Wake Forest Law Review

By Kelsey Mellan

On January 26, 2017, the Fourth Circuit issued a published opinion in United States v. Moreno-Tapia, a constitutional appeal of an immigration removal and sentencing order. Juan Moreno-Tapia (“Moreno-Tapia”) argued he was unconstitutionally deported in 2009 and thus his conviction for illegal reentry into the United States in 2014 was also unconstitutional. The Supreme Court case in which Moreno-Tapia based his constitutional argument on was decided in 2010. The Fourth Circuit determined that this particular case does not apply retroactively. Therefore, the Fourth Circuit affirmed the district court’s denial of Moreno-Tapia’s motion to vacate his removal order and sentencing determination.

Facts & Procedural History

Moreno-Tapia immigrated to the US from Mexico when he was a child. While he applied for legal permanent residency, the process never advanced due to his eventual removal from the US. In 2006, Moreno-Tapia was charged in a North Carolina court with three counts of felony indecent liberties with a child. At the time of his plea, Moreno-Tapia was aware that he would have to register as a sex offender. However, he claimed his attorney did not inform him that he would be subject to deportation because of his convictions. Shortly after Moreno-Tapia was released from prison in 2009 for these charges, he was deported to Mexico pursuant to a removal order from the Department of Homeland Security. Between 2009 and 2011, Moreno-Tapia reentered the US without permission and returned to North Carolina. He failed to register as a sex offender, despite his convictions for a qualifying sex offense. He was subsequently arrested for an unrelated crime. Because of that arrest, the authorities became aware of his current illegal presence in the US.

In June 2014, Moreno-Tapia was indicted in the Middle District of North Carolina on the charges of illegal reentry by a removed alien and failure to register as a sex offender. Moreno-Tapia pleaded guilty to the illegal reentry charge, and the government agreed to dismissal of the failure to register charge. After these proceedings, Moreno-Tapia returned to North Carolina court and filed a Motion for Appropriate Relief (“MAR”) seeking to vacate his state indecent liberties convictions. He relied on Padilla v. Kentucky to argue that his convictions should be set aside because his lawyer’s failed to inform him of the immigration consequences of his guilty plea – so the plea was not knowing and voluntary. The North Carolina court agreed and vacated his indecent liberties convictions.

Moreno-Tapia then returned to the district court to challenge the removal order on which his illegal reentry charge was based, pursuant to the North Carolina state court decision. He moved to vacate the 2009 removal order and to dismiss both counts of the indictment against him – illegal reentry and failure to register. The district court denied all of Moreno-Tapia’s motions. In September 2015, the district court held a sentencing hearing on the illegal reentry charge using the vacated indecent liberties convictions as the basis for his offense level under the federal Sentencing Guidelines. He was eventually sentenced to 27 months’ imprisonment. This timely appeal follows.

Motion to Vacate the Removal Order

The core issue in this case was whether Moreno-Tapia’s removal order should be vacated, without which he may not be convicted of illegal reentry. Moreno-Tapia’s main argument was that because his lawyer failed to inform him of the immigration consequences of his guilty plea to the indecent liberties charge, the subsequent removal order and reentry charges are unconstitutional. As previously mentioned, he relied on Padilla for the proposition that without this information, the North Carolina state court rightly overturned the original conviction.

However, the Fourth Circuit determined lawyers have no duty to advise aliens of potential legal infirmities in prior criminal proceedings. Thus, his state convictions were constitutionally infirm. However, Moreno-Tapia pleaded guilty in the 2006 case, which was 4 years before the Supreme Court’s decision in Padilla. Because the Supreme Court subsequently decided in Chaidez v. United States that Padilla does not apply retroactively, any failure by Moreno-Tapia’s lawyer to warn him of the possible immigration consequences of his guilty plea would not render Moreno-Tapia’s convictions constitutionally unsound.

That the state MAR court vacated Moreno-Tapia’s convictions under Padilla did not change the Fourth Circuit’s analysis because the state court erroneously applied Padilla retroactively. Thus, there was no federal constitutional violation on which Moreno-Tapia could have based his argument here.

Motion to Vacate the Sentencing Determination

The Sentencing Guidelines on which Moreno-Tapia’s 27-month sentence was based provides for sentence enhancements based on specific offense characteristics. The relevant guideline here, § 2L1.2, imposes an enhancement to the offense level of a defendant who “previously was deported after a conviction for a crime of violence.” Moreno-Tapia argues that because his convictions were vacated after his removal and illegal reentry, they should not have been taken into account at sentencing. In United States v. Moran-Rosario, this court held that eh relevant time for determining whether a prior conviction qualifies for enhancement under § 2L1.2 is the date of the defendant’s deportation and not the date of the subsequent illegal reentry charge or sentencing. Moreno-Tapia argued there should be an exception to this rule if the prior conviction was vacated as a result of a constitutional infirmity, egregious error of law, or determination of innocence. However, the Fourth Circuit determined it had no occasion to decide on this issue in this case. As previously mentioned, because Padilla does not apply retroactively, Moreno-Tapia’s state convictions were constitutionally obtained.

Disposition

Therefore, the Fourth Circuit affirmed the district court’s denial of Moreno-Tapia’s motion to vacate both the removal order and sentencing determination.

 

By Ali Fenno

On January 24, 2017, the Fourth Circuit issued a published opinion in the criminal case Sotnikau v. Lynch.  In Sotnikau, the Fourth Circuit addressed whether involuntary manslaughter in Virginia constitutes a crime of moral turpitude that justifies a U.S. permanent resident’s removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)(I).  After examining the scope of Virginia’s involuntary manslaughter statute, the court held that the crime did not constitute moral turpitude and thus could not be grounds for the deportation of defendant Ihar Sotnikau (“Sotnikau”).

Involuntary Manslaughter Conviction

On June 18, 2010, Sotnikau, a U.S. permanent resident from Belarus, was drinking with Randy Hines (“Hines”) when Hines fell into the Elizabeth River in Portsmouth, Virginia.  Sotnikau attempted to find Hines in the water, but after no success, returned to a local homeless shelter. He had neither alerted the authorities nor sought assistance to find Hines. At the homeless shelter, someone overheard him speaking about the events that transpired at the river.  They alerted the authorities, and on June 19, 2010, the authorities found Hines’s body in the river. Sotnikau was then charged with involuntary manslaughter. He plead guilty to the offense and was sentenced to five years in prison.

DHS Institutes Removal Proceedings

On October 21, 2011, the Department of Homeland Security (“DHS”) instituted removal proceedings against Sotnikau pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)(I), which allows the removal of any alien who “is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission” into the United States. In response, Sotnikau sought asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”). The Immigration Judge (“IJ”) summarily denied Sotnikau’s requests on August 14, 2012, concluding that involuntary manslaughter was a crime of moral turpitude which accordingly gave grounds for deportation. On Sotnikau’s appeal, the Board of Immigration Appeals (“BIA”) remanded the case for the IJ to “set forth his reasoning as to why Sotnikau was convicted of a crime involving moral turpitude.”

