NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
___________
No. 23-1930 ___________
HAGOP GARABEDIAN, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A035-427-399) Immigration Judge: Jack H. Weil ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) May 28, 2024 Before: JORDAN, PHIPPS, and NYGAARD, Circuit Judges
(Opinion filed: July 1, 2024) ___________
OPINION*
___________ PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Hagop Garabedian, a citizen of Iraq, has filed a pro se petition for review of a
decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his
immigration proceedings. We will deny the petition for review.
In 1976, Garabedian entered the United States at the age of four as a lawful
permanent resident. He was convicted in federal court in 2019 of conspiracy to distribute
and possess with intent to distribute at least one kilogram of heroin, in violation of 21
U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(i). The Department of Homeland Security
initiated removal proceedings by charging that Garabedian had been convicted of an
aggravated felony drug-trafficking offense and a violation of (or a conspiracy or attempt
to violate) a law relating to a controlled substance. See 8 U.S.C. §§ 1101(a)(43)(B);
1227(a)(2)(A)(iii), 1227(a)(2)(B)(i). An Immigration Judge found Garabedian removable
and denied his applications for asylum, withholding of removal, and relief under the
Convention Against Torture. In June 2021, the BIA dismissed Garabedian’s appeal.
Garabedian did not file a petition for review.
On May 9, 2022, Garabedian filed a pro se motion to reopen his removal
proceedings.1 He asserted that his counsel was ineffective for failing to challenge his
removability under Quinteros v. Attorney General of the United States, 945 F.3d 772 (3d
Cir. 2019), and In re Richardson, 25 I. & N. Dec. 226 (BIA 2010), both of which
1 Garabedian also filed a second motion to reopen, which the BIA deemed a supplement to this motion. 2 addressed whether noncitizens who were convicted of conspiracy offenses were
removable for having been convicted of an aggravated felony.
The BIA ruled that DHS did not establish that Garabedian was removable for
having been convicted of an aggravated felony under this authority, and that counsel was
ineffective for failing to challenge that removal charge.2 However, the BIA decided that
Garabedian was not prejudiced because, among other things, he remained removable
under 8 U.S.C. § 1227(a)(2)(B)(i). The BIA denied the motion to reopen, and this
petition for review followed.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Darby v. Att’y Gen., 1 F.4th
151, 159 (3d Cir. 2021). Because Garabedian was found removable for having
committed a controlled substance offense, our review is limited to constitutional claims
and questions of law. See 8 U.S.C. §§ 1252(a)(2)(C), (D); Guerrero-Lasprilla v. Barr,
589 U.S. 221, 224 (2020). We review the denial of a motion to reopen for an abuse of
discretion; our review of legal conclusions is de novo. Darby, 1 F.4th at 159.
Garabedian challenges the BIA’s legal determination that he is removable under
§ 1227(a)(2)(B)(i).3 The statute states, with one exception not relevant here, that a
2 The BIA equitably tolled the 90-day filing deadline for filing a motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i). 3 To the extent Garabedian did not dispute his removability under § 1227(a)(2)(B)(i) in his motion to reopen, we have jurisdiction to entertain an unexhausted issue where an agency sua sponte considers it. Quinteros, 945 F.3d at 781. 3 noncitizen who “has been convicted of a violation of (or a conspiracy or attempt to
violate) any law or regulation of . . . the United States . . . relating to a controlled
substance (as defined in section 802 of Title 21), . . . is deportable.” 8 U.S.C.
§ 1227(a)(2)(B)(i). Garabedian’s conviction for conspiracy to distribute and possess with
intent to distribute at least one kilogram of heroin, in violation of 21 U.S.C. §§ 846,
841(a)(1) and 841(b)(1)(A)(i), is on its face a violation of a law of the United States. Cf.
United States v. Garcia-Vasquez, 70 F.4th 177, 180-81 (3d Cir. 2023) (noting a
conspiracy under § 846 is an “offense” and is subject to the same penalties as the offense
conspired – a violation of § 841(a)). And his conviction necessarily relates to a
controlled substance as defined in 21 U.S.C. § 802. See 21 U.S.C. § 841(a) (prohibiting,
among other things, distribution of, and possession with intent to distribute, a “controlled
substance”); id. § 802(6) (defining “controlled substance”).
