Prakash v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUNIL PRAKASH, 
Petitioner, No. 07-72831
v.
 Agency No.
A075-192-150
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
July 15, 2009—San Francisco, California
Filed August 26, 2009
Before: Barry G. Silverman, Richard R. Clifton, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Clifton
11787
PRAKASH v. HOLDER 11789
COUNSEL
Robert B. Jobe (argued) and Sara E. Coppin, Law Office of
Robert B. Jobe, San Francisco, California, for the petitioner.
Gregory G. Katsas, Acting Assistant Attorney General, Civil
Division; Anthony C. Payne, Senior Litigation Counsel; and
11790 PRAKASH v. HOLDER
Jesse M. Bless (argued), Trial Attorney, Office of Immigra-
tion Litigation, Civil Division, U.S. Department of Justice,
Washington, D.C., for the respondent.
OPINION
CLIFTON, Circuit Judge:
This petition for review presents the question of whether
convictions for solicitation to commit rape by force, in viola-
tion of California Penal Code § 653f(c), and solicitation to
commit assault by means of force likely to produce great bod-
ily injury, in violation of California Penal Code § 653f(a),
constitute crimes of violence under 8 U.S.C. § 1101(a)(43)(F)
for immigration law purposes. We hold that they do. Accord-
ingly, we dismiss the petition for review.
I. Background
Sunil Prakash is a native and citizen of Fiji who became a
lawful permanent resident of the United States in 1997. In
2004, Prakash was charged with two felony violations of Cali-
fornia Penal Code § 653f. Count 1 charged Prakash with
soliciting another to commit and join in the commission of
assault by means of force likely to produce great bodily injury
with the intent that the crime be committed, in violation of
California Penal Code § 653f(a). Count 2 charged Prakash
with soliciting another to commit rape by force and violence
with the intent that the crime be committed, in violation of
California Penal Code § 653f(c). After he pled nolo con-
tendere, Prakash was convicted of the crimes charged and
sentenced to serve two years in prison.
Prakash was thereafter placed in removal proceedings.
Based on the solicitation convictions, he was charged with the
commission of an aggravated felony, specifically a crime of
PRAKASH v. HOLDER 11791
violence for which the term of imprisonment was at least one
year. Prakash disputed the charge, contending that solicitation
offenses do not fall within the meaning of “crime of vio-
lence.”
The immigration judge disagreed with Prakash and ordered
his removal from the United States pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii). He held that Prakash’s convictions con-
stituted crimes of violence because “soliciting a person to
assault and rape another person involves a substantial risk that
physical force may be used against the person or property of
another in the course of committing the offense.”
The Board of Immigration Appeals affirmed that decision,
holding that Prakash’s crimes “by their nature involve a sub-
stantial risk that force will be used ‘in the course’ of commit-
ting them.”
Prakash timely petitioned this court for review of the BIA’s
decision.
II. Jurisdiction and Standard of Review
Under 8 U.S.C. § 1252(a)(2)(C), this court does not have
jurisdiction to review the removal of aliens who are remov-
able by reason of having committed an aggravated felony.
However, we retain jurisdiction over constitutional claims and
questions of law. 8 U.S.C. § 1252(a)(2)(D). We have jurisdic-
tion over a case sufficient to determine whether we have juris-
diction. See, e.g., Tall v. Mukasey, 517 F.3d 1115, 1119 (9th
Cir. 2008). We also have jurisdiction to determine as a matter
of law whether a conviction constitutes an aggravated felony
under 8 U.S.C. § 1227(a)(2)(A)(iii). See, e.g., Ngaeth v.
Mukasey, 545 F.3d 796, 800 (9th Cir. 2008); Mandujano-Real
v. Mukasey, 526 F.3d 585, 588 (9th Cir. 2008); Vizcarra-
Ayala v. Mukasey, 514 F.3d 870, 872 (9th Cir. 2008).
11792 PRAKASH v. HOLDER
We review this legal question de novo. See, e.g.,
Mandujano-Real, 526 F.3d at 588; Vizcarra-Ayala, 514 F.3d
at 873.
III. Discussion
[1] The term “aggravated felony” is defined in 8 U.S.C.
§ 1101(a)(43), a provision with a long list of subsections, (A)-
(U), each of which identifies an offense or activity that quali-
fies as an aggravated felony. The subsection primarily at issue
here is (F): “a crime of violence (as defined in section 16 of
Title 18, [United States Code,] but not including a purely
political offense) for which the term of imprisonment [is] at
least one year.” In 18 U.S.C. § 16, the term “crime of vio-
lence” is defined 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.
