Park v. Immigration & Naturalization Serv.

• Decision Date: 08 January 2001
• Docket Number: No. 97-71373,97-71373
• Citation: 252 F.3d 1018
• Parties: (9th Cir. 2001) EUN KYUNG PARK, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1018

252 F.3d 1018 (9th Cir. 2001)

EUN KYUNG PARK, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 97-71373

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted January 8, 2001^* San Francisco, California

Opinion Filed March 6, 2001

Amended June 5, 2001

Michael P. Karr, Michael P. Karr & Associates, Sacramento,.California, for the petitioner.

Robert B. Jobe and Vicky Dobrin, Law Office of Robert B. Jobe, San Francisco, California, for the petitioner.

Jeffrey J. Bernstein, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, D.C., for the respondent.

Petition for Review of an Order of the Board of Immigration Appeals. INS No. A74 180 970.

Before: Alfred T. Goodwin, Susan P. Graber, and Richard A. Paez, Circuit Judges. Opinion by Judge Paez

ORDER AND AMENDED OPINION

PAEZ, Circuit Judge:

ORDER

Our opinion in Park v. INS, 241 F.3d 1186 (9th Cir. Mar. 6, 2001), is amended, and the Clerk is ordered to file the attached amended opinion.

OPINION

This appeal from the Board of Immigration Appeals ("BIA") raises the question whether a conviction for involuntary manslaughter under California Penal Code § 192(b) constitutes an "aggravated felony" for which an alien is deportable under 8 U.S.C. § 1251(a)(2)(A)(iii), now codified at 8 U.S.C. § 1227(a)(2)(A)(iii). We hold that it does and, therefore, dismiss the appeal for lack of jurisdiction.

BACKGROUND

Petitioner Eun Kyung Park is a native and citizen of South Korea. She first entered the United States in December 1983 under an F-1 student visa. She obtained a bachelor's degree in theology from California Union College, a master's degree from Linda Vista Baptist Bible College and Seminary, and is now an ordained minister.

On May 23, 1996, Park pled guilty to and was convicted of involuntary manslaughter under California Penal Code § 192(b) for her involvement in the beating death of a 25- year-old woman on March 8, 1995, during a religious ceremony to exorcize demons. Park received a sentence of three years in state prison.

While Park was still in custody, on August 29, 1996, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause ("OSC"), which, as amended on February 26, 1997, alleged that Park was deportable as an alien convicted of an "aggravated felony" pursuant to § 241(a)(2) (A)(iii) of the Immigration and Nationality Act ("INA").¹

Park's hearing before an immigration judge ("IJ") was originally scheduled for March 5, 1997, but was continued several times to accommodate Park's unprepared attorney. Another attorney appeared as cocounsel at a hearing on April 25, but then subsequently withdrew, citing lack of cooperation from Park's original attorney. At the final hearing on May 9, the IJ denied the request for another continuance by Park's original attorney and ordered Park deported based on the allegations in the OSC, because "no application of relief from deportation had been filed by the Respondent."

In response to the adverse ruling, Park pursued two different avenues of relief. First, on May 15, 1997, Park filed a petition for writ of habeas corpus with the U.S. District Court for the Northern District of California, alleging that: (1) the IJ engaged in judicial misconduct; (2) the involuntary manslaughter conviction violated the Free Exercise Clause of the First Amendment; and (3) the involuntary manslaughter conviction was not a deportable offense.²

Second, on May 30, 1997, Park appealed the immigration judge's decision to the BIA. The BIA conducted a de novo review of the record and sustained the finding of deportability on November 14, 1997. The BIA concluded that: (1) the IJ did not abuse her discretion in denying Park's last motion for.a continuance; (2) the withdrawal of co-counsel before the final hearing did not prejudice Park's case; and (3) Park's "conviction record . . . establishe[d] by clear, unequivocal, and convincing evidence, that [she was] deportable as charged."

Park petitioned for review of the BIA decision to this court which, on January 29, 1998, ordered the appeal held in abeyance until certain jurisdictional issues were resolved in the then-pending case of Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir. 1998), vacated by 526 U.S. 1001 (1999), remanded to 200 F.3d 603 (9th Cir. 1999).

