Francis v. Reno

• Citation: 269 F.3d 162
• Decision Date: 30 October 2001
• Docket Number: No. 00-2375,00-2375
• Parties: (3rd Cir. 2001) ROBERT FRANCIS, PETITIONER, v. JANET RENO, ATTORNEY GENERAL; AND DORIS MEISSNER, COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 162

269 F.3d 162 (3rd Cir. 2001)

ROBERT FRANCIS, PETITIONER, v. JANET RENO, ATTORNEY GENERAL; AND DORIS MEISSNER, COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE

No. 00-2375

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued February 7, 2001

October 16, 2001

Amended October 30, 2001

Petition for Review of an Order of the Board of Immigration Appeals (INS No. A26-458-287)

[Copyrighted Material Omitted]

Stephan D. Converse, Esquire, (Argued) Anderson, Converse & Finnick, P.C., 1423 East Market Street York, Pennsylvania 17403, Attorney for Petitioner

David W. Ogden Assistant Attorney General, Civil Division, Linda S. Wendtland Assistant Director, Gretchen M. Wolfinger, Esquire, (Argued) Terri J. Scadron, Esquire, Matthew R. Hall, Esquire, Office Of immigration Litigation, Civil Division, United States Department of Justice, P.O. Box 878, Ben Franklin Station Washington, D.C. 20044, Attorneys for Respondent

Before: Scirica, McKEE and Stapleton, Circuit Judges

OPINION OF THE COURT

McKEE, Circuit Judge

We are asked to decide if a state misdemeanor conviction for vehicular homicide is a "crime of violence" within the meaning of 18 U.S.C. S 16. Robert Francis was convicted of two counts of homicide by vehicle in Pennsylvania. Thereafter, the Immigration and Nationalization Service charged Francis with removability based upon its assertion that he had been convicted of an "aggravated felony" pursuant to the Immigration and Nationality Act ("INA"). 8 U.S.C. S 1227(a)(2)(A)(iii).

The Immigration Judge ruled that homicide by vehicle as defined in Pennsylvania is not an "aggravated felony" under the INA, and the INS appealed to the Board of Immigration Appeals ("BIA"). The BIA disagreed. The Board ruled that homicide by vehicle is "a crime of violence" under S16, thus it is an "aggravated felony" under the INA, and thus Francis is removable. The Board therefore entered a final order of removal against Francis. This petition for review followed. For the reasons that follow, we will grant Francis' petition and remand to the BIA with instructions to vacate its order of removal.

I. Background Facts and Procedure

Robert Francis is 67 years-old, has lived in the United States for over 25 years, and is married to a United States citizen. Administrative Record ("AR") at 102. However, Francis is a citizen of Jamaica. He entered the United States in 1975 as a "Nonimmigrant Visitor for Pleasure." In 1987, he adjusted his immigration status to "Conditional Resident," a legal resident status.

In May of 1993, Francis caused a tragic traffic accident wherein two people were killed on Interstate 95 in Philadelphia. He was thereafter convicted in state court of two counts of homicide by vehicle in violation of 75 Pa. C.S.A. S 3732.¹ which provided at the time of Francis' offenses that

[a]ny person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except section 3731 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

Francis was sentenced to two consecutive sentences of eighteen to sixty months in prison for the conviction. At the conclusion of that sentence, he was held on an INS detainer. The INS then initiated removal proceedings based upon its assertion that his state court conviction made him removable as an "aggravated felon" under the BIA. As noted above, the Immigration Judge terminated the proceedings in Francis' favor, but the INS reversed and ordered his removal. That order of removal is now before us based upon Francis' petition for review.

II. Jurisdiction

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) divests this court of jurisdiction over a final order of removal against an alien convicted of certain delineated offenses. 8 U.S.C. S 1252(a)(2)(C);² Liang v. INS, 206 F.3d 308 (3d Cir. 2000). However, jurisdiction is only removed under the IIRIRA if "(1) the petitioner is an alien (2) who is deportable by reason of having been convicted of one of the enumerated offenses." Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001).³ Therefore, we must initially determine whether these two statutory prerequisites to the limitation of our jurisdiction are satisfied. Id.