Prakash was convicted under California Penal Code
§§ 653f(a) and 653f(c). These provisions state, in relevant
part:
(a) Every person who, with the intent that the crime
be committed, solicits another . . . to commit or join
in the commission of . . . assault . . . by means of
force likely to produce great bodily injury . . . shall
be punished by imprisonment . . . .
(c) Every person who, with the intent that the crime
be committed, solicits another to commit rape by
PRAKASH v. HOLDER 11793
force or violence . . . shall be punished by imprison-
ment . . . .
Under California law, the violent act of rape or assault by
force does not actually have to occur before a defendant can
be held guilty of solicitation:
[Solicitation] is complete once the verbal request is
made with the requisite criminal intent . . . . Thus,
solicitation does not require the defendant to under-
take any direct, unequivocal act towards committing
the target crime; it is completed by the solicitation
itself, whether or not the object of the solicitation is
ever achieved, any steps are even taken towards
accomplishing it, or the person solicited immediately
rejects it.
People v. Wilson, 114 P.3d 758, 771 (Cal. 2005) (internal
quotation marks omitted).
[2] Because neither of the offenses for which Prakash was
convicted include as an element the actual “use, attempted
use, or threatened use of physical force against the person or
property of another,” his convictions do not constitute crimes
of violence under 18 U.S.C. § 16(a), quoted above. The issue
is whether they fall within the definition in § 16(b). Prakash
makes several arguments supporting his position that they do
not.
One of his arguments is based upon the language of
§ 16(b). Prakash does not deny that the crimes of which he
was convicted entailed “a substantial risk that physical force
against the person or property of another may be used.” His
convictions required that he had the specific intent that the
crimes of rape and assault be committed. Focusing on the last
few words of § 16(b), however, he contends that the crimes
did not involve a substantial risk that physical force may be
used “in the course of committing the offense,” because solic-
11794 PRAKASH v. HOLDER
itation could be committed with the mere utterance of words
and any actual force would not come until sometime later,
after the solicitation offense had been completed.
[3] The Third Circuit rejected a somewhat similar argument
in Ng v. Attorney General, 436 F.3d 392 (3d Cir. 2006). In
that case, the Third Circuit held that solicitation to commit
murder, in violation of a federal statute proscribing the use of
interstate commerce facilities in the commission of a murder-
for-hire, was a crime of violence for immigration purposes
because “the natural consequence” of such an act “is that
physical force will be used upon another.” Id. at 397. The
court found it irrelevant that the person Ng solicited was a
government informant who had no intent to commit the crime
— such that there was no actual risk in that instance that force
would be applied — because it concluded that the act of solic-
itation of murder “poses a substantial risk that physical force
will be used against another,” regardless of whether the actual
use of force ever occurs. Id.[4] We similarly hold that solicitation to commit rape and
assault are crimes of violence, even if the actual violence may
occur after the solicitation itself. Section 16(b) turns on the
risk of physical force as a consequence of the criminal con-
duct at issue, not on the timing of the force. The risk of vio-
lence is created and exists from the time of the solicitation.
That the crime of solicitation can be committed without the
use of force and before any actual force is used does not
diminish the substantial risk of violence that solicitation of
rape and assault inherently presents.
The words in the statute “in the course of committing the
offense” require a causal link between the crime and the phys-
ical force — a substantial risk, in this case, that the solicita-
tion of rape and of assault will lead to violence. Those words
do not impose a chronological limitation. It is the risk of vio-
lence flowing from a given crime that this statute is concerned
with, not necessarily when in a chronological sequence the
PRAKASH v. HOLDER 11795
violence occurs. Prakash has not identified any logical reason
why violence that might take place a few minutes, hours, or
even days after the solicitation to commit rape or assault has
been committed should be disregarded, or why the statute
should be interpreted in that fashion. We see no reason to do
so.
The interpretation of the phrase “in the course of commit-
ting the offense” as a chronological limitation does not make
sense in the context of determining whether a given crime is
a “crime of violence.” The discussion by the California
Supreme Court in People v. Wilson, quoted above, for exam-
ple, arose within a discussion of what action was required for
a defendant to commit the crime of solicitation of murder.
That is an entirely different question.
Moreover, that a crime may be committed by a point in
time sufficient to hold the offender guilty of a crime does not
necessarily mean that the course of committing the crime has
ended at that moment. A criminal conspiracy might extend for
months or even years beyond the point at which two parties
make an agreement and commit an overt act sufficient to
make them guilty of the criminal offense of conspiracy. What
happens later is still part of the course of the conspiracy. Sim-
ilarly, for the purpose of determining whether the offense of
solicitation is a crime of violence, whether there is a substan-
tial risk that physical force will be used in the course of com-
mitting the offense properly extends to the intended result of
the solicitation.
