836 F.3d 948
8th Cir.2016Background
- Petitioner Kong Meng Xiong is removable and sought cancellation of removal under 8 U.S.C. § 1229b, but the government asserted he is ineligible because of a prior Minnesota second-degree burglary conviction.
- The immigration judge concluded Minnesota second-degree burglary (Minn. Stat. § 609.582, subd. 2(a)(1)) is a "crime of violence" under 8 U.S.C. § 1101(a)(43)(F) (which incorporates 18 U.S.C. § 16(b)), and did not reach whether the conviction fit the separate "burglary" definition in § 1101(a)(43)(G).
- The Board of Immigration Appeals (BIA) affirmed the IJ's holding that Xiong's conviction falls within § 1101(a)(43)(F) and declined to address constitutional challenges to § 16(b).
- Xiong petitioned for review, primarily arguing that § 16(b) is unconstitutionally vague in light of Johnson v. United States and related circuit decisions (e.g., Vivas-Ceja, Dimaya).
- The government moved to remand, asking the BIA to address in the first instance whether Minnesota second-degree burglary qualifies as the generic "burglary" under § 1101(a)(43)(G), which the BIA had not decided.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 16(b)'s "crime of violence" definition is unconstitutionally vague | Xiong: § 16(b) is vague under Johnson and related circuit precedent | Government: BIA properly applied § 16(b) to qualify the offense as a crime of violence | Court declined to decide the constitutional question and remanded for agency to consider alternate statutory ground |
| Whether Minnesota 2nd-degree burglary is an aggravated felony as "burglary" under § 1101(a)(43)(G) | Xiong: argued against aggravated-felony classification (implicit) | Government: alternatively argued the conviction also satisfies the generic "burglary" definition | Court remanded so BIA can decide this issue in the first instance |
| Whether appellate court may affirm on the unaddressed alternate ground | Xiong: sought review of BIA's § 16(b) ruling | Government: requested remand for BIA to consider § 1101(a)(43)(G) | Court held it cannot affirm on an unruled alternate ground and remanded consistent with Chenery principle |
| Proper application of judicial restraint regarding constitutional questions | Xiong: urged court to resolve vagueness now | Government: sought remand to avoid unnecessary constitutional ruling | Court applied judicial restraint and remanded to avoid deciding constitutionality prematurely |
Key Cases Cited
- Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (rule against deciding constitutional questions prematurely)
- Gutierrez v. INS, 745 F.2d 548 (9th Cir. 1984) (agencies should avoid unnecessary constitutional rulings; remand appropriate)
- SEC v. Chenery Corp., 318 U.S. 80 (courts may not affirm on grounds not considered by the agency)
- Johnson v. United States, 135 S. Ct. 2551 (vagueness decision affecting residual clauses)
- United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015) (held similar provision vague)
- Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) (held § 16(b)-style residual clause vague)
- Tung Chi Jen v. INS, 566 F.2d 1095 (9th Cir. 1977) (agency should not decide constitutional issues unnecessarily)