298 F.3d 710 (8th Cir. 2002), 01-2309, Omar v. I.N.S.

Docket Nº01-2309.
Citation298 F.3d 710
Party NameMahad Mohamed OMAR, INS Detainee, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE; Curtis Aljets, District Director, Bloomington, MN, INS; John Ashcroft, U.S. Attorney General, Respondents.
Case DateAugust 05, 2002
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 710

298 F.3d 710 (8th Cir. 2002)

Mahad Mohamed OMAR, INS Detainee, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE; Curtis Aljets, District Director, Bloomington, MN, INS; John Ashcroft, U.S. Attorney General, Respondents.

No. 01-2309.

United States Court of Appeals, Eighth Circuit

August 5, 2002

Submitted: Dec. 13, 2001

Page 711

John C. Keller, argued, St. Paul, MN, for petitioner.

Susan K. Houser, argued, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C. (Mary Jane Candaux, on the brief), for respondent.

Before HANSEN,1 Chief Judge, HEANEY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Mahad Mohammed Omar petitions for review of an order of the Board of Immigration Appeals. The Board ordered him deported under the Immigration & Naturalization Act (INA) for being an alien convicted of an aggravated felony, and Omar contends that his Minnesota convictions for criminal vehicular homicide are not aggravated felonies. Respondents Immigration & Naturalization Service (INS), District Director Curtis Aljets, and United States Attorney General John Ashcroft oppose that contention and assert that the court lacks jurisdiction over the merits of the petition. Because we conclude that criminal vehicular homicide is an aggravated felony under federal law, we dismiss Omar's petition.

I.

Omar left Somalia in 1990 because of a civil war. After five years in a refugee

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camp in East Africa, he entered the United States and obtained permanent resident status. He and his Somali wife moved to Minnesota, and they have a child born in the United States.

The events underlying Omar's convictions took place in April 1996, Omar was drinking with friends after work when one of them received a call from some Somalis at the airport who asked to be picked up in his sport utility vehicle. The friend felt he was unable to drive because of the alcohol he had consumed, and Omar went instead. At the airport he picked up nine or ten passengers and subsequently drove off the road onto the shoulder of a highway entrance ramp. The vehicle rolled over at least three times, and everyone was thrown from it. Two passengers were killed, and another was badly injured. Omar's blood alcohol content was measured soon after the accident at 0.11.

In May 1999 Omar pled guilty in state district court to two counts of criminal vehicular homicide under Minn.Stat. § 609.21, subd. 1(4). He was sentenced to 48 months for each offense, to run consecutively. The sentence was stayed on condition he serve two years in a county workhouse and pay restitution.

The INS initiated removal proceedings2] against Omar for having been convicted of aggravated felonies.8 U.S.C. § 1227(a)(2)(A)(iii). An immigration judge found him removable as charged and ordered him deported. He appealed, and the Board affirmed. It held that criminal vehicular homicide is an aggravated felony within the meaning of the INA, 8 U.S.C. § 1101(a)(43)(F), because by its nature it involves a substantial risk that physical force may be used against the person or property of another and is therefore a crime of violence under 18 U.S.C. § 16(b).3

Omar petitioned this court for review and moved for a stay of deportation. His motion for stay was denied, and he was deported and applied for asylum in Sweden. After that application was denied, he returned to INS custody and is now at a detention center in Texas. The INS has agreed not to remove him again before his petition for review is decided.

Omar argues that he is not removable because criminal vehicular homicide is not a crime of violence. In support of his position he cites cases which have concluded that certain alcohol related driving offenses do not come within the § 16(b) definition of crime of violence. See Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001); Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. 2001); United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001). He argues that an offense can qualify as a crime of violence under § 16(b) only if it involves a substantial risk of intentional use of force against a person, Chapa-Garza, 243 F.3d at 924-27, and that the Minnesota statute under which he was convicted is a strict liability type of offense which does not require intent. Omar claims that the words "risk that physical force. . . may be used" show that Congress meant in § 16(b) to cover only crimes in which there is an intent to use physical force against a person or property. See Bazan-Reyes, 256 F.3d at 611. He also cites a recent decision of the Board, In re Ramos, 23 I.

