In this unpublished decision, the Board of Immigration Appeals (BIA) found that the respondent's conviction for first degree manslaughter under Okla. Stat. 21, § 711(2) constitutes a crime of violence aggravated felony. The opinion was written by Member Roger Pauley and joined by Member Anne Greer and Member Hugh Mullane.
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KELLY BASEY, ESQUIRE 2200 NW SOth Street, Suite 240 Oklahoma City, OK 73112 Name: DEAN, MICHAEL ZACKY U.S. Department of Justice Executive Office r Immigration Review Board ofImmigration Appeals Office of the Clerk 5107 leesburg Pike, Suite 1000 Fas Church, inia 12041 OHS/ICE Office of Chief Counsel • OKD 4400 SW 44th Street, Suite A Oklahoma City, OK 73119·2800 A031·314·515 Date of this notice: 1/12/2012 Enclosed is a copy of the Board's decision and order in the above-rerenced case. Enclosure Panel Members: Greer, Anne J. Mullane, Hugh G. Pauley, Roger Sincerely, Donna Carr Chief Clerk Immigrant & Refugee Appellate Center | www.irac.net Cite as: Michael Zacky Dean, A031 314 515 (BIA Jan. 12, 2012)
Transcript
KELLY BASEY, ESQUIRE 2200 NW SOth Street, Suite 240 Oklahoma City, OK 73112
Name: DEAN, MICHAEL ZACKY
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals Office of the Clerk
5107 leesburg Pike, Suite 1000 Falls Church, Virginia 12041
OHS/ICE Office of Chief Counsel • OKD 4400 SW 44th Street, Suite A Oklahoma City, OK 73119·2800
A031·314·515
Date of this notice: 1/12/2012
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members: Greer, Anne J. Mullane, Hugh G. Pauley, Roger
U.S. Department of Justice Executive Office for Immigration Review
Decision of the Board oflmmigration Appeals
Falls Church, Virginia 22041
File: A03 l 314 515 - Oklahoma City, OK
In re: MICHAEL ZACKY DEAN
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Kelly Basey, Esquire
ON BEHALF OF OHS: Dan Gividen Assistant Chief Counsel
ON BEHALF OF AMICUS CURIAE: Richard C. Labarthe, Esquire
CHARGE:
Date:
Notice: Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] -
UAN 1 J201Z
Convicted of aggravated felony as defined in section I 01(a)(43)(A) of the Act
Sec. 237(a)(2)(A){iii), l&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] -Convicted of aggravated felony as defined in section 10l(a)(43)(F) of the Act
APPLICATION: Termination
The respondent, a native and citizen of Sri Lanka, has timely filed an appeal of an Immigration Judge's decision dated August 17, 2011. The respondent contests the Immigration Judge's finding that his conviction constitutes a crime of violence and, thereby, is an aggravated felony under section 10l(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 110l(a)(43)(F). The respondent contends that he is not removable on that basis. The appeal will be dismissed.
Initially, we note that we review the Immigration Judge's factual findings, including findings as to the credibility of testimony, only to determine whether they are clearly erroneous. 8 C.F.R. § 1003.l (d)(3)(i). We review de novo questions of law, discretion, and judgment. 8 C.F.R. § 1003 .1 ( d)(3 )(ii).
The respondent contends that the Immigration Judge erred in finding that his manslaughter conviction constitutes a crime of violence under section 101(a)(43)(F) of the Act, as defined by 18 U.S.C. § 16(b). The term "crime of violence" is defined in 18 U.S.C. § 16(b) as "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 2007, the respondent was convicted of first degree manslaughter in violation of section 711 (2) of Title 21 of the Oklahoma Statutes (Exh. 2). That provision provides as follows:
"Homicide is manslaughter in the first degree in the following cases: . . . When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide."
OKLA. STAT. 21, § 711(2).
