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).