Garabedian, however, contends that he is not removable under Quinteros, 945
F.3d at 783-85, which held that a federal conspiracy conviction did not categorically
match a generic conspiracy under 8 U.S.C. § 1101(a)(43)(U), the aggravated felony
conspiracy provision. The Government asserts that a categorical match in this regard is
not required under § 1227(a)(2)(B)(i) and that the proper inquiry is whether the statute of
conviction relates to a controlled substance.
The categorical approach is generally used to determine whether a conviction
qualifies as an aggravated felony and is thus grounds for removal. Esquivel-Quintana v.
4 Sessions, 581 U.S. 385, 389 (2017). Courts examine whether a statute of conviction
“categorically fits within the ‘generic’ federal definition of a corresponding aggravated
felony.” Id. (internal quotations and citations omitted). The issue in Quinteros was
whether the petitioner was convicted of the aggravated felony under 8 U.S.C.
§ 1101(a)(43)(U) of “an attempt or conspiracy to commit” a crime of violence.
Quinteros, 945 F.3d at 783. We compared the statute of conviction with generic
conspiracy under § 1101(a)(43)(U). Id. Because the petitioner’s conviction under 18
U.S.C.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
___________
No. 23-1930 ___________
HAGOP GARABEDIAN, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A035-427-399) Immigration Judge: Jack H. Weil ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) May 28, 2024 Before: JORDAN, PHIPPS, and NYGAARD, Circuit Judges
(Opinion filed: July 1, 2024) ___________
OPINION*
___________ PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Hagop Garabedian, a citizen of Iraq, has filed a pro se petition for review of a
decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his
immigration proceedings. We will deny the petition for review.
In 1976, Garabedian entered the United States at the age of four as a lawful
permanent resident. He was convicted in federal court in 2019 of conspiracy to distribute
and possess with intent to distribute at least one kilogram of heroin, in violation of 21
U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(i). The Department of Homeland Security
initiated removal proceedings by charging that Garabedian had been convicted of an
aggravated felony drug-trafficking offense and a violation of (or a conspiracy or attempt
to violate) a law relating to a controlled substance. See 8 U.S.C. §§ 1101(a)(43)(B);
1227(a)(2)(A)(iii), 1227(a)(2)(B)(i). An Immigration Judge found Garabedian removable
and denied his applications for asylum, withholding of removal, and relief under the
Convention Against Torture. In June 2021, the BIA dismissed Garabedian’s appeal.
Garabedian did not file a petition for review.
On May 9, 2022, Garabedian filed a pro se motion to reopen his removal
proceedings.1 He asserted that his counsel was ineffective for failing to challenge his
removability under Quinteros v. Attorney General of the United States, 945 F.3d 772 (3d
Cir. 2019), and In re Richardson, 25 I. & N. Dec. 226 (BIA 2010), both of which
1 Garabedian also filed a second motion to reopen, which the BIA deemed a supplement to this motion. 2 addressed whether noncitizens who were convicted of conspiracy offenses were
removable for having been convicted of an aggravated felony.
The BIA ruled that DHS did not establish that Garabedian was removable for
having been convicted of an aggravated felony under this authority, and that counsel was
ineffective for failing to challenge that removal charge.2 However, the BIA decided that
Garabedian was not prejudiced because, among other things, he remained removable
under 8 U.S.C. § 1227(a)(2)(B)(i). The BIA denied the motion to reopen, and this
petition for review followed.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Darby v. Att’y Gen., 1 F.4th
151, 159 (3d Cir. 2021). Because Garabedian was found removable for having
committed a controlled substance offense, our review is limited to constitutional claims
and questions of law. See 8 U.S.C. §§ 1252(a)(2)(C), (D); Guerrero-Lasprilla v. Barr,
589 U.S. 221, 224 (2020). We review the denial of a motion to reopen for an abuse of
discretion; our review of legal conclusions is de novo. Darby, 1 F.4th at 159.
Garabedian challenges the BIA’s legal determination that he is removable under
§ 1227(a)(2)(B)(i).3 The statute states, with one exception not relevant here, that a
2 The BIA equitably tolled the 90-day filing deadline for filing a motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i). 3 To the extent Garabedian did not dispute his removability under § 1227(a)(2)(B)(i) in his motion to reopen, we have jurisdiction to entertain an unexhausted issue where an agency sua sponte considers it. Quinteros, 945 F.3d at 781. 3 noncitizen who “has been convicted of a violation of (or a conspiracy or attempt to
violate) any law or regulation of . . . the United States . . . relating to a controlled
substance (as defined in section 802 of Title 21), . . . is deportable.” 8 U.S.C.
