Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-15-2007

Strelchikov v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5577




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                                              NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                      No. 05-5577


           VYACHESLAV STRELCHIKOV,

                       Petitioner

                           v.

   ATTORNEY GENERAL OF THE UNITED STATES,

                      Respondent




           Petition for Review of an Order of
           the Board of Immigration Appeals
                   No. A70-325-281
        Immigration Judge: Charles M. Honeyman


        Submitted under Third Circuit LAR 34.1(a)

                     May 11, 2007

Before: RENDELL, JORDAN and ALDISERT, Circuit Judges.

                  (Filed June 15, 2007)
                               OPINION OF THE COURT




ALDISERT, Circuit Judge.

       Vyacheslav Strelchikov, a native of Belarus, petitions for review from a final order

of the Board of Immigration Appeals (“BIA”). Strelchikov argues that the Board erred

by: (1) failing to terminate removal proceedings based on his status as a refugee, and (2)

finding that he committed an aggravated felony. Strelchikov also seeks review of the

Immigration Judge’s denial of his application for asylum and withholding of removal.

For the following reasons, we will deny the Petition on all grounds.

                                                 I.

       The parties are familiar with the facts and proceedings before the BIA and the

Immigration Judge (“IJ”), so we will only briefly revisit them here. Strelchikov, born in

the former Soviet Socialist Republic of Belarus, came to the United States in 1990 as a

refugee pursuant to 8 U.S.C. § 1157. He later adjusted his immigration status to that of a

lawful permanent resident. Unfortunately for Strelchikov, on June 5, 2002, the United

States District Court for the Southern District of New York convicted him of Conspiracy

to Commit Extortion in violation of 18 U.S.C. § 1951. The District Judge sentenced him

to 24 months’ imprisonment.

       As a result of this conviction, the Department of Homeland Security (“DHS”)



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initiated removal proceedings against Strelchikov. DHS charged him with removability

for having been convicted of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii)

(“Any alien who is convicted of an aggravated felony . . . is deportable.”). In response,

Strelchikov filed a Motion to Terminate Removal Proceedings. He argued that the

Government could not subject him to removal because the Attorney General never

revoked his status as a refugee. He further contended that the crime he committed did not

constitute an aggravated felony. Fearing that he would be persecuted if forced to return to

Belarus, Strelchikov also filed an application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”).

       On January 9, 2004, Immigration Judge Charles M. Honeyman denied

Strelchikov’s Motion to Terminate. The IJ determined that the government may place

permanent residents in removal proceedings, even if they maintain status as refugees.

The IJ also found the Petitioner removable under 8 U.S.C. § 1227 for having been

convicted of an aggravated felony, as defined by 8 U.S.C. § 1101(a)(43). Specifically,

the IJ determined that Conspiracy to Commit Extortion amounted to a crime of violence.

In a separate hearing on March 12, 2004, the IJ denied Strelchikov’s application for

asylum and withholding of removal. The IJ, however, determined that Strelchikov

merited protection under the CAT and therefore granted his application for deferral of

removal.

       Both Strelchikov and DHS appealed to the BIA. Strelchikov again argued that he



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did not commit an aggravated felony and that he was not subject to removal proceedings

because of his status as a refugee. The government maintained that he did not merit

protection under the CAT. On December 1, 2005, the Board issued a lengthy opinion

dismissing the arguments of both parties.1 Strelchikov now petitions for review of the

BIA’s decision.

                                            II.

       Where, as here, the BIA renders its own decision on the merits, this Court reviews

only the decision of the Board. See Tarrawally v. Ashcroft, 

, 184 (3d Cir.

2003). We review the BIA’s legal determinations de novo and its factual findings for

substantial evidence. See Balasubramanrim v. INS, 

, 167 (3d Cir. 1998).

                                            III.

       Strelchikov first argues that an alien who entered the country as a refugee and

subsequently became a permanent resident may not be placed in removal proceedings if

the Attorney General has not terminated his refugee status pursuant to 8 U.S.C. §




       1
         The Board then remanded the case to allow DHS to complete a background
check on Strelchikov. On March 29, 2006, the IJ issued an order declaring the
background check complete. Moreover, the March 29 document reissued the order
denying Petitioner’s applications for asylum and withholding of removal, and granting
him deferral of removal under the CAT. Therefore, there is now no question that a final
order has been entered in this matter and that we have jurisdiction pursuant to 8 U.S.C. §
1252. See also Matter of Alcantara-Perez, 23 I. & N. Dec. 882, 883-885 (BIA 2006)
(holding that “when a proceeding is remanded to the immigration judge for background
checks,” the immigration judge will enter an order and “[t]hat order then becomes the
final administrative order in the case”).

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1157(c)(4). See Matter of Garcia-Alzugaray, 19 I. & N. Dec. 407, 410 (BIA 1986)

(holding that a refugee applying for legal permanent resident status could not be placed in

removal proceedings). In 2004, we asked the BIA to address this precise issue. See

Smriko v. Ashcroft, 

(3d Cir. 2004). Contrary to Strelchikov’s argument, the

BIA held that an alien’s status as a refugee does not provide complete protection from

removal. See In re Sejid Smriko, 23 I. & N. Dec. 836, 837-838 (BIA 2005). Strelchikov

asks us to hold that the “decision by the BIA is in error.” We decline to do so.

