Omar v. Immigration & Naturalization Service

unable to Fjellestad was suggest Hut v. Pizza Fjellestad employee.” Inc., Id. at 951. America, requested position. Cir. perform case, County required already not have deter- In the instant we Douglas Dropin- workers to assist that the accom- existing mined as a matter of law reassign id., duties, by Dropinski place in his essential would ski modations noted would result any County. accommodation Douglas clear an undue burden on Douglas County could Even if just that. the inter- any concerning Thus discussion to the back of assign Dropinski routinely super- under these facts is process active him to take truck and allow striper fluous. trucks, driving the while frequent breaks only many a few of these are example, III. CONCLUSION II. It would required of an AEO

functions opinion, the reasons set forth this For Douglas County on unduly burdensome of the district court. we affirm the order necessary bending, twisting, to make lifting accommodations Dro- squatting, and as an AEO II. Under require would

pinski standard, agree with the district we this jury find no reasonable could court that qualified was a individual Dropinski inability of his ADA under the because job functions of the perform the essential without accommodation. with or OMAR, Mahad Mohamed INS Dropinski claims To the extent Petitioner, Detainee, engage failed to in an County Douglas to determine reason- process interactive 950-954, accommodation, see id. at we AND

able IMMIGRATION NATURALIZA- create a Dropinski failed to SERVICE; Aljets, conclude that Dis- Curtis TION of fact on this issue. genuine question Director, MN, INS; Bloomington, trict limi- County Dropinski’s knew of Douglas Ashcroft, Attorney General, John and, response, indicated that be- tations Respondents. perform job Dropinski could

cause No. 01-2309. restrictions, II under those an AEO accommodate him unable to it was Appeals, United States Court burden, it allow him would without undue Eighth Circuit. until such time of absence to take a leave Submitted: Dec. to return to work and was able as he posi- of the the essential functions perform 5, 2002. Aug. Filed: Fjellestad’s dis- restrictions. tion without required process of the interactive cussion ADA under these inapposite Fjellestad, plaintiff made

facts. genuine created a issue showing facial Pizza Hut fact as to whether of material reassigned her to a different could have The issue position as an accommodation. rea- this accommodation was was whether Hut no evidence and Pizza offered sonable Keller, Paul, MN, argued,

John C. St. petitioner. for Houser, argued, K. Depart- Susan Justice, Immigration ment of Office of Lit- igation, Washington, (Mary Jane D.C. Candaux, brief), on respondent. for HANSEN,1 Judge, Before Chief HEANEY, MURPHY, Judges. Circuit MURPHY, Judge. Circuit petitions Mahad Mohammed for Omar Immi- review of an order of the Board of gration Appeals. The Board ordered him deported Immigration & Natu- (INA) being ralization Act an alien felony, and aggravated convicted of an contends that his Minnesota convic- Omar tions for criminal vehicular homicide are Im- aggravated Respondents felonies. (INS), Naturalization Service migration & Aljets, and United District Director Curtis Attorney op- Ashcroft General John and assert pose that contention jurisdiction over the merits of court lacks we conclude that petition. Because aggravat- criminal vehicular homicide is law, ed federal we dismiss petition. Omar’s

I. of a left Somalia 1990 because

Omar years refugee five in a civil war. After February Appeals Eighth Circuit on R. Hansen became for the 1. The Honorable David Judge Chief of the United States Court 1101(a)(43)(F), Africa, its nature he entered the Unit- in East camp involves a substantial risk permanent resident and obtained ed States be used his Somali wife moved He and status. therefore a property of another and is

