Olmsted v. Holder

• Citation: 588 F.3d 556
• Decision Date: 04 December 2009
• Docket Number: No. 08-3709.,08-3709.
• Parties: Donald Logan OLMSTED, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

588 F.3d 556

Donald Logan OLMSTED, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 08-3709.

United States Court of Appeals, Eighth Circuit.

Submitted: October 20, 2009.

Filed: December 4, 2009.

Richard Lee Breitman, argued, Maria Soledad Bardelli, on the brief, Bloomington, MN, for petitioner.

Andrew Oliveira, U.S. DOJ, argued, Washington, DC, for respondent.

Before WOLLMAN, MURPHY, and BYE, Circuit Judges.

WOLLMAN, Circuit Judge.

Donald Olmsted petitions for review of an order of the Board of Immigration Appeals (BIA) affirming the Immigration Judge's (IJ) determination of removability and denial of his application for cancellation of removal. We deny the petition.

I.

Olmsted is a native and citizen of Canada who entered the United States at age three in 1962. He has been arrested multiple times and convicted of a variety of crimes. In 1996 and 1997, Olmsted was convicted on separate counts of assault in the fifth degree, in violation of Minnesota Statute § 609.224(1). In 2000, Olmsted was convicted of one count of making terroristic threats in violation of Minnesota Statute § 609.713(1).

Olmsted's terroristic threats conviction arose out of a drunken encounter with police. After Olmsted could not pay a cab fare, the taxi driver called the police, who took Olmsted into custody. On the ride to the police station, Olmsted verbally threatened the officers and his statements were recorded on the patrol car video camera. Olmsted pled guilty to a violation of the Minnesota terroristic threats statute.

Removal proceedings were commenced against Olmsted in 2007. In June 2008, the IJ issued a decision finding Olmsted removable because he had been convicted of an aggravated felony (pursuant to 8 U.S.C § 1227(a)(2)(A)(iii)) and two crimes involving moral turpitude not arising out of a single scheme (pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii)). Olmsted was ordered removed. His application for cancellation of removal was pretermitted and denied because of his aggravated felony conviction. On appeal, the BIA held that Olmsted's conviction for making terroristic threats constituted an aggravated felony because it involved a crime of violence, rendering Olmsted statutorily ineligible for cancellation of removal.

II.

Judicial review is generally precluded in cases involving aliens who are removable as aggravated felons. 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, to review "constitutional claims or questions of law," id. § 1252(a)(2)(D), such as whether a crime is an aggravated felony. See Tostado v. Carlson, 481 F.3d 1012, 1014 (8th Cir.2007).

We review the BIA's legal determinations de novo, "according substantial deference to the [BIA's] interpretation of the statutes and regulations it administers." Tang v. INS, 223 F.3d 713, 718-19 (8th Cir.2000).

The IJ found Olmsted removable on two grounds: aggravated felony convictions and crimes of moral turpitude convictions (burglary and terroristic threats). Olmsted contested only the aggravated felony grounds in his appeal to the BIA, arguing that his assault convictions did not constitute aggravated felonies because he could have violated the statute by causing fear without threatening to use physical force. Thus, we need not consider the correctness of the IJ's determination that Olmsted's assault convictions were aggravated felonies.

Olmsted argues that the BIA erred in holding that he was statutorily ineligible for cancellation of removal. A lawful permanent resident may be eligible for cancellation of removal if the individual (1) has been lawfully admitted for permanent residence for at least five years, (2) has resided in the United States continuously for at least seven years after admittance, and (3) has not been convicted of an aggravated felony. 8 U.S.C. § 1229b. Falling within the definition of an aggravated felony are crimes of violence for which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(F). A crime of violence is "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 16(a). To constitute a crime of violence there must be a "higher degree of intent than negligent or merely accidental conduct." Leocal v. Ashcroft, 543 U.S. 1, 9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). To determine whether a conviction qualifies as a crime of violence, we generally look at the statute of conviction and not the underlying facts of the case. United States v. Montenegro-Recinos, 424 F.3d 715, 717 (8th Cir.2005) (citing Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). If the statute criminalizes both conduct that constitutes a crime of violence and conduct that does not, we apply a modified categorical approach, under which we may refer to "the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." United States v. Williams, 537 F.3d 969, 973 (8th Cir.2008) (quoting Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).

Although Olmsted concedes that the term of imprisonment was for at least one year, he contends that his terroristic threats conviction was not a crime of violence. The Minnesota terroristic threats statute states:

Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another ... or in a reckless disregard of the risk of causing such terror ... may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both. As used in this subdivision, "crime of violence" has the meaning given "violent crime" in section 609.1095, subdivision 1, paragraph (d).

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