Keung NG v. Atty Gen USA

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-7-2006
Keung NG v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 04-4672
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4672
KEITH WAI KEUNG NG
Petitioner
v.
*ATTORNEY GENERAL OF THE UNITED STATES
Respondent
*Pursuant to F.R.A.P. 43(c)
On Petition for Review from
the United States Department of Justice
Board of Immigration Appeals
(BIA No. A17-156-946)
Submitted Under Third Circuit LAR 34.1(a)
January 13, 2005
Before: BARRY, AMBRO and ALDISERT, Circuit Judges
(Filed: February 7, 2006 )
James J. Orlow, Esq.
Orlow & Orlow
620 Chestnut Street
Suite 656
Philadelphia, Pa 19106
Counsel for Petitioner
Carol Federighi, Esq.
United States Department of Justice
Civil Division
901 E Street, N.W.
Washington, D.C. 20530
Michael Lindemann, Esq.
Douglas E. Ginsburg, Esq.
John D. Williams, Esq.
Jocelyn L. Wright, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent
OPINION OF THE COURT
2
ALDISERT, Circuit Judge
This petition for review of a decision of the Board of
Immigration Appeals (“BIA”) presents a single issue: whether
Petitioner Keith Wai Keung Ng’s use of interstate commerce
facilities in the commission of a murder-for-hire, in violation of
18 U.S.C. § 1958, constitutes an aggravated felony under 8
U.S.C. § 1101(a)(43)(F). We conclude that it does.
Accordingly, Ng is removable under 8 U.S.C. §
1227(a)(2)(A)(iii) and the petition for review will be denied.
I.
Ng is a native of Hong Kong and a citizen of the United
Kingdom. He was admitted to the United States as a
nonimmigrant on July 10, 1966, and his status was adjusted to
that of a lawful permanent resident on May 20, 1976.
On September 14, 2000, Ng was convicted in the United
States District Court for the Eastern District of Michigan of
three counts of violating 18 U.S.C. § 1958, which proscribes the
use of interstate commerce facilities in the commission of a
murder-for-hire. He was sentenced to 121 months in prison.
The indictment reflects that Ng traveled from California to
Michigan, made phone calls from California to Michigan, and
caused the putative hitman to travel from Michigan to
California, all with the intent of paying to have his then-
girlfriend’s husband murdered. The putative hitman became a
government informant after being contacted by Ng and never
intended nor attempted to follow through with the scheme.
3
On April 4, 2002, the Immigration and Naturalization
Service 1 served Ng with a Notice to Appear charging him with
removability under 8 U.S.C. § 1227(a)(2)(A)(iii) for having
been convicted of an aggravated felony as defined at 8 U.S.C. §
1101(a)(43). Specifically, the Notice to Appear alleges that Ng
had been convicted of an aggravated felony as defined at §
1101(a)(43)(F), which states: “[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 the proceedings before the Immigration Judge (“IJ”),
Ng admitted that he had been convicted of violating 18 U.S.C.
§ 1958, but disputed that he had committed a “crime of
violence” as defined at 18 U.S.C. § 16. Ng filed a motion to
terminate proceedings, which the IJ denied in a July 13, 2004
order. The IJ then found Ng removable, concluding that a
violation of 18 U.S.C. § 1958 constitutes a “crime of violence”
under 18 U.S.C. § 16, and is therefore an aggravated felony
pursuant to 8 U.S.C. § 1101(a)(43)(F).
Ng timely appealed, and the BIA affirmed without
1
On March 1, 2003, the INS’s functions were transferred to
the newly-formed Bureau of Immigration and Customs
Enforcement, within the United States Department of Homeland
Security. See Knapik v. Ashcroft, 384 F.3d 84, 86 n.2 (3d Cir.
2004) (citing Homeland Security Act of 2002, Pub. L. 107-296,
§§ 441, 451, 471, 116 Stat. 2135 (2002)).
4
opinion pursuant to 8 C.F.R. § 1003.1(e)(4). This petition for
review followed.
II.
We have jurisdiction over Ng’s petition for review
pursuant to 8 U.S.C. § 1252(a)(2)(D). The Real ID Act, which
took effect on May 11, 2005, and applies retroactively to
pending petitions for review, see Papageorgiou v. Gonzales, 413
F.3d 356, 358 (3d Cir. 2005), clarifies that our jurisdiction
extends to “questions of law raised upon a petition for review,”
including petitions for review of removal orders based on
aggravated felony convictions. 2 See Real ID Act §
106(a)(1)(A)(iii), Pub. L. No. 109-13, 119 Stat. 231, 310 (2005),
codified at 8 U.S.C. § 1252(a)(2)(D). We are therefore free to
consider Ng’s purely legal contention that he was not convicted
of an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). See
Tran v. Gonzales, 414 F.3d 464, 467 (3d Cir. 2005).3
2
On January 28, 2005, the Government filed a motion to
dismiss for lack of jurisdiction. In light of the enactment of the
Real ID Act, however, the Government has withdrawn its
motion to dismiss.