Minnesota, they have a child born 16(b).3 crime of violence under 18 U.S.C. the United States. for review petitioned Omar this court underlying Omar’s convic- The events stay deportation. a His and moved for in was April 1996. Omar place tions took denied, and he was stay motion for was after when one friends work drinking with asylum in deported applied and for Swe- a call from some Somalis of them received denied, he application den. After that was in picked up asked to be airport who at at a custody returned to INS and is now The friend felt he utility vehicle. sport his detention center in Texas. The INS has drive because of the alcohol was unable to him his agreed again not to remove before consumed, and Omar went instead. he had petition for review is decided. picked up he nine or ten airport At the that he is removable argues Omar drove off the passengers subsequently and because criminal vehicular homicide is not of a en- highway the shoulder road onto support In of his a crime violence. ramp. The vehicle rolled over at trance position he cites cases which have conclud times, everyone and was least three of ed that certain alcohol related passengers from it. Two were thrown 16(b) do not come within the defi fenses killed, badly injured. another was and nition of crime of violence. See Dalton v. alcohol content was mea- Omar’s blood (2d Cir.2001); Ashcroft, 257 F.3d 200 Ba at sured soon after the accident 0.11. INS, zan-Reyes v. 256 F.3d 600 Cir. May pled guilty Omar state 1999 2001); Chapa-Garza, United States v. 243 to two counts of criminal district court (5th Cir.2001). that argues F.3d 921 He homicide under Minn.Stat. qualify an offense can a crime of vio as 1(4). He was sentenced to 16(b) only lence under if it involves a offense, to run months for each consec- 48 substantial risk of intentional use of force utively. stayed The sentence was on con- against person, Chapa-Garza, 243 F.3d years county two in a work- dition he serve 924-27, at and the Minnesota statute restitution. pay house and under he was convicted is strict removal proceedings2 The INS initiated liability type of offense which does not having been convicted of against Omar require intent. Omar claims that aggravated felonies. 8 U.S.C. .may that physical words “risk force.. 1227(a)(2)(A)(iii). immigration judge An Congress show that meant used” 16(b) charged found him as and or- § removable only to cover crimes which there deported. appealed, him He against dered is an intent to use affirmed. It held that property. Bazan-Reyes, the Board criminal aggravated felony vehicular homicide is 256 F.3d at 611. He also cites a recent INA, Board, Ramos, meaning of the decision of the In re 23 I. within U.S.C. 1229c, 1252)). Illegal Immigration distinguish 2. The Reform and Immi- We do not (IIRIRA) grant Responsibility Act of 1996 opinion. terms in this previous legal eliminated the distinction be- proceedings. deportation tween and removal 3. The Board also affirmed denial of relief Pantin, See United States Torture, Against Convention Cir.1998) (2d curiam) (per (citing IIRIRA challenge ruling. Omar does not (codified §§ §§ at U.S.C. 1229- (BIA may be Respon 2002 WL 1001049 another.4 & N. Dec. 2002), legislative to show argue required and he seeks dents state of interpretation, in- history favorable to mind under is at most reckless change See, made the United cluding e.g., ness. Trinidad-Aquino, Sentencing in the (a Commission F.3d at 1146 crime of violence under violence. guidelines definition “need not be committed purpose 1988) 4B1.2(1) (June Compare USSG fully or knowingly, but it must be commit 1.2(1) (Nov.1990). with USSG 4B He ar- Park, recklessly.”); ted at least language in addition that the gues (§ 16(b) n. requires & 9 a “suffi ambiguous ambiguities de- rea,” ciently culpable mens but “an inten portation statutes are to be construed tional use of force is not re Cyr, favor of an alien. INS v. St. quired.”) (emphasis original). They also 289, 320, 2271, 121 150 L.Ed.2d 347 S.Ct. point out that the Minnesota criminal ve (2001). hicular homicide statute requires no more than a mental Respondents argue that does not state of recklessness and force, require citing the intentional use of that Supreme long Minnesota Court (8th Moore, v. F.3d 977 ago United States 38 that concluded those who drive while Cir.1994), appellate and other decisions. intoxicated meet that standard. See State Trinidad-Aquino, See States v. 154, United 221 Bolsinger, v. Minn. 21 N.W.2d (9th INS, Cir.2001); 259 1140 Park v. (1946). F.3d 480, 493 (9th Cir.2001); 252 F.3d 1018 United (9th Springfield,

States v. 829 F.2d 860 II. Alcantar, Cir.1987); Matter 20 I. & N. Judicial review of removal orders 1994). (BIA 801, Dec. 1994 WL 232083 significantly under the INA has been re They that point out we concluded Moore by Illegal Immigration stricted Reform involuntary manslaughter, that a crime Immigrant Responsibility Act of 1996 intent, require which does not is a crime of (IIRIRA), 104-208, No. Pub.L. 110 Stat. statutory violence under a definition essen- IIRIRA provides 3009. courts have 16(b). tially They the same as that in jurisdiction to review a no final order of suggest by that the cases cited Omar have aggravated felony pro removal under ignored the 16 distinction within be- vision, 1252(a)(2)(C),5 but the 8 U.S.C. (a), tween the definition in subsection circuit courts which have considered the which the use of force is an element of the (as jurisdiction all that there is agree issue attempt offense is the threat or to use it), (b), in decide whether the offense of conviction is and subsection which the focus is in- Francis v. by aggravated felony. on whether the offense its nature an See (3d Cir.2001). Reno, 162,165 volves substantial risk that 269 F.3d Respondents argue “Notwithstanding any provision 4. in a footnote to their other law, brief that criminal homicide would jurisdiction no court shall have to review also fit the definition of crime of violence in any final order of removal an alien 16(a), disposition but because of our we having is removable reason of com- who note, point. need not We address howev- offense covered in sec- mitted a criminal ’ er, that the Sixth Circuit has held in an un- (A)(iii).' 1227(a)(2) U.S.C. tion... 8 published opinion that drunk homi- 1252(a)(2)(C). 16(a) cide is a under both States v. United Santana-Gar- cia, 1271, 491510, 211 F.3d 2000 WL at *2- 18, (6th 2000). Apr. *3 Cir.

