Nazir Ahmad Popal v. Alberto Gonzales, Attorney General of the United States

Substituted pursuant to Fed. R. App. P. 43(c).*
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________________
No. 04-2048
____________________
NAZIR AHMAD POPAL,
Petitioner
v.
ALBERTO GONZALES, 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)
Argued: June 7, 2005
Before: FUENTES, VAN ANTWERPEN, and BECKER,
Circuit Judges.
(Filed July 29, 2005 )

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2
MATTHEW D. BAXTER (ARGUED)
Bespalov & Gross, P.C.
2655 Philmont Avenue, Suite 206
Huntingdon Valley, PA 19103
DANIEL M. PELL
1215 East Market Street, 2d Floor
York, PA 17403
Attorneys for Petitioner
PETER D. KEISLER
Assistant Attorney General, Civil Division
TERRI J. SCADRON
Assistant Director
HILLEL R. SMITH (ARGUED)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044-0878
Attorneys for Respondents
_____
OPINION OF THE COURT
BECKER, Circuit Judge.
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

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3
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.

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The government makes a related argument that the IJ’s order1
does not constitute a final order of removal. See 8 U.S.C. § 1252(a)(1)
(granting the courts jurisdiction to review only final orders of removal);
8 U.S.C. § 1101(a)(47)(B) (“The order [of removal issued by the IJ] shall
become final upon the earlier of—(i) a determination by the Board of
Immigration Appeals affirming such order; or (ii) the expiration of the
period in which the alien is permitted to seek review of such order by the
Board of Immigration Appeals.”).
The government is plainly wrong that an IJ’s order can never
constitute a final order of removal. The statutory language provides that
an IJ’s order may become final either upon affirmance by the BIA or
4
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
order, Popal timely petitioned this Court for review.
II.
We have jurisdiction over Popal’s petition for review
pursuant to 8 U.S.C. § 1252(a)(1). Under the recently enacted
REAL ID Act, our jurisdiction extends to “questions of law raised
upon a petition for review,” including petitions for review of
removal orders based on aggravated felony convictions. See REAL
ID Act § 106(a)(1)(A)(iii), Pub. L. No. 109-13, 119 Stat. 231, 310
(2005), to be codified at 8 U.S.C. § 1252(a)(2)(D); see also
Papageorgiou v. Gonzales, No. 04-3135, — F.3d —, 2005 WL
1490454, *2 (3d Cir. June 24, 2005). Prior to the REAL ID Act,
our jurisdiction to review orders of removal for aggravated felonies
was more limited, but even then we had jurisdiction to determine
whether a petitioner’s crime was in fact an aggravated felony.
Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001); Papageorgiou,
2005 WL 1490454 at *2.
The government argues, however, that we lack jurisdiction
because Popal has failed to exhaust his administrative remedies.
The argument is that, as Popal failed to appeal the IJ’s second, final
order to the BIA, he failed to exhaust all administrative remedies
that were available to him. See 8 U.S.C. § 1252(d) (“A court may
review a final order of removal only if—(1) the alien has exhausted
all administrative remedies available to the alien as of right . . . .”).1

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upon expiration of the period for review—although, in the ordinary case,
an order that becomes final via the latter method will be unreviewable
for failure to exhaust. The IJ’s decision here was entered on March 18,
2004, and the period for seeking review thus expired on April 17, 2004.
See 8 C.F.R. § 1003.38(b). Popal filed his petition for review on April
16, 2004—one day before the IJ’s decision would have become final
under § 1101(a)(47)(B).
But the regulations provide that “the decision of the Immigration
Judge becomes final upon waiver of appeal or upon expiration of the
time to appeal if no appeal is taken whichever occurs first.” 8 C.F.R.
§ 1003.39 (emphasis added). On March 17, 2004, Popal’s attorney wrote
to the IJ noting his “acquiescence in a removal order,” and requesting a
“final agency action.” He also stated that he “intend[ed] federal court
action” immediately upon entry of the IJ’s order. We read this as a plain
waiver of appeal to the BIA, and therefore find that the IJ’s second order
was in fact a final order the day it was entered.
On the other hand, the duty to exhaust extends only to those2
administrative remedies available to the alien as of right. Where the
alien’s claim is not within the jurisdiction of the BIA, or where the
agency is incapable of granting the remedy sought, there can be no duty
to exhaust. Bonhometre v. Gonzales, No. 04-2037, — F.3d —, 2005 WL
1653641, *3 (3rd Cir. July 15, 2005); see also Theodoropoulos, 358 F.3d
5
In general, this requirement means that an alien who does
not appeal an IJ’s order to the BIA cannot challenge that order in
a petition for review. See, e.g., Yi v. Maughans, 24 F.3d 500, 503-
04 (3d Cir. 1994); Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir.
1989). Popal sensibly argues that these cases are inapplicable,
because the BIA had already considered his claim in reversing the
IJ’s initial decision to terminate removal proceedings. Because the
BIA fully considered the only issue that Popal has ever
raised—before the IJ, before the BIA, or in his petition for
review—it would be absurd to expect him to appeal the IJ’s
decision for a second round of BIA review.
The government reads this argument as one of futility, and
contends that futility is generally no defense to the failure to
exhaust. See Theodoropoulos v. INS, 358 F.3d 162, 172-73 (2d Cir.
2004). We agree that the exhaustion requirement of 8 U.S.C.
§ 1252(d) is jurisdictional, and that there is no general futility
exception. Duvall v. Elwood, 336 F.3d 228, 234 (3d Cir. 2003).2

