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. e du/thir dc ir c uit_2001/250Filed October 30, 2001

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 00-2375

ROBERT FRANCIS,

Petitioner,

v.

JANET RENO, Attorney General; and DORIS MEISSNER, Commissioner of the Immigration and Naturalization Service

Petition for Review of an Order of the Board of Immigration Appeals (INS No. A26-458-287)

Before: SCIRICA, McKEE and STAPLETON, Circuit Judg es

ORDER AMENDING OPINION

IT IS HEREBY ORDERED, that the Slip Opinion filed i n this case on October 16, 2001, be amended as follow s:

On page 3, delete the second paragraph which reads:

"In May of 1993, Francis caused a tragic tr affic accident wherein two people were killed on I nterstate 95 in Philadelphia. He was thereafter convic ted in state court of two counts of homicide by vehicle i n violation of 18 Pa. C.S.A. S 3732. That statute define s homicide by vehicle, and categorizes it as a misdemea nor of the first degree. Francis was sentenced to two c onsecutive sentences of eighteen to sixty months in pri son for the conviction. At the conclusion of that senten ce, he washeld on an INS detainer. The INS then initia ted removal

proceedings based upon its assertion that hi s state court conviction made him removable as an `a ggravated felon' under the BIA. As noted above, the Im migration Judge terminated the proceedings in Francis' favor, but the INS reversed and ordered his removal. Th at order of removal is now before us based upon Franc is' petition for review."

And, replace it with the following:

"In May of 1993, Francis caused a tragic tr affic accident wherein two people were killed on I nterstate 95 in Philadelphia. He was thereafter convic ted in state court of two counts of homicide by vehicle i n violation of 75 Pa. C. S. A. S 3732, which provided at the time of Francis' offenses that

[a]ny person who unintentionally causes the death of another person while engaged in the violatio n of any law of this Commonwealth or municipal ordina nce applying to the operation or use of a vehicl e or to the regulation of traffic except section 3731 (r elating to driving under influence of alcohol or contro lled substance) is guilty of homicide by vehicle, a misdemeanor of the first degree, when the vi olation is the cause of death.

Francis was sentenced to two consecutive sen tences of eighteen to sixty months in prison for the c onviction. At the conclusion of that sentence, he was h eld on an INS detainer. The INS then initiated removal proceedings based upon its assertion that hi s state court conviction made him removable as an `a ggravated felon' under the BIA. As noted above, the Im migration Judge terminated the proceedings in Francis' favor, but the INS reversed and ordered his removal. Th at order of removal is now before us based upon Franc is' petition for review."

In addition, delete footnote number 1 in the second paragraph on page 3 and replace it with the followi ng text as footnote number 1.

"In 2000, the Pennsylvania Legislature amen ded 75 Pa. C. S. A. S 3732 by substituting `reckles sly or with

2gross negligence' for `unintentionally' and increased the

offense from a misdemeanor of the first degr ee to a felony of the third degree."

In addition, delete all references to "18 Pa. C. S. A. S 3732" in the Slip Opinion and replace with "75 Pa. C. S. A. S 3732." Finally, on page 16 replace "18 Pa. C. S. A. S 3731" with "75 Pa. C. S. A. S 3731."

IT IS SO ORDERED.

BY THE COURT:

/s/ Theodore A. McKee Circuit Judge

DATED: 30 October 2001

A True Copy: Teste:

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

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