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Popal v. Gonzales

July 29, 2005

NAZIR AHMAD POPAL, PETITIONER
v.
ALBERTO GONZALES,*FN1 ATTORNEY GENERAL OF THE UNITED STATES; BUREAU OF IMMIGRATION & CUSTOMS ENFORCEMENT, RESPONDENTS



On Petition for Review of an Order of the Board of Immigration Appeals (Board No. A27-776-640).

The opinion of the court was delivered by: Becker, Circuit Judge.

PRECEDENTIAL

Argued: June 7, 2005

Before: FUENTES, VAN ANTWERPEN, and BECKER, Circuit Judges.

OPINION

Nazir Ahmad Popal petitions for review of an order of the Board of Immigration Appeals (BIA) ordering him deported as an aggravated felon. The government maintains that Popal's crime of conviction, Pennsylvania simple assault, is a crime of violence under 18 U.S.C. § 16(a) and therefore renders him removable. We have recently held that crimes with a mens rea of recklessness do not constitute crimes of violence. Tran v. Gonzales,No. 02-3879, - F.3d -, 2005 WL 1620320 (3d Cir. July 12, 2005). As Popal's crime was a recklessness offense, he is not removable as an aggravated felon. We also reject the government's jurisdictional argument that Popal, who has fully litigated his claim before the Immigration Judge and the BIA, has somehow failed to exhaust his administrative remedies. We will therefore grant the petition for review.

I.

Popal was born in Afghanistan in June 1981, and arrived in the United States as a refugee in June 1987. He became a lawful permanent resident in 1989, but remains a citizen of Afghanistan. In June 2002, he was convicted of simple assault, a misdemeanor, in the Court of Common Pleas of Berks County, Pennsylvania. He was sentenced to four to twenty-three months' imprisonment.

The Department of Homeland Security (DHS) served Popal with a Notice to Appear, alleging that he was removable as an aggravated felon because his assault was a crime of violence. He appeared before an Immigration Judge (IJ), who terminated the removal proceedings, finding that Pennsylvania simple assault is not a crime of violence. DHS appealed to the BIA, which reversed, holding that simple assault does in fact constitute a crime of violence, and that Popal is therefore removable. The BIA remanded the record to the IJ "to allow [Popal] to apply for any relief from removal for which he may be eligible."

Popal had never made any application for relief from removal, beyond pressing the argument that his crime was not an aggravated felony. The IJ was thus understandably puzzled by the BIA's order of remand. He wrote:

On February 25, 2004, the Board remanded the record, sustaining the Bureau's appeal by finding that respondent's misdemeanor conviction in Pennsylvania constituted an aggravated felony "crime of violence" . . . . However, rather than issuing a removal order, the Board remanded the record "for further proceedings." Since there had been no other issues before the Board, one must wonder why the Board remanded the record.

At all events, the IJ offered Popal an opportunity to apply for withholding of removal pursuant to 8 U.S.C. § 1231(b)(3), or for protection under the Convention Against Torture. Popal declined this opportunity and asked the IJ to issue a final order of removal.

The IJ obliged, entering an opinion entitled "Final Administrative Order of Removal" and explicitly stating that "the following order is the final administrative order in this case." Upon receipt of this ...


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