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BIA Holds That The Offense Of Attempted Voluntary Manslaughter Under California Penal Code Sections 192(A) And 664, Which Requires The Specific Intent To Cause Another Person’s Death, Is Categorically An Aggravated Felony Crime Of Violence Per INA § 101(A)(43)(F), Despite The Fact That The Completed Offense Of Voluntary Manslaughter Itself Is Not Such An Aggravated Felony.

May 11, 2018 Philip Levin

On March 15, 2018 the Board of Immigration Appeals (BIA or Board), sustained the appeal of a decision of the Immigration Judge (IJ) terminating removal proceedings on the ground that the respondent is not deportable under INA § 237(a)(2)(A)(iii) for having been convicted of an aggravated felony.  Respondent had been convicted of both voluntary manslaughter in violation of California Penal Code (CPC) section 192(a) and attempted voluntary manslaughter under CPC sections 192(a) and 664. The initial Notice to Appear (NTA) charged him with removability under INA § 237(a)(2)(A)(iii) on the basis of her CPC section 192(a) conviction, claiming that offense constitutes an aggravated felony per INA § 101(a)(43)(F).  

However, as the Board explained, “DHS subsequently conceded that voluntary manslaughter under California law is not a crime of violence and lodged an additional charge that the respondent’s conviction for attempted voluntary manslaughter in violation of sections 192(a) and 664 is a conviction for a crime of violence (COV) under sections 101(a)(43)(F) and an attempt to commit an aggravated felony under section 101(a)(43)(U).”

The IJ found section 192(a) indivisible and overbroad relative to 101(a)(43)(F), concluding that attempted manslaughter is not an aggravated felony COV or an attempt offense under 101(a)(43)(U), that respondent was therefore not removable as charged, and terminated proceedings.  On appeal, DHS contended that a conviction under 192(a) and 664 is an aggravated felony COV, even if the completed offense of voluntary manslaughter under § 192(a) is not.

The BIA began its analysis by stating that in determining whether one is removable under § 237(a)(2)(A)(iii), it uses the categorical approach, focusing on the elements of the crime, not the case’ s particular facts; this approach asks whether the state statute of conviction fits within the generic federal definition of a corresponding aggravated felony.  As a result, the Board must compare the elements of CPC 192(a) and 664 with the Federal generic definition of a COV found at § 101(a)(43)(F). If the elements of the state crime are the same or narrower than those of the Federal offense, noted the opinion, “the state crime is a categorical match and every conviction under that statute qualifies as an aggravated felony.”

In finding that California manslaughter is not a categorical COV, the IJ relied on a Ninth Circuit case, Quijado-Aguilar v. Lynch, 799 F.3d 1303 (9th Cir. 2015), which held that because one may be convicted under section 192(a) for reckless conduct, a conviction is not a categorical COV under the applicable Federal law, 18 U.S.C. § 16(a), which requires the intentional use of force.

The BIA then found that section 192(a) is not a categorical COV “because it encompasses both intentional and reckless acts”, but concluded that the offense of attempted voluntary manslaughter under the CPC “is not similarly overboard relative to § 16(a)”.  In fact, one who violates sections 192(a) and 664 must act with “the specific intent to kill another person.” The Board thus held that, unlike voluntary manslaughter, the attempted crime under sections 192(a) and 664 requires a specific intent to kill, necessarily involving the volitional “use” of force required by § 16(a).

Finally, held the decision, although counterintuitive, respondent’s conviction for attempted voluntary manslaughter under 192(a) and 664 is categorically a COV under § 16(a), under the completed crime of a voluntary manslaughter, which encompasses reckless conduct and is therefore not a categorical COV under Ninth Circuit law.  The appeal was sustained, the IJ’s decision vacated and removal proceedings reinstated with the record remanded to the Immigration Court. Matter of Cervantez Nunez, 27 I&N Dec.238 (BIA 2018).

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Filed Under: Aggravated Felony, California Penal Code, Crimes, Voluntary Manslaughter

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TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. LPPC will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

LPPC will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. LPPC will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on LPPC to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

Green Card

Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
Fiances

If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. LPPC will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

Marriage

Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
  • Immigrant Visa Consular Processing: If you are married to a U.S. citizen and reside abroad, we will assist you in preparing and filing the IV petition with an Embassy or Consulate-General in your native country. 
  • I-751, Remove Conditions on Residence: If you have been married less than two years at the time your green card was initially approved, our office will help you in the joint petition process to become a permanent resident.