On remand, the IJ concluded that moral turpitude was inherent in Virginia’s involuntary manslaughter statute because in In re Franklin, the BIA had concluded that moral turpitude was inherent in Missouri’s involuntary manslaughter statute. The IJ reasoned that the Franklin holding was applicable in this case because the mental state required to support a conviction for involuntary manslaughter under Missouri law is the same as that for Virginia law: recklessness.  Sotnikau again appealed, but the BIA affirmed the IJ. The BIA agreed that Franklin should control the case at hand because of the similarities between Missouri’s and Virginia’s involuntary manslaughter statutes; the elements of the crime in both states purportedly had the same essential elements. Accordingly, Sotnikau’s appeal was dismissed and the BIA ordered his removal. Sotnikau then appealed.

Issue on Appeal and Standard of Review

The dispositive issue on appeal was whether involuntary manslaughter under Virginia law is categorically a crime involving moral turpitude pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)(I). Because this question was a question of law, the Fourth Circuit reviewed the issue de novo.

Moral Turpitude is Not Inherent in Virginia’s Statute

The Fourth Circuit first noted that a categorical approach must be taken to address this issue; every element of a crime must be analyzed to determine if the statute solely encompasses behavior involving moral turpitude. The court stated that if any element of a crime does not involve moral turpitude, then 8 U.S.C. § 1227(a)(2)(A)(i)(I) is inapplicable.

The court then defined “moral turpitude” as “involv[ing] conduct that not only violates a statute but also independently violates a moral norm.” It further enumerated two essential elements of such a crime: (1) a culpable mental state and (2) reprehensible conduct. It included that criminally reckless, knowing, and intentional conduct as conduct that can constitute moral turpitude, but explicitly exempted criminally negligent conduct. It reasoned that criminally negligent conduct cannot be considered moral turpitude because offenders acting with criminal negligence do not have “a conscious disregard of risks attendant to [their] conduct,” and pursuant to In re Perez-Contreras, moral turpitude cannot be inherent in a statute without “intent required for conviction[ or] any conscious disregard of a substantial and unjustifiable risk.”

In applying this framework to the case at hand, the Fourth Circuit first looked to the elements of Virginia’s involuntary manslaughter offense. The court noted that unlike the Missouri statute underlying the Franklin decision, an offender could be convicted under the Virginia statute for not only criminally reckless conduct, but also criminally negligent conduct. Thus, Sotnikau could have been convicted under Virginia’s statute without showing any conscious disregard of a substantial and unjustifiable risk. Accordingly, the Fourth Circuit concluded that involuntary manslaughter under Virginia law does not constitute a crime involving moral turpitude.

Conclusion

The Fourth Circuit concluded that crimes involving criminal negligence, such as Virginia’s involuntary manslaughter offense, do not constitute crimes involving moral turpitude. As such, it granted Sotnikau’s petition for review, vacated the Final BIA Order, and remanded for further proceedings, holding that Sotnikau was not subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)(I).

asylum-1262370_960_720

By Mike Stephens

In a civil case, Zhikeng Tang v. Loretta E. Lynch, decided today, October 28, 2016, the Fourth Circuit denied petition for review of an order from the Board of Immigration Appeals (“Board”) denying requests for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). The Court ultimately denied the Petitioner’s petition for review because substantial evidence supported the Board’s decision.

Facts and Procedural History

The Petitioner, Zhikeng Tang (“Tang”), is a native and citizen of China. In July 2009, Tang entered the United States illegally. Tang was introduced to Catholicism in 2011 and began attending a church. In 2011, Tang filed for asylum and the United States government began removal proceedings.

At a hearing before an immigration judge (“IJ”), Tang requested asylum, withholding of removal, and CAT protection based on his religious practice. Tang produced evidence of his membership in the Catholic Church and testified that his faith was genuine. Tang argued that his practice of the Catholic faith required attendance in an underground church in China and not a church sanctioned by the Chinese government. Tang claimed that removal to China would result in persecution from the Chinese government due to his participation in an underground church. In support of this argument, Tang provided the IJ with letters from his family that showed underground churches in China were persecuted. In addition, Tang also produced two State Department reports that criticized the Chinese government’s treatment of religious groups in China.

While the IJ found Tang’s testimony to be credible, the IJ rejected Tang’s asylum request. The IJ found that Tang did not provide sufficient evidence to show that Tang “faces an objectively reasonable risk of persecution on account of his Roman Catholicism.’ Additionally, because Tang’s claim for asylum failed, the IJ determined Tang had failed to meet the higher standard required for withholding of removal. Lastly, the IJ also concluded that Tang did not show sufficient evidence that his chances of torture were “more likely than not” upon removal to China.

The Board, on administrative appeal, upheld the IJ’s conclusion that Tang had failed to meet his burden for asylum or withholding of removal. The Board noted that Tang had not shown that the Chinese government knew or would gain knowledge of Tang’s faith and that Tang had not “established that there is a pattern or practice of persecution in China of persons similarly situated to him.” In addition, the Board concluded that Tang had waived his CAT claim because he did not challenge the IJ’s ruling on this claim. Tang appealed, challenging the Board’s denial of asylum, withholding of removal, and CAT protection.

Asylum

Tang argued the Board erred in denying his request for asylum, claiming that he met his burden of proof required for showing a fear of persecution in China. Tang claims that the instances of persecution evidenced in the letters from China and the State Department reports show a “pattern or practice of persecution in China.”

The Fourth Circuit rejected Tang’s argument and upheld the Board’s denial of asylum. The Court held that Tang’s evidence was not sufficient to allow a reasonable fact-finder “to conclude that the requisite fear of persecution existed.” While the Fourth Circuit found that Tang satisfied the subjective component required for asylum, the Court determined that Tang had failed to demonstrate an objective fear of persecution.

The Court found that Tang did not meet either of the requirements to satisfy the objective component provided for within 8 C.F.R. § 1208.13(b)(2). First, the Court concluded that Tang had waived a challenge to the Board’s conclusion that he would face individual persecution from the Chinese government because he failed to raise this argument. Second, the Fourth Circuit determined that Tang did not satisfy his burden of proving “an objectively reasonable chance” of facing a pattern or practice of persecution in China. The Court noted that the two State Department reports that Tang provided showed that the Chinese government recognized the Catholic faith and also permitted practice of the faith in churches and at home. Additionally, the reports and the letters from Tang’s family only showed “random” or “isolated and sporadic” instances of harassment. Thus, because the persecution was not “thorough or systematic,” the Fourth Circuit declined to “disturb the Board’s conclusion that Tang failed to establish a well-founded fear of persecution.”

