Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-17-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4585




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-4585


                                    PIOTR SUDOL,

                                                Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES




                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A12-751-377)
                     Immigration Judge: Honorable Frederic Leeds


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 30, 2008

                Before: AMBRO, FISHER and JORDAN, Circuit Judges

                          (Opinion filed: November 17, 2008)


                                       OPINION


PER CURIAM

      Piotr Sudol petitions for review of an order of the Board of Immigration Appeals

(BIA). For the reasons below, we will deny the petition for review.
       In May 2007, Sudol, a native of Poland, was charged as removable as an

aggravated felon. Sudol denied the charge of removability and applied for a discretionary

waiver of removal pursuant to 8 U.S.C. § 1182(c) (also known as “§ 212(c) relief”).

After a hearing, the Immigration Judge (IJ) sustained the charge that Sudol committed an

aggravated felony related to the sexual abuse of a minor.1 The IJ determined that Sudol

was not eligible for § 212(c) relief and ordered Sudol removed to Poland. The BIA

adopted and affirmed the IJ’s decision and dismissed the appeal. Through counsel, Sudol

filed a timely petition for review.

       We have jurisdiction to consider whether Sudol is an aggravated felon and exercise

plenary review over the BIA’s conclusion. Garcia v. Att’y Gen., 

, 290-91 (3d

Cir. 2006). We have jurisdiction to review any constitutional claims or questions of law

de novo. Caroleo v. Gonzales, 

, 162 (3d Cir. 2007).

       Sudol argues that the IJ erred in finding that he had been convicted of an

aggravated felony because he was committed to a mental health facility for psychiatric

treatment. However, pursuant to 8 U.S.C. § 1101(a)(48)(A), the definition of a

conviction includes a formal judgment of guilt entered by a court or a guilty plea by an

alien and the imposition of restraint on the alien’s liberty. Here, Sudol pleaded guilty to

aggravated sexual assault and aggravated sexual contact and was sentenced to fifteen




   1
    Sudol committed aggravated sexual assault against one of his daughters when she
was between thirteen and sixteen years old.

                                              2
years of confinement at Avenel Adult Diagnostic and Treatment Center. Such

confinement was a restraint on his liberty.2 Thus, he was “convicted” of an aggravated

felony and is removable.

       In order for Sudol to establish eligibility for relief under § 212(c), he must

demonstrate, inter alia, that the basis for his removal has a “statutory counterpart” ground

for exclusion in § 212(a) of the Immigration and Nationality Act. 

. Sudol argues that he committed a crime of moral turpitude which is listed in §

212(a). While Sudol’s crime could be characterized as a crime involving moral turpitude,

the statutory counterpart analysis looks at the ground for removal, which here is the

aggravated felony of sexual abuse of a minor. 

. This categorical

approach does not violate equal protection. 

The aggravated felony for

which Sudol has been found removable, sexual abuse of a minor, does not have a

statutory counterpart in § 212(a). Zamora-Mallari v. Mukasey, 

, 692-93 (7th

Cir. 2008); Abebe v. Gonzales, 

, 1105 (9th Cir. 2007); Avilez-Granados v.

Gonzales, 

, 872 (5th Cir. 2007). But see Blake v. Carbone, 

, 104

(2d Cir. 2007)(holding an aggravated felon is eligible for § 212(c) waiver if his offense




   2
     Sudol relies on Holzapfel v. Wyrsch, 

(3d Cir. 1958), in which the
alien’s prison sentence was suspended, and he was placed on probation with psychiatric
treatment as a condition of probation. However, in Holzapfel, the alien was charged as
removable for being convicted of a crime of moral turpitude and sentenced to
confinement for a year or more. Here, Sudol is charged as removable for being an
aggravated felon – the definition of which does not depend on any sentence received.

                                              3
could form the basis for exclusion as a crime of moral turpitude under § 212(a)). Thus,

the BIA did not err in concluding that Sudol is not eligible for § 212(c) relief.

       For the above reasons, we will deny the petition for review.




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