714 (2d Cir.); Dalton, nature generic analysis 257 F.3d at 203 of the (7th Cir.); conducted, felony 256 F.3d at 604 must be rather than an Bazan-Reyes, INS, 1216, 237 F.3d 1220 Tapia v. examination the facts of individual Garcia Reno, (10th Cir.2001); Rodriguez, Wireko 979 case. United States Cir.2000). (4th (8th Cir.1992); Although the Su- Chapad- 140-41 issue, yet Garza, 924; decided the preme Court has 243 F.3d at United States v. conceded in a ease before government Reyes-Castro, 13 F.3d Cir. jurisdiction courts have appellate it that Bazan-Reyes, See also whether a petitions challenge over (applying categorical approach but felony statutory meets the defi- particular at looking offender conduct where offense INS, 533 classified). nition. Calcano-Marbinez v. could not otherwise be Cf. n. S.Ct. Moore, (holding cate (2001). respondents L.Ed.2d 392 analysis gorical of an almost identical stat case, make the same concession in this require exploration ute “does not of the jurisdiction we conclude we have underlying study facts... of the stat [but] decide whether criminal vehicular homicide utory particular definition of of aggravated purposes ”). is an of the .... fense INA. Respondents suggest that we grounds The INA various provides should accord deference to the Board’s alien, deportation of an one of which is 16(b). § interpretation of 18 The U.S.C. aggravated felony. commission of an 8 interpretation by government agency 1227(a)(2)(A)(iii). § U.S.C. For a a statute it administers is entitled to defer INA, aggravated felony be an ence unless its construction is unreason punishable by must be an offense least able, Chevron USA v. Natural Res. Def. year one and crime of violence as defined Inc., 837, 842-44, Council 467 104 § in at the criminal code 18 U.S.C. 16. (1984), S.Ct. 81 L.Ed.2d 694 and the 1101(a)(43)(F). See 8 U.S.C. Section 16 Board is regarding entitled to deference ways defines a crime of violence in two as: interpretation its the INA. INS v. (a) an offense that has as an element 415, 424, Aguirre-Aguirre, 526 U.S. 119 use, use, attempted the or threatened (1999). S.Ct. 143 L.Ed.2d 590 The against physical use of force here, however, question is whether defer another, property interpretation ence is owed to the INA’s (b) any a felony other offense criminal statutes which it does not admin that, nature, involves a its sub- majority ister. The appellate courts to physical against stantial risk that force consider the question has concluded that a the person property may of another de novo standard is for review appropriate committing be used the course of interpretation by of an of criminal INS offense. See, Francis, e.g., statutes. 269 at F.3d (3d Cir.); Dalton, judge

In order to whether an offense fits 168 257 F.3d at 203-04 (2d Cir.); Park, definition the statute itself di- 252 F.3d at 1021 Cir.); Reno, Lopez-Elias rects a focus on the risk inherent (5th Cir.2000). offense, particular nature of the Bazan-Reyes, rather 256 Cf. (7th Cir.). than a focus on the element of use of holding F.3d Courts 16(a) (or physical attempted force as otherwise have concentrated on the defer use). in general or threatened Courts are to which ence the Board is entitled with agreement categorical interpretation that under to the of federal im- respect Garcia, migration Tapia statutes. See 237 fense is a felony under Minnesota law. (10th Cir.); F.3d at 1220-21 Le v. U.S. 609.02, See Minn.Stat. subd. 2. It thus General, Attorney 1353-54 qualifies under the INA as an aggravated (11th Cir.1999). felony if it meets the definition in 18 U.S.C. U.S.C. reasoning We believe that 1101(a)(43)(F). question critical the courts which favor a de novo standard here is whether criminal vehicular homi- persuasive. is more Section nature, “by cide its involves a substantial 1(4) crimi Minn.Stat. are risk that force the person statutes, nal interpreting them does or property may of another be used special not involve Board “expertise [or] course of committing the offense.” 18 application of experience administrative U.S.C. Reno, subject.” a technical Shah v. (8th Cir.1999). Federal courts, hand, on the III. regularly other are statutes, called upon interpret criminal attempts Omar to read an intent and in statutory this case the issues of requirement into but the language jurisdiction construction relate to the of the statute does not state that intent is Lopez-Elias, the court. See an element or that use of (“[T]he jurisdic determination of our must be intentional or even that force will decide.”) exclusively tion is for the court to involved the commission of the of interpretation While we view the Board’s key fense. The question is whether the respect, with we conclude that a de novo nature of presents the offense a substan standard of apply review should to the tial risk that ap question of whether criminal vehicular 16(b) plied. Section generic calls for a homicide is a crime of violence under examination of whether an offense carries Dalton, § 257 F.3d at 203-04. Cf. a substantial risk that its commission The Minnesota offense of criminal vehic- involve the application ular homicide is committed if an individual against a person property, rather than a causes the being death of a human used, substantial risk that force will be constituting murder or manslaughter as and it does not direct courts to examine (1) a operating result of a motor vehicle: particular surrounding facts a defen (2) grossly manner; in a negligent in a See, dant’s e.g., conduct. United States v. negligent manner while under the influ- (4th Cir.1993) Aragon, 983 F.2d (3) .alcohol...; ence of.. while having (“Giving ‘by the term its nature’ its natural more; an alcohol concentration of 0.10 or plain § and meaning, directs the (4) while having [or] an alcohol concen- court to generic look to the nature of an more, tration of 0.10 or as measured deciding offense in whether the offense is within two hours of the time of driving. Moore, ”); a ‘crime of violence.’ 609.21, § Minn.Stat. subd. 1. Omar was (“[T]he ‘nature’ of the offense of invol 1(4) convicted under subdivision of causing untary manslaughter subject is not to the the death of persons two while operating a case.”). varying of each Nothing facts in vehicle with an alcohol concentration of § indicates that a determination of 0.11. subjective intent of an offender or of a