Withholding of Removal

Tang also claimed the Board’s refusal to grant his application for withholding of removal was erroneous. Tang argued that the evidence he provided in support of his claim for asylum was sufficient to grant his withholding of removal.

The Fourth Circuit held that Tang did not meet the necessary burden to entitle him to a withholding of removal. The requisite burden of proof in a withholding of removal claim is that of a “clear probability,” which means “it is more likely than not that [Tang’s] life or freedom would be threatened in the country of removal.” The Fourth Circuit noted that this burden of proof “is more demanding than that of asylum” and that an applicant’s claim for withholding of removal would fail when their claim for asylum failed. Therefore, the Fourth Circuit held that Tang had failed to satisfy his burden or proof and was not entitled to a withholding of removal.

Protection Under CAT

Lastly, Tang appealed the Board’s denial of protection under CAT. Tang asserted that his evidence showed that the Chinese government’s torture of unregistered church members was “prolific in China.”

The Fourth Circuit refused to review this claim due to lack of jurisdiction. Under 8 U.S.C. § 1252(d)(1), courts can only review an order of removal once the “alien has exhausted all administrative remedies available to the alien as of right.” The Court held that Tang did not exhaust his administrative remedies because he failed to bring this issue on appeal before the Board.

Disposition

The Fourth Circuit ultimately denied Tang’s petition for review of the Board’s decision.

By Anthony Biraglia

In the civil case of Oxygene v. Lynch, the Fourth Circuit denied in part and dismissed in part a petition for review of orders denying Wilerms Oxygene’s (“Oxygene”) application for deferral of removal under the Convention Against Torture (“CAT’) and a subsequent motion to reopen his removal proceedings. In a published opinion released on February 22, 2016, the Court found that it lacked jurisdiction to review the motion to reopen based on Oxygene’s status as aggravated felon under the Immigration and Nationality Act, and agreed with the Board of Immigration Appeals (“BIA”) decision to deny Oxygene’s application for deferral of removal under the CAT because Oxygene had not proven that Haitian officials had a specific intent to torture him upon his return. The Court thus dismissed Oxygene’s petition for review of the order denying his motion to reopen his removal proceedings, and denied his petition for review of the order denying his deferral of the removal under the CAT.

State Crime Convictions, Removal Proceedings, and Attempted CAT Deferral

Oxygene obtained lawful permanent resident status in the United States in 1996, two years after fleeing political violence in his native Haiti. Five years later, in 2001, Oxygene was convicted of several state crimes in Virginia, including burglary, grand larceny, robbery, and using a firearm to commit a felony. The Department of Homeland Security (“DHS”) commenced removal proceedings against Oxygene under 8 U.S.C. § 1227(a)(2), which provides that, among other things, aliens convicted of aggravated felonies or firearm offense are deportable. Oxygene conceded that his Virginia convictions made him removable under the statute, but applied for deferral of removal under the CAT.

Oxygene had a removal hearing in front of an Immigration Judge (“IJ”) to consider his application for deferral. During this hearing, Oxygene submitted evidence, including State Department reports, nongovernmental organization reports, and news articles, about the deplorable prison conditions in Haiti. Oxygene expressed a fear that he would face indefinite detention if deported, and that that detention would result in the activation of his latent tuberculosis without access to sufficient medical care. Despite finding the conditions of the Haitian prisons horrid and noting that some instances of mistreatment in Haitian prisons could constitute torture, the IJ denied Oxygene’s application for deferral because he had failed to prove that it was more likely than not that he would suffer torture upon his return to Haiti. He also failed to prove that Haitian authorities intentionally and deliberately detain deportees to inflict torture, which is required under the Foreign Affairs Reform and Restructuring Act (“FARRA”) that implemented the directives of the CAT.

Oxygene appealed to the BIA, asking it both to reverse the IJ’s denial and, alternatively, to remand the case to the IJ to consider whether of Oxygene’s recent diagnoses of post-traumatic stress disorder and depression affected the IJ’s ruling. The BIA affirmed the IJ’s decision and denied the motion for remand. Oxygene’s motion for reconsideration, which the BIA treated as a petition to reopen, was subsequently denied. Oxygene filed two appeals to the Fourth Circuit challenging both the BIA’s denial of the application for deferral and its denial of his motion to reopen. The Court consolidated the questions.

Jurisdictional Question

The Fourth Circuit explained that because Oxygene was an aggravated felon for the purposes of removal, its jurisdiction was limited by Congress through 8 U.S.C. § 1252 (a)(2)(C) to legal and constitutional questions. Therefore, the Court had to determine whether Oxygene’s arguments raised legal or constitutional questions, rather than factual questions, before it proceeded with any analysis of those arguments. Oxygene presented two arguments with respect to the BIA’s denial of his application for deferral, only one of which, namely that the precedent on which the BIA relied stated the incorrect legal test for the intent necessary to establish torture, raised legal issues. The Court retained jurisdiction over this question. The Court found that Oxygene’s challenge to the motion to reopen his removal proceedings raised factual issues over which it did not have jurisdiction. As a result, the Court addressed only Oxygene’s argument that In re J-E, the precedent upon which the BIA relied, incorrectly stated the legal test for the intent necessary to establish torture under the CAT.

CAT and FARRA Require that Torture be Specifically Intended

Congress implemented the CAT through the FARRA legislation in 1998. FARRA did not define torture, but rather instructed the Justice Department to promulgate regulations that reflected the Presidential and Senate understanding of the CAT. This understanding, which was reflected in the Justice Department regulations, included a specific intent requirement for torture. More specifically, the acts in question must be perpetrated with an intent to cause severe mental or physical injury. Acts do not constitute torture if mental or physical injury is an unintended consequence. In re J-E, the BIA adopted the specific intent requirement that each entity responsible for interpreting the CAT understood to be inherent in the definition of torture for the purposes of FARRA.

In re J-E also addressed the issue of the poor conditions in Haitian prisons. The BIA found that although Haitian officials were detaining deportees with knowledge of the poor conditions, the officials did not intentionally keep the prisons in poor condition to inflict torture on the deportees. The BIA concluded that the poor conditions were the result of a lack of resources and severe economic difficulties in the country rather than a delicate effort to torture prisoners.

The Court agreed with the BIA’s reasoning in In re J-E, finding that the specific intent requirement as the BIA had interpreted was consistent with the President’s and Congress’s understanding of torture under the CAT. It therefore afforded it deference in applying the same principles in Oxygene’s case.

Denied in Part and Dismissed in Part

For the reasons stated above, the Fourth Circuit denied Oxygen’s petition for review of an order to deny his application for deferral under the CAT, and dismissed his petition for review of the BIA’s denial of his motion to reopen his removal proceedings.

