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Ng v. Attorney General of the United States

February 7, 2006

KEITH WAI KEUNG NG PETITIONER
v.
*ATTORNEY GENERAL OF THE UNITED STATES RESPONDENT
*PURSUANT TO F.R.A.P. 43(C)



On Petition for Review from the United States Department of Justice Board of Immigration Appeals (BIA No. A17-156-946).

The opinion of the court was delivered by: Aldisert, Circuit Judge

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) January 13, 2005

Before: BARRY, AMBRO and ALDISERT, Circuit Judges.

OPINION OF THE COURT

This petition for review of a decision of the Board of Immigration Appeals ("BIA") presents a single issue: whether Petitioner Keith Wai Keung Ng's use of interstate commerce facilities in the commission of a murder-for-hire, in violation of 18 U.S.C. § 1958, constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). We conclude that it does. Accordingly, Ng is removable under 8 U.S.C. § 1227(a)(2)(A)(iii) and the petition for review will be denied.

I.

Ng is a native of Hong Kong and a citizen of the United Kingdom. He was admitted to the United States as a nonimmigrant on July 10, 1966, and his status was adjusted to that of a lawful permanent resident on May 20, 1976.

On September 14, 2000, Ng was convicted in the United States District Court for the Eastern District of Michigan of three counts of violating 18 U.S.C. § 1958, which proscribes the use of interstate commerce facilities in the commission of a murder-for-hire. He was sentenced to 121 months in prison. The indictment reflects that Ng traveled from California to Michigan, made phone calls from California to Michigan, and caused the putative hitman to travel from Michigan to California, all with the intent of paying to have his then-girlfriend's husband murdered. The putative hitman became a government informant after being contacted by Ng and never intended nor attempted to follow through with the scheme.

On April 4, 2002, the Immigration and Naturalization Service*fn1 served Ng with a Notice to Appear charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony as defined at 8 U.S.C. § 1101(a)(43). Specifically, the Notice to Appear alleges that Ng had been convicted of an aggravated felony as defined at § 1101(a)(43)(F), which states: "[A] crime of violence (as defined in section 16 of Title 18, United States Code, but not including a purely political offense) for which the term of imprisonment [is] at least one year."

In the proceedings before the Immigration Judge ("IJ"), Ng admitted that he had been convicted of violating 18 U.S.C. § 1958, but disputed that he had committed a "crime of violence" as defined at 18 U.S.C. § 16. Ng filed a motion to terminate proceedings, which the IJ denied in a July 13, 2004 order. The IJ then found Ng removable, concluding that a violation of 18 U.S.C. § 1958 constitutes a "crime of violence" under 18 U.S.C. § 16, and is therefore an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(F).

Ng timely appealed, and the BIA affirmed without opinion pursuant to 8 C.F.R. § 1003.1(e)(4). This petition for review followed.

II.

We have jurisdiction over Ng's petition for review pursuant to 8 U.S.C. § 1252(a)(2)(D). The Real ID Act, which took effect on May 11, 2005, and applies retroactively to pending petitions for review, see Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005), clarifies that our jurisdiction extends to "questions of law raised upon a petition for review," including petitions for review of removal orders based on aggravated felony convictions.*fn2 See Real ID Act § 106(a)(1)(A)(iii), Pub. L. No. 109-13, 119 Stat. 231, 310 (2005), codified at 8 U.S.C. § 1252(a)(2)(D). We are therefore free to consider Ng's purely ...


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