Park v. INS: 9th Circuit Holds That Involuntary Manslaughter Constitutes "Crime of Violence"

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

PARK V. INS: 9TH CIRCUIT HOLDS THAT INVOLUNTARY MANSLAUGHTER CONSTITUTES "CRIME OF VIOLENCE"
Immigrants' Rights Update, Vol. 15, No. 3, May 10, 2001

In a case involving a Korean minister whose involvement in a religious ceremony to exorcise demons resulted in the beating death of a young woman, the Ninth Circuit Court of Appeals has held that involuntary manslaughter constitutes a "crime of violence." A crime of violence committed by a noncitizen for which a prison sentence of at least one year is imposed constitutes an "aggravated felony" that subjects the noncitizen to removal from the United States.

Eun Kyung Park is a native and citizen of South Korea. She entered the U.S. with a student visa. While in the U.S., she attended a seminary, obtained a bachelor's and master's degree, and was ordained as a minister. In 1996 Park pled guilty to and was convicted for her involvement in the beating death of a 25-year-old woman during a religious ceremony to exorcise demons. Park received a sentence of three years in state prison.

In August 1996, a month prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), while Park was still in custody, the Immigration and Naturalization Service issued an Order to Show Cause (OSC) alleging that Park was deportable. The INS later amended the OSC to reflect the statutory changes made by the IIRIRA. Park's counsel did not mount a defense to her deportability, and the immigration judge ordered her deported on the basis of the charges in the OSC.

Park pursued two avenues for relief: she filed a writ of habeas corpus with the federal district court and filed an appeal before the Board of Immigration Appeals. Both the court and the BIA dismissed her claims. The BIA found that her conviction record established by clear, unequivocal, and convincing evidence that she was deportable as charged. Park subsequently filed an appeal before the Ninth Circuit.

The Ninth Circuit first decided the threshold issue of whether it had jurisdiction to hear Park's appeal. Because Park's deportation proceedings were initiated prior to the IIRIRA's general effective date but her final order was issued (by the BIA) after the effective date, Park's case is governed by the transitional rules of the IIRIRA. Under those rules, courts of appeal lack jurisdiction to hear the appeals of persons who are deportable because they have been convicted of an aggravated felony. However, the Ninth Circuit retains jurisdiction to determine its jurisdiction and to review whether the crime a petitioner was convicted of constitutes an aggravated felony. The court reviewed de novo the question of whether a conviction for involuntary manslaughter constitutes conviction of an aggravated felony.

At issue in Park's case was whether her conviction for involuntary manslaughter constitutes conviction of a "crime of violence." If it does, the crime constitutes an aggravated felony and Park is deportable. The statute that defines what is an aggravated felony does not include involuntary manslaughter in its definition. However, involuntary manslaughter may be encompassed within a crime of violence. The IIRIRA amended the definition of "crime of violence" to include crimes in which the prison term to which the perpetrator is sentenced is at least one year. Under prior law, a crime was not a "crime of violence" unless the perpetrator was sentenced to at least five years in prison.

In U.S. v. Springfield, 829 F.2d 860 (9th Cir. 1987), the Ninth Circuit held that involuntary manslaughter is a crime of violence. Both the involuntary manslaughter and crime of violence statutes at issue in Springfield were nearly identical to the California statute under which Park was convicted. Following its own precedent, the Ninth Circuit held that Park's conviction for involuntary manslaughter constitutes a crime of violence.

The Ninth Circuit considered Park's additional arguments. Park argued that the California involuntary manslaughter statute is divisible and must be analyzed with respect to the specific circumstances of her crime. However, the Ninth Circuit takes a categorical approach to such a determination, looking only to the statutory definition of the offense. The only exception occurs when a statute reaches both conduct that would constitute a crime of violence and conduct that would not. The court concluded that involuntary manslaughter is by its nature a crime of violence such that the exception is inapplicable. Park also argued that for a crime to constitute a crime of violence, the perpetrator must have had specific intent to commit the crime. Reviewing the statute's legislative history, the court concluded otherwise.

Finally, Park argued that the IIRIRA's definition of "aggravated felony" should not be applied to her retroactively. The IIRIRA specifies that the amended definition of "aggravated felony" applies only to "actions taken on or after the date of the enactment of IIRIRA." Because the INS initiated proceedings against Park in August 1996, prior to the enactment of the IIRIRA, Park argued that the statute should not apply to her. Her argument failed because the Ninth Circuit has interpreted "actions taken" to include actions taken by the BIA. As the BIA had issued its final order in Park's appeal in November 1997, the amended definition applies to her.

The court therefore found that, because Park is deportable as an aggravated felon, it lacked jurisdiction to hear her appeal of the decision finding her to be deportable, and it dismissed her petition.

Park v. INS, No. 97-71373 (9th Cir. Mar. 6, 2001).