                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-8-2002

Bovkun v. US Atty Gen
Precedential or Non-Precedential:

Docket 1-2180




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PRECEDENTIAL

       Filed March 8, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2180

MIKHAIL BOVKUN,
       Petitioner

v.

JOHN ASHCROFT, ATTORNEY GENERAL OF THE
UNITED STATES,
       Respondent

ON PETITION FOR REVIEW
OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
UNITED STATES IMMIGRATION AND NATURALIZATION
SERVICE

Argued: January 17, 2002

Before: ALITO and ROTH, Circuit Judges, and
SCHWARZER,* Senior District Judge

(Filed: March 8, 2002)

_________________________________________________________________
* The Honorable William W Schwarzer, Senior District Judge for the
       Northern District of California, sitting by designation.
       Tatiana S. Aristova, Esq. (Argued)
       1760 Market St., Suite 1100
       Philadelphia, PA 19103

       Counsel for Petitioner

       David V. Bernal
       Assistant Director
       Nelda C. Reyna (Argued)
       Trial Attorney
       Lyle D. Jentzer
       U.S. Department of Justice
       Office of Immigration Litigation
       P.O. Box 878
       Ben Franklin Station
       Washington, D.C. 20004

       Counsel for Respondent

OPINION OF THE COURT

ALITO, Circuit Judge:

This is a petition for review of a final administrative order
of removal issued by the Immigration and Naturalization
Service under Section 238(b) of the Immigration and
Nationality Act ("INA"), 8 U.S.C. S 1228(b). The respondent
contends that we lack jurisdiction to entertain this petition
by virtue of INA Section 242(a)(2)(C), 8 U.S.C.
S 1252(a)(2)(C), which deprives us of jurisdiction to review a
final administrative order of removal if the petitioner is "an
alien who is removable by reason of having committed,"
inter alia, "a criminal offense covered in[8 U.S.C.
S 1227(a)(2)(A)(iii)]." We have held, however, that in a case
such as this we may properly review the threshold question
whether a petitioner has been convicted of an offense that
deprives us of jurisdiction. See Drakes v. Zimski, 240 F.3d
246 (3d Cir. 2001). We thus examine that question and
hold that the petitioner has been convicted of such an
offense.

                                2
I.

The petitioner, a citizen of Ukraine, was paroled into the
United States in 1992 but was never admitted for lawful
permanent residence. In February 1998, he was charged by
criminal complaint in the Court of Common Pleas of Erie
County Pennsylvania with the crime of making terroristic
threats, in violation of 18 Pa. Cons. Stat. S 2706 (1998).2
The complaint charged that the petitioner had threatened
to kidnap and kill the child of a police officer. It stated that
this threat was made "in an attempt to stop [the officer]
from taking official action in his capacity as a police officer,
to wit: arrest the defendant on outstanding warrants." App.
at 56. In October 1998, the petitioner pled guilty to this
offense and was sentenced to imprisonment for 11 to 23
months.

In October 2000, the Immigration and Naturalization
Service instituted expedited removal proceedings against
the petitioner under INA S 238(b), 8 U.S.C.S 1228(b), by
serving him with a Notice of Intent to Issue Final
Administrative Removal Order ("the Notice"). App. at 7. The
Notice recited the following:

       You were, on November 22, 1999, convicted in the
       Court of Common Pleas for Erie County, Pennsylvania
       for the offense of Terroristic Threats in violation Section
       2706 of the Pennsylvania Criminal Code for which the
       term of imprisonment imposed was 11 and one-half
       months to 23 months.

App. at 7. Under the caption "Charge," the Notice stated:
"You are deportable under section 237(a)(2)(A)(iii) of the
[INA], as amended, because you have been convicted of an
aggravated felony as defined in section 101(a)(43) (G) of the
Act, 8 U.S.C. S 1101(a)(43)" (emphasis added). App. at 7.
Thereafter, a final administrative removal order was issued
under INA S 238(b). App. at 1. In this order, the acting
district director found, among other things, that the
petitioner had "a final conviction of an aggravated felony as
defined in section 101(a)(43)(G) of the[INA], 8 U.S.C.
_________________________________________________________________

2. The complaint also charged a violation of 18 Pa. Cons. Stat.
S 2906(a)(1), criminal coercion.

                               3
1101(a)(43)" (emphasis added). App. at 1. This petition
followed.

II.

A. Jurisdiction To Review A Final Administrative Order Of
Removal

Under INA Section 242(a)(2)(C), 8 U.S.C. S 1252(a)(2)(C),
we lack jurisdiction to review petitioner's final
administrative order of removal if he is "an alien who is
removable by reason of having committed," inter alia, "a
criminal offense covered in [8 U.S.C. S 1227(a)(2)(A)(iii)]."
This latter provision states that "[a]ny alien who is
convicted of an aggravated felony at any time after
admission is deportable." 8 U.S.C. S 1227(a)(2)(A)(iii). The
term "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 [sic] at
least one year."3 8 U.S.C.S 1101 (a)(43)(F). Under 18 U.S.C.
S 16(a), an offense is a "crime of violence" if it "has as an
element the use, attempted use, or threatened use of
physical force against the person or property of another."
Thus, if the petitioner in this case has been convicted of an
offense that has such an element, we lack jurisdiction to
entertain his petition for review.