The Immigration Judge found that, even though it is not explicitly set forth in the statute, knowing or willful conduct is required when an individual perpetrates a death, without design to effect death, by use of a dangerous weapon (I.J. at 9). Therefore, he found that the respondent's conviction was a crime of violence under section 101 (a)( 43 )(F) of the Act. The respondent contends that his first degree manslaughter conviction is not a crime of violence because it lacks the requisite mens rea. Furthermore, he claims that the statute does not require the substantial risk that physical force may be used.
To determine whether the respondent was convicted of a crime of violence, we apply the categorical approach. We do so by considering "the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." United States v. Rooks, 556 F.3d 1145, 1147 (10th Cir. 2009) (internal citations omitted). As set forth by the United States Supreme Court in James v. United States, 550 U.S. 192, 208 (2007), the categorical approach requires only that the requisite conduct occur "in the ordinary case." Therefore, we only look to whether there is a substantial risk of physical force in the "ordinary" scenario in which the offense may be committed. There need not be a substantial risk of physical force in every conceivable manner in which the offense could be committed. Inasmuch as a conviction under OKLA. STAT. 21, § 711 (2) requires the death of a victim and that the offense be committed in the heat of passion either by means of a dangerous weapon or in a cruel and unusual manner, we find that, in the ordinary case, a conviction under section 711-2 of the Oklahoma Statute requires a substantial risk that physical force may be used. See 18 U.S.C. § 16(b); Woodv. State, 486 P.2d 750, 752 (0kla. Crim. App. 1971) ("homicide is first degree manslaughter if perpetrated in a heat of passion by means of a dangerous weapon if the circumstances do not constitute excusable or justifiable homicide").
The respondent argues that specific intent must be established in order to have a crime of violence conviction and that the convicting statute does not require specific intent. We disagree. In United States v. Zuniga-Soto, 527 F.3d 1110, 1124 (10th Cir. 2008), the United States Court of Appeals for the Tenth Circuit held that a conviction for a crime of violence under U.S.S.G. § 2Ll .2 requires that the defendant act with a mental state more culpable than recklessness. The court also observed that recklessness fails to satisfy the use of physical force requirement under either of 18 U.S.C. § 16's definitions of crime of violence. United States v. Zuniga-Soto, supra, at 1124. However, that statement constitutes dicta and is distinguishable from this case. As observed by the United States Court of Appeals for the Third Circuit in Aguilar v. Alt '.Y Gen., _ F .3d _, n.16, 2011 WL 5925141 (3d Cir. November 29, 2011 ), in finding Zuniga-Soto inapplicable to cases under 18 U.S.C. § 16(b), the definition of a crime of violence in the federal sentencing guidelines "has a
provision that is substantially identical to [18 U.S.C. § 16(a)] but does not contain any provision similar to the language of § 16(b)," which is at issue here. Aguilar v. Att'y Gen., supra, at n.16. Therefore, we do not find that specific intent is required to find that the respondent's convicting statute is a crime of violence.
Based on the foregoing, we find that offenses under OKLA. STAT. 21, § 711(2) categorically are crimes of violence. Consequently, we affirm the Immigration Judge's finding that the respondent was convicted of a crime of violence aggravated felony.
U.S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
File A 31 314 515
In the Matter of
MICHAEL ZACKY DEAN
Respondent
CHARGES:
APPLICATION:
APPEARANCES:
Oklahoma City, Oklahoma
} ) } )
Date: August 17, 2011
IN REMOVAL PROCEEDINGS
A violation of Section 2 37 (a) ( 2) (A) (iii} as it relates to a violation of Section 101 {a) (43) (A) . A violation of Section 237(a) (2} (A} (iii} as it relates to a violation of Section 101 (a) {43) (F)
None stated
ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY:
Kelly Basey, Esquire Daniel Jividen, Esquire
ORAL DECISION OF THE IMMIGRATION JUDGE
The Respondent is a 55-year-old male, native and citizen
of Sri Lanka, who was issued a Notice to Appear on December the
1st of 2009. See Exhibit 1. At a Master Calendar previously
held, Counsel for the Respondent appeared with the Respondent and
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admitted to allegations one through five on the Notice to Appear,
and denied his removability under Section 237{a) (2) (A) (iii) of the
Act, as well as 237(a) (2) (A) (iii) again. The Court would note
that the same charge appears twice and that it incorp.orates
different provisions of the definition of aggravated felons, as
contained within Section lOl(a) (43) of the Act.