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at 173 (suggesting an exception to the exhaustion requirement where
“there is no possibility of receiving any type of relief” from further
administrative proceedings).
6
Indeed, the fact that the BIA has considered and rejected the
petitioner’s argument in another case will not normally excuse a
petitioner’s failure to raise it in his own appeal to the BIA. See
Sousa v. INS, 226 F.3d 28, 32 (1st Cir. 2000) (“[M]erely because
the agency has previously rejected an argument is no basis for
failing to make the claim in one’s own case.”). An alien must
exhaust all administrative remedies available to him, even if he
reasonably predicts that these remedies are unlikely to do him any
good.
But Popal’s argument is not based on a prediction of futility.
Instead, he contends that he did in fact exhaust all remedies
available to him: the BIA considered all of his arguments against
removal when it heard DHS’s appeal of the IJ’s original order. The
IJ’s second order was not a separate decision that could be
appealed to the BIA. It was a mere ministerial act, taken to
effectuate the unmistakable judgment of the BIA as indicated by its
decision granting DHS’s appeal.
We agree with Popal. The IJ’s “final administrative order”
made no new findings of fact or conclusions of law, and considered
no issues that had not been decided by the BIA. Instead, it simply
implemented the BIA’s decision. Normally, the BIA itself would
have entered an order of removal in these circumstances, but here
the Board remanded to the IJ “to allow the respondent to apply for
any relief from removal for which he may be eligible.” As Popal
did not apply for any such relief, he is now in effect petitioning for
review of the BIA’s decision finding him removable.
None of the purposes of exhaustion would be served by a
further appeal to the BIA. The issues have been fairly presented to,
and fully adjudicated by, the BIA. There are no factual allegations
or legal arguments before us that were not raised before the BIA.
Judicial economy would not be served by requiring Popal to take
a second, essentially frivolous appeal to the BIA raising the same
issues that the Board had already rejected in Popal’s own case. Nor
would the congressional purpose of preventing unjustified delay in
removal cases, see Massieu v. Reno, 91 F.3d 416, 421-22 (3d Cir.
1996), be advanced by interposing a second and wholly repetitive

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Under 8 U.S.C. § 1227(a)(2)(A)(iii), “[a]ny alien who is3
convicted of an aggravated felony at any time after admission” is
removable. “Aggravated felonies” include, among other crimes, “a crime
of violence (as defined in section 16 of Title 18, but not including a
purely political offense) for which the term of imprisonment [is] at least
one year.” 8 U.S.C. § 1101(a)(43)(F). Under this provision, an
“aggravated felony” need not be classified as a felony by the jurisdiction
of conviction, so long as its term of imprisonment is at least one year.
Popal’s sentence of four to twenty-three months satisfies the one-
year imprisonment requirement of § 1101(a)(43)(F). This sentence was
functionally the same as a sentence of twenty-three months, with parole
eligibility beginning after four months. See Bovkun v. Ashcroft, 283 F.3d
166, 171 (3d Cir. 2002).
7
appeal to the BIA.
We therefore hold that, where a petitioner has raised only
one claim before the IJ and the BIA, and where that claim has been
fully and fairly litigated by the petitioner before the IJ and the BIA,
the petitioner has exhausted that claim under 8 U.S.C. § 1252(d)
and may present it to this Court. No one contests that Popal’s claim
has been fully litigated before the BIA, and we therefore conclude
that we have jurisdiction to consider it.
III.
Popal pled guilty in a Pennsylvania court to misdemeanor
simple assault. The Pennsylvania statute provides that “[a] person
is guilty of assault if he: (1) attempts to cause or intentionally,
knowingly or recklessly causes bodily injury to another . . . .” 18
Pa. Cons. Stat. § 2701(a).
The BIA held, and the government now contends, that Popal
is a removable aggravated felon because he has committed a
“crime of violence” under 18 U.S.C. § 16. That provision, in turn,3
defines a “crime of violence” to mean one of two things:
(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
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force

