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PARK V INS
Case Number: Date Filed:
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EUN KYUNG PARK,
Petitioner, No. 97-71373
v. INS No.
A74 180 970
IMMIGRATION AND NATURALIZATION
Petition for Review of an Order of
the Board of Immigration Appeals
Submitted January 8, 2001*
San Francisco, California
Filed March 6, 2001
Before: Alfred T. Goodwin, Susan P. Graber, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
Michael P. Karr, Michael P. Karr & Associates, Sacramento,
California, for the petitioner.
Jeffrey J. Bernstein, Office of Immigration Litigation, Civil
Division, Department of Justice, Washington, D.C., for the
PAEZ, Circuit Judge:
This appeal from the Board of Immigration Appeals
("BIA") raises the question whether a conviction for involun-
tary manslaughter under California Penal Code S 192(b) con-
stitutes an "aggravated felony" for which an alien is
deportable under 8 U.S.C. S 1251(a)(2)(A)(iii), now codified
at 8 U.S.C. S 1227(a)(2)(A)(iii). We hold that it does and,
therefore, dismiss the appeal for lack of jurisdiction.
Petitioner Eun Kyung Park is a native and citizen of South
Korea. She first entered the United States in December 1983
under an F-1 student visa. She obtained a bachelor's degree
in theology from California Union College, a master's degree
from Linda Vista Baptist Bible College and Seminary, and is
now an ordained minister.
On May 23, 1996, Park pled guilty to and was convicted of
involuntary manslaughter under California Penal Code
S 192(b) for her involvement in the beating death of a 25-
year-old woman on March 8, 1995, during a religious cere-
mony to exorcize demons. Park received a sentence of three
years in state prison.
While Park was still in custody, on August 29, 1996, the
Immigration and Naturalization Service ("INS") issued an
Order to Show Cause ("OSC"), which, as amended on Febru-
ary 26, 1997, alleged that Park was deportable as an alien
convicted of an "aggravated felony" pursuant to S 241(a)(2)
(A)(iii) of the Immigration and Nationality Act ("INA").1
Park's hearing before an immigration judge ("IJ") was orig-
inally scheduled for March 5, 1997, but was continued several
times to accommodate Park's unprepared attorney. Another
attorney appeared as co-counsel at a hearing on April 25, but
then subsequently withdrew, citing lack of cooperation from
Park's original attorney. At the final hearing on May 9, the IJ
denied the request for another continuance by Park's original
attorney and ordered Park deported based on the allegations
in the OSC, because "no application of relief from deportation
had been filed by the Respondent."
In response to the adverse ruling, Park pursued two differ-
ent avenues of relief. First, on May 15, 1997, Park filed a peti-
tion for writ of habeas corpus with the U.S. District Court for
the Northern District of California, alleging that: (1) the IJ
engaged in judicial misconduct; (2) the involuntary man-
slaughter conviction violated the Free Exercise Clause of the
First Amendment; and (3) the involuntary manslaughter con-
viction was not a deportable offense.2
1 The original OSC alleged that Park was deportable because she had
entered the United States without inspection and had been convicted of a
crime involving moral turpitude within five years of entry and had been
sentenced to confinement of one year or longer. Upon stipulation by Park
and the INS that Park actually entered the country legally in 1983 under
a student visa, the immigration judge amended the OSC to reflect this fact.
The INS does not pursue either of these grounds for deportation in its brief
to this court (because Park entered with inspection and she committed the
offense more than five years after entry).
2 The district court denied the petition on March 9, 1999, holding that:
(1) there was no judicial misconduct; (2) Park could not collaterally attack
her underlying conviction in a habeas petition against the INS; and (3)
involuntary manslaughter was a "crime of violence " under existing Ninth
Circuit precedent and thus a deportable offense. Park v. Schlitgen, No. C
97-1813, 1999 WL 138887 (N.D. Cal. Mar. 9, 1999). Park did not appeal
the district court's ruling.
Second, on May 30, 1997, Park appealed the immigration
judge's decision to the BIA. The BIA conducted a de novo
review of the record and sustained the finding of deportability
on November 14, 1997. The BIA concluded that: (1) the IJ
did not abuse her discretion in denying Park's last motion for
a continuance; (2) the withdrawal of co-counsel before the
final hearing did not prejudice Park's case; and (3) Park's
"conviction record . . . establishe[d] by clear, unequivocal,
and convincing evidence, that [she was] deportable as
Park petitioned for review of the BIA decision to this court
which, on January 29, 1998, ordered the appeal held in abey-
ance until certain jurisdictional issues were resolved in the
then-pending case of Magana-Pizano v. INS, 152 F.3d 1213
(9th Cir. 1998), vacated by 526 U.S. 1001 (1999), remanded
to 200 F.3d 603 (9th Cir. 1999).