 

Ornate fountain with statue

By George Kennedy

On February 16, 2016, the Fourth Circuit issued its published opinion in the agency review case Adebowale Oloyde Ojo v. Loretta Lynch. In its order, the Fourth Circuit vacated the order of the Board of Immigration Appeals (“BIA”) denying a motion to reopen the removal proceedings of Adebowale Oloyde Ojo, a native of Nigeria and adopted son of a United States citizen.

Ojo’s Residence in the United States

Ojo was born in Nigeria in 1983 and lawfully entered the United States in 1989. Soon after entering the United States, Ojo’s uncle, a United States citizen, became his legal guardian. Ojo lived with his uncle from the age of six to the age of sixteen, at which point Ojo’s uncle filed a petition to adopt Ojo. In 2001, after Ojo had turned seventeen, the Circuit Court for Montgomery County, Maryland entered a judgment of adoption.

Between 2009 and 2012, Ojo was convicted of two-drug related offenses. In light of Ojo’s convictions, and based in the belief that Ojo had not derived U.S. citizenship as an adoptive child under 8 U.S.C. § 1101(a)(43)(B), the Department of Homeland Security (“DHS”) initiated proceedings to remove him from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii).

Statutory Framework and Removal Proceedings

Under 8 U.S.C. § 1227(a)(2)(A)(iii), the DHS is authorized to order that certain individuals be removed from the United States if the individuals are aliens and commit an “aggravated felony.” Ojo’s drug-related offenses qualify as “aggravated felonies” and therefore, the DHS is authorized to order his removal so long as he qualifies as an alien. A foreign-born child, however, is not deemed an alien, and thus is deemed a naturalized U.S. citizen under 8 U.S.C. § 1431(a) and § 1101(b)(1)(E) as long as the child was adopted by a citizen-parent while under the age of sixteen years.

In a removal proceeding in 2014, the immigration judge determined that Ojo was removable since he had committed an aggravated felony and was not a U.S. citizen. Critically, the court held that since Ojo was not adopted by his uncle until he was seventeen years old, he did not qualify as an adopted child under § 1101(b)(1)(E), and therefore had not become a U.S. citizen under 8 U.S.C. § 1431. The Board of Immigration Appeals affirmed the immigration judge’s ruling, agreeing that Ojo did not qualify as an adopted child under the statute because of Ojo’s adoption taking place after he had turned sixteen.

Ojo’s Motion to Reopen Removal Proceedings

Based upon a nunc pro tunc order, Ojo filed a motion to reopen the removal proceedings against him. The nunc pro tunc order, a court order that gives retroactive legal effect, was entered by a Maryland state court and made Ojo’s adoption effective on the day before he turned sixteen. Therefore, under the nunc pro tunc order, Ojo qualified as a U.S. citizen by being adopted by his U.S. citizen uncle while under the age of sixteen. The Board of Immigration Appeals, however, denied Ojo’s motion to reopen, holding that it does not recognize nunc pro tunc orders after a child reaches the age limit for the filing of the adoption petition. On appeal, Ojo alleges that the BIA improperly denied Ojo’s motion to reopen the removal proceedings.

BIA’s Denial of Ojo’s Motion to Reopen Vacated

The Fourth Circuit agreed with Ojo that the BIA should have allowed the reopening of the removal proceedings. In so holding, the Fourth Circuit argued that the BIA’s interpretation of § 1101(b)(1)(E) impermissibly conflicted with the Maryland state court’s nunc pro tunc order since the law of domestic relations is the domain of states and federal agencies may not interfere with the exercise of state power on the subject absent clear congressional authorization.

As the Fourth Circuit emphasized, “the Federal Government, through our history, has deferred to state-law policy decision with respect to domestic relations.” Therefore, federal agency decisions that override the orders of state courts in regards to domestic relations are inherently suspect. As the Fourth Circuit explained, federal agencies need clear Congressional authorization before encroaching upon traditional state powers. In this case, the Fourth Circuit held that the BIA was lacking such authorization.

The BIA, in refusing to reopen Ojo’s removal proceedings, essentially disregarded the nunc pro tunc order of the Maryland state court which declared that Ojo was adopted by his uncle before he turned sixteen and therefore became a U.S. citizen by virtue of that adoption under 8 U.S.C. § 1101(a)(43)(B). The Fourth Circuit held that the BIA’s disregard of the nunc pro tunc order was impermissible because the BIA is not empowered to review state court adoption orders. Instead, the BIA was obligated to adhere to the order of the Maryland state court which declared that Ojo was adopted before he turned sixteen. Therefore, the BIA should have reopened Ojo’s removal proceedings since the nunc pro tunc order qualified Ojo as a U.S. citizen.

Vacated and Remanded

The Fourth Circuit held that the BIA erred as a matter of law in denying Ojo’s motion to reopen removal proceedings, and consequently vacated the BIA order and remanded the case for further proceedings.

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.

immigration photo

By Paige Topper

On December 2, 2015, in the civil case of Diop v. Lynch, a published opinion, the Fourth Circuit denied a petition for review of an Order of the Board of Immigration Appeals because the Immigration Judge appropriately found petitioner, Madiagne Diop, mentally competent to proceed with the removal process.

Diop’s Illegal Immigration Status and Removal Proceedings

Diop was admitted to the United States from his native country, Senegal, as a temporary visitor on October 15, 1997. Although the visa only permitted Diop to stay in the U.S. until April 14, 1998, Diop continued to reside in the U.S. for the past seventeen years.

On January 14, 2012, Diop was arrested after a psychotic episode at his workplace. As a result of his behavior during the arrest, Diop was transferred to the hospital for a psychological evaluation and given antipsychotic medication before returning to police custody. Stemming from the arrest and subsequent convictions, the Department of Homeland Security served Diop with a Notice to Appear. The Notice deemed Diop removable as a nonimmigrant who violated the Immigration and Nationality Act for overstaying his visa.

In the course of the removal proceedings, Diop appeared before an Immigration Judge (IJ) on five separate occasions. On one of these occasions, the IJ questioned Diop on his competency in understanding the proceedings and communicating with an attorney. Diop affirmed that he understood the proceedings and could discuss his Immigration status with his attorney. Ultimately, the IJ granted Diop voluntary departure or, in the alternative, ordered his removal.

Diop filed an appeal to the Board of Immigration Appeals (BIA), claiming that the IJ should have continued the case in order to allow Diop to receive a psychological evaluation. Specifically, Diop argued that a psychological evaluation would have indicated Diop’s mental incompetency and would have resulted in a hold on his removal. The BIA rejected Diop’s argument as he had no prior history of mental health problems and had already demonstrated his ability to communicate with his attorney. Therefore, the BIA affirmed the IJ’s order of removal.

