2002 Decisions

Opinions of the United

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Precedential or Non-Precedential: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. 

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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. 

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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). 

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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. 

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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). 

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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 

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