A. Jurisdiction and Standard of Review
Under the transitional rules3 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996) ("IIRIRA"),
we lack jurisdiction to hear Park's appeal if Park is an alien
deportable because of a conviction for an "aggravated felo-
ny." Scales v. INS, 232 F.3d 1159, 1161 (9th Cir. 2000). Nev-
ertheless, we retain jurisdiction to determine our own
jurisdiction. Id. We review de novo the threshold question
whether a particular offense constitutes an "aggravated felo-
3 Immigration proceedings initiated by the INS before IIRIRA's general
effective date of April 1, 1997, but where the final deportation or exclu-
sion order is filed after October 30, 1996, are governed by interim transi-
tional rules. See IIRIRA S 309(c); Magana-Pizano v. INS, 200 F.3d 603,
607 (9th Cir. 1999). The transitional rules apply to Park's appeal because
the INS initiated proceedings by issuing an OSC on August 29, 1996, and
the BIA did not issue a final deportation order until November 14, 1997.
ny" for which an alien is deportable. Ye v. INS, 214 F.3d
1128, 1131 (9th Cir. 2000).
B. Crime of Violence
 Any alien -- including a legal, permanent resident alien
-- who is convicted of an "aggravated felony " at any time
after admission to this country is deportable under 8 U.S.C.
S 1251(a)(2)(A)(iii), now codified at 8 U.S.C.S 1227(a)(2)
(A)(iii). The statutory definition of "aggravated felony" does
not specifically include involuntary manslaughter in its list of
enumerated offenses. See 8 U.S.C. S 1101(a)(43). The defini-
tion, however, encompasses 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." 8 U.S.C. S 1101(a)(43)(F). Section 16 of Title 18
defines a "crime of violence" 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.
18 U.S.C. S 16.
We previously have held that involuntary manslaughter is
a "crime of violence" under a different, although almost
identically-worded, statute. See United States v. Springfield,
829 F.2d 860, 863 (9th Cir. 1987). In Springfield, a defendant
whose primary offense was involuntary manslaughter under
18 U.S.C. S 1112 appealed a federal conviction under 18
U.S.C. S 924(c) (use of a firearm in a crime of violence). The
court held that federal involuntary manslaughter was a "crime
of violence" as defined in 18 U.S.C. S 924(c)(3).4 Id. at 863
("[I]nvoluntary manslaughter, which `by its nature' involves
the death of another person, is highly likely to be the result
of violence. It thus comes within the intent, if not the precise
wording, of section 924(c)(3).").
California Penal Code S 192(b) and 18 U.S.C.S 1112
define involuntary manslaughter in nearly identical terms.
Section 192(b) provides:
Manslaughter is the unlawful killing of a human
being without malice . . . .
(b) Involuntary--in the commission of an unlaw-
ful act, not amounting to felony; or in the commis-
sion of a lawful act which might produce death, in
an unlawful manner, or without due caution and cir-
cumspection. This subdivision shall not apply to acts
committed in the driving of a vehicle.
Section 1112 similarly provides:
Manslaughter is the unlawful killing of a human
being without malice . . . .
Involuntary--In the commission of an unlawful
act not amounting to a felony, or in the commission
in an unlawful manner, or without due caution and
4 Section 924(c)(3) states:
For purposes of this subsection the term "crime of violence"
means an offense that is a felony and--
(A) has as an element the use, attempted use, or threatened use
of physical force against the person or property of another, or
(B) 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.
circumspection, of a lawful act which might produce
With the exception of the California provision for vehicular
manslaughter, which is not applicable to this appeal, the stat-
utes share almost identical wording. Thus, Springfield cannot
be distinguished on the basis of different text in the federal
and California manslaughter statutes.
Nor can Springfield be distinguished on the basis of differ-
ent statutory definitions of "crime of violence. " The defini-
tions in 18 U.S.C. S 924(c)(3) and 18 U.S.C.S 16 are identical
in every respect except that S 924(c)(3) requires that the
offense be a felony for both subsection (a) and (b), whereas
S 16 requires that the offense be a felony only for subsection
(b). See supra note 4. It follows, then, that a "crime of vio-
lence" under the narrower S 924(c)(3) will always be a "crime
of violence" under S 16. See United States v. Moore, 38 F.3d
977, 980 (8th Cir. 1994) ("The language of S 16 is nearly
identical to that of S 924(c)(3).").