Mental Competency in Removal Proceedings

Diop’s single challenge on appeal was that the IJ should have continued or administratively closed the removal proceeding to permit Diop to receive a mental health evaluation. The Fourth Circuit noted that competency is an issue of fact. Thus, the IJ’s finding of competency was subject to review under the substantial evidence standard and must be treated as conclusive unless the evidence was such that any reasonable judge would have concluded otherwise.

The process for determining mental competency in removal proceedings was established in Matter of M-A-M. The IJ must start with a presumption of competence. If there are indicia of incompetency, then the IJ should consider three factors to determine whether a respondent is competent to participate in the proceedings. The IJ must consider whether the respondent (1) has a rational and factual understanding of the nature and object of the removal proceedings, (2) can consult with an attorney, and (3) has a reasonable opportunity to examine and present evidence and cross-examine witnesses. This process deliberately gives the IJ discretion to determine competency on a case-by-case basis.

Diop Was Competent to Participate in the Proceedings

The Fourth Circuit found that Diop’s appeal failed at the initial stage of the M-A-M analysis because there were no sufficient indicia of Diop’s incompetency. Although Diop brought up the psychotic episode that led to his arrest, the Fourth Circuit noted that past mental history is not dispositive. Furthermore, the Fourth Circuit found that the IJ’s verbal exchange with Diop indicated his competency because Diop voiced no psychological concerns, understood that the proceedings related to his immigration status, and raised only the objection of expense in calling his attorney.

Moreover, the Fourth Circuit emphasized the fact that Diop had five appearances before the IJ and repeatedly asked for continuances as a means to delay his removal. In particular, Diop had previously argued that his psychotic outburst was brought on by lack of sleep to show that his stable and non-violent nature warranted him a continued stay in the U.S. With Diop making such contradictory arguments, the Fourth Circuit concluded that his appeal was yet another delay tactic.

Fourth Circuit Denied the Petition for Review

The Fourth Circuit determined that the IJ’s actions in ascertaining Diop’s competency were in full compliance with M-A-M. Having found that Diop was fully competent to participate in the removal proceedings, the Fourth Circuit denied the petition for review.

By Elizabeth DeFrance

On December 4, 2015, the Fourth Circuit issued a published opinion in the case, Hernandez-Nolasco v. Lynch, in which the petitioner sought review of orders of the Board of Immigration Appeals (BIA).

Being Kidnapped And Threatened By A Gang After His Brother and Father Were Killed Failed to Meet The Burden of Proving He Would Face Torture If Removed

In 2009, Jose Hernandez-Nolasco, a citizen of Honduras,  entered the United States without authorization at the age of seventeen. In 2012, he pled guilty to possession of cocaine with intent to distribute, a violation of Virginia Code § 18.2-248 and was sentenced to five years. The sentence was suspended.

Sometime later, the Department of Homeland Security issued a Notice of Intent to issue a Final Administrative Removal Order for Hernandez-Nolasco. He claimed he was entitled to withholding of removal under the Immigration Nationality Act (INA) or the United Nations Convention Against Torture Act (CAT) because he would face persecution upon return to Honduras because of his membership in a particular social group. Hernandez-Nolasco’s father and brother were killed by a gang leader, and he left Honduras after being kidnapped and threatened by the same gang.

An Immigration Judge (IJ) held that Hernandez-Nolasco was not entitled to withholding of removal under the INA or CAT because he was convicted of a “particularly serious crime.” The IJ also found that Hernandez-Nolasco was not entitled to deferral of removal under the CAT because he failed to prove he would be subject to torture if returned to Honduras.

On appeal, the BIA affirmed the IJ’s decision. Hernandez-Nolasco filed a motion for reconsideration which was denied by the BIA. Hernandez then petitioned the Fourth Circuit Court of Appeals for review, claiming the BIA erred in determining his drug conviction meets the definition of an “aggravated felony,” rendering him ineligible for relief under the INA and the CAT. He also claims that the BIA erred in holding that he failed to meet his evidentiary burden to qualify for relief under the CAT.

A Drug Trafficking Crime Is Considered An Aggravated Felony

A petitioner is ineligible for relief under the INA or the CAT if he has been convicted of a particularly serious crime. A conviction for an aggravated felony with a sentence of at least five years is considered a particularly serious crime. Under the INA, a “drug trafficking crime” is considered to be an aggravated felony. Any “conviction under a state statute that proscribes conduct necessarily punishable as a felony under the Controlled Substances Act (CSA)” qualifies as a drug trafficking crime.

Hernandez-Nolasco’s Drug Trafficking Conviction Qualifies As A Particularly Serious Crime

Because Hernandez-Nolasco was convicted of a state crime that necessarily constitutes as felony under the CSA, the conviction qualifies as an aggravated felony under the INA. An aggravated felony is considered a particularly serious crime if it results in a sentence of at least five years, thus Hernandez-Nolasco is ineligible for withholding of removal under the INA or the CAT.

Under the INA, the Court’s jurisdiction for review of final orders of removal involving crimes related to controlled substances is limited to constitutional claims and questions of law. The BIA’s finding that Hernadez-Nolasco’s failed to provide enough evidence he would face torture upon his return to Honduras is a question of fact, not law. Thus, the Court lacked jurisdiction to decide the merits of his claim.

Petitions for Review Were Denied In Part And Dismissed In Part

The Court upheld the BIA’s denial of Hernandez-Nolasco’s petition for withholding of removal. The Court lacked jurisdiction to decide the merits of Hernadez-Nolasco’s claim he was entitled to deferral of removal under the CAT.

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By Eric Benedict

On November 25, 2015, the Fourth Circuit issued its published opinion in the immigration case Oliva v. Lynch. The appeal was taken from the Board of Immigration Appeals (“BIA”) after a one-person panel affirmed the Immigration Judge’s (“IJ”) decision to deny Oliva’s application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”). On appeal, Oliva argued that the lower judicial bodies erred by (1) failing to recognize the nexus between his persecution and the proposed social group and (2) for failing to consider evidence that he was a member of a cognizable social group. A unanimous panel of the Fourth Circuit agreed and vacated in part and remanded in part.

Oliva Faces Years of Extortion and Threats for Leaving MS-13 Gang

When he was sixteen years old, Vladimir Oliva joined a gang called Mara Salvatrucha, otherwise known as MS-13 and was trained as a spy. A short time later, after witnessing the brutality of gang life, he decided to leave MS-13. However, MS-13 does not permit its members to leave the gang. A member is permitted to become “inactive” for religious or family reasons, but is required to pay “rent” to the gang. Members who attempt to leave are threatened with death. Oliva moved to a number of different cities in an attempt to evade the gang and the “rent” payments. Ultimately, Oliva spent almost a decade paying almost a third of his income to the gang. When Oliva failed to make payment in 2006, he was severely beaten and again threatened with death.

