Jobson v. Ashcroft
| Decision Date | 22 April 2003 |
| Docket Number | Docket No. 02-4019. |
| Citation | 326 F.3d 367 |
| Parties | Damaine Antonio JOBSON, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Matthew L. Guadagno (Alan Michael Strauss, Kerry William Bretz and Jules E. Coven, on the brief), Bretz & Coven, LLP, New York, NY, for Petitioner.
Megan L. Brackney, Assistant United States Attorney for the Southern District of New York (James B. Comey, United States Attorney for the Southern District of New York; Kathy S. Marks and Gideon A. Schor, of counsel), for Respondent.
Deirdre D. Von Dornum (Paul A. Engelmayer, on the brief), Wilmer, Cutler & Pickering, New York, NY; Jonathan E. Gradess; Manuel D. Vargas; for Amicus Curiae New York State Defenders Association, in support of Petitioner.
Before: FEINBERG, SACK and MURTHA,* Circuit Judges.
Damaine Antonio Jobson petitions for review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal from a removal order issued by an immigration judge (IJ). The IJ and the BIA found Jobson deportable under the Immigration and Nationality Act (INA) as an alien convicted of an aggravated felony. Specifically, they found that Jobson's offense of conviction, manslaughter in the second degree under New York Penal Law (N.Y.P.L.) § 125.15(1), is a crime of violence as defined in 18 U.S.C. § 16(b) (section 16(b)), and therefore, an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). On appeal, Jobson argues that second-degree manslaughter under the New York statute does not constitute a crime of violence within the meaning of section 16(b). For reasons stated below, we grant the petition for review and vacate the order of removal.
Jobson immigrated to the United States from Jamaica as a lawful permanent resident in 1988 when he was eight years old. He has one criminal conviction, which is the basis of the present removal order against him. In September 1999, Jobson, then 19 years old, pled guilty to manslaughter in the second degree pursuant to N.Y.P.L. § 125.15(1) for recklessly causing the death of his infant son. Pursuant to a plea agreement, Jobson was sentenced to two to six years in prison. In November 1999, the INS instituted removal proceedings, charging that Jobson was deportable as an alien who was convicted of a crime of violence and thus an aggravated felony.
Under 8 U.S.C. § 1227(a)(2)(A)(iii), "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." An aggravated felony is a term of art defined in various subsections of 8 U.S.C. § 1101(a)(43); subsection (F) thereof defines aggravated felony as "a crime of violence (as defined in section 16 of Title 18 ...) for which the term of imprisonment [is] at least one year." Crime of violence, also a term of art, is defined in 18 U.S.C. § 16, 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.1
The predicate criminal statute, N.Y.P.L. § 125.15(1), to which Jobson pled guilty, provides that
[a] person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person.
At his removal hearings before the IJ, Jobson argued that second-degree manslaughter under New York law is not a crime of violence.2 He also requested discretionary relief from removal. To establish that Jobson had been convicted of a crime of violence, the INS offered as evidence, among other documents, the New York City Department of Probation Presentence Report (PSR). The PSR provided two divergent views of the factual circumstances of Jobson's conviction. However, the documents the INS submitted to the IJ do not indicate the facts, if any, that Jobson admitted in pleading guilty.
In July 2000, the IJ ruled that second-degree manslaughter under New York law is an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) because the offense meets the definition of crime of violence in section 16(b). The IJ relied on the PSR for the factual circumstances of Jobson's conviction.3 The IJ stated that "the Court does not believe that [Jobson] intentionally caused the death of the child, [or] would have wanted the child to be injured in any way." However, the IJ held that section 16(b) "encompasses behavior that would be defined as negligent or reckless, including the behavior of the respondent here." The IJ concluded that Jobson's aggravated felony rendered him ineligible for discretionary relief and ordered him removed from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii).