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& N. Dec. 336, 2002 WL 1001049 (BIA 2002), and he seeks to show legislative history favorable to his interpretation, including a change made by the United States Sentencing Commission in the guidelines definition of crime of violence. Compare USSG § 4B1.2(1) (June 1988) with USSG § 4B1.2(1) (Nov.1990). He argues in addition that the language of 16(b) is ambiguous and that ambiguities in deportation statutes are to be construed in favor of an alien. INS v. St. Cyr, 533 U.S. 289, 320, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

Respondents argue that § 16(b) does not require the intentional use of force, citing United States v. Moore, 38 F.3d 977 (8th Cir. 1994), and other appellate decisions. See United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001); Park v. INS, 252 F.3d 1018 (9th Cir. 2001); United States v. Springfield, 829 F.2d 860 (9th Cir. 1987); Matter of Alcantar, 20 I. & N. Dec. 801, 1994 WL 232083 (BIA 1994). They point out that we concluded in Moore that involuntary manslaughter, a crime which does not require intent, is a crime of violence under a statutory definition essentially the same as that in § 16(b). They suggest that the cases cited by Omar have ignored the distinction within § 16 between the definition in subsection (a), in which the use of force is an element of the offense (as is the threat or attempt to use it), and subsection (b), in which the focus is on whether the offense by its nature involves a substantial risk that physical force may be used against another.4 Respondents argue that the required state of mind under § 16(b) is at most recklessness. See, e.g., Trinidad-Aquino, 259 F.3d at 1146 (a crime of violence under § 16(b) "need not be committed purposefully or knowingly, but it must be committed at least recklessly."); Park, 252 F.3d at 1025 & n. 9 (§ 16(b) requires a "sufficiently culpable mens rea," but "an intentional use of physical force is not required.") (emphasis in original). They also point out that the Minnesota criminal vehicular homicide statute requires no more than a mental state of recklessness and that the Minnesota Supreme Court long ago concluded that those who drive while intoxicated meet that standard. See State v. Bolsinger, 221 Minn. 154, 21 N.W.2d 480, 493 (1946).

II.

Judicial review of removal orders under the INA has been significantly restricted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009. IIRIRA provides that courts have no jurisdiction to review a final order of removal under the aggravated felony provision, 8 U.S.C. § 1252(a)(2)(C),5 but the circuit courts which have considered the issue all agree that there is jurisdiction to decide whether the offense of conviction is an aggravated felony. See Francis v. Reno, 269 F.3d 162, 165 (3d Cir. 2001). See

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also Dalton, 257 F.3d at 203 (2d Cir. ); Bazan-Reyes, 256 F.3d at 604 (7th Cir. ); Tapia Garcia v. INS, 237 F.3d 1216, 1220 (10th Cir. 2001); Wireko v. Reno, 211 F.3d 833, 835 (4th Cir. 2000). Although the Supreme Court has not yet decided the issue, the government conceded in a case before it that appellate courts have jurisdiction over petitions which challenge whether a particular felony meets the statutory definition. Calcano-Martinez v. INS, 533 U.S. 348, 350 n. 2, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001). The respondents make the same concession in this case, and we conclude that we have jurisdiction to decide whether criminal vehicular homicide is an aggravated felony for purposes of the INA.

The INA provides various grounds for deportation of an alien, one of which is commission of an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii). For a felony to be an aggravated felony under the INA, it must be an offense punishable by a least one year and a crime of violence as defined in the criminal code at 18 U.S.C. § 16. See 8 U.S.C. § 1101(a)(43)(F). Section 16 defines a crime of violence in two ways 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.

In order to judge whether an offense fits the § 16(b) definition the statute itself directs a focus on the risk inherent in the nature of the particular offense, rather than a focus on the element of use of physical force as in § 16(a) (or attempted or threatened use). Courts are in general agreement that under § 16(b) a categorical or generic analysis of the nature of the felony must be conducted, rather than an examination of the facts of the individual case. United States v. Rodriguez, 979 F.2d 138, 140-41 (8th Cir. 1992); Chapa-Garza, 243 F.3d at 924; United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir. 1993). See also Bazan-Reyes, 256 F.3d at 606 (applying categorical approach but looking at offender conduct where offense could not otherwise be classified). Cf. Moore, 38 F.3d at 979 (holding that categorical analysis of an almost identical statute "does not require an exploration of the underlying facts. . . [but] study of the statutory definition of the particular offense. . ....

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