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Click here for the full text of this decision FACTS:Hung Cuong “Ricky” Nguyen, a Vietnamese national, became a lawful permanent resident in 1982. In 1994, Nguyen pleaded guilty to a charge in Oklahoma of participating in a drive-by shooting. The statute said that every person “who uses any vehicle to facilitate the intentional discharge of any kind of firearm . . . in conscious disregard for the safety of any other person or persons shall be punished by imprisonment . . . for a term not less than two (2) years nor more than twenty (20) years.” Nguyen was driving a car, and one of his passengers shot at a group of people in another car, though no one was injured. Nguyen served one year of a five-year sentence, and was released for good behavior. In 1998, Nguyen applied for citizenship. The INS, however, arrested Nguyen and charged him as being a removable alien convicted of an aggravated felony: the Oklahoma conviction. Nguyen’s defense was that his conviction was not for a crime of violence, but the immigration judge and then the Bureau of Immigration Appeals disagreed. The BIA found that Nguyen facilitated the crime and created a substantial risk by being the driver of a car from which a weapon was fired. Further, the BIA noted Nguyen’s five-year sentence. HOLDING:Affirmed. The court explains that, if Nguyen’s conviction was properly characterized as being a crime of violence, it must dismiss his petition. Therefore, the court only has jurisdiction to determine if the jurisdictional facts have been established. This means the court will look at the crime in question in the abstract, not with regard to the particular facts underlying the conviction. The question here becomes whether Nguyen’s conviction of the crime of facilitation mean that he committed an offense which “by its nature, involves a substantial risk that physical force against another person or property of another may be used in the course of committing the offense,” as required by the removal statute. The court finds that an Oklahoma court has interpreted the facilitation statute as requiring specific intent. The court, however, finds that the ruling applies more to the person who discharges the weapon, not necessarily the person who drives the vehicle to facilitate such a discharge. Nonetheless, the court finds the statute is clear in that until a firearm is discharged, the use of the vehicle is not criminalized. The court cites other cases where an element of intentional force is required before an offense can be said to be a crime of violence. “In applying the categorical approach and ignoring the conduct Nguyen committed which resulted in his conviction, as we are required to do, we hold that the Oklahoma statute’s requirement that an intentional discharge of a weapon be found before a conviction can be sustained, suggests that, in the abstract, a conviction for facilitating such a discharge is encompassed by [the removal statute].” The court adds that, on its face, the Oklahoma statue excludes the possibility of someone being convicted for facilitation for the unintentional or unintended creation of substantial risk. OPINION:Stewart, J.; Garwood, Jones and Stewart, JJ.

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