Jobson appealed the order of removal to the BIA. In December 2001, a divided BIA dismissed Jobson's appeal. Over a vigorous dissent, the majority concluded that manslaughter in the second degree under N.Y.P.L. § 125.15(1) is a crime of violence under section 16(b) because "[t]he very nature of this crime, in which the death of a person results from the reckless act of the offender, is such that there is a substantial risk that force may be used in the course of committing the offense." Accordingly, the BIA found Jobson removable as an aggravated felon.
This petition for review followed.
We address first the basis of our jurisdiction. Under 8 U.S.C. § 1252(a)(2)(C), federal courts are without jurisdiction to review final orders of removal against an alien "who is removable by reason of having committed" an aggravated felony. However, it is well established that this Court "retains jurisdiction to review the underlying jurisdictional fact at issue," namely whether Jobson has been convicted of an aggravated felony, in determining whether the jurisdictional bar applies. Sui v. INS, 250 F.3d 105, 110 (2d Cir.2001) (citing Bell v. Reno, 218 F.3d 86, 89-90 (2d Cir.2000)); see also Dalton v. Ashcroft, 257 F.3d 200, 203 (2d Cir.2001). Thus, the jurisdictional inquiry merges with the question on the merits in this case. If we conclude that Jobson was convicted of an aggravated felony, then we must dismiss his petition for lack of jurisdiction; whereas if we conclude that he was not convicted of an aggravated felony, we may exercise jurisdiction and vacate the removal order. See Sui, 250 F.3d at 110.
With regard to the standard of review, we have held that while we defer to the BIA's interpretation of the immigration laws, see Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we review de novo the BIA's interpretation of criminal statutes over which it has no special expertise. See Sutherland v. Reno, 228 F.3d 171, 174 (2d Cir.2000); see also Mugalli v. Ashcroft, 258 F.3d 52, 56 (2d Cir.2001).
The crucial issue before us — whether Jobson's conviction is an aggravated felony — turns entirely on interpretations of federal and state criminal statutes. As already indicated, the relevant portion of the definition of aggravated felony in the INA, subsection (F) of 8 U.S.C. § 1101(a)(43), incorporates by reference the definition of crime of violence found in 18 U.S.C. § 16, a federal criminal statute. Accordingly, we review de novo whether Jobson's state conviction for manslaughter in the second degree under N.Y.P.L. § 125.15(1) is a crime of violence under section 16(b) as the BIA found. See Dalton, 257 F.3d at 203-04.
This Court takes a "categorical approach" to determining whether an offense is a crime of violence within the meaning of section 16(b). See Dalton, 257 F.3d at 204. Under a categorical approach, we look to the generic elements of the statutory offense. See id. () (quoting Michel v. INS, 206 F.3d 253, 270 (2d Cir.2000) (Calabresi, J., dissenting) (emphasis added)). We have acknowledged the "daunting" difficulties of looking beyond the record of conviction and have concluded that we "cannot go behind the offense as it was charged to reach our own determination as to whether the underlying facts amount to one of the enumerated crimes." Sui, 250 F.3d at 117-18 (citation omitted).
The categorical approach is not only "consistent with both precedent and sound policy," id. at 116, it is also necessary in view of the language of the applicable statutes. Section 16(b) itself defines a crime of violence "by its nature." In Dalton, we held that this language specifically "compels" a reviewing court to focus "on the intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation." Dalton, 257 F.3d at 204. In Sui, we similarly concluded that the underlying facts of petitioner's offense, as distinct from the elements of the crime, could not be examined to determine whether the offense was an aggravated felony. See Sui, 250 F.3d at 117-18. We reasoned that under 8 U.S.C. § 1227(a)(2)(A)(iii), "deportability is premised on the existence of a conviction," not on an inquiry into a particular defendant's conduct. Id. at 116 n. 10, 116-17 (citation and internal quotation marks omitted).
Under the categorical approach, the question before us is whether the minimum criminal conduct required to violate N.Y.P.L. § 125.15(1) is "by its nature" a crime of violence under section 16(b). To be a "crime of violence" under section 16(b), the predicate offense must be a felony and must "involve[] a substantial risk that physical force against the person or property...
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