3
Prior to the Real ID Act, our jurisdiction to review orders
of removal for aggravated felonies was limited. The statute
granting us jurisdiction to review immigration orders provided
that “no court shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of having
committed a criminal offense . . . .” 8 U.S.C. § 1252(a)(2)(C)
5
III.
This case turns on a question of pure statutory
interpretation. Specifically, we must determine the meaning and
application of the term “crime of violence,” as referenced at 8
U.S.C. § 1101(a)(43)(F) and defined at 18 U.S.C. § 16.
Although this Court has previously observed that “there is some
confusion surrounding the proper standard of review in cases
such as this,” Patel v. Ashcroft, 294 F.3d 465, 467 (3d Cir.
2002); see also Singh v. Ashcroft, 383 F.3d 144, 150-152 (3d
Cir. 2004), we recently held that the BIA’s interpretation of 18
U.S.C. § 16 is not entitled to any deference. Singh v. Gonzales,
No. 04-4261, slip op. at 5 (3d Cir. January 3, 2006) (“The BIA’s
interpretation of 18 U.S.C. § 16 is not entitled to deference by
this Court: as a federal provision outside the INA, it lies beyond
(1999). We did, however, retain “‘jurisdiction to determine our
jurisdiction’ under [8 U.S.C. § 1252(a)(2)(C)] with respect to
both of the predicate facts required for application of [§
1252(a)(2)(C)] – first, whether a petitioner is in fact an alien,
and, second, whether he or she is indeed removable by reason of
having been convicted of one of the enumerated offenses in [§
1252(a)(2)(C)].” Papageorgiou, 413 F.3d at 357. If we
determined that these two elements were satisfied, then we were
obligated to dismiss the petition for lack of jurisdiction. If, on
the other hand, we determined that one of the elements was not
satisfied, we had jurisdiction over the petition. After the Real
ID Act, we now have jurisdiction over “constitutional claims
and questions of law” regardless of whether these jurisdictional
elements are satisfied. See 8 U.S.C. § 1252(a)(2)(D).
6
the BIA’s special area of expertise.”); see also Tran, 414 F.3d at
467.4 Accordingly, we exercise plenary review over Ng’s legal
contention that the use of interstate commerce facilities in the
commission of a murder-for-hire in violation of 18 U.S.C. §
1958 is not an aggravated felony.
IV.
Under 8 U.S.C. § 1227(a)(2)(A)(ii), an alien convicted of
an aggravated felony is removable. The term “aggravated
felony” is defined at 8 U.S.C. § 1101(a)(43) by reference to
dozens of crimes. Our inquiry is confined to § 1101(a)(43)(F),
which provides that the definition of an aggravated felony
includes “a crime of violence (as defined in section 16 of Title
18, but not including a purely political offense) for which the
term of imprisonment [is] at least one year.” 18 U.S.C. § 16, in
turn, defines the term “crime of violence” as:
4
We have also previously questioned whether a BIA decision
is entitled to deference when, as here, the BIA has affirmed
without opinion the decision of the IJ pursuant to 8 C.F.R. §
1003.1(e)(4). See Smiriko v. Ashcroft, 387 F.3d 279, 289 n.6
(“[I]t would seem to be, at the very least, an open question as to
whether an IJ's decision affirmed through the streamlining
process would be entitled to Chevron deference . . . [D]eferring
to the reasoning of an IJ from which the BIA would be free to
depart in other cases would seem highly problematic.”); cf.
Singh, 383 F.3d at 152 (“[T]he BIA, by affirming without
opinion, gave no considered and authoritative agency-wide
interpretation of the statute . . ..”).
7
(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.
Ng was convicted of three counts of the use of
interstate commerce facilities in the commission of a
murder-for-hire, in violation of 18 U.S.C. § 1958.
Section 1958 provides, in relevant part:
Whoever travels in or causes another (including the
intended victim) to travel in interstate or foreign
commerce, or uses or causes another (including the
intended victim) to use the mail or any facility in
interstate or foreign commerce, with intent that a murder
be committed in violation of the laws of any State or the
United States as consideration for the receipt of, or as
consideration for a promise or agreement to pay,
anything of pecuniary value, or who conspires to do so,
shall be fined under this title or imprisoned for not more
than ten years, or both; and if personal injury results,
shall be fined under this title or imprisoned for not more
than twenty years, or both; and if death results, shall be
punished by death or life imprisonment, or shall be fined
not more than $250,000, or both.
