898 F.3d 448
4th Cir.2018Background
- Andrew R. Shaw, a U.K. national and U.S. lawful permanent resident, pleaded guilty in New Jersey (2007) to third-degree conspiracy under N.J. Stat. § 2C:5-2 and was sentenced to two years' probation; related drug counts were dismissed.
- On reentry to the U.S. in 2014, DHS denied admission and initiated removal proceedings, alleging Shaw was inadmissible under INA § 212(a)(2)(A)(i)(II) for a controlled-substance-related conviction.
- The IJ reviewed the indictment and judgment, concluded Shaw conspired to distribute >25 pounds of marijuana, held him inadmissible, and ordered removal; the Board affirmed.
- Shaw argued the generic conspiracy statute is indivisible so only the statute’s elements (not the object) may be considered; alternatively, he argued indictments are not admissible evidence of conviction under 8 U.S.C. § 1229a(c)(3)(B).
- The Board applied a look-through/modified approach for inchoate offenses, accepted the indictment as permissible evidence under 8 C.F.R. § 1003.41(d), and found Shaw’s offense related to marijuana (a Schedule I controlled substance).
- Shaw raised at oral argument a new claim that the indictment in the record was not the indictment to which he pleaded guilty; the majority held that claim unexhausted and therefore outside this Court’s jurisdiction.
Issues
| Issue | Shaw's Argument | Government / Board's Argument | Held |
|---|---|---|---|
| Whether a conviction under a generic conspiracy statute must be analyzed solely by the statute's elements (categorical approach) or whether the Board may look to the object of the conspiracy (look-through/modified approach). | Conspiracy is generic/indivisible; Board must apply pure categorical approach and not consider the conspiracy's object. | Inchoate offenses are special; Board may look through the inchoate statute to the underlying object offense to determine removability. | Held: Board correctly looked through the conspiracy statute to the object (possession with intent to distribute marijuana). |
| Whether DHS may introduce an indictment (charging document) as evidence of the conviction in removal proceedings given § 1229a(c)(3)(B) listing specific documents. | § 1229a(c)(3)(B) lists exclusive documents that "shall constitute proof" of conviction; indictments are not listed and thus cannot be relied on. | The statutory list creates conclusive proof if present but does not preclude other reliable evidence; 8 C.F.R. § 1003.41(d) permits other documents that reasonably indicate a conviction, including an indictment paired with judgment. | Held: Indictment admissible under the regulation when it reasonably indicates the conviction (and the judgment corroborates it). |
| Whether the record establishes that Shaw’s conspiracy conviction related to a controlled substance (marijuana). | Implicitly argued insufficient proof because statute generic; conviction should not be treated as necessarily drug-related. | Indictment and judgment show conspiracy to possess/distribute >25 pounds of marijuana, a Schedule I controlled substance, so the conviction relates to a controlled substance. | Held: The object was marijuana distribution; conviction is a controlled-substance offense and renders Shaw inadmissible. |
| Whether the Court may consider Shaw’s new claim (raised at oral argument) that the indictment in the administrative record was not the one to which he pleaded guilty. | This challenges the sufficiency/authenticity of the specific indictment and therefore the proof of conviction. | Claim was not raised before the IJ or Board and thus not exhausted; § 1252(d)(1) bars review of unexhausted claims. | Held: Court lacks jurisdiction to consider this new, unexhausted argument; claim dismissed for lack of exhaustion. |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (2013) (defining categorical and modified categorical approaches)
- United States v. Ward, 171 F.3d 188 (4th Cir. 1999) (circuit precedent treating conspiracy by reference to its object under categorical analysis)
- Mizrahi v. Gonzales, 492 F.3d 156 (2d Cir. 2007) (upholding Board’s use of case-specific documents to identify object of inchoate offense)
- Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014) (discussion of categorical/modified categorical framework)
- Ramirez v. Sessions, 887 F.3d 693 (4th Cir. 2018) (exhaustion principle for claims before the Board)
- Woodby v. INS, 385 U.S. 276 (1966) (clear, unequivocal, and convincing evidence required to deport a lawful permanent resident)
- Taylor v. United States, 495 U.S. 575 (1990) (origins of the categorical approach)
- Boggala v. Sessions, 866 F.3d 563 (4th Cir. 2017) (warning against drawing adverse inferences or supplying government’s burden in removability proofs)