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Novitskiy v. Ashcroft, 10th Cir. (2005)
Novitskiy v. Ashcroft, 10th Cir. (2005)
JAN 24 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
SERGEY GENNADYEVICH
NOVITSKIY,
No. 04-9530
Petitioner,
v.
Respondent.
ORDER AND JUDGMENT
**
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
*
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
**
BACKGROUND
Novitskiy, born in Azerbaijan, is a citizen of the former Soviet Union and a
legal alien in this country. In the District Court of Arapahoe County, Colorado,
Novitskiy pled guilty to trespass of an automobile with intent to commit a crime
and possession of burglary tools in violation of C.R.S. 18-4-502 and 18-4205(1), respectively. The court sentenced Novitskiy to eighteen months in prison.
Because Novitskiy is an alien, removal proceedings were instituted. After a
hearing, an immigration judge (IJ) found Novitskiy removable because
unequivocal evidence showed he was an alien who committed an aggravated
felony, as defined by 8 U.S.C. 1101(a)(43)(G) (2000) (defining an aggravated
felony as, among other things, a burglary conviction resulting in a prison sentence
in excess of one year). Novitskiy appealed the IJs decision to the Board of
Immigration Appeals (BIA). The BIA affirmed the decision, finding the
government met its burden of proving Novitskiy was an alien who was removable
because he committed an aggravated felony. Thereafter, Novitskiy filed a timely
appeal with this court.
ANALYSIS
The Immigration and Nationality Act (INA) divests this court of
jurisdiction to review any final order of removal against an alien who is
removable by reason of having committed an aggravated felony. 8 U.S.C.
-2-
Tapia-Garcia v. INS ,
237 F.3d 1216, 1220 (10th Cir. 2001). Thus, while we can determine whether
we have jurisdiction over deportation orders concerning alleged aggravated felons
as described in Tapia-Garcia , the plain language of 1252(a)(2)(C) fairly
explicitly strips the courts of appeals of jurisdiction to hear their claims on
petitions for direct review.
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least one year. Novitskiy contends he did not commit an aggravated felony
because his crimes do not constitute a theft offense or burglary under 1101.
, 265
Novitskiy also argues the government failed to meet its statutory burden
of proof. This argument necessarily requires us to review the merits of the case
and exceeds our jurisdiction under 8 U.S.C. 1252(a)(2)(C) . Thus, we do not
address the argument.
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