Oliva Seeks Protection on American Soil

To avoid continued persecution in his native El Salvador, Oliva entered the United States without authorization in 2007. Years later, Oliva continued to receive threatening calls from MS-13, notifying Oliva that he would be killed if he returned to his home country. In 2010, the department of Homeland Security (“DHS”) charged Oliva with removability under the INA.  The following year, Oliva filed an application for asylum and withholding of removal.

The Proceedings Below

After its initial hearing, the Immigration Court denied Oliva’s petition because it believed that MS-13 was not targeting Oliva because of his membership in the group, but rather, was targeting Oliva for money. Oliva appealed the decision and a one-member panel of the BIA dismissed the appeal. Notably, the Immigration Court also based its decision on Oliva’s failure to meet the filing deadline for asylum. However, the BIA did not address the issue, so the issue was not before the Fourth Circuit. Oliva appealed to the Fourth Circuit Court of Appeals.

The Fourth Circuit’s Deference to the BIA and the Fact Finding Standard of Review

Judge Wynn set forth a thorough discussion of the standard by which the Fourth Circuit reviews decisions of the BIA. Notably, the INA sets forth a fairly deferential standard, “[A] decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(c). In this case, the Court was careful to point out that, “[w]hile a three-member panel of the BIA is entitled to Chevron deference … a one-member panel of the BIA-like the one in this case is entitled to the lesser Skidmore deference.” Finally, the Court noted that while the BIA’s findings of law are reviewed de novo, the BIA’s findings of fact are “conclusive unless no rational factfinder could agree with the BIA’s position.”

Oliva sought asylum under section 241 (b)(3)(A) of the INA, which provides in part that the Attorney General may not remove an alien who is otherwise removable “if the Attorney General decides that the alien’s life or freedom would be threatened in [the country of removal] because of the alien’s … membership in a particular social group…” Under this provision, the BIA dismissed Oliva’s appeal from the IJ first because it found that the alleged groups were not cognizable under the INA and second because Oliva failed to show a nexus between his membership in the group and the persecution he feared. Oliva appealed both of these findings.

Oliva Meets the INA’s Nexus Requirement

Oliva claimed that his persecution was due to his membership in a group. To satisfy the INA’s nexus requirement, an applicant must show that, “his past or threatened persecution was ‘on account of’ his membership in that group.” Importantly, membership in a particular group only has to be a central reason for the persecution, not the only reason for the persecution. The Court qualified this test by noting that membership must not be “merely ‘incidental, tangential, superficial, or subordinate to another reason for harm.’” Explaining that extortion can constitute persecution, the court reversed the BIA’s holding. Judge Wynn noted that “[b]ecause it is undisputed that MS-13 extorted Oliva on account of his leaving the gang, the record compels the conclusion that his persecution was on account of his status as a former member of MS-13.” The Fourth Circuit rejected the BIA’s contention that the gang extorted Oliva due to greed, observing that Oliva’s decision to leave the gang for religious reasons was what placed him in the category of person from which MS-13 demands “rent” payments. Despite a relatively deferential standard of review, the Court reversed the BIA, finding that Oliva satisfied the nexus requirement.

The BIA Erred in Failing to Address Oliva’s Evidence on the “Cognizable Group” Element

Oliva claimed that he was threatened because of his membership in two different groups. First, “Salvadorians who are former members of MS-13 and who left the gang, without its permission, for moral and religious reasons,” and second, “Salvadorians who were recruited to be members of MS-13 as children and who left the gang as minors, without its permission for moral and religious reasons.” A group is cognizable under the relevant portion of the INA if the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” The BIA ended its inquiry after finding that Oliva failed the “social distinction” requirement because the group is not “perceived as a group by society”. However, the parties agreed that the BIA erred by failing to address all of the evidence put forth by Oliva as to the groups social distinction. Therefore, the government agreed that the proper course of action was for the Fourth Circuit to remand the matter to the BIA for consideration of the evidence.

Conclusion

Despite an elevated standard of review, the Fourth Circuit found that the BIA defined the nexus requirement too narrowly. Instead, the Court set forth the proper inquiry and found that Oliva had demonstrated that his membership in the proposed group was a central reason for his persecution. Therefore the Fourth Circuit reversed the BIA on this issue. Second, the Court, on agreement of both parties remanded the matter for consideration of the evidence as to whether or not Oliva’s proposed groups are cognizable under the INA.

 

 

 

By Sarah M. Saint

Today, in the published civil case of Hernandez-Zavala v. Lynch, the Fourth Circuit denied Hernan Hernandez-Zavala’s petition for review of the Board of Immigration Appeal’s (“BIA’s”) order affirming the Immigration Judge’s (“IJ’s”) pretermission of Hernandez-Zavala’s application for cancellation of removal. The BIA found Hernandez-Zavala had committed a crime of domestic violence and thus statutorily ineligible for cancellation of removal.

Hernandez-Zavala’s underlying conviction

On March 21, 2012, Hernandez-Zavala pleaded guilty to assault with a deadly weapon. The victim of assault was a woman with whom Hernandez-Zavala lives and shares a child.

Procedural history of Hernandez-Zavala’s application for cancellation of removal.

On March 9, 2012, the Department of Homeland Security (“DHS”) charged Hernandez-Zavala with removability because he had been neither admitted nor paroled when he entered the United States. Hernandez-Zavala applied for cancellation of removal. The Attorney General may cancel the removal of a removable alien if he meets certain criteria, including never being convicted of a crime of domestic violence.

On February 4, 2013, DHS moved to pretermit Hernandez-Zavala’s application because he had been convicted of a crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E)(i) and thus was ineligible for cancellation of removal. A crime of domestic violence is, in relevant part, “any crime of violence . . . by an individual who is cohabitating with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse.” 8 U.S.C. § 1227(a)(2)(E)(i). Hernandez-Zavala contested this motion, claiming the conviction did not constitute a crime of domestic violence.

On March 18, 2013, the IJ granted DHS’s motion to pretermit Hernandez-Zavala’s application for cancellation of removal because Hernandez-Zavala committed a crime of domestic violence and accordingly ineligible for cancellation of removal.

On April 8, 2013, Hernandez-Zavala appealed the IJ’s decision to the BIA because assault with a deadly weapon is not categorically a disqualifying offense. The BIA used the circumstance-specific approach to conclude that the IJ properly determined that Hernandez-Zavala committed a crime of domestic violence.

Hernandez-Zavala filed a petition for review with the Fourth Circuit bringing one legal issue: whether a conviction under a state law that does not have a domestic relationship as an element of the offense can constitute a “crime of domestic violence.” This is a matter of first impression for the Fourth Circuit.

