Joanne Bushnell v. Attorney General United States , 527 F. App'x 170 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2330
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JOANNE BUSHNELL, a/k/a Joanne Bushell,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A023-506-692)
Immigration Judge: Honorable Charles M. Honeyman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 5, 2013
Before: FUENTES, HARDIMAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: June 6, 2013)
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OPINION
___________
PER CURIAM
Joanne Bushnell (“Bushnell”) petitions for review of the Board of Immigration
Appeals’ final order of removal. For the reasons that follow, we will deny the petition for
review.
Bushnell, a native and citizen of Barbados, was admitted into the United States in
April of 1983 as a lawful permanent resident. On April 3, 1997, Bushnell pleaded guilty
in the Prince William County Circuit Court of Virginia to “unlawful wounding” in
violation of section 18.2-51 of the Virginia Code. She was sentenced to five years
imprisonment. That sentence was suspended conditioned upon her successful completion
of four years of probation. On January 23, 2009, Bushnell was served with a Notice to
Appear, which charged, in pertinent part, that she was removable under section
237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §
1227(a)(2)(A)(iii), as an alien who has been convicted of an aggravated felony as defined
by 8 U.S.C. § 1101(a)(43)(F) (crime of violence for which term of imprisonment is at
least one year).
Bushnell ultimately appeared with counsel before an Immigration Judge (“IJ”).
Bushnell denied that she was convicted of an aggravated felony, and requested that the
removal proceedings against her be terminated. On May 24, 2010, the IJ found Bushnell
removable as charged. The IJ noted that a conviction under Va. Code Ann. § 18.2-51 is
an aggravated felony, and, insofar as Bushnell did not request and appeared ineligible for
any form of relief, ordered her removed to Barbados.
Bushnell filed a counseled appeal with the Board of Immigration Appeals
(“BIA”). In an order issued on April 12, 2012, the BIA affirmed the IJ’s decision
ordering Bushnell removed as an alien convicted of an aggravated felony. The BIA
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concluded that Bushnell’s “unlawful wounding” conviction amounted to a “crime of
violence” as set forth in 18 U.S.C. § 16 for which the term of imprisonment was at least
one year, and was thus an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), rendering
her removable. The BIA rejected Bushnell’s contentions that her suspended sentence did
not satisfy the required period of incarceration, and that the possibility of a conviction for
merely causing “bodily injury” to a victim under Va. Code. Ann. § 18.2-51 precluded a
determination that her conviction was for a crime of violence. The BIA thus dismissed
her appeal. Bushnell then timely petitioned for review.
We will deny the petition for review. We have jurisdiction over Bushnell’s
petition for review pursuant to 8 U.S.C. ' 1252(a)(2)(D). See Garcia v. Att=y Gen., 462
F.3d 287, 290-91 (3d Cir. 2006). Because Bushnell was found removable for having
committed an aggravated felony, our review is limited to questions of law and
constitutional claims. Kaplun v. Att’y Gen., 602 F.3d 260, 265 (3d Cir. 2010). We
exercise plenary review over Bushnell=s legal argument that she was not convicted of an
aggravated felony. See Restrepo v. Att’y Gen., 617 F.3d 787, 790 (3d Cir. 2010).
We conclude that the agency did not err in determining that Bushnell’s conviction
is an aggravated felony under the INA. Included in the INA’s definition of aggravated
felony is “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 [is] at least one year.” 8
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U.S.C. § 1101(a)(43)(F).1 Section 16 of Title 18 defines a “crime of violence” to mean:
“(a) an offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or (b) any other 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.” 18
U.S.C. § 16.
We generally employ the “formal categorical approach” announced in Taylor v.
United States, 495 U.S. 575 (1990), to determine whether an offense falls within the
category “crime of violence.” See Singh v. Ashcroft, 383 F.3d 144, 148 (3d Cir. 2004).
Using that analysis, we look at the statutory elements of the specific offense and ascertain
the least culpable conduct necessary to sustain a conviction. Taylor, 495 U.S. at 600.