B. Erroneous Citation In Final Administrative Order Is Not
Prejudicial

The petitioner first argues that the final administrative
order of removal is flawed because it found that the
petitioner was convicted of "an aggravated felony as defined
in section 101(a)(43)(G)" (hereinafter INA "subsection (G)").
Subsection (G) states that the term "aggravated felony"
encompasses "a theft offense (including receipt of stolen
property) or burglary offense for which the term of
imprisonment [sic] at least one year." 8 U.S.C.
1101(a)(43)(G). Since the crime of making terroristic threats
is obviously not "a theft offense", the petitioner contends
_________________________________________________________________

3. There is a "scrivener's error" in this provision. See United States v.
Graham, 169 F.3d 787, 790 (3d Cir. 1999).

                                4
that the final administrative order of removal rests upon a
plainly incorrect finding.

The respondent contends that the citation to subsection
(G) was a clerical error and that it is apparent that the
order meant to refer to INA S 101 (a)(43)(F), which provides
that the term "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 [sic] at least one year." 8 U.S.C.
1101(a)(43)(F). The respondent points out that the Notice
recited that removal was being sought based on the
petitioner's conviction for making terroristic threats, not a
theft offense, and that the petitioner was not prejudiced in
any way by the clerical error.

We agree with the respondent that the erroneous citation
in the order of removal cannot surmount the jurisdictional
restriction in INA S 242(a)(2)(C), 8 U.S.C.S 1252(a)(2)(C).
The petitioner does not dispute the fact that he was
convicted for the offense of making terroristic threats; he
does not allege that the erroneous citation confused him
regarding the basis on which deportation was being sought
or that he was prejudiced by the citation in any other way;
and he has not cited any authority for the proposition that
an error of this type is sufficient to permit us to entertain
his petition.

Under these circumstances, we hold that the obviously
erroneous citation is insufficient to circumvent the
jurisdictional restriction in INA S 242(a)(2)(C), 8 U.S.C.
S 1252(a)(2)(C). Even in a criminal indictment-- where
formality of pleading is at its height -- an error in the
citation of the charged offense "shall not be ground for
dismissal of the indictment . . . or for reversal of a
conviction if the error . . . did not mislead the defendant to
the defendant's prejudice." Fed. R. Crim. Proc. 7(c)(3). It
would be anomalous to apply a stricter rule in this context.
We thus reject the petitioner's argument regarding the
citation and move on to the chief issue in this proceeding,
namely, whether the petitioner's conviction for making
terroristic threats qualifies as a crime of violence.

                               5
C. Conviction For Making Terroristic Threats Meets Definition
Of "Crime Of Violence"

As noted, the term "crime of violence" is defined in 18
U.S.C. S 16(a) to mean, among other things,"an offense
that has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another." At the time of the petitioner's
conviction,4 the crime of making terroristic threats was
defined as follows:

       A person is guilty of a misdemeanor of the first degree
       if he threatens to commit any crime of violence with
       intent to terrorize another or to cause evacuation of a
       building, place of assembly, or facility of public
       transportation, or otherwise to cause serious public
       inconvenience, or in reckless disregard of the risk of
       causing such terror or inconvenience.

18 Pa. Cons. Stat. S 2706 (1998).

The petitioner argues that his conviction for terroristic
threats does not qualify as a "crime of violence" because
S 2706 did not necessarily require "the use, attempted use,
or threatened use of physical force." Instead, the petitioner
contends, "[m]ere `public inconvenience,' or `reckless
disregard' of `causing such inconvenience' would be
sufficient." Pet. Br. at 9. The petitioner's reading of S 2706
confuses its actus reus and its mens rea.

The actus reus of this offense is a "threat[ ] to commit a
crime of violence," and the mens rea is either (1) the intent
to terrorize another or reckless disregard of causing such
terror or (2) the intent to cause, or reckless disregard of the
risk of causing, either (a) the evacuation of certain facilities
(a building, place of assembly, or facility of public
transportation) or (b) some other serious public
inconvenience. Because the actus reus must be shown in
every case, Section 2706 always demands proof of a
"threat[ ] to commit a crime of violence." The Pennsylvania
_________________________________________________________________

4. As a result of amendment in 1998, the language noted in the text has
been designated as 18 Pa. Cons. Stat. S 2706(a) and has been subdivided
into subsections (1)-(3). It does not appear, however, that the meaning of
the provision was altered.