Our conclusion that solicitation of rape and assault are
crimes of violence is supported by our decision in United
States v. Cox, 74 F.3d 189 (9th Cir. 1996). In that case we
faced the question of whether solicitation to commit murder
is a crime of violence as defined by United States Sentencing
Guidelines § 4B1.2. There, as here, it was argued that the
crime of solicitation is committed by simply communicating
a request to commit the underlying offense and therefore
11796 PRAKASH v. HOLDER
could not qualify as a crime of violence. Id. at 190. We
rejected the defendant’s argument, holding that “[t]o ask
someone to murder your wife for money involves a high
degree of threat of physical force against one’s wife.” Id. That
is true about solicitation to commit rape and assault as well.
Prakash presents another argument, based on cases involv-
ing controlled substances in which we concluded that solicita-
tion to commit certain drug offenses did not qualify as
aggravated felonies. See, e.g., United States v. Rivera-
Sanchez, 247 F.3d 905, 909 (9th Cir. 2001) (en banc) (holding
California conviction for transporting, importing, selling, fur-
nishing, administering, or giving away marijuana, or offering
to do so, is not an “aggravated felony” for sentencing pur-
poses because statute includes solicitation), superseded on
other grounds as noted in United States v. Narvaez-Gomez,
489 F.3d 970, 977 (9th Cir. 2007); Leyva-Licea v. INS, 187
F.3d 1147, 1150 (9th Cir. 1999) (holding Arizona conviction
for solicitation to possess marijuana for sale is not an “aggra-
vated felony” under 8 U.S.C. § 1101(a)(43)(B)); cf.
Coronado-Durazo v. INS, 123 F.3d 1322, 1324-25 (9th Cir.
1997) (holding Arizona conviction for solicitation to possess
cocaine is not a conviction for violation of a law “relating to
a controlled substance” within meaning of federal deportation
statute).
These cases are distinguishable. In Leyva-Licea, we exam-
ined whether solicitation to possess marijuana for sale was an
aggravated felony under 8 U.S.C. § 1101(a)(43)(B). 187 F.3d
at 1150. That section of the statute defines “aggravated felo-
ny” to include any “drug trafficking crime (as defined in sec-
tion 924(c) of Title 18).” Section 924(c) of Title 18, in turn,
defines a “drug trafficking crime” to include any felony pun-
ishable under the Controlled Substances Act, 21 U.S.C. § 801et seq. The Controlled Substances Act explicitly covers
attempt and conspiracy, but does not mention solicitation.
Leyva-Licea, 187 F.3d at 1150. Guided by the principle that
“where a statute listed some generic offenses but omitted oth-
PRAKASH v. HOLDER 11797
ers, the statute covered only the generic offenses expressly
listed,” and “observing that the Controlled Substances Act
neither mentions solicitation nor contains any broad catch-all
provision that could even arguably be read to cover solicita-
tion,” we held that solicitation to possess marijuana for sale
was not an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(B). Id. In Rivera-Sanchez, we applied the same
reasoning to hold that a conviction under a California statute
that included solicitation offenses in the context of marijuana
trafficking did not categorically qualify as an aggravated fel-
ony under 8 U.S.C. § 1101(a)(43)(B). 247 F.3d at 909. Simi-
larly, we held in Coronado-Durazo that because 8 U.S.C.
§ 1227(a)(2)(B)(I) (formerly 8 U.S.C. § 1251(a)(2)(B)(I)) spe-
cifically included a reference to “conspiracy” and “attempt”
to violate any law relating to a controlled substance, but was
silent as to solicitation, the alien’s conviction for solicitation
to possess cocaine under an Arizona solicitation statute was
not a conviction for a violation of a law “relating to a con-
trolled substance” within the meaning of § 1227(a)(2)(B)(I).
123 F.3d at 1324.
[5] The statute that concerns us in this case, 18 U.S.C.
§ 16(b), does not itself contain a provision listing some incho-
ate crimes, such as attempt and conspiracy, to the exclusion
of others. The legal principle that led to the results in these
controlled substances cases does not apply here.
