Pedro Arturo Crisostomo-Rodriguez v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1915
PEDRO ARTURO CRISOSTOMO-RODRIGUEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent
____________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A37-635-642)
Immigration Judge: Honorable Andrew Arthur
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 18, 2009
Before: BARRY, STAPLETON and NYGAARD, Circuit Judges
(Opinion filed: December 2, 2009 )
_________
OPINION
_________
PER CURIAM
Pedro Arturo Crisostomo-Rodriguez petitions for review of a decision rendered by
the Board of Immigration Appeals (“BIA”) on February 26, 2008. For the reasons that
follow, we will dismiss in part and deny in part the petition for review.

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Under INA § 101(a)(43)(B) [8 U.S.C. § 1101(a)(43)(B)], the term “aggravated1
felony” means, inter alia, “illicit trafficking in a controlled substance.”
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I. Background
Because we write solely for the benefit of the parties, we will set forth only those
facts necessary to our analysis. Crisostomo is a native and citizen of the Dominican
Republic who has been living in the United States as a lawful permanent resident. In
November 2005, Crisostomo pleaded guilty in the Court of Common Pleas of York
County, Pennsylvania, to four counts of delivery of cocaine and one count of conspiracy
to deliver cocaine. He was sentenced to a term of five to ten years of imprisonment and is
currently incarcerated.
Crisostomo was served with a notice to appear in October 2006. After a hearing,
the Immigration Judge (“IJ”) concluded that Crisostomo is removable for having been
convicted of an aggravated felony, see INA § 237(a)(2)(A)(iii) [8 U.S.C.
§ 1227(a)(2)(A)(iii)] , and for having been convicted of a controlled substance violation,1
see INA § 237(a)(2)(B)(i) [8 U.S.C. § 1227(a)(2)(B)(i)].
Cirsostomo appealed. On February 26, 2008, the BIA issued a decision adopting
and affirming the IJ’s decision and dismissing the appeal. This timely counseled petition
for review followed.
II. Analysis
On appeal, Crisostomo does not dispute that he is removable for violating a law
related to a controlled substance. See INA § 237(a)(2)(B)(i) [8 U.S.C.

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§ 1227(a)(2)(B)(i)]. He disputes only the conclusion that his conviction qualifies as an
aggravated felony under INA § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)] and that,
as a result, he is ineligible to seek cancellation of removal under INA § 240A(a)(3) [8
U.S.C. § 1229b(a)(3)] (“The Attorney General may cancel removal . . . if the alien . . . has
not been convicted of any aggravated felony.”).
We have jurisdiction to review a final order of removal pursuant to INA
§ 242(a)(1) [8 U.S.C. § 1252(a)(1)]. Because the BIA adopted the IJ’s findings and
discussed the IJ’s decision, we review both the decisions of the IJ and the BIA. See Chen
v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We consider de novo the legal question of
whether Crisostomo’s conviction qualifies as an aggravated felony. See Evanson v. Att’y
Gen., 550 F.3d 284, 288 (3d Cir. 2008). We provide “appropriate deference to the
agency’s interpretation of the underlying statute in accordance with administrative law
principles.” Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir. 2005).
A.
In the proceedings before the IJ, the Government submitted two items to establish
Crisostomo’s state court drug conviction: (1) the Form I-213 “Record of
Deportable/Inadmissible Alien,” A.R. 60-62; and (2) the guilty plea colloquy from the
state court proceedings, A.R. 63-65. The BIA upheld the IJ’s findings that the Form I-
213 identified that Crisostomo violated 35 Pa. C.S. § 780-113(a)(30) (prohibiting “the
manufacture, delivery, or possession with intent to manufacture or deliver, a controlled

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substance by a person not registered under this act. . . .”) and that the guilty plea colloquy
was consistent with a conviction under that statute.
Crisostomo argues that the only evidence that actually sets forth the statute of
conviction is the Form I-213, which, according to Crisostomo, “has only limited
reliability as to the actual statutory basis for an alien’s conviction. . . .” See Petitioner’s
Br. at 9. Crisostomo acknowledges that, absent evidence that the document is erroneous
or was obtained by duress, the BIA considers a Form I-213 to be “inherently trustworthy”
and admissible to prove deportability. See Matter of Ponce-Hernandez, 22 I&N Dec. 784,
785 (BIA 1999); Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988). Crisostomo does not
argue that the Form I-213 was erroneous or obtained by duress. Instead, he offers the
apparently novel legal argument that the Form I-213 is inadequate if unaccompanied by
the underlying court record specifying the statute of conviction.
The Government responds that we may not consider this argument because
Crisostomo raised it for the first time before this Court. After a close review of the
record, we must agree. As a general rule, we lack jurisdiction to review claims that were
not administratively exhausted. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)].
Crisostomo never argued to the IJ or BIA that it was legal error to consider the Form I-
213 in conjunction with the plea colloquy, or that the Form I-213 was not admissible to
establish the statute of conviction. Accordingly, we must dismiss this claim because
Crisostomo failed to exhaust his administrative remedies. See Abdulrahman v. Ashcroft,

