Magasouba v. Mukasey (9/30/08)

Lynch, Selya, Howard

The First Circuit held that a Rhode Island conviction for “forgery, counterfeiting, or alteration of trademark, service mark or identification mark” in violation of R.I.G.L. Sec. 11-17-13(c)(1) does constitute an aggravated felony under 8 U.S.C. Sec. 1101(a)(43)(R) (an offense relating to commercial briery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year) as all of the elements of the Rhode Island offense were include in (a)(43)(R). 

Furthermore, the Court rejected Magasouba’s argument that the proper subsection to be applied to his case is 8 U.S.C. Sec. 1101(a)(43)(M) which states that to constitute an aggravated felony a fraud or deceit offense must involve a loss that exceeds $10,000.  The Court found that when more than one removability subsection may apply, the government has discretion to proceeds under either or both subsections.  It stated that “such discretion would only be limited if one provision was a subset of the other” which is not the case with the provisions at hand. 

The Court also rejected the due process challenge that Magasouba attempted to raise relating to the DHS issuing an I-261 rather than dismissing the original NTA and issuing a new one.  The charges in the original NTA were not sustained but the court but the IJ did sustain the charges raised in the I-261.  Magasouba attempted to argue that if the DHS had dismissed the original notice and issued the new one, it would have been bared by res judicata from raising additional charges based on the same conviction. The Court agreed with the BIA that the I-261 was the “functional equivalent” of filing the same charge on an NTA and that Magasouba had an opportunity to respond to the new charges contained in the I-261.

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