Criminal punisha- necessary vehicular homicide is class of offenders for an of ble a prison up years, term of to ten qualify fense to as a crime of violence. An § Minn.Stat. and the of- may qualify offense defi- 924(c) convic- argued that his by Moore any intent without results if harm ration a crime of using during a firearm tion against an- for employ force the offender and that had to be overturned violence damaging con- bring about or to other that when it concluded district court erred The uninten- may result. sequences a crime of manslaughter was involuntary physical force application tional in definition under death, violence injury or cause can a Moore, 924(c)(3)(B). F.3d at 979. in in death always resulted indeed has approach to con- categorical applied We homicide. We of criminal case manslaugh- involuntary the nature sider and Omar ambiguity find no it is a ter concluded to have construed entitled it therefore not definition under the second at Cyr, 533 U.S. in his favor. St. 924(c)(3) “which, by it is a crime 5.Ct. definition, in the unlawful always results very close the court is before The issue such, it being. human As death of another decided United to the one in which there inheres sub- is a crime Cir.1994). (8th Moore, F.3d 977 will be stantial risk identical essentially case we considered commission.” Id. at 981.6 its that in- and concluded statutory language categorical ap applying circuit No of vio- manslaughter is a crime voluntary of whether involun question to the proach an intentional though it is not lence even is a crime of violence tary manslaughter of two had been convicted crime. Moore contrary our a conclusion has reached involuntary manslaugh- federal offenses: has in Moore.7 The Ninth Circuit holding ter, of 18 in violation U.S.C. involuntary manslaughter is concluded violence, during crime use of a firearm 924(c)(3). See a crime of violence 924(c). Crime in violation 18 U.S.C. (9th Cir.). 829 F.2d at 863 Springfield, 924(c) is de- purposes of violence for (affirm Park, 1023-25 924(c)(3) exactly as in almost fined in Springfield); United States ing holding of O’Neal, 1369, 1372 Cir. use, (A) has as an element the [that] 1990) determining (followingSpringfield use, or threatened use of attempted a crime of manslaughter is that vehicular against person force the physical 924(e) (B) (2) (ii)), abrogat § under another, or property v. Sa- grounds, other States ed on United (9th hakian, 740, 741-42 Cir. (B) nature, 965 F.2d a sub- by that its involves 1992). ap cited with Other circuits have against force stantial risk that involun Springfield’s holding may proval property of another the is a crime of violence tary manslaughter the committing course of be used in the 924(c)(3). v. See United States under offense. Reno, 162, (3d v. 269 F.3d argues it 7. Francis that Moore is flawed because 6. Omar Cir.2001), criminal Rodriguez, involved a misdemeanor upon v. relied United States Cir.1992), Pennsylvania (8th homicide statute which claims in- F.2d 138 he not to a crime of violence was held definition of crime of vio- which volved a different which differed consider- and argument has no lence. This merit considered in the ably from the statutes Rodriguez which cross applied the definition 16, subsequently cases. The statute was the new defini- rather than other referenced felony requir- the a to make offense by 1989. See amended adopted the Commission in tion comment, (n.7) (Nov. gross negligence instead 2L1.2(b)(2), ing recklessness USSG n. 1. 1992); negligence. Id. at 165 Rodriguez, 979 F.2d at 139. Sanders, 856, (6th 97 F.3d 860-61 Cir. Under Minnesota law the felony of crim- 1996); Payton, United States v. inal vehicular homicide can be committed 17, 19 Cir.), denied, 976, cert. by causing a death gross because of negli- (1994); 115 S.Ct. 130 L.Ed.2d 361 vehicle, gence operating a operating a Lujan, United States v. negligently vehicle and influence (10th Cir.1993). The Board also has ruled alcohol, or operating a vehicle while involuntary manslaughter is a crime having prohibited level of blood alcohol. of violence under See Matter of 609.21, Minn.Stat. subd. 1. The way in Alcantar at 813-14 (concluding in addition which statute is suggests constructed that the test for crime of violence under grounds alternative in the subdivi- 924(c)(3), 16 is the same as under see are equivalent sion gross negligence id. at United they require since negligence either Clark, (M.D.Ga. 773 F.Supp. driving under the influence of alcohol or 1991) (applying analysis of 16 to driving with an illegal established blood 924(c)(3)). alcohol concentration. categorical A examination of Minnesota’s This legislative treatment is consistent criminal vehicular homicide statute leads with the manner in Minnesota to the conclusion that kill- involuntary Supreme Court has discussed individuals ing another while operating motor who drive while intoxicated: vehicle with an alcohol concentration of 0.10 or more is a crime of A violence. who, sufficiently [O]ne under the influ vehicle can exert considerable ence of liquor to impair capacity as a structure, force because of weight, its driver, or just who has consumed intoxi capacity for motion velocity, and the speedily cants sufficient to reduce him to requires statute driver have been its incapacity, yet sufficiently sober to know legally intoxicated when offense was he is undertaking job, a sober man’s An impaired committed. driver control puts himself the wheel of an automo of such a physical presents a sub- road, bile and takes the guilty aof stantial risk that disregard and wanton willful person. Minn.Stat. rights persons all who ride with him 1(4).8 Criminal vehicular highway or use the he travels. many homicide differs from types other Bolsinger, 21 (quoting N.W.2d at 493 Fos- driving under the influence offenses in that Redding, ter 45 P.2d Colo. always involves killing person. of a (1935)) added).9 (emphasis involuntary Supreme Like manslaughter, criminal language vehicular homicide Court used inherently nature similar the defini- its involves substantial of risk that tion recklessness in the Model Penal 2.02(2)(c) (2001) (“A force person be used in its Code acts Moore, commission. See 38 F.3d at recklessly 981. with respect to a material ele- 609.21, 1(4) argues 8. Omar Apparently subd. could those drive who while intoxicat- applied only to a sober driver who con- likely repeatedly; ed are nationally to do so accident, sumed alcohol after an but the stat- one third of those for such arrested offenses applies driving having ute "while alco- repeat Highway are offenders. Nat’l Traffic hol concentration of 0.10 or more.” Minn. Admin., 85, Safety "Repeat Traffic Tech. No. 1(4) added). (emphasis Stat. (Feb. DWI Offenders in the United States” provides He no that the evidence statute has 1995). applied hypothesizes, ever been as he to him anyone toor else. 718 injure will another. risk consciously when he offense of an