On that same day, the Court admitted, without objection,
a copy of the Respondent's conviction from the District Court of
Cleveland County, Oklahoma, case number CS06-680, for the felony
offense of First Degree Manslaughter, a violation of Oklahoma
Statue 21 O.S. 711-2. The Court also admitted, on July the 20th
without objection, a copy of the I-213, which was marked and
admitted as Exhibit 3.
On that day, Counsel for the Respondent filed a Motion
to Terminate, alleging that the Respondent's conviction did not
meet the legal definition of a crime of violence as used in the
Immigration and Nationality Act, and therefore asking that her
client's case be terminated. That Motion was presented in court
on that day. Counsel for the Government requested an opportunity
to evaluate the arguments presented by the Respondent and to
respond accordingly.
Therefore, the Court reset the case from July the 20th,
2011, until August the 17th of 2011. The Government then filed a
response Brief to the allegations and assertions raised by the
Respondent. Then the Court will also note that there was
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additional briefing done by amicus {lawyers who were hired by t he
widow of the victim) who filed amicus Briefs with t he Court,
advancing the Government's position. Finally, the at torney for
the Respondent then filed supplemental Briefs, seeking to further
addres s the arguments advanced by the Government. Counsel for the
Respondent also sought to strike certain information contained in
t he amicus Brief as being irrelevant.
The Court will note t hat there is information contained
in the Respondent's Brief, on page eight, which is not s upported
by the record and which has no fact ual bas is contained in the
case. Similarly, the Court will note t hat t here is evidence and
documents contained in the Respondent's amicus Brief relating t o
the Respondent's prior criminal activity and the criminal activity
of his children, which are not relevant or germane to the legal
iss ue t hat the Court is presented with today. There being no jury
in these proceedings , t he Court has the abilit y t o sort the wheat
from the chaff and t o distinguis h between evidence which is
admissible and evidence which is inadmiss ible. The Court
underst ands that that information contained in t he amicus Brief is
not relevant or germane t o the is sues raised t oday, and has not
considered that evidence, and has in no way formed any portion of
the Court's decision on the contested legal issues today.
The Court does wish to thank the attorneys for all of
the parties who have done a very good job briefing the relevant
legal iss ues in a way that is concise and relevant t o the iss ue at
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hand. There are no factual disputes contained in this case. It
is purely a question of law as to whether or not the Oklahoma
statue fits the federal definition for a crime of violence as
contained in lOl(a) (4 3) (F) of the Immigration and Nationality Act.
Wishing to address the easy question first, the Court
will note that the Government also filed a charge against the
Respondent under Section 237(a) (2) (A) (iii) as it pertains to an
aggravated felony relating to the offense of Murder under Section
lOl(a) (4 3) (A) of the Act. The Court finds that there is no
evidence to support that the Respondent's conviction relates to an
offense of Murder. The Respondent was originally charged with
Murder. However, that is not what he was convicted of. So
therefore, the Court finds that the 237(a) (2) (A) (iii) charge as it
pertains to lOl(a) (4 3) (A) of the Act is not sustained. A review
of the record would also indicate that Counsel for the Government
essentially concedes that charge is not germane to the issue as we
find it.
The contested issue in this case was whether or not the
Respondent's conviction for Manslaughter, under the relevant
Oklahoma statute, constitutes an aggravated felony as it pertains
to a crime of violence as defined under Section lOl(a) (4 3) (F) of
the Act.