                               6
Legislature has not defined the meaning of the term"crime
of violence" as it is used in Section 2706, and therefore the
term is to be "construed according to the fair import of [its]
terms." 18 Pa. Cons. Stat. S 105; see also Commonwealth v.
Ferrer, 423 A.2d 423, 424 (Super. Ct. 1980). We have found
no state case holding that the term, as used in Section
2706, includes any offense that does not have as an
element "the use, attempted use, or threatened use of
physical force against the person or property of another."
18 U.S.C. S 16(a). We thus hold that the petitioner's
conviction for making terroristic threats meets the
definition in 18 U.S.C. S 16(a).5

D. "Term Of Imprisonment" Is At Least One Year

The petitioner argues that his offense does not qualify as
one "for which the term of imprisonment [sic] at least one
year" because his minimum sentence was 11 months. We
disagree.

In United States v. Graham, 169 F.3d 787 (3d Cir. 1999),
we noted that INA S 101(a)(43)(G), 8 U.S.C.S 1101(a)(43)(G),
which also refers to an offense "for which the term of
imprisonment [sic] at least one year,""is obviously missing
a crucial verb." 163 F.3d at 789. We went on to interpret
this phrase to refer to the term of imprisonment that is
actually imposed and not to the statutory minimum, as the
defendant in Graham suggested. 169 F.3d at 789-90. The
provision at issue in the case now before us, INA
S 101(a)(43)(F), 8 U.S.C. S 1101(a)(43)(F), contains the same
language and the same scrivener's error as the provision in
Graham, and thus Graham's analysis governs here. We
must therefore determine what is the term of imprisonment
actually imposed when the sentence specifies a minimum
and maximum sentence.

In doing this, we believe that we should attempt to
ensure that a sentence with both a minimum and a
_________________________________________________________________

5. Section 2706 derives from the Model Penal Code, which describes it as
one of "[t]he offenses . . . deal[ing] with bodily injury short of
homicide
and with certain other situations where such injury is attempted,
threatened or risked." Model Penal Code Pt. II, Art. 211, Explanatory
note for sections 211-211.3 (1985).

                                7
maximum term is treated comparably with a functionally
equivalent sentence with only a maximum term. Taking this
approach, we believe that the petitioner's Pennsylvania
sentence is comparable to a simple sentence of 23 months.
"Under Pennsylvania law, the minimum term imposed on a
prison sentence merely sets the date prior to which a
prisoner may not be paroled." Rogers v. Pennsylvania Bd. of
Probation & Parole, 724 A.2d 319, 321 n. 2 (Pa. 1999)
(emphasis in original deleted); see also 61 Pa. Cons. Stat.
S 331.21. Accordingly, petitioner's sentence of 11 to 23
months meant that he had to serve at least 11 months and
would not serve more than 23 months. This sentence was
functionally the same as a sentence of 23 months, with
parole eligibility beginning after 11 months. By contrast,
petitioner's sentence was not at all comparable to a simple
sentence of 11 months. Under a simple sentence of 11
months, he would have been guaranteed release from
prison at the expiration of 11 months, and upon release he
would not have been subject to any of the restrictions that
commonly accompany parole. We therefore treat the
petitioner's sentence for present purposes as if it were a
simple sentence of 23 months, and thus the sentence
actually imposed was obviously for more than one year.

E. Misdemeanor Under State Law May Constitute An
Aggravated Felony

The petitioner's final argument is that his conviction for
making terroristic threats was not an "aggravated felony"
because the offense is graded as a misdemeanor under
state law.6 This argument is foreclosed by our holding in
_________________________________________________________________

6. In making this argument, the petitioner relies on the Board of
Immigration Appeals' decision in In re Robin Juraine Crammond, 23 I &
N Dec. 9 (BIA Mar. 22, 2001) ("Crammond I"), in which the BIA held that
under INA S 101(a)(43)(A), 8 U.S.C. S 1101(a)(43)(A), an offense must be
a felony under state law to qualify as an "aggravated felony." We note,
however, that the BIA later vacated Crammond I . See In re Robin Juraine
Crammond, 23 I & N Dec. 179 (BIA Oct. 16, 2001). Moreover, Crammond
I concerned the interpretation of a provision, INA S 101(a)(43)(A), 8
U.S.C.
S 1101(a)(43)(A), that lacks the requirement that a sentence of at least
one year be imposed. The effect of Crammond I was to prevent crimes
that were regarded by the jurisdiction of conviction as relatively minor
from being treated as aggravated felonies for immigration purposes.
Under the provision at issue in the present case, the requirement that a
sentence of at least one year be imposed serves this purpose.

                               8
Graham that a conviction for a state misdemeanor may
constitute an "aggravated felony" under INA Section
101(a)(43)(G), 8 U.S.C. S 1101(a)(43)(G), if a term of
imprisonment of at least one year is imposed. As previously
noted, the critical language in the statutory provision that
is relevant here, INA S 101(a)(43)(F), 8 U.S.C.
S 1101(a)(43)(F), is identical to the language of the provision
construed in Graham, and consequently Graham is
controlling in this case.

III.

For the reasons explained above, we hold that the
petitioner is an alien who is removable by reason of having
committed a crime of violence, and we therefore lack
jurisdiction to entertain his petition. Thus, his petition for
review is dismissed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               9
