Eddy Etienne v. Loretta Lynch
813 F.3d 135
| 4th Cir. | 2015Background
- Petitioner Eddy Etienne, a Haitian national who entered the U.S. in 1984, pleaded guilty in Maryland (1996) to conspiracy to violate state controlled-substances law.
- Etienne later obtained Temporary Protected Status (TPS) but DHS denied his 2014 renewal and initiated expedited removal under INA § 238.1, charging him as removable for an "aggravated felony" based on the 1996 conspiracy conviction.
- DHS served Form I-851 (Notice of Intent) and Etienne returned it indicating he wished to contest removal and would attach supporting documents, but he attached no documents and did not assert that his conviction is not an aggravated felony.
- DHS issued a Final Administrative Removal Order; subsequent administrative requests (withholding/asylum) were denied, and Etienne timely petitioned this court for review.
- Two discrete legal questions arose: (1) whether the court has jurisdiction to hear a legal challenge raised first on judicial review given expedited removal procedures (administrative exhaustion), and (2) whether a state conspiracy conviction that does not require an overt act qualifies as an "aggravated felony" under the INA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court has jurisdiction despite failure to raise legal challenge during expedited removal (exhaustion) | Etienne: expedited removal only allows factual rebuttal; no opportunity to raise legal challenges, so exhaustion does not bar review | Government: Form I-851 and regs require rebuttal of both allegations of fact and conclusions of law; petitioner must exhaust legal claims before DHS | Court: Jurisdiction exists — Form I-851 and expedited procedures are geared to factual rebuttal; no clear agency avenue for legal challenges, so exhaustion requirement does not bar review |
| Whether a state conspiracy conviction that lacks an overt-act element is an "aggravated felony" under INA § 1101(a)(43)(U) | Etienne: "Conspiracy" in INA should be read by contemporary statutory meaning (requiring overt act); Maryland conspiracy lacks overt-act element so conviction is not an aggravated felony | Government: Congress meant to include "conspiracy" broadly; conspiracy need not require overt act to qualify as an aggravated felony | Court: "Conspiracy" adopts the common-law meaning (no overt-act requirement absent contrary indication); Maryland conspiracy qualifies as an aggravated felony; petition denied |
Key Cases Cited
- Omargharib v. Holder, 775 F.3d 192 (4th Cir.) (framing standard of review for jurisdictional and legal questions)
- Kporlor v. Holder, 597 F.3d 222 (4th Cir.) (administrative-exhaustion principles)
- Massis v. Mukasey, 549 F.3d 631 (4th Cir.) (exhaustion when opportunity to raise claim existed)
- Valdiviez-Hernandez v. Holder, 739 F.3d 184 (5th Cir.) (holding jurisdiction lies because expedited removal permits only factual rebuttal)
- Malu v. U.S. Atty. Gen., 764 F.3d 1282 (11th Cir.) (holding no jurisdiction because regs permit rebuttal of conclusions of law)
- Taylor v. United States, 495 U.S. 575 (discussing when to reject common-law presumption in defining statutory terms)
- United States v. Shabani, 513 U.S. 10 (1994) (presumption that "conspiracy" uses common-law meaning absent contrary indication)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (discussing categorical approach in immigration law)
- Woodford v. Ngo, 548 U.S. 81 (exhaustion requires using agency steps the agency ‘‘holds out")
- United States v. Garcia-Santana, 774 F.3d 528 (9th Cir.) (discussed but not followed re: common-law presumption for immigration consequences)