First, the Court finds that in accordance with the
precedent decisions of the United States Supreme Court at Taylor
v. The United States, 4 95 U.S. 600, that the analysis begins with
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�illY whether or not this question can be resolved using a categorical
analysis. Under a categorical analysis, the Court would look only
to the statutory definition of an offense, and not to the
particular facts of the Defendant's underlying conduct. Under the
facts of our current case, a review of the Respondent's conviction
documents, which are contained in the record as part of Exhibit 2,
indicate that the Respondent was convicted of a violation of 21
O.S. 711-2. The Government contends that this statute is
divisible. And a review of the Oklahoma statute reveals that it
is in fact divisible. Even if the Court were to say that because
the judge noted on the conviction document that it is Section 711,
paragraph 2, that in and of itself does not end the inquiry.
Because a review of the Oklahoma statute at issue reveals that
there are two separate and distinct ways to commit a violation of
subparagraph two of 21 O.S. 711. Therefore, the Court finds that
the categorical approach is not sufficient to resolve this issue,
and that the Court is required to therefore analyze this case
using a modified categorical approach in reviewing the conviction
document, which is contained in the record as part of Exhibit 2.
The Court then believes that the next stage of this
inquiry is to review the definition of the aggravated felony
provision, which is contained at lOl (a) (43) (F) and is relevant to
our case today. Section lOl(a) (43) (F) of the Immigration and
Nationality Act provides that a crime of violence (as defined in
Section 16 of Title 18 of the United States Code, but not
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including a purely political offense for which the term of
imprisonment is at least one year) .
Therefore, the Court has to determine whether or not the
Respondent's conviction is a crime of violence as defined under
federal law, and whether or not the term of imprisonment is at
least one year.
Again, hoping to address the easy question first, the
Court will find that, as evidenced in Exhibit 2 that the
Respondent was sentenced to serve 15 years in state prison. After
the service of five years, the remaining ten were suspended.
Therefore, the Court finds, as a matter of law, that the
Respondent received a 1 5 year sentence, and.that be definition he
has been sentenced to a term of imprisonment of at least 1 year.
The second question then becomes what does a crime of
violence mean. 18 U.S.C. Section 16 defines a crime of violence.
There are two different definitions contained in the federal
statute. The Court believes that after reviewing the conviction
documents relevant here, that paragraph B of the crime of violence
is the relevant definition for our purposes.
1 8 U. S. C. Section 1 6, paragraph B, says that a crime of
violence is 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 an offense. The Court finds that pursuant to Oklahoma
law Title 21 O. S. Section 715, Oklahoma has determined that "any
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person guilty of Manslaughter in the First Degree shall be guilty
of a felony punishable by imprisonment in the custody of the
Department of Corrections for not less than four years."
Therefore, pursuant to Title 21 Section 715 of the Oklahoma
statutes, the Court finds that the crime, by definition, is a
felony.
That then moves us to the analysis of whether or not, by
its nature, it involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense. The Court has also then
considered the previous guidance from the Supreme Court of the
United States in the matter of Leocal v. Ashcroft, 54 3 U.S. 1
(2004 ), in which the Supreme Court gave guidance in to determining
what constitutes a crime of violence. The Supreme Court indicated
the statute does not encompass all negligent conduct, and that
recklessness is not sufficient. The Supreme Court also went on to
indicate that the analysis to be used in assessing this question
is not to general conduct or to the possibility that harm will
result from a person's conduct, but to the risk that physical
force against another might be required in committing the crime.
So, therefore, in assessing whether or not the Respondent's
conviction constitutes a crime of violence under 18 U.S.C. Section
16(b), we have to determine whether the offense involves a
substantial risk that physical force against the person or
property of another may be used in the course of committing the
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c crime. Therefore, we have to look to the definition of the crime.
21 o.s. Section 7 11 of the Oklahoma Statute says that
Homicide is the Manslaughter in the First Degree when it is
perpetrated without a design to effect death, and in an heat of
passion, but in cruel and unusual manner, or by means of a
dangerous weapon; unless it is committed under. such circumstances
as constitute excusable or justifiable homicide.