ment at 602- Bazan-Reyes, 256 F.3d unjustifiable Although a substantial disregards added). in the risk....”) 04, offense Such lan included one homicide (emphasis involuntary driving under the in- with group aggravated consistent guage is it, predating Moore no cases the court had before manslaughter fluence cases require offense did not categorical analysis that the which held separate discussion action, “a wanton or but rather intentional undertaken. of that offense was life, knowing human disregard reckless rely on other cases respondents was a threat conduct actor’s] that [the driving which have held having knowledge of the lives of others crimes of offenses are violence. influence reasonably could as circumstances such Garcia, F.3d at 1222-23 Tapia 237 peril foresee the him to have enabled Cir.) (10th elements of offense (generic subject others.” Unit might act which his (11th Le, 16(b)); at 1354 satisfy McMillan, F.2d 255 ed 16(a)). Cir.) (crime under Al- of violence Cir.1987) (8th (quoting United States v. the Ninth Circuit deci- though Omar cites (8th Cir.), Schmidt, cert. favor, Trinidad-Aquino sion denied, 101 S.Ct. involv- held that offenses specifically case added). (1980))(emphasis L.Ed.2d 136 qualify mind as ing reckless states of number of cases which on a Omar relies “an violence and that intentional crimes of influence driving under the have held that required.” 259 F.3d use of force is not crimes of violence under are not offenses 9) Park, n. 252 F.3d at 1025 (quoting not involve a they do sub- also United (emphasis original). See will intention- that an offender stantial risk Geron-Sanchez, States v. committing offense. ally use Cir.2000) (offense (9th committed 1172-73 (2d Cir.); Dalton, 207-08 Ba 257 F.3d at mind sufficient to with reckless state (7th Cir.); at 606-12 -zan-Reyes, 256 F.3d qualify as a crime of 925-27 Chapa-Garza, 16(a) 16(b)). consider the issue We Cir.). precedents find these We do not to Moore and other here to be much closer does not here because persuasive involuntary manslaughter cases than cases intent and because language of contain types driving of- dealing with other Both Dalton and point. they are not on fenses. driving under involved Chapar-Garza our attention to the Omar also directs offenses, not criminal vehicular influence by the Board. A recent Ramos decision Dalton illustrates contrast homicide. decided there that closely divided Board well, not a statute which did for it involved influence is not a crime driving under the force” and under require “risk disapproving of violence under at the wheel of a car asleep which someone it had relied on two earlier decisions running could engine whose was Puente-Salazar, case, Omar’s Matter operating vehicle while guilty found Interim Decision 1999 WL contrast, F.3d at 205. intoxicated. 257 , (BIA 1999) Magallanes- Matter in this case only Minnesota statute Garcia, 3341, 1998 Interim Decision WL per- killed another applies if a driver has (BIA again This deci grossly negligent in a son while like dealing sion not with an offense crimi degree of intoxi- in an unlawful manner or homicide, in it nal vehicular the Board cation, are no circumstances and there required mental state indicated that of criminal where the offense vehicular 16(b) § “at is for a crime of violence present a substantial homicide does not recklessness,” 924(e)(2)(B)(ii), § least In re Ramos at 345. and to eliminate the It prior ruling also reaffirmed holding words “that force... may be § require specific does not in- used,” clarifies what Congress intended in 345^46; tent to do violence. Id. at Matter enacting § that the shows elimi- at 813-14. ofAlcantar nated words were meant to convey an intent requirement. disagree. We believes that the Sentencing Omar Com- change guideline missions’s in its definition The passed by statute Congress contain- of crime of violence meaning informs the of ing the definition for violent felony and its 16(b), § and he cites several cases to that later adoption by the Sentencing Commis- See, Dalton, 207; e.g., effect. 2hl F.3d at sion in part 1989 as of its guideline defini- Bazan-Reyes, 608; Chapa- 256 F.3d at tion for crime of violence do show what Garza, 925-26; Parson, Congress intended when previously en- F.2d at 866. The sentencing guidelines § acted If Congress had intended originally defined crime of violence ref- by to substitute the definition of violent felony 4B1.2(1) (June § erencing § see USSG § for the 16 definition violence, of crime of 1988),10 but Commission it could easily have done so. Congress adopted a different definition. See USSG could also have stated that its later enact- 4B1.2(1) (Nov.1990). § At that time it de- ed felony violent definition informed the cided to borrow definition of violent meaning of its earlier crime of violence felony 924(e)(2)(B), § in 18 U.S.C. in order definition. It did neither. The Sentencing to “clarify the definitions of crime vio- of Commission an independent agency lence... guideline.” this USSG branch, within judicial 28 U.S.C. C, App. amend. 