Jоao Lopes COELHO, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
No. 16-2220
United States Court of Appeals, First Circuit.
July 24, 2017
Two loose ends remain. First, the plaintiffs lament the length of time—roughly six and one-half years—that elapsed between the filing of the motion to dismiss and the district court‘s decision. They contend that this delay warrants vacating the judgment. This contеntion is hopeless.
Delay in the administration of justice is always regrettable. But there is no fixed time within which a district court must decide a dispositive motion, and delay alone is not a sufficient ground for vacating a civil judgment that, like this one, is correct on the merits. In such a situation, vacation of the judgment would be an empty exercise: on remand, the district court would simply re-enter its оriginal judgment. Cf. Gibbs v. Buck, 307 U.S. 66, 78, 59 S.Ct. 725, 83 L.Ed. 1111 (1939) (stating that it would be “useless” to reverse and remand where district court had corrected its error after an appeal was taken). We made it plain, long ago, that we will not force litigants “round and round the mulberry bush for no better reason than ceremonial punctiliousness.” Jusino v. Zayas, 875 F.2d 986, 990 (1st Cir. 1989).
Second, the plaintiffs fault the district court for failing to rule on their motion for summary judgment. Once the court granted the motion to dismiss and jettisoned the action, however, the plaintiffs’ motion for summary judgment became moot. See McCulloch v. Vélez, 364 F.3d 1, 3-4 (1st Cir. 2004) (explaining that district court‘s allowance of motion to dismiss mooted pending motion for summary judgment). A court has no obligation—indeed, no authority—to adjudicate moot questions. See Barr v. Galvin, 626 F.3d 99, 104 (1st Cir. 2010). Seen in this light, the district court‘s decision to forgo any ruling on the summary judgment motion was both proper and logical.
III. CONCLUSION
We need go no further.8 For the reasons elucidated above, the judgment of the district court is
Affirmed.
Andrew N. O‘Malley, with whom Lindsay M. Murphy, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Cindy S. Ferrier, Assistant Director, were on brief, for respondent.
Emma Winger, Immigration Impact Unit, Committee for Public Counsel Services, on brief for the Massachusetts Committee for Public Counsel Services Immigration Impact Unit, the National Immigration Project of the National Lawyers Guild, and the Immigrant Defense Project, amici curiae.
Before TORRUELLA, LYNCH, and KAYATTA, Circuit Judges.
LYNCH, Circuit Judge.
This appeal presents the question of whether the Board of Immigration Appeals (“BIA“) сommitted reversible error when it held that the Massachusetts crime of assault and battery with a dangerous weapon (“ABDW“), in violation of
I.
Coelho entered the United States without inspection in 1986. He has continued to reside here since that date and now has a U.S. citizen son. In September 1996, Coelho pled guilty to one count of Massachusetts ABDW against his wife. After the Department of Homeland Security (“DHS“) initiated removal proceedings against Coelho in June 2010, he conceded his removability under
Coelho filed a motion to reconsider, which the IJ denied. Explaining the denial, the IJ concluded that Massachusetts ABDW is categorically a CIMT because of the presence of an aggravating element, namely the use of a dangerous weapon. The IJ further acknowledged that Massachusetts case law defines “dangerous weapon” to include “common objects,” but noted that this definition “should not be a determinative factor because it is the defendаnt‘s use of the object in a dangerous manner which is the vile act.” Finally, the IJ found that “based on the statute‘s requirement that a dangerous weapon be used, [she could reasonably] conclude that there is no realistic probability that [the Massachusetts ABDW statute] would be applied to reach conduct that does not involve moral turpitude.”
The BIA dismissed Coelho‘s apрeal in an opinion dated October 31, 2013. Applying de novo review, the BIA agreed with the IJ‘s conclusion that Massachusetts ABDW is categorically a CIMT because “assault or battery which necessarily involves an aggravating factor indicative of the perpetrator‘s moral depravity is a crime involving moral turpitude” and “the knowing or attempted use of deadly force is deemed to be an act of moral depravity.”
Coelho petitioned for review of the October 31, 2013 decision. Shortly thereafter, the government—with Coelho‘s assent—moved this court to remand the case to the BIA for reconsideration of whether Coelho‘s Massachusetts ABDW conviction is categorically a CIMT that renders him ineligible for cancellation of rеmoval. We granted the government‘s unopposed motion and vacated the BIA‘s decision.
