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Cadapan v. Attorney General of United States

United States Court of Appeals, Third Circuit

May 9, 2014

GEORGE ACUPANDA CADAPAN, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent

Submitted under Third Circuit LAR 34.1(a) March 3, 2014

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No.: A077-045-577) Immigration Judge: Honorable Walter A. Durling

Valerie A. Burch, Esquire The Shagin Law Group The Inns of St. Jude Counsel for Petitioner

Christina J. Martin, Esquire Carmel A. Morgan, Esquire United States Department of Justice Office of Immigration Litigation, Civil Division Counsel for Respondent

Before: RENDELL, SMITH and HARDIMAN, Circuit Judges

OPINION

RENDELL, Circuit Judge.

Petitioner George Acupanda Cadapan, a native and citizen of the Philippines and a lawful permanent resident of the United States, petitions for review of the decision by the Board of Immigration Appeals ("BIA") finding him removable for having been convicted of an "aggravated felony" pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(a)(43)(A). He argues that his conviction under the Pennsylvania indecent assault statute, 18 Pa. Cons. Stat. § 3126(a)(7), does not qualify as an aggravated felony under the Immigration and Nationality Act ("INA"). For the reasons that follow, we disagree. Cadapan also contends that he was never admitted to the United States and that therefore he is not removable under 8 U.S.C. § 1227(a)(2)(A)(iii), which applies to "an alien who is convicted of an aggravated felony at any time after admission." Cadapan, however, never raised this argument before the BIA. Because he failed to exhaust his administrative remedies, we lack jurisdiction over this claim. We will deny Cadapan's petition.

I.

On August 31, 2011, following a jury trial in the Court of Common Pleas of Cumberland County, Pennsylvania, Cadapan was convicted of three offenses: (1) indecent assault with a person less than 13 years of age, in violation of 18 Pa. Cons. Stat. § 3126(a)(7); (2) indecent assault without consent, in violation of 18 Pa. Cons. Stat. § 3126(a)(1); and (3) corruption of minors, in violation of 18 Pa. Cons. Stat. § 6301(a)(1). On November 29, 2011, Cadapan was sentenced to a term of imprisonment not less than 6 months nor more than 23 months; a term of imprisonment of not less than 3 months nor more than 23 months, to run concurrently; and supervised probation for 36 months, respectively. On April 11, 2012, Cadapan was granted parole by the Court of Common Pleas. He was transferred to the custody of the Department of Homeland Security ("DHS") the next day.

DHS charged Cadapan with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who, after admission, was convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(A) – specifically, sexual abuse of a minor. DHS also charged Cadapan with removability under 8 U.S.C. § 1227(a)(2)(E)(i), as an alien convicted of a crime of child abuse based on his conviction for the corruption of minors under Pennsylvania law. Cadapan conceded removability on the latter charge but denied the aggravated felony charge.[1] He argued that the Pennsylvania statute for indecent assault encompassed conduct that could not be considered sexual abuse of a minor under the federal statute. In an oral decision, the Immigration Judge ("IJ") rejected this argument and concluded that Cadapan was removable on both grounds. The BIA subsequently dismissed Cadapan's appeal.

II.

We have jurisdiction over only one of the two claims Cadapan raises on appeal because the other is unexhausted.[2]See 8 U.S.C. § 1252(d)(1) (stating that a court may review a final order of removal only if "the alien has exhausted all administrative remedies"). For the first time, Cadapan argues that the BIA erred in ordering him removed as an alien who had been admitted to the United States, see 8 U.S.C. § 1227(a)(2)(A)(iii), because he was never admitted to the United States.[3] He concedes that he never raised this particular issue before the IJ or BIA. We have held that "[t]he exhaustion requirement attaches to each particular issue raised by the petitioner." Castro v. Att'y Gen., 671 F.3d 356, 365 (3d Cir. 2012). Therefore, Cadapan's argument regarding whether or not he was ever "admitted" to the United States is unexhausted and we lack jurisdiction to consider it.

Cadapan's second argument, however, is properly before this Court. The INA defines an aggravated felony as, inter alia, a conviction for "murder, rape, or sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A). Cadapan argues that conduct that meets the federal definition of sexual abuse of a minor is not necessary for a conviction under the Pennsylvania statute for indecent assault. He therefore argues that he did not commit an aggravated felony. For the following reasons we disagree.

Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att'y Gen., 400 F.3d 157, 162 (3d Cir. 2005). We review the decision of the IJ, however, to the extent that the BIA deferred to or adopted the IJ's reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Our review of legal questions is de novo, subject to the principles of deference articulated in Chevron, U.S.A., Inc. v. Natural ...


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