There is no dispute that Francis is an alien. Thus, the jurisdictional question that we must address is whether Francis' offense -- homicide by vehicle in violation of 75 Pa. C.S.A. S 3732 -- is "one of the enumerated offenses" under the IIRIRA. We hold that it is not.

III. Discussion

8 U.S.C. S 1227(a)(2)(A)(iii) states that any alien convicted of an "aggravated felony" is deportable. 8 U.S.C. S 1101(a)(43)(F) defines "aggravated felony" under the INA to include any "crime of violence." The INA does not directly define "crime of violence." Instead, it incorporates the definitions set forth in the Crimes Code at 18 U.S.C. S 16. See 8 U.S.C. S 1101 (43)(F).⁴ "Crime of violence" is defined therein as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. S 16. The BIA concluded that subsection (a) is not applicable to Francis' state conviction, but held that his offense fell within the confines of subsection (b). We agree that Francis' state conviction does not fall underS 16(a). However, we disagree with the BIA's conclusion that it is included under S 16(b).

In order for a conviction to be a "crime of violence" under subsection (b), the offense must first be a "felony;" and second, it must be an offense that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. S 16(b).

Francis argues that vehicular homicide under Pennsylvania law fails to meet either requirement. He argues that the offense is a misdemeanor under Pennsylvania law and therefore cannot qualify as a felony for purposes of the INA. He also argues that it is not an offense that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. S 16(b). Finally, Francis argues that S 16(b) requires specific intent and that homicide by vehicle involves a much lower level of culpability under Pennsylvania law.

A. Whether A Misdemeanor Can Be A Felony Under S 16(b)

Francis claims that inasmuch as he was convicted of a misdemeanor under Pennsylvania law, he is not a felon; "much less an `aggravated' one." Francis Br. at 6. In United States v. Graham, 169 F.3d 787 (3d Cir. 1999), we held that a crime can be regarded as an aggravated felony even if it is categorized as a misdemeanor. There, Graham pled guilty to illegally reentering this country following deportation in violation of 8 U.S.C. S 1326. At sentencing, an issue arose as to whether he should be classified as an aggravated felon under U.S.S.G. S 2L1.2(b)(1)(B). A defendant who is classified as an aggravated felon faces a sixteen-level increase in his/her offense level under the Sentencing Guidelines.⁵ The district court sentenced Graham as an aggravated felon based upon the court's conclusion that his prior state misdemeanor conviction for petit larceny qualified as an aggravated felony even though the state where he committed the offense defined it as a misdemeanor. "The aggravated felony classification changed Graham's guideline sentence range from 21-27 months to 70-87 months." 169 F.3d at 788.

On appeal, we framed the issue as follows:

whether a misdemeanor can be an "aggravated felony" under a provision of federal law even if it is not, technically speaking a felony at all. The particular question is whether petit larceny, a class A misdemeanor under New York law that carries a maximum sentence of one year, can subject a federal defendant to the extreme sanctions imposed by the "aggravated felon" classification [contained in 8 U.S.C. S 1101(a)(43)].

Id., at 788. We answered in the affirmative. In resolving the issue, we focused on an amendment to S 1101(a)(43)(G), which lowered the imprisonment threshold from five years to one year. We explained that felonies had historically been defined as those crimes that are punishable by at least a year in prison. Those offenses punishable by less time in prison had historically been defined as misdemeanors. However, we concluded that the term "aggravated felony" is a term of art which can include "certain misdemeanants who receive a sentence of one year," id. at 792, even though the underlying crime has been labeled a "misdemeanor" under state law.

Our analysis in Graham does not, however, answer the question presented here. Graham was an aggravated felon pursuant to 8 U.S.C. S 1101(a)(43)(G). That subsection specifically defined theft crimes as aggravated "felonies" so long as "the term of imprisonment [is] at least one year." Id. at 789.⁶ Graham had clearly been convicted of a state theft offense, and that offense, though categorized by New York as a Class A misdemeanor, had "a maximum of a year's imprisonment under New York law." Id. at 789. That is all subsection (43)(G) required. Francis is charged with an aggravated felony under subsection (43)(F). As stated above, that provision of the INA requires a "crime of violence" under 18 U.S.C. S 16. We must therefore determine if S 16(b), which specifically refers only to "felonies," includes offenses that have been categorized as "misdemeanors" by the...