On April 10, 2015, the BIA issued a second opinion, once again holding that Massachusetts ABDW is categorically a CIMT. The BIA applied its then-existing framework, as laid out in Matter of Silva-Trevino, 24 I. & N. Dec. 687, 704 (A.G. 2008), vacated by 26 I. & N. Dec. 550 (A.G. 2015), and overruled by 26 I. & N. Dec. 826 (B.I.A. 2016). Under this approach, the first step was “to examine the statute of conviction under the categorical approach and determine whether there was a ‘realistic probability’ that the statute would be applied to conduct not involving moral turpitude.” Id. If the categorical approach proved inconclusive, the adjudicator proceeded “to look to the record of conviction under the modified categorical approach,” and, if the mоdified categorical approach also proved inconclusive, “to consider any relevant evidence outside the record of conviction to resolve the moral turpitude question.” Id.
Applying that framework, the BIA found under the first step that Massachusetts ABDW is categorically a CIMT. The BIA acknowledged that the “presence of an ‘aggravating factor’ “—here, the use of a dangerous weapon—“is not always dispositive as to whether an offense involves moral turpitude,” but it noted that Massachusetts ABDW involves not only an ag-
Coelho once again petitioned this court to review the BIA‘s April 10, 2015 decision. We temporarily held the petition in abeyance while Coelho moved the BIA to reconsider its decision. The BIA denied that motion in a brief opinion dated September 2, 2015. On April 5, 2016, with the govеrnment moving for another remand with Coelho‘s assent, we remanded the case a second time for the BIA to consider whether Coelho‘s argument that Massachusetts ABDW is not categorically a CIMT “because a conviction for the reckless commission of [ABDW] does not require a defendant to be aware of, and consciously disregard, the risk imposed by his conduct” had bеen properly raised before the BIA such that it had been exhausted and could be reviewed by us. We accordingly vacated the BIA‘s April 10, 2015 decision.
In the BIA‘s fourth and final opinion, dated September 7, 2016, the agency once again dismissed Coelho‘s appeal. The BIA stated that whether or not Coelho had raised this argument before the agency, the agency had prеviously addressed both the intentional and reckless prongs of Massachusetts ABDW and had already found that even reckless ABDW is categorically a CIMT. The BIA restated its prior finding that “when committed recklessly, the statute requires an intentional act with a dangerous weapon resulting in physical or bodily injury.” Further, the BIA observed that Massachusetts defines “recklessness” as “knowingly or intentionally disrеgarding an unreasonable risk that involves a high degree of probability that death or serious bodily harm will result” (alterations omitted) (citing Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902, 910 (1944)). Critically, the BIA noted in a parenthetical—but without elaboration—that under Massachusetts law, “[k]nowing facts that would cause a reasonable man to know the danger is equivalent to knowing the danger” (quoting Welansky, 55 N.E.2d at 910). In light of this case law, the BIA “affirm[ed] [its] prior decisiоn finding that a recklessly or wantonly committed offense under the [Massachusetts ABDW] statute is sufficient to render it a categorical [CIMT].”
This petition for review followed. After the BIA had issued its last decision in this case and Coelho had filed his petition, the BIA issued a decision in Matter of Wu, 27 I. & N. Dec. 8 (B.I.A. 2017), the potential relevance of which we discuss below.
II.
Two different standards of review are involved. “We review the BIA‘s legal conclusions de novo, but we afford Chevron deference to the BIA‘s interpretation of the [INA], including its determination that a particular crime qualifies as one of moral turpitude, unless that interpretation is ‘arbitrary, capricious, or clearly contrary to law.’ ” Da Silva Neto v. Holder, 680 F.3d 25, 28 (1st Cir. 2012) (quoting Idy v. Holder, 674 F.3d 111, 117 (1st Cir. 2012)). Under these standards of
Although the INA does not define “crime involving moral turpitude,” this circuit has adopted the BIA‘s definition of that term as “conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Maghsoudi v. INS, 181 F.3d 8, 14 (1st Cir. 1999) (quoting Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996)); see also Da Silva Neto, 680 F.3d at 29 (defining CIMT alternatively as ” ‘an act which is per se morally reprehensible and intrinsically wrong’ and is ‘accompanied by a vicious motive or a corrupt mind’ ” (quoting Maghsoudi, 181 F.3d at 14)).
This circuit‘s approach to the CIMT analysis “has been generally consistent with the first two steps of the . . . framework” applied by the BIA in its April 10, 2015 decision. Da Silva Neto, 680 F.3d at 29. Specifically, “[w]e have begun by looking ‘to the inherent nature of the crime of conviction, as defined in the criminal statute,’ to determine whether it fits the CIMT definition. If it does, we have said that ‘our inquiry may end there.’ ” Id. (quoting Idy, 674 F.3d at 118).1
The criminal statute at issue in this case establishes certain imprisonment terms and fine amounts for “[w]hoever commits an assault and battery upon another by means of a dangerous weapon.”