We do not consider the particular facts underlying a conviction. Id. Where the statute
criminalizes different kinds of conduct, some of which would constitute an aggravated
felony and some of which would not, we apply a “modified categorical approach” and
look beyond the statutory elements to determine the particular part of the statute under
which the immigration petitioner actually was convicted. See generally Garcia, 462 F.3d
at 292. In such instances, we may consider the record of conviction (e.g., indictment,
plea agreement, criminal judgment, etc.), see Singh v. Att’y Gen., 677 F.3d 503, 512 (3d
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Although on appeal to the BIA Bushnell disputed the fact that her five year suspended
sentence amounted to a sentence of “not less than one year of imprisonment,” she does
not advance that argument before this Court.
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Cir. 2012), and “any explicit factual finding by the trial judge to which the defendant
assented.” Shepard v. United States, 544 U.S. 13, 16 (2005).
Section 18.2-51 of the Virginia Code provides in pertinent part that:
If any person maliciously shoot, stab, cut, or wound any person or by any
means cause him bodily injury, with the intent to maim, disfigure, disable,
or kill, he shall, except where it is otherwise provided, be guilty of a Class 3
felony. If such act be done unlawfully but not maliciously, with the intent
aforesaid, the offender shall be guilty of a Class 6 felony.
Va. Code Ann. § 18.2-51. We agree with the BIA that § 18.2-51 sets forth four distinct
offenses: (1) malicious wounding; (2) maliciously causing bodily injury; (3) unlawful
wounding; and (4) unlawfully causing bodily injury, with different penalties. See
Johnson v. Commonwealth, 35 S.E.2d 594, 596-97 (Va. 1945) (recognizing that
broadening of the statute to include “to cause bodily injury” introduced a new and distinct
offense “made up of new elements”); see also Dawkins v. Commonwealth, 41 S.E.2d
500, 505 (Va. 1947) (noting that malicious stabbing and maliciously causing bodily
injury by any means are distinct cognate offenses, subject to the same classification as a
felony). As such, § 18.2-51 is disjunctive and invites inquiry into the specifics of
Bushnell’s conviction to determine the particular offense under which she was
convicted.2
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We recognize that the Fifth Circuit Court of Appeals has concluded that the Va. Code
Ann. § 18.2-51 defines only two offenses (e.g., malicious wounding and unlawful
wounding). See Singh v. Holder, 568 F.3d 525, 528 (5th Cir. 2009). In concluding that
unlawful wounding is a categorical crime of violence under 18 U.S.C. § 16(a), the Court
noted that the appellant did not argue that a person could commit an unlawful wounding
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Bushnell’s conviction documents (the sentencing order, conviction, and the
indictment) identify the offense to which she pleaded guilty as unlawful wounding under
§ 18.2-51. The BIA concluded that the elements of Bushnell’s conviction under § 18.2-
51 are encompassed by the language of 18 U.S.C. § 16, and thus amount to an aggravated
felony as defined by 8 U.S.C. § 1101(a)(43)(F). Insofar as the offender must act with the
intent to “maim, disfigure, disable, or kill” the victim, and must cause the victim’s skin to
be broken through the use of an external weapon, see Johnson, 35 S.E.2d at 596; English
v. Commonwealth, 715 S.E.2d 391, 395 n.3 (Va. Ct. App. 2011), the agency was correct
in its determination that the offense of unlawful wounding under Va. Code Ann. § 18.2-
51 is one that has as an element the use of physical force against the person of another
within the meaning of 18 U.S.C. § 16(a). See Singh, 568 F.3d at 529-30.
Additionally, Bushnell has posited no meritorious argument as to how the offense
of unlawful wounding – a Class 6 felony under Virginia law punishable by “a term of
imprisonment of not less than one year nor more than five years,” Va. Code Ann. § 18.2-
10(f) – with the offender’s intent to “maim, disfigure, disable, or kill” and the resulting
“breach or disruption of the skin” of the victim, see English, 715 S.E.2d at 395 n.3, does
not amount to an offense that, by its nature, involves a substantial risk that physical force
may be used during the commission of the offense. Accordingly, we likewise agree with
that does not constitute a crime of violence, nor did the appellant “attempt to parse the
statute’s language.” Id. at 529. However, that is just what petitioner does in the instant
case.
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the BIA’s determination that Bushnell’s unlawful wounding conviction is a crime of
violence under 18 U.S.C. § 16(b), and she is thus removable as charged.
For the foregoing reasons, we will deny the petition for review.
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