§ 1227(a)(2)(B)(i). Garabedian’s conviction for conspiracy to distribute and possess with
intent to distribute at least one kilogram of heroin, in violation of 21 U.S.C. §§ 846,
841(a)(1) and 841(b)(1)(A)(i), is on its face a violation of a law of the United States. Cf.
United States v. Garcia-Vasquez, 70 F.4th 177, 180-81 (3d Cir. 2023) (noting a
conspiracy under § 846 is an “offense” and is subject to the same penalties as the offense
conspired – a violation of § 841(a)). And his conviction necessarily relates to a
controlled substance as defined in 21 U.S.C. § 802. See 21 U.S.C. § 841(a) (prohibiting,
among other things, distribution of, and possession with intent to distribute, a “controlled
substance”); id. § 802(6) (defining “controlled substance”).
Garabedian, however, contends that he is not removable under Quinteros, 945
F.3d at 783-85, which held that a federal conspiracy conviction did not categorically
match a generic conspiracy under 8 U.S.C. § 1101(a)(43)(U), the aggravated felony
conspiracy provision. The Government asserts that a categorical match in this regard is
not required under § 1227(a)(2)(B)(i) and that the proper inquiry is whether the statute of
conviction relates to a controlled substance.
The categorical approach is generally used to determine whether a conviction
qualifies as an aggravated felony and is thus grounds for removal. Esquivel-Quintana v.
4 Sessions, 581 U.S. 385, 389 (2017). Courts examine whether a statute of conviction
“categorically fits within the ‘generic’ federal definition of a corresponding aggravated
felony.” Id. (internal quotations and citations omitted). The issue in Quinteros was
whether the petitioner was convicted of the aggravated felony under 8 U.S.C.
§ 1101(a)(43)(U) of “an attempt or conspiracy to commit” a crime of violence.
Quinteros, 945 F.3d at 783. We compared the statute of conviction with generic
conspiracy under § 1101(a)(43)(U). Id. Because the petitioner’s conviction under 18
U.S.C. § 1959(a)(6) for conspiracy to commit assault with a dangerous weapon did not
require an overt act, but the generic definition of conspiracy does, we held that the
conviction was not a categorical match, and that the petitioner was not removable as an
aggravated felon. Id. at 784-85.
Garabedian argues that his conspiracy conviction under § 846 likewise did not
require an overt act. See United States v. Shabani, 513 U.S. 10, 11 (1994) (holding
same). Garabedian, however, was not found removable under § 1101(a)(43)(U). As
noted above, the removal statute at issue requires that he was convicted of “a violation of
(or a conspiracy or attempt to violate) any law . . . relating to a controlled substance (as
defined in section 802 of Title 21).” 8 U.S.C. § 1227(a)(2)(B)(i). While the categorical
approach applies, Mellouli v. Lynch, 575 U.S. 798, 804-05 (2015), removability turns on
whether a conviction for violating any law relates to a federally controlled substance. Cf.
id. at 813 (stating removal under § 1227(a)(2)(B)(i) is triggered when the Government
5 connects an element of the conviction to a drug defined in § 802). The parenthetical
reference to a conspiracy does not require a different meaning. See Mizrahi v. Gonzales,
492 F.3d 156, 165-66 (2d Cir. 2007) (noting same and stating “[p]recisely because
[§ 846] proscribe[s] conspiracies . . . to violate only drug laws, we could not sensibly
conclude that [it does] not fit within the broad phrase ‘any law . . . relating to a controlled
substance’” in 8 U.S.C. § 1182(A)(2)(A)(i)(II), the inadmissibility counterpart to
§ 1227(a)(2)(B)(i)). We thus conclude that § 1227(a)(2)(B)(i) is satisfied based on
Garabedian’s conviction under § 846.
Garabedian also requests that we remand his case so that he may apply for
cancellation of removal. Garabedian, however, did not state in his motion to reopen that
he sought to apply for cancellation of removal if the BIA agreed that he was not
convicted of an aggravated felony. The BIA did not address his eligibility for this form
of relief. We agree with the Government that a remand is not warranted because
Garabedian did not exhaust his administrative remedies. See 8 U.S.C. § 1252(d)(1).
Accordingly, we will deny the petition for review.