       The law on this issue is settled. In Romanishyn v. Attorney General, 

(3d Cir. 2006), we explicitly upheld the BIA’s reasoning in In re Sejid Smriko. Indeed,

we noted our satisfaction with the Board’s conclusion that an alien who has been admitted

as a refugee and has adjusted his or her status may be placed in removal proceedings for

committing an aggravated felony. 

. Strelchikov’s case is on

all fours with Romanishyn, and accordingly we will deny this part of the petition for

review.

                                            IV.

       We are next asked to decide if Strelchikov’s conviction for Conspiracy to Commit

Extortion constitutes an aggravated felony. Strelchikov argues that because he did not

actually engage in extortion or physically harm anyone, he did not commit an aggravated

felony. Although this argument packs some theoretical punch, the law does not support

Strelchikov’s view of the case.



                                             5
       As always, our analysis begins with the relevant statutory language. The

Immigration and Nationality Act defines an aggravated felony as “a crime of violence . . .

for which the term of imprisonment is at least one year.” See 8 U.S.C. § 1101(a)(43)(F).

The law also states, clearly, that “conspiracy to commit” a crime of violence qualifies as

an aggravated felony. See 18 U.S.C. § 1101(a)(43)(U). We further note that a crime of

violence is any offense:

               (a) . . . 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 against the person or property of another
               may be used in the course of committing the offense.

18 U.S.C. § 16.

       In determining whether a petitioner’s wrongdoing meets this standard, we use the

“categorical approach.” See Taylor v. United States, 

(1990); Tran v.

Gonzales, 

, 469 (3d Cir. 2005). That is, we examine “the elements and the

nature of the offense of conviction, rather than . . . the particular facts relating to

petitioner’s crime.” Leocal v. Ashcroft, 

, 7 (2004). However, where the

statute is divisible—where it consists of some offenses which include an element of force

and others that do not—we look to the charging documents to determine which section of

the statute was violated. United States v. Remoi, 

, 793 (3d Cir. 2005).

       With these teachings in mind, we turn to the specifics of the case. The law defines

extortion as “the obtaining of property from another, with his consent, induced by



                                                6
wrongful use of actual or threatened force, violence, or fear, or under the color of official

right.” 18 U.S.C. § 1951(b)(2). Both parties agree that the plain meaning of the statute

prohibits conduct that amounts to a crime of violence (“obtaining property from another. .

. induced by . . . use of actual . . . force”) and conduct that does not (“obtaining property

from another, with his consent . . . under color of official right”). As a result, we must

look to the charging documents for clarification. Strelchikov pleaded guilty to the charge

of: “[U]nlawfully, willfully, and knowingly . . . conspir[ing] . . . to commit extortion . . .

by the obtaining of property from and with the consent of another person . . . which

consent was induced by wrongful use of actual and threatened force, violence, and fear.”

App. 1353. This plea, on its face, establishes that Strelchikov willfully conspired to

commit an offense that had as an element the “use . . . or threatened use of physical force

against the person or property of another.” 18 U.S.C. § 16(a). Accordingly, we agree

with the BIA that Strelchikov’s conviction constitutes an aggravated felony under 8

U.S.C. § 1101(a)(43)(F).

                                              V.

       Strelchikov also petitions this Court to review the IJ’s denial of his application for

asylum and withholding of removal. Strelchikov complains that the IJ incorrectly

determined that his conviction constituted a “particularly serious crime” under 8 U.S.C. §

1231(b)(3)(B)(ii). The government argues that we do not have jurisdiction to hear

Petitioner’s contentions because he did not raise them before the BIA. We agree.



                                               7
       As a general rule, an alien must exhaust all of his administrative remedies before

raising a claim before this Court. 8 U.S.C. § 1252(d)(1); Yan Lan Wu v. Ashcroft, 

, 422 (3d Cir. 2005). To exhaust a claim, an alien must first raise the issue

before the BIA, Alleyne v. INS, 

, 1182 (3d Cir. 1989), so as to give the

Board “the opportunity to resolve a controversy or correct its own errors before judicial

intervention.” Zara v. Ashcroft, 

, 931 (9th Cir. 2004). After a thorough

search of the record, we find no evidence that Strelchikov presented the BIA with any

argument on whether his conviction constituted a “particularly serious crime.”

Accordingly, this Court lacks jurisdiction to consider Strelchikov’s argument.

                                            VI.

       Finally, Strelchikov maintains that the government violated his rights under the

Due Process Clause. Specifically, he contends he was denied the opportunity to be heard

at a meaningful time and in a meaningful manner. See Mathews v. Eldridge, 

, 333 (1976). This argument is utterly devoid of merit. Where, as here, an alien had

an opportunity to present evidence before the IJ, and the BIA had the administrative

record before it on review and considered all of the claims, due process is satisfied.

United States v. Torres, 

, 104 (3d Cir. 2004); Chong v. District Director, 

, 387 (3d Cir. 2001).

                                         ******

       We have considered all of the arguments advanced by the parties and conclude that



                                              8
no further discussion is necessary. Accordingly, the petition for review will be denied.




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