By Anthony Biraglia

In the civil case of Etienne v. Lynch, the Fourth Circuit denied a petition to review an Immigration Board of Appeals decision ordering Eddy Etienne (“Etienne”) to be removed from the United States on the ground that he is an alien who has been convicted of an “aggravated felony.” After determining that jurisdiction existed, the Court turned to Etienne’s argument that his conviction was not an “aggravated felony” under the Immigration and Nationality Act (“INA”). In a published opinion released on December 30, 2015, the Fourth Circuit found that there was no reason to rebut the common-law presumption when interpreting the term “conspiracy,” and thus found Etienne’s conviction for conspiracy under Maryland law to fit within the definition of “aggravated felony” despite Maryland’s lack of an overt act requirement.

DHS Notice of Removal

Etienne entered the United States from Haiti as an undocumented immigrant in 1984. In 1996, Etienne was convicted of conspiracy to violate Maryland’s dangerous controlled substances law. After his release from prison, he continued to live in the United States as an undocumented immigrant until 2010, when he received Temporary Protected Status after an earthquake in Haiti. After denying Etienne renewal of his Temporary Protective Status in 2014, the Department of Homeland Security (“DHS”) initiated removal proceedings by serving Etienne with a Notice of Intent to Issue a Final Administrative Removal Order (“Notice of Intent”). The Notice of Intent stated that Etienne would be removed pursuant to expedited procedures as an alien convicted of an “aggravated felony.” Etienne checked a box on the form indicating he wished to challenge his removal, but did not attach any supporting documents or contest his removal on the ground that his conviction was not an “aggravated felony” under the statute. DHS later issued a Final Administrative Removal Order for Etienne’s removal. Etienne appealed to the Fourth Circuit after an asylum officer and Immigration Judge (“IJ”) determined that Etienne did not qualify for withholding of removal.

Jurisdictional Question

The Court first considered whether it had jurisdiction over Etienne’s petition for review. The jurisdictional question turned on whether Etienne exhausted his administrative remedies with DHS, which in turned rested on whether Etienne was required to have raised his claim that his conviction did not constitute an “aggravated felony” in DHS proceedings. Etienne argued, and the Court agreed, that DHS’s expedited removal proceedings did not provide an opportunity to challenge the legal basis for that removal.

The Notice of Intent gives aliens four options when contesting removal on the basis of deportability: 1) I am a citizen or national of the United States, 2) I am a lawful permanent resident of the United States, 3) I was not convicted of the criminal offense described above, 4) I am attaching documents in support of my rebuttal and request for further review. The Court held both that this language indicates that only factual challenges are available and that the Notice of Intent offers no obvious opportunity to raise legal challenges in expedited removal proceedings. Because exhaustion of administrative remedies only requires that an alien use all the steps the agency holds out, and the agency did not make it clear that legal challenges must be raised during removal proceedings, the Fourth Circuit determined that it had jurisdiction to consider Etienne’s petition for review.

Etienne’s Conspiracy Conviction Was an “Aggravated Felony” Under the INA 

After concluding that it had jurisdiction, the Fourth Circuit turned to the question of whether Etienne’s 1996 conviction in Maryland of conspiracy to violate controlled substances laws was an “aggravated felony” under the INA. The INA’s definition of “aggravated felony” includes illicit trafficking in a controlled substance and “conspiracy to commit” another “aggravated felony.” Whether Etienne’s conviction falls within this definition turned on whether, under the categorical approach, the term “conspiracy” is defined as it was at common law or by the contemporary meaning of the term, which includes an additional overt act requirement. The categorical approach involves looking only at the elements of a state crime, rather than the defendant’s underlying conduct, to determine whether a particular conviction constitutes an “aggravated felony.” If the elements are the same, the prior conviction counts as an “aggravated felony.”

The Court recognized a general presumption that Congress intends to adopt the common law meaning of statutory terms. At common law, “conspiracy” required only the act of conspiring rather than any overt act to further the conspiracy. One-third of the states retain the common law definition, while the other states require an overt act by the defendant to prove conspiracy. Congress evinced an intent that the INA apply broad when it defined “aggravated” offenses as applying to violations of state and federal law, and thus the Fourth Circuit determined that overriding the common law presumption would lead to the anomalous result that the term “conspiracy” would be null and void as to a third of the states.

Petition for Review Denied

The Court concluded that because the common law definition of “conspiracy” controlled, Etienne’s conviction under Maryland law, which required no overt act in furtherance of the conspiracy, qualified as an “aggravated felony” under the INA. Accordingly, it denied Etienne’s petition for review.

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