Kyon McDonald v. Attorney General United States of America

• Court: Court of Appeals for the Third Circuit
• Decided: June 18, 2025
• Docket: 24-2738
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 24-2738 ____________

KYON DANE MCDONALD, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ____________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A075-941-405) Immigration Judge: Tamar H. Wilson ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) June 16, 2025 ____________

Before: CHAGARES, Chief Judge, MONTGOMERY-REEVES and McKEE, Circuit Judges

(Filed: June 18, 2025) ____________

OPINION* ____________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Chief Judge.

Kyon Dane McDonald petitions for review of a decision by the Board of

Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) determination

that McDonald is removable for having been convicted of an aggravated felony. For the

reasons that follow, we will deny the petition.

I.1

McDonald is a native and citizen of Jamaica and a lawful permanent resident of

the United States. He was convicted in the Court of Common Pleas of Luzerne County,

Pennsylvania, of voluntary manslaughter under the following provision:

A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing . . . , but his belief is unreasonable.

18 Pa. Cons. Stat. § 2503(b). He was sentenced to a term of 60 to 120 months of

imprisonment.

McDonald received a Notice to Appear charging him as removable pursuant to

8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony, on

grounds that his conviction was related to murder and was a crime of violence. See

8 U.S.C. § 1101(a)(43)(A), (F). The IJ concluded that McDonald’s conviction did not

qualify as an aggravated felony related to murder because the statute of conviction does

not include an element of malice aforethought, but did qualify as a crime of violence

because it includes the use, attempted use, or threatened use of force and requires proof

1 We write for the parties and therefore recite only those facts pertinent to our decision. 2 of specific intent to use deadly force without justification. The IJ therefore ordered

McDonald’s removal.

McDonald timely appealed the IJ’s ruling to the BIA. He argued that, in

Pennsylvania, voluntary manslaughter includes a “knowing” mens rea, bringing it outside

the scope of the definition of crime of violence. The BIA rejected his claim, observing

that the Supreme Court has held in an analogous context that a crime of violence

encompasses “purposeful or knowing conduct,” and that McDonald cited no case

suggesting that Pennsylvania interprets the term “knowing” in a manner that would give

rise to a categorical mismatch. Appendix (“App.”) 44 (citing Borden v. United States,

593 U.S. 420, 434 (2021)). The BIA therefore affirmed the IJ’s decision. This timely

petition for review followed.

II.

We employ the categorical approach to determine whether a state criminal

conviction qualifies as an aggravated felony under the Immigration and Nationality Act

(“INA”), assessing whether the state statute applies to any conduct falling outside of the

INA’s definition. See Esquivel-Quintana v. Sessions, 581 U.S. 385, 389 (2017). We

have jurisdiction to consider this question of law pursuant to 8 U.S.C. § 1252(a)(2)(D).

See Ng v. Att’y Gen., 436 F.3d 392, 394 (3d Cir. 2006). Our review is plenary. Id. at

395.

The INA defines “aggravated felony” as, among other things, a “crime of violence

3 . . . for which the term of imprisonment [is] at least one year.”2 8 U.S.C.

§ 1101(a)(43)(F). Congress, in turn, has defined “crime of violence” to mean “an offense

that has as an element the use, attempted use, or threatened use of physical force against

the person or property of another.” 18 U.S.C. § 16(a); see also Francis v. Reno, 269 F.3d

162, 166 (3d Cir. 2001).

McDonald claims, as he did before the BIA, that his Pennsylvania voluntary

manslaughter conviction applies to conduct outside of the INA’s aggravated felony

definition because it may be committed “knowingly.” See 18 Pa. Cons. Stat. § 2503(b).

He argues that “knowingly” is a lesser mens rea than “intentionally,” which means that

the crime may be committed without specific intent and therefore is not categorically a

crime of violence. He relies on Commonwealth v. Biesecker, in which the Superior

Court of Pennsylvania recognized that there is a “significant difference between the[] two

mental states” of knowing and intending. 161 A.3d 321, 327 (Pa. Super. Ct. 2017) (citing

18 Pa. Cons. Stat. § 302(b) (defining levels of culpability under Pennsylvania law)).

Differences between the mental states of knowing and intending is of little

moment, however, because the Supreme Court has held that both mental states are

sufficiently culpable for purposes of a crime of violence. In Borden, the Supreme Court

recognized in the analogous context of the Armed Career Criminal Act that “[p]urpose

and knowledge are the most culpable levels in the criminal law’s mental-state

‘hierarchy,’” and there is only a limited, often unimportant, distinction between the two.

2 It is undisputed that McDonald’s conviction is a felony for which the term of imprisonment is at least one year. 4 593 U.S. at 426. In contrast to the lesser mental states of negligence and recklessness,

both purpose and knowledge satisfy the crime of violence definition. Id. at 434; see also

United States v. Henderson, 80 F.4th 207, 213 (3d Cir. 2023) (observing that, to be a

“crime of violence,” the offense must be committed “with a knowing or intentional state

of mind”). We agree with the BIA that Borden applies in the INA context, and we

determine that its reasoning is conclusive. The fact that Pennsylvania voluntary

manslaughter can be committed “knowingly” does not bring it outside of the definition of

a crime of violence.

We are also unpersuaded by McDonald’s claim that voluntary manslaughter is a

general intent crime. The Supreme Court of Pennsylvania has observed that a necessary

element of voluntary manslaughter is the specific intent to kill. Commonwealth v. Pitts,

404 A.2d 1305, 1308 (Pa. 1979) (quoting Commonwealth v. Mason, 378 A.3d 807, 808

(Pa. 1977)). McDonald has not directed us to any contrary Pennsylvania authority

holding that voluntary manslaughter may be committed in the absence of specific intent.

McDonald’s crime of conviction includes as an element the use, attempted use, or

threatened use of physical force against the person or property of another. Its inclusion of

a “knowing” mens rea places the conviction squarely within the definition of a “crime of

violence” under the INA and does not indicate that the crime may be committed without

specific intent. McDonald therefore has failed to show that he was not convicted of a

crime of violence.

III.

For the foregoing reasons, we will deny the petition for review.