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Furthermore, even were we to look at the factual record in4
Popal’s case, see Singh v. Ashcroft, 383 F.3d 144, 162-63 (3d Cir. 2004),
we would not be able to conclude that he acted with intent. The police
complaint merely reiterates the generic definition of the crime, without
specifying whether Popal acted intentionally, knowingly, or recklessly.
The complaint does specify that Popal shot a minor with a compressed
air pistol, and the affidavit of probable cause describes the events in
more detail, but neither states that Popal was charged with acting with
intent. The record contains no plea document, plea colloquy, judgment
of conviction, or other proof of what facts Popal admitted in pleading
guilty to simple assault.
8
against the person or property of another may be
used in the course of committing the offense.
Id. The BIA found that Popal’s crime, simple assault, satisfied
§ 16(a) in that it involved the use of physical force.
In finding that simple assault constitutes a crime of violence,
the BIA necessarily considered only the elements of the crime, and
not Popal’s particular conduct, as § 16 “requires us to 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. —, 125 S. Ct. 377, 381 (2004). In particular, the
BIA was not entitled to assume that Popal acted with any mens rea
greater than recklessness, the minimum culpability required for a
conviction under 18 Pa. Cons. Stat. § 2701(a).4
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. We first stated as much in United
States v. Parson, 955 F.2d 858, 866 (3d Cir. 1992). In Leocal, 125
S. Ct. at 382, the Supreme Court held, in language echoing Parson,
that the term “use of force” in § 16 required, at the least, a mens
rea greater than negligence. Most recently and explicitly, we
reaffirmed Parson in Tran v. Gonzales, No. 02-3879, — F.3d —,
2005 WL 1620320 (3d Cir. July 12, 2005). There, we clearly held
“that the ‘use of force’ in §16(a) requires specific intent to use
force.” Id., 2005 WL 1620320, at *5.
Because Pennsylvania simple assault requires a mens rea of
recklessness, rather than intent, it is not a crime of violence under

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We acknowledge that the legislative history of § 16(a) provides5
some support for the government’s theory that that section encompasses
simple assault. See S. Rep. No. 98-225, at 307 (1983), reprinted in 1984
U.S.C.C.A.N. 3182, 3487 (“The former category [§ 16(a)] would include
a threatened or attempted simple assault or battery on another person
. . . .”). Nonetheless, we do not think that this legislative history
undermines our conclusion. Instead, we think it likely that, when the
drafters of § 16 mentioned simple assault as an exemplary crime of
violence, they had in mind traditional common-law simple assault,
defined as a crime “committed by either a willful attempt to inflict injury
upon the person of another, or by a threat to inflict injury upon the
person of another which, when coupled with an apparent present ability,
causes a reasonable apprehension of immediate bodily harm.” United
States v. McCulligan, 256 F.3d 97, 103 (3d Cir. 2001) (quoting United
States v. Chestaro, 197 F.3d 600, 605 (2d Cir. 1999)). The common law
thus required “willfulness,” i.e., intent, in order to find a defendant guilty
of simple assault. It is entirely plausible that this definition might have
been Congress’s referent in discussing § 16(a). Indeed, we have held that
the term “simple assault” used in the federal assault statute, 18 U.S.C.
§ 111, was meant to “equate[] with traditional common-law assault.”
McCulligan, 256 F.3d at 104.
If the legislative history cited above means only that Congress
intended to include common-law simple assault as a crime of violence,
then we cannot infer that it intended to include Pennsylvania simple
assault, which does not require willful conduct. The fact that some states
have a broader definition of simple assault does not mean that Congress
wanted to sweep all crimes so denominated into the category of
aggravated felonies.
Indeed, it cannot be true that any crime called “simple assault”
by any state constitutes a crime of violence under § 16(a). The statute at
issue in this case affords a clear example. As described above,
Pennsylvania defines simple assault to include recklessly causing bodily
injury. 18 Pa. Cons. Stat. § 2701(a)(1). But it also classifies as simple
assault “negligently caus[ing] bodily injury to another with a deadly
weapon.” Id. § 2701(a)(2). The Supreme Court has held that negligence
offenses are not crimes of violence under § 16. Leocal, 125 S. Ct. at
382. The mere labeling of negligent conduct as “simple assault” does not
ipso facto transform it into an aggravated felony.
Similarly, in Taylor v. United States, 495 U.S. 575 (1990), the
Supreme Court rejected the proposition that the term “burglary” in 18
U.S.C. § 924(e)(2)(B)(ii) means whatever any state chooses to classify
9
§ 16(a). Because it is not a felony under state law, see Francis v.5

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as burglary; instead, the Court crafted a uniform “generic” definition of
the offense for federal sentencing purposes. While the Taylor Court was
considering statutory language rather than legislative history, its
emphasis on uniformity informs our own conclusion that Congress’s
reference to “simple assault” was not meant to encompass any crime so
defined by a state legislature.
In short, we recognize that our holding today might seem to
conflict with Congress’s intent as expressed in the legislative history of
§ 16. But we believe that this apparent conflict is a mirage, caused by the
fact that Pennsylvania has chosen to classify as simple assault offenses
that the congressional drafters were unlikely to have had in mind.
Our Order reflects that the final administrative order in this case6
was that of the Immigration Judge, and it is this order that we vacate. As
is our normal practice, however, we will remand to the BIA for further
proceedings.
10
Reno, 269 F.3d 162, 167-71 (3d Cir. 2001), and because there is no
allegation that it involves “a substantial risk that the actor will
intentionally use physical force in committing his crime,” Tran,
2005 WL 1620320, at *7, it is not a crime of violence under
§ 16(b). There is thus no basis for removability, and the petition for
review must be granted.
IV.
On the record before us, Popal has not committed an
aggravated felony that would render him removable. We will
therefore grant the petition for review and remand to the BIA for
further proceedings consistent with this opinion.6

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