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Because Crisostomo does not contest removability for violating a controlled2
substance law, the Government argues that the question of whether Crisostomo was
convicted of an “aggravated felony” pertains only to the issue of whether he is eligible for
cancellation of removal. Accordingly, the Government argues that Crisostomo bore the
burden of establishing by a preponderance of the evidence that he did not commit an
aggravated felony. See INA § 240(c)(4)(A)(i) [8 U.S.C. § 1229a(c)(4)(A)(i)]. Because
we will affirm the conclusion that the Government met its affirmative burden to establish
the aggravated felony conviction through clear and convincing evidence, we necessarily
also conclude that Crisostomo also did not establish by a preponderance of the evidence
that he was not convicted of an aggravated felony.
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330 F.3d 587, 594-95 (3d Cir. 2003).
B.
We may, however, review Crisostomo’s claim to the extent he argues, as he did
before the BIA, that the guilty plea colloquy was not sufficient evidence to sustain a
finding that he was convicted under 35 Pa. C.S. § 780-113(a)(30) (prohibiting “the
manufacture, delivery, or possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act. . . .”). The government bore the
burden of proving Crisostomo’s conviction by clear and convincing evidence, and the
removal decision must rest upon “reasonable, substantial, and probative evidence.” See
INA § 240(c)(3)(A) [8 U.S.C. § 1229a(c)(3)(A)].2
As previously discussed, the Government submitted the Form I-213, which set
forth that Crisostomo was convicted under 35 Pa. C.S. § 780-113(a)(30). The
Government also submitted Crisostomo’s guilty plea colloquy before the Court of
Common Pleas of York County. In the colloquy, Crisostomo acknowledged that, on four
occasions, he “committed the offense of delivery of controlled substance . . . [he] had

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INA § 101(a)(43)(B) [8 U.S.C. § 1101(a)(43)(B)] defines an “aggravated felony” to3
include “illicit trafficking in a controlled substance . . . including a drug trafficking crime
(as defined in section 924(c) of Title 18).” 18 U.S.C. § 924(c)(2) defines a “drug
trafficking crime” to include “any felony punishable under the Controlled Substances Act
(21 U.S.C. §§ 801, et seq.).”
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cocaine in [his] posssession and [he] delivered it to another person.” A.R. 63.
The IJ concluded that Crisostomo’s plea colloquy was consistent with a conviction
under 35 Pa. C.S. § 780-113(a)(30). The BIA adopted the IJ’s conclusion. We agree
with this determination. In the colloquy, Crisostomo admitted that he possessed cocaine
and delivered it to another person. These admissions establish the necessary legal
elements for a conviction under Pennsylvania’s statute prohibiting delivery or possession
with intent to deliver a controlled substance. See 35 Pa. C.S. § 780-113(a)(30).
C.
The drug offense to which Crisostomo pleaded guilty is a felony under
Pennsylvania law. See Pa. C.S. §§ 780-113(a)(30), (f). To determine whether this state
felony drug offense constitutes an “aggravated felony” for purposes of the INA, the IJ
employed the “hypothetical federal felony” approach. See Garcia v. Att’y Gen., 462 F.3d
287, 291 (3d Cir. 2006). Under the hypothetical federal felony approach, the offense of
conviction is compared to the federal Controlled Substances Act to determine if it is
analogous to an offense under that Act. See Gerbier v. Holmes, 280 F.3d 297, 305, 3153
(3d Cir. 2002).
Crisostomo argues that the IJ “erred in determining that the Petitioner’s offense

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We note that we have held that a conviction under Pa. C.S. §§ 780-113(a)(30) is4
analogous to a conviction under 21 U.S.C. § 841(a)(1), which prohibits the knowing or
intentional “distribut[ion] . . . or possess[ion] with intent to ... distribute” a controlled
substance, for example, cocaine. See Jeune v. Att’y Gen., 476 F.3d 199, 205 (3d Cir.
2007). This federal crime is a felony because it carries a maximum penalty in excess of
one year. 21 U.S.C. § 841(b)(1)(C) (providing for a maximum sentence of 20 years); 18
U.S.C. § 3559 (providing that, if the crime prescribes a maximum sentence of more than
one year, it is a felony).
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constituted a hypothetical federal felony because it does not appear that the [Petitioner’s]
state offense is analogous to any federal felony for which he could be prosecuted.” 4
Petitioner’s Br. at 26. Crisostomo’s claim has two parts: first, he argues that because the
colloquy does not specify the amounts of cocaine involved in his crimes, it cannot be
properly established that he committed any crime that is analogous to a federally
punishable crime; second, he argues that the IJ erred by failing to specify the federal
statute under which his state crime could hypothetically be punished.
Again, the Government responds that Crisostomo did not raise these arguments
below. We once again agree. Crisostomo’s claims are unexhausted and, accordingly, we
will not consider them. See Abdulrahman, 330 F.3d at 594-95.
III. Conclusion
For the foregoing reasons, we will dismiss in part and deny in part the petition for
review.

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