496 F. App'x 264
4th Cir.2012Background
- Rivera, a native of El Salvador, seeks NACARA special rule cancellation of removal.
- Board dismissed his appeal from an immigration judge order denying NACARA relief.
- Issue centers on whether Rivera’s Virginia sex battery statute is a crime involving moral turpitude (CIMT).
- Board and IJ applied the categorical approach focusing on essential elements and conviction.
- Rivera bears the burden to show NACARA eligibility, including good moral character and hardship.
- Court notes limited review of discretionary NACARA factual findings; petition denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Virginia sex battery a CIMT under the categorical approach? | Rivera argues statute could be applied to non-CIMT conduct. | Board held the statute categorically involves CIMT. | Yes; statute categorically involves CIMT. |
| Are the Board's good moral character and hardship determinations reviewable? | Rivera contends these are reviewable as legal questions. | Barahona limits review to constitutional claims; discretionary findings not reviewable. | No; discretionary NACARA determinations not reviewable. |
| Does Rivera qualify for NACARA relief given CIMT and good moral character/hardship requirements? | Must prove ten years’ presence with good moral character and hardship. | Relief denied due to CIMT and lack of demonstrated hardship and character. | Relief denied; petition denied. |
Key Cases Cited
- Yousefi v. INS, 260 F.3d 318 (4th Cir. 2001) (Congress did not define CIMT; deference to Board on moral turpitude)
- Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012) (definition of moral turpitude; inherent base depravity standard)
- United States v. Baxter, 642 F.3d 475 (4th Cir. 2011) (categorical approach uses essential elements and conviction)
- Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) (realistic probability; nongeneric application supports MT designation)