Melvin Rodriguez Cabrera v. William Barr, 930 F.3d 627

Background

Melvin Josue Rodriguez Cabrera, an LPR from El Salvador, pleaded guilty in Virginia (2017) to participating in a criminal street gang under Va. Code § 18.2-46.2 and received a five-year suspended sentence.
DHS charged Cabrera with removability under 8 U.S.C. § 1227(a)(2)(A)(i) as having been convicted of a crime involving moral turpitude (CIMT) within five years of admission.
An IJ initially concluded the Virginia offense was not categorically a CIMT and terminated proceedings; the BIA reversed, holding the gang-related statute categorically involved moral turpitude and remanded for further IJ findings.
The IJ later ordered removal; Cabrera waived appeal to the BIA and filed a petition for review in the Fourth Circuit challenging only the BIA’s CIMT determination.
The Fourth Circuit first resolved that Cabrera exhausted administrative remedies because the BIA had definitively ruled on the CIMT issue before remand, so the court had jurisdiction to review that legal question.
On the merits, the Fourth Circuit held Va. Code § 18.2-46.2 is not categorically a crime involving moral turpitude and vacated the removal order, directing termination of proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has jurisdiction because Cabrera waived appeal of the IJ’s removal order instead of appealing to the BIA	Cabrera: Exhaustion satisfied because the BIA had already definitively ruled on the CIMT issue in his case before remand	DHS: Cabrera failed to exhaust by not appealing the IJ’s final removal order to the BIA; BIA should have first reviewed the IJ’s removal order	Court: Jurisdiction exists—exhaustion satisfied where BIA conclusively decided the precise issue on appeal before remand, so no redundant BIA appeal required
Whether Va. Code § 18.2-46.2 categorically constitutes a crime involving moral turpitude	Cabrera: The statute’s gang-related elements (membership/participation; committed for/at/during association with a gang) do not guarantee “base, vile or depraved” conduct across all permutations; categorical approach fails	DHS/BIA: Gang-related enhancement transforms otherwise non-CIMT predicate offenses into CIMTs because gang association aggravates moral culpability	Court: Statute is not categorically a CIMT; gang association alone does not ensure the requisite morally depraved conduct
Whether Skidmore/Chevron deference requires accepting the BIA’s one-member, nonprecedential decision	Cabrera: The BIA’s one-member decision is non-precedential and unpersuasive; deference limited	DHS: The BIA’s reasoning (relying on Matter of E.E. Hernandez) supports classification as CIMT	Court: No Chevron deference to one-member decision; Skidmore weight considered and BIA’s reasoning found unpersuasive
Whether the modified categorical approach applies	DHS (alternative): If statute is not categorical, the court should use modified categorical approach or remand	Cabrera: Parties relied on categorical approach; statute is not divisible so modified approach not available	Court: Statute not divisible; analysis confined to categorical approach; remand for modified approach unnecessary

Key Cases Cited

Jimenez-Cedillo v. Sessions, 885 F.3d 292 (4th Cir. 2018) (definition of crime involving moral turpitude)
Massis v. Mukasey, 549 F.3d 631 (4th Cir. 2008) (exhaustion under § 1252(d) is jurisdictional)
Kporlor v. Holder, 597 F.3d 222 (4th Cir. 2010) (exhaustion doctrine and administrative first review)
Shepherd v. Holder, 678 F.3d 1171 (10th Cir. 2012) (BIA’s prior definitive ruling can satisfy exhaustion despite later IJ removal order)
Popal v. Gonzales, 416 F.3d 249 (3d Cir. 2005) (no need for redundant BIA appeal when issues were finally decided by BIA)
Perkovic v. I.N.S., 33 F.3d 615 (6th Cir. 1994) (BIA’s definitive resolution of an issue satisfies exhaustion)
Woodford v. Ngo, 548 U.S. 81 (2006) (exhaustion requires one complete round of administrative review)
Bowles v. Russell, 551 U.S. 205 (2007) (courts cannot create equitable exceptions to jurisdictional requirements)
Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012) (definition of moral turpitude)
Mohamed v. Holder, 769 F.3d 885 (4th Cir. 2014) (moral turpitude shocks public conscience)
Martinez v. Sessions, 892 F.3d 655 (4th Cir. 2018) (categorical approach: all permutations must involve CIMT)
Hernandez-Gonzalez v. Holder, 778 F.3d 793 (9th Cir. 2015) (gang-enhancement statute not categorically a CIMT)
Ramirez v. Sessions, 887 F.3d 693 (4th Cir. 2018) (limits on Chevron deference to nonprecedential BIA decisions)
Uribe v. Sessions, 855 F.3d 622 (4th Cir. 2017) (de novo review of BIA interpretation of state law)
Skidmore v. Swift & Co., 323 U.S. 134 (1944) (weight of agency decisions depends on persuasiveness)