268.11 The new definition 991(a); part it is anot of the legislative 4B1.2(a)(l) of crime of violence in USSG branch. The fact that Congress did not remained 16(a), almost identical ex- affirmatively prevent move to one of the cept that it any omitted reference to prop- Commission’s amendments to the sentenc- erty. The other section of the new defini- ing 4B1.2(a)(2) guidelines effect, from taking tion in see 28 USSG differed from however, 994(p), U.S.C. cannot be understood to including several any show specified change intent to the meaning crimes as as those involving well legislation. “conduct that its own presents a serious potential language The clear, risk of injury to another.” and its application Omar re- claims that the Commission’s quires no through decision search legis- attenuated borrow from the definition Stenson, of violent history.12 lative Blum v. Sentencing potential re- Commission physical injury serious risk of 4B1, numbered USSG and the former another.” 1.2(1) 1.2(a). § 4B 1.2(a) became 4B App. USSG USSG 4B (previously USSG C, amend. 568. 4B1.2G)). guidelines change 11. After the crime points 12.Omar legis- to a discussion on "any of violence was defined as offense under history lative related to law, punishable federal or by imprison- state offenses, addressing influence but not crimi- exceeding year ment for term one that— nal homicide. See Karen Crawford (1) use, use, Hutchins, has as attempted Ignoring element Congress: Thomas or threatened use of Immigration Appeals Board and Crimes another, Magallanes, Violence Puente and 6 Bend- (2) arson, burglary dwelling, (2001). Immigr. ex- er's Legislative Bull. 67 tortion, explosives, involves distinguishing use oth- "petty debates offenses” such presents crimes,” erwise involves conduct “dangerous as traffic violations from ambiguous when § 16 are 1541, 18 U.S.C. L.Ed.2d 891 896, 104 S.Ct. vehicular criminal to the offense of applied (1984). homicide, in Minn.Stat. as defined 1(4). IV. is a 609.21, Because there any construing of principle “longstanding criminal offense of The Minnesota stat deportation anibiguities lingering 16(b) fits within the homicide vehicular alien,” Cyr, v. St. the INS in favor of utes violence because of definition 121 S.Ct. 533 U.S. felony such that this is of nature inherent (2001) INS v. Cardo (quoting L.Ed.2d risk that a it involves substantial 421, 449, za-Fonseca, 107 S.Ct. person. against another may be used force (1987)), re I would L.Ed.2d 16(b) re claim reject Omar’s We of Immi of Board the decision verse a crime of intent for of an element quires Appeals. gration more into attempt to read and his violence they can charge be used” than that he “may to the pled guilty the words Omar involuntary felony being of The a human fairly support. of “cause[d] had death consistently held to manslaughter has been manslaughter constituting murder not statutory under a violence a motor vehicle operating a crime of of as result 16(b) even identical almost alcohol concentration having definition an ... while crime. not an intentional more, it is within two though as measured of .10 prece our were not bound driving.” if we of Minn.Stat. Even of the time hours Moore, conflicting subd.l(4). of the 609.21, majority none asks dent influ driving under the dealing with the statu- fits within cases this offense whether here which controls the issue offenses a “crime of violence.” ence tory definition however, offense. alien, of a different I be- turns on the nature is an Omar Because homicide, involun like vehicular is whether this query Criminal lieve the correct that al an offense “crime of vio- tary manslaughter, is a unambiguously offense risk that may “inheres the substantial a violation ways differently, Stated lence.” subd.l(4) commis unambig- will be used its of Minn.Stat. Moore, sion,” “by felony that its as uously be defined It in another’s death. always nature, risk that has resulted involves substantial crime prop- meets the definition thus against 16(b) aggravat and is an in the course erty of another 1101(a)(43)(F). ed under U.S.C. 18 U.S.C. committing the offense?” of the examination A careful were both convictions Because Omar’s §in demon- statutory language used juris- felony, we no aggravated have not unam- does provision that the strates order removal diction to review homi- apply criminal biguously is dismissed. petition him cide. HEANEY, Judge, dissenting. Circuit unambigu- concluding that analyze any of ous, majority does I that the believe respectfully I dissent. in the stat- Congress employed definition terms violence” and its “crime term form, propos- immunity, even 70-72, diplomatic suggest criminal do little to id. enacted, history points to no the former but should fall never he into als vehicular homicide Congress his- claims there relevant category. Omar shows specific to legislation passage to the tory connected apply only intent crimes. it to meant bail re- dealing pretrial detention and with