Prakash attempts to find an analogous provision limiting
the inchoate crimes that qualify as “crimes of violence” in a
different subsection of the definitional statute. He argues that
a solicitation offense can never qualify as an aggravated fel-
ony under 8 U.S.C. § 1101(a)(43) because it cannot fit within
the last subsection, subsection (U). Following 20 other sub-
sections, (A)-(T), listing specific offenses or actions deemed
to constitute crimes of violence, subsection (U) adds to the list
“an attempt or conspiracy to commit an offense described in
this paragraph.” Prakash contends that by expressly including
the inchoate offenses of attempt and conspiracy in
11798 PRAKASH v. HOLDER
§ 1101(a)(43)(U), Congress intentionally excluded solicitation
from the definition of an aggravated felony under the subsec-
tions that come before, § 1101(a)(43)(A)-(T). He further
argues that interpreting § 1101(a)(43)(F) to include inchoate
offenses allows courts to circumvent § 1101(a)(43)(U), ren-
dering that provision a nullity. We disagree.
[6] There is no reason to conclude that the existence of sub-
section (U) forces courts to analyze inchoate offenses only
under that provision. Each subsection of § 1101(a)(43) pro-
vides an independent basis for determining what qualifies as
an aggravated felony. See, e.g., Leyva-Licea, 187 F.3d at 1150(examining whether solicitation to possess marijuana for sale
is an aggravated felony under § 1101(a)(43)(B)); Ramsey v.
INS, 55 F.3d 580, 583 n.5 (11th Cir. 1995) (holding that
although § 1101(a)(43)(U) was not added to the statute until
after petitioner’s conviction, his conviction for attempted
lewd assault still was an aggravated felony because it was a
“crime of violence” under § 1101(a)(43)(F)). As in Ramsey,
Prakash’s crimes each qualify as a “crime of violence” under
subsection 43(F). That they are not covered within subsection
43(U) does not matter, just as it does not matter that they are
not covered within subsection 43(A) (murder, rape, or sexual
abuse of a minor), subsection 43(B) (illicit trafficking in a
controlled substance), or any other subsection of that statute.
One is enough.
[7] Prakash also contends that Congress must not have
intended for the offense of solicitation of a crime of violence
to be deemed an aggravated felony because “solicitation to
commit a crime of violence” is a separate and distinct crime
under the federal code, and it is not included in the list of
crimes in 8 U.S.C. § 1101(a)(43) that constitute aggravated
felonies. Prakash contends in particular that by referring in
§ 1101(a)(43)(F) only to 18 U.S.C. § 16 (the definition of
“crime of violence” quoted above), Congress meant to
exclude solicitation of a crime of violence from the definition
of “aggravated felony.” We are not persuaded. The federal
PRAKASH v. HOLDER 11799
criminal solicitation offense referred to is contained in 18
U.S.C. § 373:
(a) Whoever, with intent that another person engage
in conduct constituting a felony that has as an ele-
ment the use, attempted use, or threatened use of
physical force against property or against the person
of another in violation of the laws of the United
States, and under circumstances strongly corrobora-
tive of that intent, solicits, commands, induces, or
otherwise endeavors to persuade such other person
to engage in such conduct, shall be imprisoned . . . .
18 U.S.C. § 373 parallels the language of 18 U.S.C. § 16(a),
the first of the two subsections defining “crime of violence,”
but it does not cover what is contained in the second subsec-
tion, 18 U.S.C. § 16(b), regarding felonies which by their
nature entail a substantial risk of physical force. Congress has
clearly specified in § 16(b) that such felonies are crimes of
violence. That Congress may have decided that solicitation of
§ 16(b) conduct should not be a separate criminal offense
under the federal code does not permit us to disregard § 16(b)
in the context of the immigration statute. Indeed, in light of
the more expansive definition contained in § 16(b), Congress
may have reasoned it would be redundant to include the fed-
eral offense of solicitation of a crime of violence from 18
U.S.C. § 373 within the list of aggravated felonies, including
within § 1101(a)(43)(F). We need not be concerned with that,
however. It is enough for our purposes that Prakash’s crimes
constituted crimes of violence under § 16(b).
IV. Conclusion
[8] We conclude that solicitation to commit rape by force
and solicitation to commit assault by means of force likely to
produce great bodily injury are crimes of violence under 8
U.S.C. § 1101(a)(43)(F), and are therefore aggravated felo-
nies rendering an alien subject to removal under 8 U.S.C.
11800 PRAKASH v. HOLDER
§ 1227(a)(2)(A)(iii). That conclusion also means that we lack
jurisdiction of Prakash’s petition under 8 U.S.C.
§ 1252(a)(2)(C), as noted above. As is often true in immigra-
tion cases, the same legal issue governs both the merits of
petitioner’s claim and our jurisdiction over it. In this case,
because we lack jurisdiction, we dismiss the petition.
PETITION DISMISSED.