U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 leesburg Pike, Suite 1000 Falls Church, Virginia 12041

KELLY BASEY, ESQUIRE 2200 NW SOth Street, Suite 240 Oklahoma City, OK 73112

OHS/ICE Office of Chief Counsel 4400 SW 44th Street, Suite A Oklahoma City, OK 731192800

OKD

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Name: DEAN, MICHAEL ZACKY

A031314515

Date of this notice: 1/12/2012

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

Donna Carr Chief Clerk

Enclosure

Panel Members: Greer, Anne J. Mullane, Hugh G. Pauley, Roger

Cite as: Michael Zacky Dean, A031 314 515 (BIA Jan. 12, 2012)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals

File: In re:

A03l 314 515 - Oklahoma City, OK MICHAEL ZACKY DEAN

Date:

UAN 1 J201Z

IN REMOVAL PROCEEDINGS

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APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF OHS: Kelly Basey, Esquire Dan Gividen Assistant Chief Counsel ON BEHALF OF AMICUS CURIAE: CHARGE: Notice: 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 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 Richard C. Labarthe, Esquire

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. 1003. l (d)(3)(i). 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." We review de
novo

8 C.F.R. 8 C.F.R.

questions of law, discretion, and judgment.

Cite as: Michael Zacky Dean, A031 314 515 (BIA Jan. 12, 2012)

A031 314 515

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

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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 F.3d_, n.16, United States Court of Appeals for the Third Circuit in Aguilar v. Alt '.Y Gen.,
_

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 2

Cite as: Michael Zacky Dean, A031 314 515 (BIA Jan. 12, 2012)

. A031 314 515

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 statute is a crime of violence. Based on the foregoing, we find that offenses under
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

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.

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Accordingly, the following order will be entered.

ORDER:

The appeal is dismissed.

FOR THE BOARD

<

Cite as: Michael Zacky Dean, A031 314 515 (BIA Jan. 12, 2012)

U.S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT Oklahoma City, Oklahoma

File A 31 314 515

Date:

August 17,

2011

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In the Matter of } MICHAEL ZACKY DEAN Respondent ) IN REMOVAL PROCEEDINGS

} )

CHARGES:

A violation of Section relates to a violation 101 {a) (43) (A) . A violation of Section relates to a violation 101(a) {43)(F)

2 37(a) (2)(A)(iii} of Section 237(a) (2} (A} (iii} of Section

as it

as it

APPLICATION:

None stated

APPEARANCES: ON BEHALF OF RESPONDENT: ON BEHALF O F THE DEPARTMENT OF HOMELAND SECURITY: Daniel Jividen, Esquire

Kelly Basey,

Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE The Respondent is a 55-year-old male, of Sri Lanka, 1st of 2009. held, native and citizen

who was issued a Notice to Appear on December the See Exhibit 1. At a Master Calendar previously

Counsel for the Respondent appeared with the Respondent and

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 incorporates different provisions of the definition of aggravated felons, contained within Section lOl(a)(43) of the Act. On that same day, the Court admitted, without objection, as

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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, Statue 21 O.S. 711-2. without objection,

a violation of Oklahoma on July the 20th

The Court also admitted,

a copy of the I-213,

which was marked and

admitted as Exhibit 3. On that day, to Terminate, Counsel for the Respondent filed a Motion

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, client's case be terminated. on that day. and therefore asking that her

That Motion was presented in court

Counsel for the Government requested an opportunity

to evaluate the arguments presented by the Respondent and to respond accordingly. Therefore, 2011, the Court reset the case from July the 20th, The Government then filed a

until August the 17th of 2011.

response Brief to the allegations and assertions raised by the Respondent. A 31 314 515 Then the Court will also note that there was 2 August 17, 2011

addit ional briefing done by amicus

{lawyers who were hired by t he

widow of t he victim) who filed amicus Briefs with t he Court, advancing the Government's position. Finally, t he at torney for s eeking to further Counsel for the

the Respondent then filed s upplemental Briefs ,

addres s the arguments advanced by the Government .

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Respondent als o s ought t o s trike certain information contained in t he amicus Brief as being irrelevant. The Court will not e t hat t here is information contained in the Res pondent '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, t he Court will note t hat t here is evidence and

document s contained in t he Respondent's amicus Brief relating t o t he Respondent 's prior criminal activity and t he criminal activity of his children, which are not relevant or germane to the legal There being no jury

is s ue t hat the Court is presented with t oday. in thes e proceedings ,

t he Court has the abilit y t o sort the wheat

from the chaff and t o dis t inguis h between evidence which is admis s ible and evidence which is inadmiss ible. The Court

unders t ands that that information contained in t he amicus Brief is not relevant or germane t o t he is sues raised t oday, cons idered t hat evidence, and has not

and has in no way formed any portion of

the Court's decision on the contested legal is sues today. The Court does wish to t hank t he attorneys for all of t he parties who have done a very good job briefing the relevant legal is s ues in a way t hat is concis e and relevant t o the iss ue at A 31 31 4 51 5 3 Augus t 1 7, 201 1

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

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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. Murder. However, The Respondent was originally charged with that is not what he was convicted of. So

therefore,

the Court finds that the 237(a) (2)(A) (iii)

charge as it A review

pertains to lOl(a) (4 3) (A) of the Act is not sustained.

