News from the Courts

The U.S. Court of Appeals for the Third Circuit recently decided on a petition for rehearing by the Attorney General of the United State s in the case Escobar v. Gonzales.  In the initial hearing, the court held that the Government did not meet its burden of proof of showing evidence that petitioner’s conviction was an aggravated felony.  The decision of the court was to order the proceeding to be remanded to the Board of Immigration Appeals for consideration of petitioner’s application of removal.

Aramayo Escobar is a native and citizen of Bolivia .  He entered the U.S. lawfully as a permanent resident in 1994.  In 2002, he was convicted of a controlled substance violation under New York law.  Under this violation, an Immigration Judge found him to be removable.  The Board of Immigration Appeals (BIA) found the Judge’s opinion to be “so devoid of factual and legal analysis as to preclude appellate review.” A.R. 43

On remand, the Immigration Judge entered a new decision: Escobar had been convicted for “knowingly and unlawfully possessing a narcotic drug with the intent to sell it.” A.R. 37.  The IJ determined that the crime Escobar committed would be punishable as a felony under federal law, and thus found that his crime was an aggravated felony.  Escobar appealed the portion finding him removable as an alien convicted of an aggravated felony.

Generally, when determining whether an alien’s conviction is for an aggravated felony, the court may sometimes look only to the statutory definition of the offense, ignoring the particular facts underlying a conviction.  The Government argues that because Escobar consented to be prosecuted by criminal information, and he was convicted, he necessarily pled guilty.  However, it is unclear that the information in the record reflects the charge to which Escobar finally pleaded guilty.

HOLDING: This court holds that the Government was unable to meet its burden of proof by showing by clear and convincing evidence that Escobar was convicted of an aggravated felony.  Although he is still removable for having committed a controlled substance violation, he is now eligible to be considered for cancellation of removal pursuant to 8 U.S.C. § 1229b(a).  The case is to be remanded to the Board of Immigration Appeals for a further decision.

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