Coelho v. Sessions
2017 U.S. App. LEXIS 13329
| 1st Cir. | 2017Background
- Joao Lopes Coelho (entered without inspection 1986) pled guilty in Massachusetts (1996) to assault and battery with a dangerous weapon (ABDW) against his wife.
- DHS commenced removal proceedings (2010); Coelho applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1); government argued ABDW is a categorical crime involving moral turpitude (CIMT) making him ineligible.
- Immigration Judge granted the government’s motion to pretermit after Coelho failed to timely respond; the BIA affirmed repeatedly that Massachusetts ABDW is categorically a CIMT based on the weapon aggravator and requisite mental state.
- Massachusetts ABDW has two theories: intentional (intentional use of force) and reckless/wanton (intentional commission of a wanton or reckless act — more than gross negligence — causing injury); Massachusetts recklessness is an objective standard (Welansky) rather than the Model Penal Code subjective awareness test.
- The BIA’s opinions referenced Welansky but provided minimal analysis of how Massachusetts’s objective recklessness impacts the CIMT determination; the First Circuit found the agency’s reasoning insufficiently explained and remanded for clarification on three discrete questions.
Issues
| Issue | Coelho's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Mass. ABDW is categorically a CIMT | Reckless ABDW uses an objective recklessness standard (no subjective awareness) so it may criminalize conduct that lacks the moral culpability needed for a CIMT | ABDW includes an aggravating weapon element and mental-state elements that render even reckless ABDW morally turpitudinous; Matter of Wu supports upholding such statutes | Court remanded: BIA’s analysis unclear on how Massachusetts recklessness and Matter of Wu affect categorical CIMT determination, and whether Coelho’s conviction was intentional or reckless |
| Whether the BIA adequately accounted for Massachusetts’s objective recklessness (Welansky) | BIA failed to analyze the Welansky “so stupid or so heedless” formulation and its effect on moral turpitude | BIA cited Welansky parenthetically and relied on its prior framework; government urged Matter of Wu as persuasive | Court found BIA’s cursory citation insufficient and asked BIA to explain Welansky’s impact on CIMT analysis |
| Whether Matter of Wu resolves the CIMT question here | Coelho: Wu does not control because state-law differences matter | Government: Wu supports treating statutes that require knowledge of facts (but not subjective appreciation of risk) as CIMTs | Court requested the BIA to clarify Wu’s effect on Massachusetts ABDW before deciding |
| Whether Coelho was convicted under the intentional or reckless prong of ABDW | Coelho: conviction may be for reckless ABDW (which could be non-CIMT) | Government: BIA previously addressed both prongs and found both qualify as CIMTs | Court asked BIA to determine which prong Coelho was convicted under (might render further CIMT analysis unnecessary) |
Key Cases Cited
- Da Silva Neto v. Holder, 680 F.3d 25 (1st Cir. 2012) (describing circuit’s standard for CIMT review and deference to the BIA)
- Maghsoudi v. INS, 181 F.3d 8 (1st Cir. 1999) (adopting BIA definition of moral turpitude as conduct that is inherently base or depraved)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S. 2013) (describing the categorical approach and focus on the least of the acts criminalized)
- Idy v. Holder, 674 F.3d 111 (1st Cir. 2012) (discussing mens rea distinctions and the ‘‘classic formulation’’ of recklessness)
- Commonwealth v. Welansky, 55 N.E.2d 902 (Mass. 1944) (Massachusetts formulation of recklessness: objective standard and the ‘so stupid or so heedless’ language)