, 254 (3d Cir. 2005).

McIntyre was convicted under 18 Pa. Cons. Stat. Ann. § 2702(a)(4), which 

provides that a person commits an aggravated assault if he “attempts to cause or 

intentionally or knowingly causes bodily injury to another with a deadly weapon . . . .” 

Because § 2702(a)(4) requires attempting to or intentionally or knowingly causing bodily 

injury, the BIA properly concluded that McIntyre‟s conviction was a crime of violence 

under 18 U.S.C. § 16. Wilks v. Att‟y Gen., 273 F. App‟x 196, 198-99 (3d Cir. 2008) (not 

precedential) (holding that conviction under § 2702(a)(3) or (4) is an aggravated felony

under § 101(a)(43)(F)). Moreover, McIntyre‟s sentence of nine to 23 months qualifies as 

a “term of imprisonment [of] at least one year.” INA § 101(a)(43)(F). Indeed, we have 

held that indeterminate sentences are functionally equivalent to sentences at the 

maximum of the range. Bovkun v. Ashcroft, 283 F.3d 166, 170-71 (3d Cir. 2002). Thus, 
5

we conclude that McIntyre was properly found removable for having been convicted of 

an aggravated felony as defined in INA § 101(a)(43)(F).

In his Informal Brief, McIntyre relies on Pierre v. Holder, where we held that a 

prejudicial due process violation occurs when an alien is found removable based on a 

charge not included in the Notice to Appear. 588 F.3d 767, 776-77. Here, however, the 

Notice to Appear charged McIntyre as removable under § 237(a)(2)(A)(iii), specifically

on the ground that his conviction qualified as an aggravated felony as defined by 

§ 101(a)(43)(F). Both the IJ and the BIA concluded that McIntyre was removable as 

charged under that provision. Thus, because McIntyre was not deprived of the right to 

notice of the charges and an opportunity to be heard, no due process violation occurred. 

Pierre, 588 F.3d at 776-77.

1

For the foregoing reasons, we will deny the petition for review.

 

1 McIntyre also suggests that he was prejudiced because he was not granted a further 

continuance to obtain an attorney and to pursue PCRA relief. We have no jurisdiction to 

review this challenge because there is no indication that either the IJ or BIA considered 

this issue.