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Keywords

statuteappealpleawillfelony

defendantstatuteappealpleafelonygrand jury

Related Cases

Bejarano-Urrutia v. Gonzales

Facts

The immigrant was involved in an automobile accident in which the driver of the other vehicle was killed. As a result, he was indicted in a Virginia court for aggravated involuntary manslaughter and for driving under the influence. The indictment was amended, and the immigrant pleaded guilty to simply involuntary manslaughter. He was subsequently charged with removability under 8 U.S.C.S. 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony. The immigration judge granted the immigrant's denial of removability, but the Board reversed that decision.

The immigrant was involved in an automobile accident in which the driver of the other vehicle was killed. As a result, he was indicted by a Chesterfield County, Virginia grand jury for aggravated involuntary manslaughter, see Va. Code Ann. 18.2-36.1 (LexisNexis 2004), and for driving under the influence, see Va. Code Ann. 18.2-266 (LexisNexis 2004). Pursuant to a plea agreement, the Government amended the indictment, and Petitioner pleaded guilty to simple involuntary manslaughter in violation of Va. Code Ann. 18.2-36 (LexisNexis 2004) and to the driving under the influence charge.

Issue

Whether the Board of Immigration Appeals erred in determining that the petitioner's conviction for involuntary manslaughter under Va. Code Ann. 18.2-36 was for an aggravated felony.

Rule

An alien is removable under 8 U.S.C.A. 1227(a)(2)(A)(iii) if he has been convicted of an aggravated felony after being admitted to this country. A crime of violence is defined as any 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.

An alien is removable under 8 U.S.C.A. 1227(a)(2)(A)(iii) if he has been convicted of an aggravated felony after being admitted to this country. The Government maintains that Petitioner's involuntary manslaughter offense was an aggravated felony because it was a crime of violence.

Analysis

The court applied the categorical approach to determine whether the petitioner's conviction constituted an aggravated felony. It concluded that the nature of the crime of involuntary manslaughter under Virginia law does not involve a substantial risk that physical force will be applied as a means to an end, distinguishing it from crimes that inherently involve the use of force.

The court applied the categorical approach to determine whether the petitioner's conviction constituted an aggravated felony. The crime at issue here, a violation of Va. Code Ann. 18.2-36, requires the killing of a person as a proximate result of the defendant's reckless disregard for human life.

Conclusion

The court granted the petition for review and remanded to the Board for further proceedings consistent with this opinion.

In sum, because the Board erred in holding that Petitioner's 18.2-36 conviction was for an aggravated felony, we grant the petition for review and remand to the Board for further proceedings consistent with this opinion.

Who won?

The petitioner, Rodolfo Bejarano-Urrutia, prevailed because the court found that his conviction for involuntary manslaughter was not an aggravated felony under the relevant statutes.

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