Ihar Sotnikau v. Loretta Lynch
2017 U.S. App. LEXIS 1222
| 4th Cir. | 2017Background
- Ihar Sotnikau, a Belarus native and lawful permanent resident (admitted 2008), pleaded guilty in Virginia to involuntary manslaughter for the June 2010 death of a friend and was sentenced to five years.
- DHS initiated removal proceedings alleging he was removable under 8 U.S.C. § 1227(a)(2)(A)(i) as convicted of a crime involving moral turpitude (CIMT) committed within five years of admission.
- An IJ initially denied Sotnikau’s asylum, withholding, and CAT claims; the BIA remanded for a reasoned opinion after finding the IJ’s reasoning inadequate.
- On remand the IJ concluded Virginia involuntary manslaughter is categorically a CIMT (relying on In re Franklin); the BIA affirmed in a final order and also held the conviction constituted a particularly serious crime, precluding withholding/asylum.
- Sotnikau timely petitioned the Fourth Circuit, arguing Virginia involuntary manslaughter can be based on criminal negligence (no conscious disregard) and therefore is not categorically a CIMT.
- The Fourth Circuit granted review, held Virginia involuntary manslaughter may be committed by criminal negligence (which does not entail moral turpitude), vacated the BIA order, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Virginia involuntary manslaughter is categorically a crime involving moral turpitude | Sotnikau: Virginia law permits conviction based on criminal negligence (failure to appreciate risk), so it does not always involve the culpable mental state required for moral turpitude | DHS/BIA: Franklin (Missouri involuntary manslaughter) controls; Virginia offense is equivalent and thus categorically a CIMT | Court: Not a CIMT categorically because Virginia permits convictions based on criminal negligence (no conscious disregard) |
| Whether Franklin (BIA) controls here | Sotnikau: Franklin is distinguishable because Missouri requires recklessness/conscious disregard | DHS/BIA: Franklin governs and compels CIMT finding | Court: Franklin is distinguishable; Missouri definition differs materially from Virginia’s negligence-based offense |
| Whether Perez-Contreras (BIA) undermines CIMT finding | Sotnikau: Perez-Contreras shows crimes based on mere negligence do not involve moral turpitude | DHS/BIA: Argued Franklin supersedes or is controlling | Held: Perez-Contreras remains applicable; negligence-based offenses generally are not CIMTs |
| Whether Sotnikau is removable under § 1227(a)(2)(A)(i) | Sotnikau: Not removable because offense is not a categorical CIMT | DHS: Removable—offense is a CIMT and sentence meets statutory threshold | Held: Not removable on CIMT ground; petition granted, order vacated and remanded |
Key Cases Cited
- Mohamed v. Holder, 769 F.3d 885 (4th Cir. 2014) (categorical approach and legal standard for CIMT review)
- Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012) (explaining categorical analysis for deportability offenses)
- Rodriguez-Castro v. Gonzales, 427 F.3d 316 (5th Cir. 2005) (collecting authority that negligence-based crimes usually are not CIMTs)
- Medina v. United States, 259 F.3d 220 (4th Cir. 2001) (describing moral turpitude as conduct that shocks public conscience)
- Gooden v. Commonwealth, 311 S.E.2d 780 (Va. 1984) (Virginia definition of involuntary manslaughter)
- Noakes v. Commonwealth, 699 S.E.2d 284 (Va. 2010) (explaining Virginia criminal negligence standard for involuntary manslaughter)
- Conrad v. Commonwealth, 521 S.E.2d 321 (Va. Ct. App. 1999) (noting conviction may be based on what offender "should have known")