The Massachusetts definition of “recklessnеss” departs from the definition employed by the Model Penal Code (“MPC“) and a majority of states in that a defendant in Massachusetts need not have been subjectively aware of the risk posed by his conduct in order to have acted recklessly. Cf.
Much of the briefing and oral argument before us has focused on this aspect of the Massachusetts formulation of recklessness. Specifically, Coelho argues that the BIA mischaracterized Massachusetts law by fаiling to take adequate account of the state‘s departure from the “classic” MPC formulation of recklessness. Accordingly, Coelho says, we must remand so that the BIA can consider in the first instance whether, even under the correct articulation of Massachusetts law, the crime of reckless ABDW is categorically a CIMT.2
There are some difficulties with Coelho‘s argumеnt because the BIA did expressly include in its discussion the crucial quote from Welansky that “[k]nowing facts that would cause a reasonable man to know the danger is equivalent to knowing the danger.” 55 N.E.2d at 910. Nonetheless, the BIA did so merely in a parenthetical without any explanation of how this aspect of Massachusetts law figures into its CIMT determination. Further, the BIA did not include the “so stupid or so heedless” clause from Welansky.
The government responds that regardless of the BIA‘s sparse discussion of Massachusetts law on recklessness, the agency‘s subsequent decision in Matter of Wu allows us to uphold the outcome in this case. See 27 I. & N. Dec. 8. There, the BIA concluded that the crime of assault with a deadly weapon or force likely to produce great bodily injury, in violation of section 245(a)(1) of the California Penal Code (“CPC“), categorically constitutes a CIMT. Id. at 8-9, 14. As the government emphasizes, a conviction under section 245(a)(1) of the CPC, like a conviction for Massachusetts reckless ABDW, “requires knowledge of the relevant facts but does not require subjective appreciation of the ordinary consequences of those facts.” Id. at 10; see also id. at 12 (noting that an element of section 245(a)(1) is the fact that “when the defendant acted, he or she . . . was aware of facts that would lead a reasonable person to realize that his or her act by its nature would directly and probably result in the application of force to someone” but that the defendant need not have “subjectively perceive[d] the risk posed by his or her conduct“).
While the mens rea requirements of CPC section 245(a)(1) and Massachusetts reckless ABDW do share that commonality, the government leaves unaddressed other aspects of Matter of Wu that complicate matters. For one, the government does not comment on the extent to which the BIA‘s holding in Matter of Wu relies on the Ninth Circuit‘s reading of the mental state required for a conviction under section 245(a)(1). See id. at 13-14, 14 nn.8-9 (discussing United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009)). Nor does the government address the BIA‘s caveat that it “would reach a different conclusion if faced with a statute, such as one criminalizing driving under the influence . . . , that does not require knowledge that the conduct is itself dangerous or of the facts that make the proscribed conduct dangerous.” Id. at 14-15 n.10; accord United States v. Hart, 674 F.3d 33, 43 n.8 (1st Cir. 2012) (noting that “[i]n Massachusetts, conduct that underlies a conviction for operating under the influence . . . and causing serious bodily injury may alsо be charged as ABDW” and collecting cases). As the government has not fully briefed these issues,
Accordingly, we remand so that the BIA can consider the following three issues: First, what is the effect, if any, of Matter of Wu on the outcome that Massachusetts ABDW is categorically a CIMT? Second, how does Welansky‘s prescription—that a defendant “so stupid or so heedless that . . . he did not realize” the risk posed by his conduct can nonetheless be dеemed to have acted recklessly, so long as “an ordinary normal man under the same circumstances would have realized” the risk—impact the BIA‘s analysis of the moral depravity of Massachusetts reckless ABDW? 55 N.E.2d at 910 (alterations omitted). Finally, was Coelho convicted of intentional or reckless ABDW?4
III.
We vacate the BIA‘s September 7, 2016 opinion, the effect of which was to render Coelho ineligible for cancellation of removal, and remand for further proceedings consistent with our opinion.
UNITED STATES of America, Appellee, v. Anthony ALLEN and Anthony Conti, Defendants-Appellants.*
Nos. 16-898-cr (Lead)
16-939-cr (con)
United States Court of Appeals, Second Circuit.
AUGUST TERM 2016
ARGUED: JANUARY 26, 2017
DECIDED: JULY 19, 2017
* The Clerk of Court is respectfully directed to amend the caption as set forth above.