Vargas-Sarmiento v. U.S. Dept. of Justice, Docket No. 04-0241-AG.

• Decision Date: 08 May 2006
• Docket Number: Docket No. 04-0241-AG.
• Citation: 448 F.3d 159
• Parties: Luis VARGAS-SARMIENTO Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Bureau of Citizenship and Immigration Services, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

Page 159

448 F.3d 159

Luis VARGAS-SARMIENTO Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Bureau of Citizenship and Immigration Services, Respondents.

Docket No. 04-0241-AG.

United States Court of Appeals, Second Circuit.

Argued: December 14, 2005.

Decided: May 8, 2006.

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Andrew L. Friedman, Wilens & Baker, P.C., New York, New York, for Petitioner.

Michael R. Holden, Assistant United States Attorney (Sara L. Shudofsky, Assistant United States Attorney, on the brief) for David N. Kelley, United States Attorney for the Southern District of New York, New York, New York, for Respondent.

Before: CALABRESI, KATZMANN, and RAGGI, Circuit Judges.

Judge CALABRESI concurs in a separate opinion.

REENA RAGGI, Circuit Judge:

Luis Vargas-Sarmiento ("Vargas") petitions pursuant to 8 U.S.C. § 1252(a) (2000), for review of a January 2, 2004 order of the Board of Immigration Appeals ("BIA"), upholding a May 13, 1998 ruling by an Immigration Judge ("IJ") ordering Vargas removed from the United States as an alien convicted of an "aggravated felony." 8 U.S.C. § 1227(a)(2)(A)(iii). To avoid the general jurisdictional bar to any such judicial review, see id. §§ 1252(a)(2)(C) and (D), Vargas contends that the BIA erred in holding that his 1984 New York State conviction for first-degree manslaughter, see N.Y. Penal Law § 125.20, constitutes a "crime of violence" under 18 U.S.C. § 16(b) and, therefore, an "aggravated felony" as defined in 8 U.S.C. § 1101(a)(43)(F). For the reasons stated in this opinion, we conclude that first-degree manslaughter under subsections (1) or (2) of N.Y. Penal Law § 125.20 does constitute a crime of violence within the meaning of 18 U.S.C. § 16(b) and an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Because the BIA correctly identified Vargas as an alien convicted of an aggravated felony, we lack jurisdiction to review further the order of removal in the case. Accordingly, we dismiss Vargas's petition for review of the order of removal.

I. Background

A. Vargas's 1984 Manslaughter Conviction

Vargas, a citizen of Peru, entered the United States on or about July 7, 1976, as a non-immigrant visitor and, on February 1, 1983, acquired lawful permanent resident status. A few months earlier, in October 1982, Vargas was arrested by New York State authorities and indicted for second-degree murder in connection with the stabbing death of his girlfriend, Miriam M. Molina. See N.Y. Penal Law § 125.25(1). In May 1984, a Kings County jury found Vargas guilty of the lesser-included offense of first-degree manslaughter without returning a verdict on the second-degree murder charge. See id. § 125.20; Sellan v. Kuhlman, 261 F.3d 303, 306 (2d Cir.2001) (noting that, under New York law, first-degree manslaughter is a lesser-included offense of second-degree murder). On June 20, 1984, Vargas was sentenced to an indeterminate term of 7½ to 22 ½ years in prison.

In appealing his conviction, Vargas argued, inter alia, that the trial judge erred in failing to charge the lesser-included offenses of second-degree manslaughter, see N.Y. Penal Law § 125.15(1), and criminally negligent homicide, id. § 125.10, crimes that require proof, respectively, of a reckless or negligent mental state, in contrast to first-degree manslaughter, which under § 125.20(1) and (2) requires proof of a specific intent to cause, respectively, serious physical injury or death. The Appellate Division, Second Department, rejected these arguments and affirmed Vargas's conviction, ruling that "no reasonable view of the evidence would support a finding that the defendant acted recklessly or negligently." People v. Vargas, 125 A.D.2d 512, 512, 509 N.Y.S.2d 591, 591 (2d Dep't 1986). The court observed that the record showed that Vargas had approached Ms. Molina "with an open knife in his hand, and stabbed her four times, once in the back." Id.; see also People v. Suarez, 6 N.Y.3d 202, 211-12, 811 N.Y.S.2d 267, 844 N.E.2d 721 (2005) (observing that "a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder" under N.Y. Penal Law § 125.25(2) because the defendant in such killings almost always acts intentionally (quoting People v. Payne, 3 N.Y.3d 266, 272, 786 N.Y.S.2d 116, 119, 819 N.E.2d 634 (2004))).

Vargas remained incarcerated by New York State until August 1995, when he was released on parole.

