Salvatore Lovano v. Loretta Lynch
846 F.3d 815
| 6th Cir. | 2017Background
- Petitioner Salvatore Lovano, a Canadian national admitted as a lawful permanent resident in 1973, faced removal proceedings after DHS charged him under 8 U.S.C. § 1227(a)(2)(A)(ii) for being convicted of two crimes involving moral turpitude (CIMTs).
- Lovano had 1993 convictions for attempting to pass bad checks and theft; he later received a 1994 waiver of deportability under a repealed INA provision.
- In 2012 Lovano was convicted in Ohio of aggravated assault under Ohio Rev. Code § 2903.12; DHS asserted that this conviction, together with the 1993 bad-check conviction, constituted two CIMTs and supported removal.
- An Immigration Judge and the Board of Immigration Appeals (BIA) concluded the aggravated-assault statute required proof of knowledge and the causing of serious physical harm, and thus is a CIMT; the BIA affirmed the IJ’s removal order.
- Lovano petitioned for review in the Sixth Circuit, arguing that Ohio aggravated assault is not categorically a crime involving moral turpitude.
Issues
| Issue | Lovano's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Ohio aggravated assault (Ohio Rev. Code § 2903.12(A)(1)) is a "crime involving moral turpitude" for § 1227(a)(2)(A)(ii) purposes | § 2903.12 is not a CIMT because (1) statute uses "physical harm" not "physical injury," (2) mens rea "knowingly" is insufficiently culpable, and (3) provocation element mitigates culpability | The statute requires a knowing mens rea and causation of serious physical harm (including risk of death), which satisfies BIA criteria for CIMT; provocation only mitigates degree and is not an element that negates mens rea or serious-harm elements | The Sixth Circuit denied review, holding Ohio aggravated assault is categorically a CIMT: the statute requires knowledge and the intentional causing of serious physical harm, satisfying the BIA test. |
Key Cases Cited
- Ruiz-Lopez v. Holder, 682 F.3d 513 (6th Cir. 2012) (federal courts retain limited jurisdiction to review legal questions in removal orders involving CIMTs)
- Reyes v. Lynch, 835 F.3d 556 (6th Cir. 2016) (BIA interpretations of ambiguous statutory terms like "crime involving moral turpitude" are entitled to Chevron deference)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (established the two-step Chevron framework for judicial review of agency interpretations)
- Serrato-Soto v. Holder, 570 F.3d 686 (6th Cir. 2009) (explaining and applying the categorical approach for determining whether state statutes categorically constitute CIMTs)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (describing the categorical and modified categorical approaches when statutes are divisible)