Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2004

Fofana v. Secretary Homeland
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4092




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"Fofana v. Secretary Homeland" (2004). 2004 Decisions. Paper 140.
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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                       No. 03-4092
                                      ____________

                                    LADJI FOFANA,

                                             Petitioner

                                            v.

                    TOM RIDGE, SECRETARY DEPARTMENT
                         OF HOMELAND SECURITY,

                                            Respondent
                                      ____________

                         On Petition for Review of an Order of the
                             Board of Immigration Appeals
                                (Board No. A76-579-335)
                                      ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 29, 2004

     Before: SCIRICA, Chief Judge, FISHER and GREENBERG, Circuit Judges.

                               (Filed November 8, 2004     )
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

      Petitioner Ladji Fofana petitions for review of an final order of removal issued by

the Bureau of Immigration and Customs Enforcement (“BICE”). The BICE found that
Fofana, by virtue of a Pennsylvania state conviction for trademark counterfeiting, was an

aggravated felon pursuant to INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R). The

government has moved for dismissal and argues that subject to substantial constitutional

claims not present here, our jurisdiction does not extend beyond determining the predicate

jurisdictional facts showing that Fofana is an alien who is removable by reason of

committing an aggravated felony as defined in the statute.

       We have without doubt jurisdiction to determine whether Fofana is an alien

removable for committing an aggravated felony. See Drakes v. Zimski, 

,

247 (3d Cir. 2001). The term “aggravated felony” means “an offense relating to

commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification

numbers of which have been altered for which the term of imprisonment is at least one

year.” INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R) (emphasis added).1 Subject to

exceptions inapplicable here, in determining whether Fofana’s conviction is an offense

“relating to” counterfeiting, we employ a formal categorical approach that looks to the

offense of conviction. See Singh v. Ashcroft, 

, 148 (3d Cir. 2004).

       Fofana was convicted of trademark counterfeiting under Pennsylvania law, which

states “[a]ny person who knowingly manufactures, uses, displays, advertises, distributes,


       1
        Fofana does not dispute that he is an alien. Nor does he suggest that his sentence
of 11½ to 23 months does not satisfy the one-year imprisonment requirement of INA §
101(a)(43)(R). See United States v. Galicia-Delgado, 

, 520-21 (2d Cir.
1997) (indeterminate sentence is sentence for maximum term that imprisonment might be
imposed).

                                             2
offers for sale, sells or possesses with intent to sell or distribute any items or services

bearing or identified by a counterfeit mark shall be guilty of the crime of trademark

counterfeiting.” 18 Pa. C.S.A. § 4119(a). A “counterfeit mark” is either “[a]ny

unauthorized reproduction or copy of intellectual property” or “[i]ntellectual property

affixed to any item knowingly sold, offered for sale, manufactured or distributed or

identifying services offered or rendered, without the authority of the owner of the

intellectual property.” 

“Intellectual property” means “[a]ny trademark,

service mark, trade name, label, term, device, design or word adopted or used by a person

to identify that person's goods or services.” 

trademark counterfeiting categorically relates to

counterfeiting by the statute’s plain language.2 By definition, it requires an unauthorized

reproduction, copy, or affixation of any of the types of intellectual property defined in the

statute along with a requisite act, knowledge, and intent. See also Black’s Law

Dictionary (8th ed. 2004) (“Counterfeiting includes producing or selling an item that

displays a reproduction of a genuine trademark, usu. to deceive buyers into thinking they

are purchasing genuine merchandise.”). Fofana’s narrow construction of INA §

101(a)(43)(R) would read the critical phrase “relating to” out of the federal statute. In

Drakes, we construed the scope of “forgery” in the same subsection at issue here, and


       2
       Fofana was also convicted for copying recording devices under 18 Pa. C.S.A. §
4116, but before this Court, the government relies solely on the conviction for trademark
counterfeiting.

                                               3
held that “[u]nless the words ‘relating to’ have no effect, the enumerated crime—here,

forgery—must not be strictly confined to its narrowest 

; see

also Patel v. Ashcroft, 

, 470 (3d Cir. 2002) (harboring alien is crime

“relating to” alien smuggling under INA § 101(a)(43)(N)).

       We conclude that Fofana’s conviction for trademark counterfeiting is a crime

“relating to” counterfeiting and is therefore an aggravated felony for purposes of INA §

101(a)(43)(R). The government’s motion to dismiss will be GRANTED and the petition

for review will be DISMISSED for lack of jurisdiction.3

________________________




       3
        Fofana makes references to due process in an attempt to assert a “substantial
constitutional challenge” to his order of removal. See Calcano-Martinez v. INS, 

, 350 n.2 (2001) (noting government’s concession that despite jurisdiction-stripping
provisions of 8 U.S.C. § 1252(a)(2)(C), courts of appeals retain jurisdiction to review
“substantial constitutional challenges”). However, Fofana does not assert any
constitutional deprivation, let alone a substantial one. To the extent he reiterates his
statutory argument and complains that removal will prevent him from marrying his
American fiancee and becoming a citizen, we see no constitutional violation, let alone a
substantial one. Moreover, as the formal categorical approach is a legal analysis and he
has the right to petition to this court for review of the aggravated felony determination,
we do not see a violation of procedural due process, and Fofana makes no argument
beyond conclusory statements that he is entitled otherwise.

                                             4
5