Villanueva v. Holder, Jr.
2015 U.S. App. LEXIS 6831
| 1st Cir. | 2015Background
- Fredy Villanueva, a native of El Salvador, sought Temporary Protected Status (TPS) after being charged as removable for unlawful presence. TPS was designated for El Salvador due to 2001 earthquakes.
- TPS is unavailable to applicants convicted of an "aggravated felony," and an aggravated felony includes a "crime of violence" under 18 U.S.C. § 16 if punishable by at least one year.
- Villanueva had a 2006 Connecticut conviction for third-degree assault (Conn. Gen. Stat. § 53a-61), a misdemeanor punishable by up to one year.
- The Immigration Judge denied TPS, concluding the conviction was a § 16(a) "crime of violence." The BIA affirmed and denied reconsideration.
- The record shows the plea colloquy included a prosecutor’s factual narrative, an attempted Alford plea, and ultimately a nolo contendere plea without Villanueva admitting the prosecutor’s factual account; the record does not identify which statutory subsection (intentional, reckless, or negligent) he pleaded to.
- Because the Connecticut statute criminalizes intentional, reckless, and negligent conduct and the record is inconclusive about which prong Villanueva was convicted under, the court held the modified categorical approach cannot establish that his conviction was a § 16(a) crime of violence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Villanueva's Conn. Gen. Stat. § 53a-61 conviction is a "crime of violence" under 18 U.S.C. § 16(a) making him ineligible for TPS | Villanueva: record does not show he was convicted under the intentional prong; plea colloquy is inconclusive, so conviction cannot be treated as a § 16 crime of violence | Government/BIA: modified categorical approach shows conviction under subsection (1) (intentional assault), which qualifies as § 16(a) crime of violence | Held for Villanueva: record is inconclusive; modified categorical approach unavailable; conviction does not establish a § 16(a) crime of violence, so he is eligible for TPS consideration |
| Whether the modified categorical approach can be used to identify the subsection of the Connecticut statute | Villanueva: plea record lacks an admission to specific statutory prong; Alford/nolo sequence prevents identification | BIA/Gov: plea colloquy facts and counsel statements show intentional conduct sufficient to use modified categorical approach | Held: Modified categorical approach cannot be used because the plea record does not establish which subsection was the basis of conviction |
| Whether the Connecticut third-degree assault statute categorically qualifies as a § 16(a) crime of violence | Villanueva: statute includes reckless/negligent prongs, so not categorical match | Government: focused on intentional prong to claim categorical fit via modified approach | Held: Court agrees statute is not categorically a § 16(a) crime of violence because it includes reckless and negligent variants |
| Remedy: Whether case should be remanded for discretionary TPS consideration | Villanueva: requests remand for agency to consider TPS once conviction no longer disqualifies him as aggravated felon | Government: opposed given BIA's conclusions | Held: Vacated BIA decision and remanded to agency to determine discretionary TPS relief |
Key Cases Cited
- Shul-Navarro v. Holder, 762 F.3d 146 (1st Cir.) (explains TPS statutory framework)
- Fish v. United States, 758 F.3d 1 (1st Cir.) (discusses categorical/modified categorical approaches)
- Patel v. Holder, 707 F.3d 77 (1st Cir.) (application of modified categorical approach to immigration convictions)
- Descamps v. United States, 133 S. Ct. 2276 (Sup. Ct.) (limits on use of modified categorical approach)
- Shepard v. United States, 544 U.S. 13 (Sup. Ct.) (documents usable under modified categorical approach)
- Leocal v. Ashcroft, 543 U.S. 1 (Sup. Ct.) (mens rea limits for § 16(a) "crime of violence")
- Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir.) (addressing whether Connecticut third-degree assault is a crime of violence)
- United States v. Nason, 269 F.3d 10 (1st Cir.) (related precedent cited regarding categorical analysis)