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, Oklahoma statute, under the relevant

constitutes an aggravated felony as it pertains of

to a crime of violence as defined under Section lOl(a)(4 3)(F)

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, 314 515 4 95 U.S. 600, 4 that the analysis begins with August 17, 201 1

A 31

illY
analysis.

r--

whether or not this question can be resolved using a categorical Under a categorical analysis, the Court would look only and not to the Under the

to the statutory definition of an offense,

particular facts of the Defendant's underlying conduct. facts of our current case, documents,

a review of the Respondent's conviction

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which are contained in the record as part of Exhibit 2,

indicate that the Respondent was convicted of a violation of 21 O.S. 7 11-2. divisible. The Government contends that this statute is And a review of the Oklahoma statute reveals that it Even if the Court were to say that because

is in fact divisible.

the judge noted on the conviction document that it is Section 7 1 1, 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, A 31 314 51 5 5 but not August 17, 2011

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

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least one year. Again, hoping to address the easy question first, as evidenced in Exhibit 2 that the After the

Court will find that,

Respondent was sentenced to serve 15 years in state prison. the service of five years, Therefore, the Court finds, the remaining ten were suspended. 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 that paragraph B of the crime of violence

documents relevant here,

is the relevant definition for our purposes. 1 8 U. S. C. Section 1 6, paragraph B, says that a crime of and that by its

violence is any other offense that is a felony, 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. law Title 21 O. S. A 31 314 515 The Court finds that pursuant to Oklahoma Oklahoma has determined that "any 6 August 17, 2011

Section 715,

r \S0
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, statutes, felony. That then moves us to the analysis of whether or not, its nature, it involves a substantial risk that physical force by pursuant to Title 21 Section 715 of the Oklahoma the Court finds that the crime, by definition, is a

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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, (2004 ), 54 3 U.S. 1

in which the Supreme Court gave guidance in to determining The Supreme Court indicated and that

what constitutes a crime of violence.

the statute does not encompass all negligent conduct, 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
a

conviction constitutes 1 6(b),

crime of violence under 18 U.S.C.

Section

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 A 31 314 515
7

August 17,

2011

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, passion, but in cruel and unusual manner, and in an heat of

or by means of a

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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. in the alternative. commit that crime. 711

There are two separate and distinct ways to The first is that you commit the crime without and in a heat of passion, but in a cruel

a design to effect death, 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, information, weapon. under enhancer

that the offender committed the offense by use of a

And the state court judge noted that the weapon involved So, therefore,
8

was a rubber mallet. A 31 314 515

having used the modified August 17, 2011

'7

.'

categorical approach,

the Court finds that it is the second part Section 711 which is relevant. That means

of Section 2 of 21 O.S.

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

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Court of Criminal Appeals has also specifically addressed this in their decision in Camren v. The State of Oklahoma, (1992), O.S. 829 P. 2d 4 7

when the Oklahoma Court of Criminal Appeals held that 21

Section 711 sets forth two ways in which the offense of First The court indicated that it

Degree Manslaughter may be committed.

may be committed when perpetrated without a design to effect death, manner, and in a heat of passion, but in a cruel and unusual when perpetrated

or the second and independent way,

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 711 Section 2 does not

because the Oklahoma statue at 2 1 O. S.

contain a specific intent requirement that therefore it does not exclude recklessness or negligence. that assessment of the statute. The Court does not agree with

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. A 31 314 5 15 9 It may be possible August 1 7, 2011

that you intend to commit an act that does not include an intent to cause a death, but nevertheless causes a death. However, that The

action taken by the Defendant would still be a willful act. Court has also considered the matter of the Supreme Court's

decision in Leocal when they said that the risk is that physical

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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, purposeful, and which is intended to reach rather than merely

violent and aggressive conduct,

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 The Court finds that the conduct of the It is not accidental or negligent.

involved in that conduct.

Respondent is active violence.

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 2 1 O. S. Section 711 paragraph 2, A 31 314 515 First Degree Manslaughter, is a crime of 2011

10

August 17,

r
as defined in The of the Immigration and Nationality Act.

violence punishable by a term of one year or more, Section lOl(a} (4 3} (F}

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.

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Having determined that the Respondent's removable from the United States, country of removal. the Respondent designated Sri Lanka as the Counsel for the Respondent was asked to if any, he may have. And

articulate what other forms of relief,

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 separately on the record.

M ICHAEL P. BAIRD Immigration Judge

A 31 314 515

11

August 17,

2011