Standard of Review

Legal issues are reviewed de novo. When both the BIA and IJ issue decisions, the Fourth Circuit reviews both decisions.

What is a crime of domestic violence?

A crime of domestic violence has two elements: (1) a crime of violence (2) that was committed by an individual who was in a domestic relationship with the victim.

Hernandez-Zavala does not dispute that his assault conviction constitutes a crime of violence. Hernandez-Zavala also does not dispute that he was in a domestic relationship with the victim of his assault. “The only question is whether the domestic relationship requirement in the statute must be an element of the underlying offense of conviction, triggering the categorical approach, or if it must merely be an attendant circumstance of the underlying conviction, triggering the circumstance-specific approach.”

Under the categorical approach, the inquiry stops by looking at the elements of the underlying offense; there is no factual inquiry into the particular circumstances of the conviction. The categorical approach is practical for judicial efficiency. Courts use the categorical approach when a state crime fits within the generic federal definition of a corresponding crime.

Under the circumstance-specific approach, the court must consider the underlying evidence of the underlying offense to determine if the victim and Hernandez-Zavala had a domestic relationship. Courts use the circumstance-specific approach when the corresponding federal statute does not describe a generic offense but specific acts in specific occasions.

Hernandez-Zavala argues for the categorical approach to apply while DHS argues for the circumstance-specific approach to apply.

The Fourth Circuit relied on the reasoning in United States v. Hayes as instructive in whether to use the categorical or circumstance-specific approach. 555 U.S. 415 (2009). In Hayes the Court concluded that a domestic relationship did not need to be an element of the underlying offense. Id. at 426. Most states have no domestic violence laws, so crimes of domestic violence are prosecuted under general assault or battery laws. Id. at 427.Therefore, the Court in Hayes held that the circumstance-specific approach should apply because the categorical approach would frustrate the purpose of the law. Id.

Fourth Circuit denied Hernandez-Zavala’s petition for review

The Fourth Circuit concluded that the circumstance-specific approach should apply in Hernandez-Zavala’s case, using the reasoning in Hayes as instructive. Further, the relationship between the noncitizen and the victim is easily discernible. In doing so, the Fourth Circuit denied Hernandez-Zavala’s petition for review and affirmed the BIA’s decision because Hernandez-Zavala’s conviction for assault with a deadly weapon was committed against someone with whom he had a domestic relationship, rendering him ineligible for cancellation of removal.

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By Mikhail Petrov

On July 23, 2015, in the criminal case of United States v. Parral-Dominguez, the Fourth Circuit issued a published opinion vacating the sentence of foreign national Edgar Parral-Dominguez (“Dominguez”) and remanding the case back to the district court. This case examined whether Edgar Parral-Dominguez, a Mexican citizen, was properly subject to a sentencing guidelines enhancement. After Dominguez plead guilty to illegally reentering the country, the district court applied the enhancement because, in its view, Dominguez’s previous conviction in North Carolina for discharging a firearm into an occupied building is a requisite “crime of violence.” The Fourth Circuit found this decision was in error.

The Facts

In 2000, at the age of 14, Edgar Parral-Dominguez left Mexico with his father and entered the United States. Although his father went back, Dominguez remained. On New Year’s Day, a firearm was discharged toward a woman’s residence in Winston-Salem, North Carolina. A year later, Dominguez was arrested and charged for the incident. He was convicted for an aggravated felony–discharging a firearm into a building under N.C.G.S.A. § 14-34.1(a) (“the State Offense”).

During his post-arrest processing, state authorities found that Dominguez was unlawfully present in the country. Thus, after he plead guilty to the State Offense he was deported to Mexico. Within months, however, Dominguez returned to North Carolina, and settled in Wilmington.

Three years after his deportation, Dominguez was arrested with more than an ounce of cocaine. He was convicted for trafficking and state authorities again discovered that Dominguez was previously deported and was unlawfully present in the country. In December 2013, a federal grand jury sitting in the Eastern District of North Carolina indicted Dominguez under 8 U.S.C. §§ 1326(a) for illegally reentering the United States after being convicted of an aggravated felony.

Before Dominguez’s sentencing, U.S. Probation prepared a presentence investigation report (PSR), which found that Dominguez was a Category IV criminal, that his base offense level was eight, and that he earned a three-point reduction for accepting responsibility. The PSR then proposed a sixteen-level enhancement to Dominguez’s offense level for having been previously convicted of a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Applying this enhancement, the PSR calculated an offense level of twenty one, resulting in fifty-seven to seventy-one months of imprisonment. Dominguez argued that, as a matter of law, the State Offense did not constitute the requisite crime of violence under § 2L1.2(b)(1)(A)(ii).

The district court overruled Dominguez’s objection after concluding that the occupant of a building would feel threatened by the physical force when a defendant shoots at the building. The court then imposed a sixty-five month sentence. The day after sentencing, the district court issued a nine-page memorandum opinion which argued, without binding precedent, that Dominguez’s offense was a crime of violence as anyone would be inherently threatened if their building was shot at. Dominguez appealed.

The Rule of the Case

This appeal centers on whether the state offense of discharging a firearm into an occupied building under N.C.G.S.A. § 14-34.1(a) constitutes a crime of violence for federal sentencing purposes under U.S.S.G. § 2L1.2. The Fourth Circuit first compared the contours of a “crime of violence” under § 2L1.2 with the breadth of conduct proscribed by N.C.G.S.A. § 14-34.1(a). The court applied the so called “categorical approach” set forth in Taylor v. United States, 495 U.S. 575 (1990) (finding that the elements of a statute, not the actual conduct, dictate its interpretation for sentencing purposes). Under the Taylor approach, the court considers only the elements of the statute of conviction rather than the defendant’s conduct underlying the offense.

Reasoning of the Fourth Circuit

Section 2L1.2 states that a 16-level enhancement applies if “the defendant previously was deported . . . after . . . a conviction for a felony that is . . . a crime of violence.” Although the text of § 2L1.2 does not expressly define the phrase “crime of violence,” the application note clarifies that the phrase contemplates any offense under federal, state, or local law that has, as an element, the use, attempted use, or threatened use of physical force against a person. The so-called “use-of-force clause” was the sole basis with which the Government argued that the State Offense is a crime of violence under § 2L1.2. Still, the use of force clause is limited because first, the plain language of the clause does not encompass acts involving the use of force against property. Second, unlike other sections of the Guidelines, the use-of-force clause does not include “acts that merely pose a risk of harm to another person.”