 Given the nearly wording in the two statutory schemes,
Springfield's holding controls here. We conclude that invol-
untary manslaughter under California law is a "crime of vio-
lence" under 18 U.S.C. S 16.5
C. Divisibility and Intent
Park argues that California's involuntary manslaughter stat-
ute is divisible and must be analyzed with respect to the spe-
cific circumstances of her crime. This circuit, however, favors
a categorical approach to this determination, "looking only to
5 The BIA reached a similar conclusion in Matter of Alcantar, 20 I. &
N. Dec. 801, 813-14 (1994) (involuntary manslaughter under Illinois law
is a "crime of violence" under 18 U.S.C. S 16(b)). The district court also
found Springfield controlling in its order denying Park's petition for
habeas corpus relief. Park, 1999 WL 138887, at *8.
the statutory definition[ ] of the prior offense." Ye, 214 F.3d
at 1133 (citations and internal quotation marks omitted). The
only exception occurs when a statute "reaches both conduct
that would constitute a crime of violence and conduct that
would not." Id. (referencing Cal. Penal Code S 459). Our con-
clusion that involuntary manslaughter is "by its nature" a
crime of violence renders this exception inapplicable. Spring-
field, 829 F.2d at 863.
 Park also argues that a "crime of violence" requires spe-
cific intent. In Springfield, we reviewed the relevant legisla-
tive history and concluded otherwise:
The legislative history indicates that Congress did
not intend to limit "crimes of violence" to crimes of
specific intent: "Since no culpability level is pre-
scribed in this section, the applicable state of mind
that must be shown is, at a minimum, `reckless,' i.e.,
that the defendant was conscious of but disregarded
the substantial risk that the circumstances existed."
S.Rep. No. 307, 97th Cong., 1st Sess. 890-91 (1982).
Our analysis of involuntary manslaughter in terms of
the likelihood of the occurrence of violence recon-
ciles the words of the statute and the legislative
intent to include non-intent crimes.
829 F.2d at 863 n.1. We therefore reject Park's argument.
Park argues that the definition of "aggravated felony" as
amended by IIRIRA should not apply retroactively to her.
Section 321(a) of IIRIRA reduced the sentencing requirement
for an "aggravated felony" from "at least 5 years" to "at least
one year" upon its enactment on September 30, 1996. Park
pled guilty and was convicted of involuntary manslaughter on
May 23, 1996, and was sentenced to a three-year prison term.
Thus, even if involuntary manslaughter is categorically a
"crime of violence," Park's offense would not have qualified
as an "aggravated felony" under the pre-IIRIRA definition.
 IIRIRA, however, clearly states, and we have so held,
that the modified definition of "aggravated felony" applies
retroactively to all defined offenses, regardless of the date of
conviction. See IIRIRA S 321(b) (codified at 8 U.S.C.
S 1101(a)(43)) ("Notwithstanding any other provision of law
(including any effective date), the term applies regardless of
whether the conviction was entered before, on, or after [Sep-
tember 30, 1996]."); Aragon-Ayon v. INS , 206 F.3d 847, 853
(9th Cir. 2000) (holding that "Congress intended the 1996
amendments to make the aggravated felony definition apply
retroactively to all defined offenses whenever committed").
 Although the date of the underlying criminal conviction
does not matter, IIRIRA S 321(c) specifies that the amended
definition of "aggravated felony" applies only to "actions
taken on or after the date of the enactment of [IIRIRA]." Park
argues that the amended definition should not apply to her
because the INS initiated deportation proceedings against
Park (by issuing an OSC) on August 29, 1996, one month
before IIRIRA was signed into law. We have interpreted "ac-
tions taken" to include actions taken by the BIA on appeal,
although not actions taken by a United States Court of
Appeals. Ortiz v. INS, 179 F.3d 1148, 1155-56 (9th Cir.
1999); Valderrama-Fonseca, 116 F.3d 853, 856 (9th Cir.
1997). The BIA issued its final order in Park's appeal on
November 14, 1997, and thus the amended definition applies
Park was convicted of involuntary manslaughter -- a
"crime of violence" under our decision in Springfield -- and
was sentenced to a prison term greater than one year. Thus,
her conviction falls within the amended definition of "aggra-
vated felony" under 8 U.S.C. S 1101(a)(43)(F). Accordingly,
we must dismiss her petition for lack of jurisdiction.
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