DISCUSSION

A. Jurisdiction and Standard of Review

Under the transitional rules³ of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996) ("IIRIRA"), we lack jurisdiction to hear Park's appeal if Park is an alien deportable because of a conviction for an "aggravated felony." Scales v. INS, 232 F.3d 1159, 1161 (9th Cir. 2000). Nevertheless, we retain jurisdiction to determine our own jurisdiction. Id.

We review de novo the threshold question whether a particular offense constitutes an "aggravated felony " for which an alien is deportable. Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000). "In deciding whether a defendant committed an aggravated felony, the issue is not whether [the defendant's] actual conduct constituted an aggravated felony, but whether the full range of conduct encompassed by [the statute the defendant violated] constitutes an aggravated felony." United States v. Ceron-Sanchez, 222 F.3d 1169, 1172 (9th Cir. 2000) (internal quotation marks and citations omitted; brackets in original)..

B. Crime of Violence

Any alien -- including a legal, permanent resident alien -- who is convicted of an "aggravated felony " at any time after admission to this country is deportable under 8 U.S.C. § 1251(a)(2)(A)(iii), now codified at 8 U.S.C.§ 1227(a)(2) (A)(iii). The statutory definition of "aggravated felony" does not specifically include involuntary manslaughter in its list of enumerated offenses. See 8 U.S.C. § 1101(a)(43). The definition, however, encompasses a "crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is ] at least one year." 8 U.S.C. § 1101(a)(43)(F). Section 16 of Title 18 defines a "crime of violence" 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. § 16.

We previously have held that involuntary manslaughter is a "crime of violence" under a different, although almost identically-worded, statute. See United States v. Springfield, 829 F.2d 860, 863 (9th Cir. 1987). In Springfield, a defendant whose primary offense was involuntary manslaughter under 18 U.S.C. § 1112 appealed a federal conviction under 18 U.S.C. § 924(c) (use of a firearm in a crime of violence). The court held that federal involuntary manslaughter was a "crime of violence" as defined in 18 U.S.C. § 924(c)(3)(B). Id. at 863 ("[I]nvoluntary manslaughter, which `by its nature' involves.the death of another person, is highly likely to be the result of violence. It thus comes within the intent, if not the precise wording, of section 924(c)(3).").

California Penal Code § 192(b) and 18 U.S.C.§ 1112 define involuntary manslaughter in nearly identical terms. Section 192(b) provides:

Manslaughter is the unlawful killing of a human being without malice . . . .

(b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.

Section 1112 similarly provides:

Manslaughter is the unlawful killing of a human being without malice . . . .

Involuntary--In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

With the exception of the California provision for vehicular manslaughter, which is not applicable to this appeal, the statutes share almost identical wording. Thus, Springfield cannot be distinguished on the basis of different text in the federal and California manslaughter statutes.

Nor can Springfield be distinguished on the basis of different statutory definitions of "crime of violence. " We relied in Springfield on subsection (B) of 18 U.S.C. § 924(c)(3).⁴ Section 924(c)(3) provides, in full:

For purposes of this subsection the term "crime of violence" means an offense that is a felony and

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

(B) 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.

With the exception of the placement of "an offense that is a felony," the wording of § 924(c)(3)(B) is identical to the wording of § 16(b). See supra p. 6910. ⁵

Given the identical definitions in the two statutory schemes, Springfield's holding controls here. We conclude that involuntary manslaughter under California law is a "crime of violence" under 18 U.S.C. § 16(b).⁶

C. Legislative History

Park argues that our decision in Springfield misinterpreted an excerpt of the legislative history. We agree, but we conclude that the mistake did not affect our holding in that case and, more importantly, does not affect our holding here.

In a footnote in Springfield, we quoted from what we indicated was the legislative history of § 924(c)(3):

"Since no culpability level is prescribed in this section, the applicable state of mind that must be shown is, at a minimum, `reckless,' i.e., that the defendant was conscious of but disregarded the substantial risk...