Although not listed as an element in the statute, the Supreme Court of North Carolina has read a knowledge element into the State Offense which requires the defendant to have had “reasonable grounds to believe that the building might be occupied by one or more persons.” Thus, the State Offense does not require that an offender use, attempt to use, or threaten to use force against another person. Instead, the crime is complete when a person (1) intentionally (2) discharges a firearm (3) toward an occupied building (4) when the shooter knows or has reasonable grounds to believe that the building might be occupied. Therefore, the State Offense cannot be construed as a crime of violence under § 2L1.2’s use-of-force clause and the district court committed procedural error by concluding that Dominguez’s offense under the State Offense is a crime of violence.

Finally, the Fourth Circuit reasoned that the error was not harmless. While in many cases, a judge is unequivocal about what effect any Guidelines miscalculation would have on the ultimate sentence, no such words exist here. It is not clear that Dominguez’s sentencing was unaffected by the court’s error. The Fourth Circuit, looking at the amount of time devoted to calculating the sentence, reasoned that the Guidelines played a large role in the sixty-five month sentence.

Holding

The Fourth Circuit vacated and remanded Dominguez’s sixty-five month sentence. The court held that the State Offense is not a crime of violence, and thus that the district court committed procedural error. Additionally, the procedural error was not harmless. The dissent by Circuit Judge Wilkinson argues that the decision should be upheld because the State Offense is not a crime against property, but a crime against people who occupy the property and is therefore a crime of violence.

By Elizabeth DeFrance

On July 7, 2015, the Fourth Circuit issued a published opinion in the criminal case U.S. v. Aplicano-Oyuela. The Appellant, Gerson Arturo Aplicano-Oyuela (“Aplicano”) pled guilty to illegal reentry after his removal following a felony conviction, and received a term of three years supervised release. He appealed the term of supervised release, arguing that it was procedurally and substantively unreasonable, and the sentencing judge failed to advise him on supervised release before accepting Aplicano’s guilty plea in violation of the Federal Rules of Criminal Procedure Rule 11.

Aplicano had a History of Illegal Entry and Criminal Activity

Aplicano is a native citizen of Honduras, and illegally entered the United States in 2002. Between 2006 and 2011 he plead guilty to second-degree assault and driving without a license, and was convicted of criminal mischief. He was removed to Honduras in January 2012, and illegally reentered the United States within the next year. He was arrested several times in 2013, and plead guilty to another second-degree assault charge.

On July 26, 2013, a grand jury indicted Aplicano with illegal reentry by an alien who had previously been removed after a felony conviction. He initially plead not guilty, but later submitted a letter through his attorney stating that he pled guilty “without benefit of a plea agreement,” and acknowledged that the maximum sentence for his offense included a three year term of supervised release.  During the plea hearing, it was established that Aplicano understood he could be sentenced to the maximum penalty, including supervised release.

Aplicano’s presentence report (PSR) indicated that the Guidelines range for his offense level was ten to sixteen months, and indicated a supervised release term of not more than three years could be imposed if required by statute, if the court sentenced the defendant to a term of imprisonment longer than one year. The PSR also indicated that, pursuant to U.S.S.G. § 5D1.1(c), “the Court ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment.” The PSR report recommended a supervised release term of two years due to Aplicano’s criminal history.

Applicano submitted a letter requesting the length of imprisonment be reduced, but did not address the supervised release recommendation or attempt to withdraw his guilty plea. During the sentencing hearing Aplicano urged the court to consider the violent gang attacks his family had suffered in Honduras. The district court did consider § 3553(a) factors, but ultimately found Aplicano’s story unconvincing. The district court focused much attention on Aplicano’s multiple illegal entries and propensity to commit crimes while in the United States.  The district court sentenced Aplicano to sixteen months in prison and a term of three years supervised release.

Alleged Sentencing Errors are Reviewed for Plain Error

Challenges to sentencing not preserved in the lower court are reviewed for plain error, as is a contest to a guilty plea the defendant did not attempt to withdraw. The defendant must prove that the error affects his substantial rights.

Imposition of a term of supervised release is procedurally reasonable if it is within the guidelines. The imposition of supervised release is “not a departure from the Guidelines if the district court finds that supervised release would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case.”

When determining the substantive reasonableness of a sentence, the court must consider the totality of the circumstances, including any variance from the Guidelines. If the sentence is within the Guidelines range, the reviewing court may make a presumption of reasonableness. The defendant may rebut this presumption using the § 3553(a) factors, including the sentencing court’s use of an improper factor not included in § 3553(a).

The Federal Rules of Criminal Procedure 11(b)(1)(H) states, “[b]efore the court accepts a plea of guilty [it] must inform the defendant of, and determine that the defendant understands, … any maximum possible penalty, including imprisonment, fine, and term of supervised release.” Fourth Circuit precedent also requires the sentencing judge personally inform the defendant and assure he understands the consequences of his guilty plea.

The Supervised Release Term was Intended as a Deterrent

In determining whether the term of supervised release was procedurally unreasonable, the Court noted that the district court failed to specifically discuss the Guidelines or that expressly state that the imposition of supervised release was intended to deter the defendant and protect the community. However,  the Court followed reasoning from Second Circuit, stating that it is sufficient if the sentencing court “(1) is aware of Guidelines section 5D1.1(c); (2) considers a defendant’s specific circumstances and the § 3553(a) factors; and (3) determines that additional deterrence is needed.” The Court reasoned that the district court was aware of section 5D1.1(c) because it adopted the PSR “without change” which included the recommendations from 5D1.1(c). It Also concluded that the district court adequately considered Aplicano’s specific circumstances because its opinion discussed Aplicano’s description of the violence his family experienced in Honduras, and his criminal history in the United States. Finally, the district court determined additional deterrence was necessary because it stated, “I think you may well try to get back in the country again.” Accordingly, the Court determined that the imposition of supervised release was not procedurally unreasonable.

In his challenge to the substantive reasonableness of the supervised release term, Aplicano argued that the district court’s statement that it would allow the authorities to “get him in jail much faster than if we went through a separate prosecution” indicated the use of an improper factor. However, the Court reasoned that this statement only indicated that the district court intended the term of supervised release to deter and protect the community. Accordingly, the imposition of supervised release was not substantively unreasonable.

In considering whether the district court violated Rule 11, the Court noted that Aplicano was advised during the plea hearing that he could receive the maximum term of three years supervised release. The Court reasoned that even if the district court had erred by failing to properly inform him of the nature of supervised release, a vacatur of his guilty plea was not warranted because the error did not affect his substantial rights. Specifically, Aplicano did not identify anything in the record indicating he would not have plead guilty if the district court had advised him on the nature of supervised release. The Court found it compelling that Aplicano made no effort to withdraw his guilty plea after the term of supervised release was imposed. Therefore, the Court concluded that Aplicano’s substantial rights were not affected.

Judgment of the District Court is Affirmed

The Court held that there was no error because imposition of supervised release was procedurally and substantially reasonable. It also held that Vacatur was unwarranted because the presumed error did not affect Aplicano’s substantial rights.