721 Rather, 1128, 1133 (9th ute. loosely comparable Cir.2000) (“the uses force neces phrases “application such as sary to constitute a crime of violence ... force” and “if analysis harm results.” This actually must nature”); violent in Solor- principle contradicts the settled that “a INS, zano-Patlan 869, 207 F.3d 875 n. must, statute if possible, be construed in (7th Cir.2000); 10 United States v. Rodri such a fashion that every word has some guez-Guzman, 56 F.3d 20 n. 8 operative effect.” United v. Nordic Cir.1995) (“The import clear of defining a Inc., 30, 36, Village, 112 S.Ct. ‘crime of violence’ is that ‘force’ as (1992); 117 L.Ed.2d 131 see also the definition synonymous with destruc Market v.Co. Hoffman, force.”). tive or violent I believe the Sec 115-116, (1879) (“We 25 L.Ed. 782 are not at Circuit accurately ond recognized the am liberty any to construe statute so as to biguity in this term when it stated: deny part effect to any language. of its It [W]e believe language is a cardinal rule statutory construction fails to capture the nature of the risk significance shall, effect if possi inherent in is, driving. drunk This risk ble, be accorded to every word.... ‘[A] notoriously, the risk of an ensuing acci- ought, whole, statute upon the to be so dent; it is not the risk that the driver that, construed if prevented, it can be no will “use physical force” the course of clause, sentence, superflu or word shall be driving Indeed, the vehicle. in the con- ous, void, or insignificant.’ This rule has vehicle, text of driving a it is unclear times.”) (cita repeated been innumerable what constitutes the of physical “use omitted). tion force.” The physical force used cannot 16(b)’s Section phrases use of the reasonably interpreted as a foot on “physical force” “may be used” render the accelerator or a hand on the steering its application to criminal vehicular homi- Otherwise, would, wheel. all driving ambiguous. Physical cide can have definition, force, involve the use of and it meanings. numerous It can be defined as is hard to that Congress believe intend- “physical strength object exerted on an ed for all felonies that involve person; ... violence” or it be defined be “crimes of violence.” broadly more as an “influence that pro- (2d. Dalton v. Ashcroft, 257 F.3d duces or produce tends a change” Cir.2001). 16(b)’s Section use of the term New The Shorter Oxford English Dictio- “physical force” ambiguous when read ed., (Clarendon 3d. nary, 1 at Vol. context of driving. drunk Press majority The employs a of the inclusion verb “use” further broad science of force definition complicates application § rather equating than it with violence. See (“A Omar’s conviction. As the supra Seventh Circuit can vehicle exert considerable explained, structure, ordinary English, “[i]n the word its implies ‘use’ intentional weight, capacity for availment.” motion and veloci- Unit- ty”). Rutherford, It ed States v. unclear from the text 372- (7th Cir.1995) however, (noting whether Congress in- that “use” is de- tended term “force” to fined as of employing thing “[t]he connote some act type of any (esp. profitable) violence whether purpose”) “force” has a (quoting wider meaning. much At English ed., three The Oxford Dictionary, least 2d. (Clarendon courts have 1989)); determined that the term XIX vol. at 350 Press “physical force” implies INS, Bazan-Reyes violent see also Sareang INS, (2001) (“the force. See Ye v. term of physical ‘use 16(b)) with United under availment violence intentional ‘an implies ... force’ 1140, 1144- Trinidad-Aquino, exer- v. application mere the than rather Cir.2001) con- (9th (holding California ”) 54 46 Rutherford, (quoting force.’ tion of not bodily injury is causing for DUI 372-373). Circuit viction The Seventh F.3d at because the under of violence a crime that: reasoned a volition- implies against” “use ... phrase many instances in exerted Force is be vio- could statute al act and California any particu- for employed is not where Dalton v. negligence); through mere lated earthquakes example, For purpose. lar (noting that at 207-08 Ashcroft, 257 F.3d aof the exertion involve avalanches that the risk injury distinct from of risk .... Refer- of force amount tremendous holding may be used physical occurring avalanche randomly to a ring New York conviction under that a DWI the torture would of force “use” aas vio- crime of a not constitute does law drunk Likewise a language. English F.3d at 610-612 lence); Bazan-Reyes, 256 plan, the result is not accident driving criminal orders for deportation (vacating A drunk driv- direction, purpose.... driving be- and drunk homicide vehicular de- would not a driver injures who er constitute did not cause the offenses “used” by saying he incident the scribe 16(b)). This under crimes of violence avail- No hurt someone.... to car the ambi- alone demonstrates split circuit an end in order to achieve of force ment of the statute.13 guity driving accident. in a drunk present ap- language plain a Thus, pure under distinguish to itself majority The tries hard-pressed would one proach, faced this that have the other circuits from accident driving] [a drunk argue circuits did that its sister by noting issue use of force. the involved vehicular analyze the issue of carefully not 372. a vio- F.3d at that because Rutherford, 54 homicide. It concludes 609,21 always re- of Minn.Stat. lation majority’s opinion the A comparison another, “there are no the death sults analysis in Seventh Circuit’s with the offense of crimi- the circumstances where Bazan-Reyes indicates Rutherford present homicide does nal ambigu- “used” in that the term will physical force risk that substantial the Indeed, split are over the circuits ous. I the believe injure another.” drunk-driving can be re- issue of whether phrase the recklessly equates majority force.” of the “use ferred to as may be used” with INS, “risk Tapia Garcia Compare employ did not Cir.2001) language Congress (holding 1216, 1222-23 may occur.” injury “risk DUI is crime an Idaho conviction changed of "crime its definition Immigra- Board of Commission the 13. decisions Recent "clarify” Sentencing term. USSG Commission violence" to Appeals and tions C., ambiguity the lan- delet- App. further Commission demonstrate amend. Immigration guage The Board and instead to 18 U.S.C. a reference ed holding recently a decision Appeals issued definition in 18 U.S.C. borrowed driving the Massachusetts under that drunk 924(e)(2)(B), triggered when which can be In crime of violence. Laws is not a General injury to presents a "risk of conduct Ramos, WL & Dec. 23 I. N. re id.; 4B1.2(1) see USSG another.” 2002). (BIA holding, so (Nov. Although decisions do not these that a decision withdrew earlier Board decision, they demonstrate this court's control alone is sufficient drunk conviction regarding 16's uncertainty that exists § 16. Id. constitute interpretation. addition, Sentencing at 346. In Many offenses involve a substantial risk of