8
The IJ concluded that a violation of § 1958 constitutes a
crime of violence under 18 U.S.C. § 16(b) because the
solicitation of a murder naturally presents a substantial risk that
physical force will be used against another, regardless of
whether the risk develops or harm actually occurs.5 Ng counters
that his crime did not involve any risk that physical force would
be used against another because the hitman he attempted to hire
was a government informant who had no intent to commit the
murder. More broadly, he argues that the use of interstate
commerce facilities in the commission of a murder-for-hire
cannot constitute a crime of violence because § 1958 bars
solicitation without requiring proof of acceptance. Only if there
is acceptance, Ng argues, is there any risk that a murder will
actually be accomplished or that violence will be used.
Ng’s argument ignores that, subject to exceptions not at
issue here, we employ the “formal categorical approach”
announced in Taylor v. United States, 495 U.S. 575 (1990), in
determining whether a crime falls within a category enumerated
5
The IJ also concluded that a violation 18 U.S.C. § 1958 is
a crime of violence under 18 U.S.C. § 16(a) because intent to
murder is an element of the offense and murder necessarily
involves physical force against another. Ng contends that 18
U.S.C. § 1958 does not include “as an element the use,
attempted use, or threatened use of force” and that the IJ erred
in conflating the crime of using interstate commerce facilities in
the commission of a murder-for-hire with the intended crime of
murder. Because we conclude that § 1958 is a crime of violence
under § 16(b), we decline to reach this question.
9
by federal statute, here 8 U.S.C. § 1101(a)(43) and 18 U.S.C. §
16.6 See Singh, 383 F.3d at 154. Under that approach, “an
adjudicator ‘must look only to the statutory definitions of the
prior offenses,’ and may not ‘consider other evidence
concerning the defendant’s prior crimes,’ including, ‘the
particular facts underlying a conviction.’” Id. at 147-148(quoting Taylor, 495 U.S. at 600).
Employing the categorical approach here, we are satisfied
that the use of interstate commerce facilities in the commission
of a murder-for-hire poses a substantial risk that physical force
will be used against another. Because we look only to the
6
We noted in Singh that the formal categorical approach
does not apply when the enumerating statute “invite[s] inquiry
into the facts underlying the convictions at issue” or if the
statute of conviction is phrased in the disjunctive. See Singh,
383 F.3d at 161, 163. Ng does not contend, nor does it appear
from the statutory text, that 18 U.S.C. § 1958 or 8 U.S.C. §
1101(a)(43)(F) invite inquiry into the underlying facts except
insofar as § 1101(a)(43)(F) requires that the term of
imprisonment must exceed one year and that the crime cannot be
“purely political.” See id. (observing that cases interpreting the
term crime of violence “do not look to underlying facts because
the enumerating statute does not invite any such inquiry”). Ng
does not contend that he was sentenced to less than a year in
prison or that his crime was political. And although 18 U.S.C.
§ 1958 is phrased in the disjunctive with respect to the type of
interstate commerce facility involved, this inquiry has no
bearing on whether the crime is one of violence.
10
elements of the statute under which Ng was convicted, it is
irrelevant that the putative hitman had no intent to murder Ng’s
girlfriend’s husband. Nor is it relevant that, by requiring only
proof of intent to enter into a murder-for-hire agreement and not
of an actual agreement, § 1958 proscribes conduct that may
never pose a risk of violence. This might be a different case if
§ 1958 prohibited the use of interstate commerce facilities only
when the person solicited to commit the murder does not
acquiesce in the plan. But it does not. It proscribes the use of
interstate commerce facilities in the commission of a murder-
for-hire regardless of whether the person solicited to commit the
murder agrees to the plan or not. That some violations of §
1958 will never culminate in an actual agreement or the
commission of a murder does not alter our view that the natural
consequence of using interstate commerce facilities in the
commission of a murder-for-hire is that physical force will be
used upon another. See United States v. Luskin, 926 F.2d 372,
379 (4th Cir. 1991) (holding that the use of interstate commerce
facilities in the commission of a murder-for-hire under 18
U.S.C. § 1952A, the predecessor statute to § 1958, constitutes
a crime of violence); cf. United States v. Cox, 74 F.3d 189, 190
(9th Cir. 1996) (holding that defendant’s conviction for
soliciting the murder of his wife constitutes a “crime of
violence” under U.S.S.G. § 4B1.2, which defines a crime of
violence as “conduct that presents a serious potential risk of
physical injury to another”). Accordingly, the IJ properly
concluded that Ng was convicted of a crime of violence.
V.
We conclude that Ng’s conviction for use of interstate
11
commerce facilities in the commission of a murder-for-hire is a
crime of violence and is therefore an aggravated felony under 8
U.S.C. § 1101(a)(43)(F). The petition for review will be denied.
12