Matthew Boampong Wireko v. Janet Reno

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MATTHEW BOAMPONG WIREKO,
Petitioner,
v.
JANET RENO; DORIS MEISSNER,
Commissioner of the Immigration &
No. 99-1109
Naturalization Service; WILLIAM J.
CARROLL, District Director,
Immigration & Naturalization
Service,
Respondents.
On Petition for Review of an Order of
the Board of Immigration Appeals.
(A76-597-564)
Argued: March 1, 2000
Decided: May 4, 2000
Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.
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Dismissed by published opinion. Judge Luttig wrote the opinion, in
which Judge Williams and Judge Motz joined.
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COUNSEL
ARGUED: Robert Scott Oswald, NOTO & OSWALD, P.C., Wash-
ington, D.C., for Petitioner. Earle Bronson Wilson, Trial Attorney,
Office of Immigration Litigation, Civil Division, UNITED STATES

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DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.
ON BRIEF: David W. Ogden, Acting Assistant Attorney General,
David M. McConnell, Assistant Director, Office of Immigration Liti-
gation, Civil Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Respondents.
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OPINION
LUTTIG, Circuit Judge:
Matthew Wireko petitioned for a writ of habeas corpus in the dis-
trict court challenging the Attorney General's final removal order that
required him to be deported from the United States because he was
convicted of an "aggravated felony." The district court transferred
Wireko's petition to this court, holding that it had no jurisdiction to
review such a removal order. Because we conclude that we also are
without jurisdiction to review Wireko's removal order, we dismiss
Wireko's habeas corpus petition.
I.
Wireko entered the United States on July 26, 1997, as a nonimmi-
grant business visitor from Ghana. On May 22, 1998, he was con-
victed in the Circuit Court of Alexandria of the misdemeanor offense
of sexual battery in violation of section 18.2-67.4 of the Code of Vir-
ginia. Wireko was sentenced to twelve months of confinement with
imposition of the sentence suspended, and he was placed on probation
for twelve months.
On October 13, 1998, Wireko was served with a "Notice of Intent
to Issue Final Administrative Removal Order," which explained his
rights to contest the removal order. He did not submit any documents
rebutting the charges. And, on October 18, 1998, the Attorney Gen-
eral issued a final administrative removal order for Wireko's deporta-
tion from the United States on the grounds that he was an alien who
had been convicted of an aggravated felony and thus was deportable
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). He was then taken into INS
custody, where he remains.
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Wireko thereafter petitioned for a writ of habeas corpus in the East-
ern District of Virginia. He also filed an emergency motion to stay the
order of removal, which the district court denied. The district court
held that it lacked jurisdiction over Wireko's habeas petition and
transferred the case to this court under 28 U.S.C.§ 1631, which per-
mits such a transfer in order to cure for want of jurisdiction.
II.
We always have jurisdiction to determine whether the facts rele-
vant to our jurisdiction exist. See, e.g., Hall v. INS, 167 F.3d 852 (4th
Cir. 1999). Like the district court, however, ultimately we lack juris-
diction over Wireko's habeas corpus petition if he is an alien who is
deportable by reason of having committed an "aggravated felony"
within the meaning of the Immigration and Nationality Act because,
by statute,
[n]otwithstanding any other provision of law, no court shall
have jurisdiction to review any final order of removal
against an alien who is removable by reason of having com-
mitted a criminal offense covered in section 1182(a)(2) or
1227(a)(2)(A)(iii), (B), (C), or (D) of this title . . . .
8 U.S.C. § 1252(a)(2)(C) (emphasis added). And section
1227(a)(2)(A)(iii) provides that, "[a]ny alien who is convicted of an
aggravated felony at any time after admission is deportable." (empha-
sis added).
In an attempt to overcome the jurisdictional bar to our review of
his order of deportation on its merits, Wireko argues that, because he
was convicted only of a "misdemeanor" in Virginia, that offense can-
not possibly be considered an "aggravated felony" under 8 U.S.C.
§ 1227(a)(2)(A)(iii).1 Although it is true, as Wireko observes, that
section 1227(a)(2)(A)(iii) establishes deportability only of one who
has been convicted of an aggravated felony, the term"aggravated fel-
ony" is elsewhere statutorily defined. Title 8, United States Code,
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1 Wireko does not raise any constitutional claim regarding the lack of
judicial review. He also does not argue that sexual battery is not a crime
of violence.
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§ 1101(a)(43)(F) defines "aggravated felony" as "a crime of violence
. . . for which the term of imprisonment [is] at least one year . . . ."2
Under the plain language of this definition, there is no requirement
that the offense actually have been a felony, as that term is conven-
tionally understood. Rather, the offense need only have been one of
violence for which the term of imprisonment is one year or more.
Accordingly, because the Virginia offense of which Wireko was con-
victed, although a misdemeanor, was a crime of violence for which
the term of imprisonment was at least one year, he was deportable
under section 1227(a)(2)(A)(iii) for having committed an aggravated
felony. Cf. United States v. Graham, 169 F.3d 787 (3rd Cir.), cert.
denied, 120 S. Ct. 116 (1999) (holding that an alien convicted of the
misdemeanor of petit larceny was deportable as an aggravated felon,
where "aggravated felony" was defined as "a theft offense . . . for
which the term of imprisonment [is] at least one year"); accord Jaafar
v. INS, 77 F. Supp. 2d 360, 364-65 (W.D.N.Y. 1999).
Wireko relies upon United States v. Restrepo-Aguilar, 74 F.3d 361,
364 (1st Cir. 1996), and United States v. Haggerty, 85 F.3d 403, 406
(8th Cir. 1996), in support of his contrary interpretation of section
1227(a)(2)(A)(iii). The statutory language at issue in those cases,
however, was significantly different in material respects from the lan-
guage we interpret. In both Restrepo-Aguilar and Haggerty, the peti-
tioner had been convicted of the aggravated felony of "illicit
trafficking in a controlled substance . . . including a drug trafficking
crime (as defined in section 924(c) of Title 18 )," 8 U.S.C.
§ 1101(a)(43) (emphasis added). And section 924(c)(2) in turn
defined a drug trafficking crime as including "any felony punishable
under the Controlled Substances Act" (emphasis added). Therefore,
neither court had occasion to address the question whether a misde-
meanor may constitute an "aggravated felony" if the misdemeanor
offense satisfies the statutory definition of "aggravated felony."
Because Wireko committed an aggravated felony under section
1227(a)(2)(A)(iii), as that term is defined in section 1101(a)(43)(F),
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2 The statute is missing its operative verb. "Is" or "was" would appear
to be the most logical candidates. Cf. United States v. Graham, 169 F.3d
787, 790-92 (3rd Cir.), cert. denied, 120 S. Ct. 116 (1999) (discussing
the same verb omission in a parallel "aggravated felony" provision).
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and he was ordered removed for the commission of this aggravated
felony, we are, pursuant to section 1252(a)(2)(C), without jurisdiction
to review his order of deportation. Wireko's petition for a writ of
habeas corpus is therefore dismissed.
DISMISSED
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