injury but do not involve the use of force. CALDER, Jan Plaintiff/Appellant, Dalton, 257 F.3d at 207. gross Crimes of negligence reckless endangerment, such

as leaving a child alone in a bathtub or TCI CABLE VISION MISSOURI, OF car, hot involve the risk of injury INC., without doing business as TCI Media the use of Furthermore, force. See id. Services, Defendant/Appellee, “[although an accident may properly be Central, Inc., TCI force,

said to involve one cannot be said to Defendant. use force in an accident as might one use No. 01-3237. pry force to open a heavy, jammed door.” Id. at 206 Just because criminal vehicular United States Court Appeals, always homicide injury results does Eighth Circuit.

not mean that force will always be used Submitted: June 2002. against another in its commission. Aug. Filed: recognize

I if this case did not alien, involve the of an deportation this Moore,

court’s decision in United Cir.1994), F.3d 977 would control case, outcome. however, In this unlike Moore, we must ask whether the statute ambiguous. See INS v. St. Cyr, 533 S.Ct. 2271. Supreme Court has stated “the deportation of [Sjince an alien is a drastic measure.... the stakes are considerable for the individ-

ual, we will not assume Congress meant on trench beyond freedom required by the narrowest of possible meanings

several of the [statute].” Fong Phelan, Haw Tan (1948) (citation

68 S.Ct. 92 L.Ed. omitted). The varying interpretations of the language in demonstrate that the statute ambiguous as applied to

Omar’s conviction for criminal vehicular- homicide. Under possible narrowest interpretation §of Omar did not violence;

commit a therefore, Omar should not be removed from this

country.

Case Details

Case Name: Omar v. Immigration & Naturalization Service

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 5, 2002

Citation: 298 F.3d 710

Docket Number: 01-2309

Court Abbreviation: 8th Cir.