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


1-8-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1917




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                     No. 06-1917
                                  ________________

                          MOHAMMED NAYEEM AHMED,
                                      Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                        Respondent
                    ____________________________________

                           On Review of a Decision of the
                            Board of Immigration Appeals
                             (Agency No. A41-372-617)
                         Immigration Judge: Henry S. Dogin
                      ____________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 4, 2007

               Before: FISHER, ALDISERT and WEIS, Circuit Judges.

                                (Filed: January 8, 2007)
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Mohammed Nayeem Ahmed, a citizen of Bangladesh, petitions for review of a

final order of the Board of Immigration Appeals (BIA). We will deny the petition for

review.
                                             I.

       Ahmed entered the United States in 1990 as a lawful permanent resident. In 2001,

a New York state court convicted him of fourth-degree grand larceny, see N.Y. PENAL

LAW § 155.30, and sentenced him to five years of probation. He subsequently violated

the terms of the probation, and ! in June 2004 ! the court sentenced him to one year in

prison. Based on this event, the Government charged Ahmed with removability for

having been convicted of an aggravated felony. See INA § 237(a)(2)(A)(iii). Under INA

§ 101(a)(43)(G), “a theft offense (including receipt of stolen property) or burglary offense

for which the term of imprisonment [is] at least one year” is an aggravated felony. The

Immigration Judge concluded that Ahmed qualified under this provision. A.R. 40.

       On appeal to the BIA, Ahmed, who was then assisted by counsel, argued that

“[t]he one-year sentence imposed for the violation of probation . . . cannot be considered

the ‘sentence imposed’ for the theft-related offense” described in INA § 101(a)(43)(G).

A.R. 7. According to counsel, to hold otherwise would be to thwart the intent of

Congress, which ! in § 101(a)(43)(G) ! tied the original theft offense with the sentence

of one year or more. A.R. 7-8.1 In a single-member order, the BIA disagreed with

counsel, holding that Ahmed’s “sentence to a determinate term of imprisonment of 1 year

compel[led] the conclusion that his prior probationary sentence was revoked, resulting in

the imposition of a sentence for the underlying grand larceny offense.” A.R. 2. The BIA



       1
        As the BIA noted, see A.R. 2, counsel did not cite any authority for this argument.

                                             2
further noted that Ahmed’s resulting status as an aggravated felon made him statutorily

ineligible for relief such as cancellation of removal. See INA § 240A(a)(3). Ahmed

timely petitioned for review of the BIA’s order.2

                                             II.

       Ahmed, now acting pro se, renews his argument that the one-year sentence was

punishment for violating the terms of his probation and not punishment for the original

theft offense. See Petitioner’s brief, 4-9.3 He argues that he is not an aggravated felon,

and he asks that we find him eligible for cancellation of removal. See 

We cannot

accommodate him.

       Under our precedent, we look to the term of imprisonment actually imposed ! and

not to the sentence that was statutorily possible ! in order to determine, for purposes of

INA § 101(a)(43)(G), whether “the term of imprisonment [was] at least one year.” See

United States v. Graham, 

, 791 (3d Cir. 1999). Although Ahmed was

initially sentenced to a probation-only sentence, he was subsequently resentenced to

incarceration for one year for failure to comply with the terms of his probation. Notably,



       2
      Ahmed mistakenly submitted his petition for review to the United States Court of
Appeals for the Second Circuit. That court transferred the petition to this court.
       3
        The Government argues that we lack jurisdiction to entertain Ahmed’s arguments.
See Respondent’s brief, 7-9 (arguing that whether Ahmed was sentenced to one year for
the probation violation or for the underlying conviction is an unreviewable question of
fact). Whether Ahmed is an aggravated felon is a question of law, however. See, e.g.,
Bobb v. Atty. Gen’l, 

, 217 (3d Cir. 2006). We review that question de novo.

New York state court’s formal sentence and commitment, issued on the finding that

Ahmed had violated the terms of his probation, specifically referenced the grand larceny

statute and the original probationary sentence. A.R. 73. This strongly supports the BIA’s

view that Ahmed’s original probation sentence was revoked and a one-year term of

imprisonment was substituted in its place. A.R. 2. Moreover, the general rule is that a

sentence imposed after a violation of probation is to be viewed as a modification of the

original sentence and should, therefore, be treated as the term “imposed” for the

conviction. See, e.g., United States v. Compian-Torres, 

, 516 (5th Cir.

2003); United States v. Hidalgo-Macias, 

, 285 (2d Cir. 2002). As the BIA

noted in its order, New York follows this general rule. See 

(“under New York law, a sentence of probation is . . . a tentative disposition that may

be altered or revoked”) (internal quotation omitted); see also N.Y. PENAL LAW

§ 60.01(2)(b). Accordingly, the BIA committed no error when it treated Ahmed’s one-

year sentence as punishment for the original theft offense, making him an aggravated

felon under the terms of INA § 101(a)(43)(G).4 Furthermore, as the BIA correctly



       4
        In his appellate brief, Ahmed argues that he received ineffective assistance from
the attorney who represented him when his probation was revoked. Petitioner’s brief, 9
(“Petitioner was advised by the counsel, a public defender[,] that his new conviction for
violation of probation was not a deportable offence, therefore, ineffectively assisting his
client”). This is an argument to be made in a collateral attack on the state-court
disposition, not an argument that would justify granting Ahmed’s petition for review.
Until and unless Ahmed successfully attacks his state-court disposition, he is an
aggravated felon who may be lawfully removed from the United States. See Pinho v.
Gonzales, 

, 215 (3d Cir. 2005).

                                              4
realized, Ahmed’s status as an aggravated felon made him statutorily ineligible for

cancellation of removal. INA § 240A(a)(3).

                                            III.

       For the reasons given, we will deny Ahmed’s petition for review.5 Ahmed’s

motion to supplement the record and his motion for leave to file a supplemental appendix

out of time are denied.6




       5
        Lopez v. Gonzales, 

(2006), decided by the Supreme Court after
this case was briefed, does not have any bearing on the outcome. Lopez addressed
different language in the aggravated felony statute, language defining drug trafficking
offenses. In any event, Lopez did not alter the law in this circuit. See Gerbier v. Holmes,

, 308 (3d Cir. 2002).
       6
        Both motions ask that we consider information that is not contained in the
administrative record. Under INA § 242(b)(4), we may decide a petition for review only
on the administrative record.

                                             5