Ribelino Avendano v. Eric H. Holder, Jr.
770 F.3d 731
8th Cir.2014Background
- Avendano, a Salvadoran national admitted under Temporary Protected Status long ago, pleaded guilty in Minnesota to making terroristic threats after an incident where he grabbed a knife and threatened his girlfriend in front of their children.
- He conceded removability; an IJ ordered removal and initially counsel conceded the terroristic-threats conviction was a crime involving moral turpitude (CIMT) that bars cancellation of removal.
- On administrative appeal, Avendano (with new counsel) contested that his conviction (under the statute’s recklessness prong) is a CIMT and asked the BIA to remand for consideration of asylum, withholding, and CAT relief based on fear of gang violence in El Salvador.
- The BIA held the Minnesota terroristic-threat offense (including when committed recklessly) is a CIMT and denied remand, finding asylum reopening standards unmet, withholding claims foreclosed by circuit precedent, and CAT claims inadequately pleaded.
- The Eighth Circuit majority affirmed: it concluded recklessness (deliberate disregard of a substantial risk) satisfies the scienter requirement for CIMT under the Attorney General’s framework and declined jurisdiction/relief on the asylum/withholding/CAT claims where appropriate.
Issues
| Issue | Avendano's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether conviction under Minn. Stat. § 609.713 (recklessness prong) is a crime involving moral turpitude (CIMT) | Recklessness alone does not suffice; CIMT requires a "vicious motive" or "corrupt mind," so his conviction should not bar cancellation | Under Silvar‑Trevino/Louissaint framework, CIMT requires reprehensible conduct plus some scienter; recklessness qualifies as the required scienter | Affirmed: recklessness (deliberate disregard of substantial risk) plus terrorizing conduct satisfies CIMT definition |
| Whether the BIA needed to apply Silvar‑Trevino’s multi‑step modified categorical analysis (including step‑1 realistic‑probability inquiry) before finding CIMT | BIA failed to perform the Silvar‑Trevino step‑1/step‑2 analysis and thus erred | BIA reasonably applied later AG/ BIA interpretations; Avendano waived some arguments and record did not require further parsing here | Rejected: court found BIA permissibly concluded recklessness sufficed; waiver and procedural posture limited review |
| Whether the BIA should remand so IJ can consider asylum/withholding/CAT (fear of gangs) | He needed opportunity to present testimony/details; withholding/CAT claims may be viable upon fuller record | Asylum is discretionary and reopening/remand standards not met; withholding likely fails under circuit precedent re: gangs; CAT inadequately alleged | Denied: BIA permissibly refused remand; court lacked jurisdiction on asylum factual issues and found withholding precedent bars claim |
| Jurisdiction to review BIA refusal to remand and CIMT characterization | Avendano urges review of legal error | Government asserts 8 U.S.C. §1252(a)(2)(C) limits review of discretionary and certain criminal‑bar orders | Court had jurisdiction to review legal questions and held legal ruling on CIMT was reviewable and affirmed; factual reopening decisions were not reviewable |
Key Cases Cited
- Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir.) (upholding BIA that terroristic threats with purpose to terrorize are CIMTs)
- Franklin v. INS, 72 F.3d 571 (8th Cir.) (recognizing reckless conduct involving conscious disregard of substantial risk can constitute a CIMT)
- Bobadilla v. Holder, 679 F.3d 1052 (8th Cir.) (discussing deference to AG/BIA articulation of CIMT standard)
- Descamps v. United States, 570 U.S. 254 (2013) (articulating the modern meaning of "divisible statute" for categorical approach)
- Constanza v. Holder, 647 F.3d 749 (8th Cir.) (persons resisting gang violence not a cognizable particular social group for withholding)
- Menjivar v. Gonzales, 416 F.3d 918 (8th Cir.) (substantial evidence supported denial of relief based on gang violence where government not shown unable or unwilling to control gangs)