It is important to note that the State of Oklahoma
defines First Degree Manslaughter in paragraph two of 21 O.S. 711
in the alternative. There are two separate and distinct ways to
commit that crime. The first is that you commit the crime without
a design to effect death, and in a heat of passion, but in a cruel
and unusual manner. The second and distinct way to commit the
crime is when it is perpetrated without a design to effect death
by means of a dangerous weapon.
Having determined that the analysis and resolution of
this question involves the modified categorical approach, a review
of the conviction documents indicate that the Respondent was
convicted of having beaten his father to death with a rubber
mallet. A review of the conviction document that appears in the
record at Exhibit 2 would reveal that the Oklahoma State Court
made a specific factual finding in section three, under enhancer
information, that the offender committed the offense by use of a
weapon. And the state court judge noted that the weapon involved
was a rubber mallet. So, therefore, having used the modified
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categorical approach, the Court finds that it is the second part
of Section 2 of 21 O.S. Section 711 which is relevant. That means
that for purposes of our analysis, the Defendant's crime would be
defined under Oklahoma law as "when perpetrated without a design
to effect death by means of a dangerous weapon. " The Oklahoma
Court of Criminal Appeals has also specifically addressed this in
their decision in Camren v. The State of Oklahoma, 829 P. 2d 4 7
(1992), when the Oklahoma Court of Criminal Appeals held that 21
O.S. Section 711 sets forth two ways in which the offense of First
Degree Manslaughter may be committed. The court indicated that it
may be committed when perpetrated without a design to effect
death, and in a heat of passion, but in a cruel and unusual
manner, or the second and independent way, when perpetrated
without a design to effect death by means of a dangerous weapon.
The next analysis of the inquiry then is does the
conduct involve a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense. Counsel for the Respondent's argument is
because the Oklahoma statue at 21 O. S. 711 Section 2 does not
contain a specific intent requirement that therefore it does not
exclude recklessness or negligence. The Court does not agree with
that assessment of the statute. The Court does not find that
there is a way that you can perpetrate a death without a design to
effect death by use of a dangerous weapon in a way that does not
require conduct that is knowing or willful. It may be possible
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that you intend to commit an act that does not include an intent
to cause a death, but nevertheless causes a death. However, that
action taken by the Defendant would still be a willful act. The
Court has also considered the matter of the Supreme Court's
decision in Leocal when they said that the risk is that physical
force against another might be required in committing the crime.
The Court has also reviewed the Tenth Circuit's decision in United
States v. Armijo (09-1533 July 12, 2011), in which the Court said
that the residual clause of the second definition of a crime of
violence includes conduct that presents a serious potential risk
or physical injury to another, and which is intended to reach
purposeful, violent and aggressive conduct, rather than merely
negligent or reckless acts. The conviction documents contained in
Exhibit 2 show that the Respondent beat his father to death with a
hammer. There is no element of negligence or recklessness
involved in that conduct. The Court finds that the conduct of the
Respondent is active violence. It is not accidental or negligent.
Giving the words their plain definition under the law and their
plain meaning, the Court finds that bringing about the death of a
person by means of a dangerous weapon is conduct which involves a
substantial risk that physical force against the person or
property of another may be used.
Therefore, for the reasons set forth above, the Court
finds that the Respondent's conviction for a violation of 21 O. S.
Section 711 paragraph 2, First Degree Manslaughter, is a crime of
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violence punishable by a term of one year or more, as defined in
Section lOl(a} (4 3} (F} of the Immigration and Nationality Act. The
Court finds that the Government has met its burden of proving that
the Respondent is removable from the United States as alleged by
clear and convincing evidence.
Having determined that the Respondent's removable from
the United States, the Respondent designated Sri Lanka as the
country of removal. Counsel for the Respondent was asked to
articulate what other forms of relief, if any, he may have. And
his attorney indicated that he has no relief available to him.
IT IS THEREFORE HEREBY ORDERED that the Respondent be
removed from the United States to the nation of Sri Lanka.
The Respondent will be advised of his appeal rights