B. The Removal Proceedings

In November 1997, the Immigration and Naturalization Service ("INS")¹ instituted removal proceedings against Vargas on the ground that his New York State conviction for first-degree manslaughter rendered him an aggravated felon. Appearing before an IJ on February 4, 1998, Vargas, who was represented by counsel, admitted his manslaughter conviction but challenged removability, arguing, inter alia, that manslaughter in the first degree does not constitute a crime of violence within the statutory definition of aggravated felony, see 8 U.S.C. § 1101(a)(43)(F), and that, in any event, the "aggravated felony" ground for removal should not apply retroactively to his 1984 conviction.² In May 1998, the IJ rejected these challenges as without merit and ordered Vargas removed to Peru.³

Vargas appealed to the BIA, which, on April 4, 2002, summarily affirmed the IJ's removal order. In May 2002, Vargas timely petitioned this court for review. While that petition was pending, this court ruled in Jobson v. Ashcroft, 326 F.3d 367 (2d Cir.2003), that second-degree manslaughter in violation of N.Y. Penal Law § 125.15(1), was not a "crime of violence" under 18 U.S.C. § 16(b) and, thus, not an "aggravated felony" for purposes of removal. Pursuant to a stipulation by the parties, filed July 18, 2003, this court vacated the BIA's challenged April 2002 order and remanded the case to the agency for reconsideration in light of Jobson.

On January 2, 2004, the BIA issued an unpublished decision explaining why, despite Jobson, it upheld the order of removal in Vargas's case. On February 5, 2004, the BIA published its decision with "editorial changes consistent with our designation of the case as precedent." In re Vargas-Sarmiento, 23 I. & N. Dec. 651, n. 1, 2004 WL 233460 (BIA 2004). It is to this published decision that we cite in this opinion. The BIA observed that, because the first and second subsections of New York's first-degree manslaughter statute "require proof of intent to cause either serious physical injury or death," Vargas's crime of conviction "differs significantly" from the second-degree manslaughter charge in Jobson, which requires proof only of "reckless conduct." Id. at 653. The BIA noted that reckless conduct necessarily "`encompasse[s] many situations' involving omissions or passive conduct that `do no[t] involve any risk that the defendant will apply force to the victim.'" Id. (quoting Jobson v. Ashcroft, 326 F.3d at 373). By contrast, "where the defendant has purposefully sought to kill or seriously injure another person and has succeeded in causing a death," there is a high likelihood of affirmative conduct. Id. at 654. More to the point, "the inherent nature" of a crime that intends to cause death or serious physical injury necessarily contemplates "a substantial risk that the defendant may intentionally use force in committing the crime." Id. (emphasis added). Accordingly, the BIA ruled that "the offenses prohibited by subsections 1 and 2 [of § 125.20] are crimes of violence within the meaning of 18 U.S.C. § 16(b)," making Vargas removable as an alien convicted of an aggravated felony. Id.

On January 20, 2004, Vargas petitioned this court for review of this BIA decision.

II. Discussion

A. Jurisdiction

As a rule, federal courts lack jurisdiction to review final agency orders of removal based on an alien's conviction for certain crimes, including aggravated felonies. See 8 U.S.C. § 1252(a)(2)(C). The REAL ID Act of 2005 recently clarified that courts, nevertheless, retain jurisdiction to review "constitutional claims or questions of law raised upon a petition for review." Pub.L. No. 109-13, § 106(a)(1)(A)(iii), 119 Stat. 231, 310 (2005), (codified at 8 U.S.C. § 1252(a)(2)(D)); see Joaquin-Porras v. Gonzales, 435 F.3d 172, 177-78 (2d Cir.2006). This includes questions of law raised in petitions for review of removal orders based on aggravated felony convictions. See, e.g., Aguiar v. Gonzales, 438 F.3d 86, 87-88 (1st Cir.2006) (holding that REAL ID Act extends court's jurisdiction to questions of law raised upon petitions for review, including petitions for review of removal orders based on aggravated felony convictions); Hernandez-Alvarez v. Gonzales, 432 F.3d 763, 765-66 (7th Cir.2005) (same); Tran v. Gonzales, 414 F.3d 464, 467 (3d Cir.2005) (same). No different conclusion is warranted by the fact that Vargas raises a legal challenge to a removal order that became final before the May 11, 2005 enactment of the REAL ID Act because Congress expressly gave that law retroactive effect. See REAL ID Act § 106(b) (providing that Act applies to cases "in which the final administrative order of removal, deportation, or exclusion was issued before, on, or after, the date of [] enactment"); see also Gittens v. Menifee, 428 F.3d 382, 384-85 (2d Cir.2005) (per curiam) (noting that REAL ID Act, by its terms, is retroactive). Thus, this court has jurisdiction to review Vargas's legal claim that his first-degree manslaughter conviction does not constitute an aggravated felony under the relevant law.⁴

B. Standard of Review

When the BIA construes the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. §§ 1101 et seq., a statute that it is charged with administering, federal courts "must give `substantial deference'" to the agency interpretation, Abimbola v. Ashcroft, 378 F.3d 173, 175 (2d Cir.2004) (quoting Evangelista v. Ashcroft, 359 F.3d 145, 150 (2d Cir.2004)), unless it is "arbitrary, capricious, or manifestly contrary to the statute," ...