Eddy ETIENNE, a/k/a Hailadingle, Zellew Tesfegna, a/k/a Eddy Etienn, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
No. 14-2013.
United States Court of Appeals, Fourth Circuit.
Decided: Dec. 30, 2015.
Capital Area Immigrants’ Rights Coalition; National Immigration Project of the National Lawyers Guild, Amici Supporting Petitioner. Argued: Oct. 27, 2015.
135
Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit Judges.
Petition denied by published opinion. Judge DUNCAN wrote the opinion, in which Chief Judge TRAXLER and Judge WILKINSON joined.
DUNCAN, Circuit Judge:
After expedited proceedings authorized by the Immigration and Nationality Act (“INA“), the Department of Homeland Security (“DHS“) ordered petitioner Eddy Etienne‘s removal, on the grounds that he is an alien who has been convicted of an “aggravated felony.” See
For the reasons that follow, we conclude that we have jurisdiction to hear Etienne‘s petition for review but that his argument that his conviction does not constitute an “aggravated felony” is without merit. Accordingly, we deny the petition for review.
I.
Etienne entered the United States from his native country of Haiti in 1984, initially residing here as an undocumented immigrant. In 1996, Etienne pleaded guilty to the crime of conspiracy “to violate the controlled dangerous substances law of the State of Maryland.” See A.R.1 at 17. After his release from state prison, Etienne continued to reside in the United States without documentation.
Following an earthquake in Haiti in 2010, Etienne applied for Temporary Protected Status (“TPS“), a lawful immigration status, based on the potential risk of harm if he were to return to Haiti. DHS granted not only Etienne‘s initial application for TPS, but also his application for renewal the following year. When Etienne sought another renewal of his TPS in February of 2014, however, DHS rejected his application.
Shortly thereafter, DHS initiated expe
Etienne checked two boxes indicating that he wished to contest his removal and that he was “attaching documents in support of [his] rebuttal and request for further review.” A.R.1 at 2. Etienne did not, however, actually attach any documents to the Notice of Intent before returning it to DHS. Of particular relevance here, Etienne did not indicate in any manner that he believed his 1996 Maryland conspiracy conviction did not constitute an “aggravated felony.”
On March 20, 2014, after concluding that Etienne was deportable under the INA, the deciding DHS officer issued a Final Administrative Removal Order for Etienne‘s removal to Haiti. Upon Etienne‘s request, an asylum officer held a hearing and determined that Etienne did not qualify for withholding of removal. An IJ affirmed the asylum officer‘s determination, and Etienne‘s removal proceedings reached administrative closure. Etienne then turned to this court, timely filing this petition for review.1
In his petition for review, Etienne argues for the first time that his 1996 conviction for conspiracy under Maryland law does not constitute an “aggravated felony” under the INA, and that DHS therefore erred in finding him removable. Before addressing Etienne‘s petition on the merits, however, we must determine whether Etienne‘s failure to raise this argument in the DHS administrative proceedings deprives us of jurisdiction. The jurisdictional issue and the merits issue are questions of law, which we consider de novo. See Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir.2014); Kporlor v. Holder, 597 F.3d 222, 225 (4th Cir.2010).
A.
We first consider whether we have jurisdiction over Etienne‘s petition for review. A court may review a final order of removal against an alien only if “the alien has exhausted all administrative remedies available to the alien as of right.”
Here, Etienne argues that DHS‘s expedited removal procedures allow aliens to contest only the factual basis for their removal, and not to raise legal arguments. Thus, Etienne contends, he had no opportunity during administrative removal to challenge the classification of his 1996 Maryland conspiracy conviction as an “aggravated felony,” and therefore he has not failed to exhaust his administrative remedies.
The question of whether DHS‘s expedited removal procedures provide an alien with the opportunity to challenge the legal basis of his or her removal — and thus whether we have jurisdiction to hear such a challenge when a petitioner fails to raise it before DHS — is one that has split our sister circuits. Compare Malu v. U.S. Atty. Gen., 764 F.3d 1282, 1288 (11th Cir. 2014) (no jurisdiction), with Valdiviez-Hernandez v. Holder, 739 F.3d 184, 187 (5th Cir.2013) (per curiam) (jurisdiction lies).2 As we explain below, we join the Fifth Circuit in holding that, in expedited removal proceedings, an alien has no opportunity to challenge the legal basis of his removal. The INA‘s administrative-exhaustion requirement therefore does not deprive us of jurisdiction to consider such a challenge in the first instance on appeal.
1.
The INA declares that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.”
Under the relevant regulations, DHS initiates an expedited removal by serving an alien with “Form I-851, Notice of Intent to Issue a Final Administrative Deportation Order.” See
Once DHS has served an alien with the Notice of Intent, using standardized Form I-851, the alien must choose whether to file a response. Form I-851 itself guides the alien‘s response process through a series of checkboxes on the back of the form. Etienne‘s completed Form I-851 shows the range of possible responses:
A.R.1 at 2.
If the alien chooses to respond, the first choice the alien must make is between two mutually exclusive boxes centered on the response form. The first allows the alien to indicate that he or she “[w]ish[es] to [c]ontest and/or to [r]equest [w]ithholding of [r]emoval.” Id. The second indicates the opposite: that the alien “[d]o[es] [n]ot [w]ish to [c]ontest and/or to [r]equest [w]ithholding of [r]emoval.” Id.
If the alien checks the first box, there are two additional check-box options that clarify whether the alien wishes to contest deportability, request withholding of removal, or both. If the alien wishes to
If the alien responds and contests removability, the deciding DHS officer must determine whether the alien‘s deportability is nonetheless established by “clear, convincing, and unequivocal evidence.”
2.
The parties’ dispute here turns on their interpretation of
Etienne‘s approach finds support in Valdiviez-Hernandez v. Holder, 739 F.3d 184 (5th Cir.2013) (per curiam). Considering the same issue, the Fifth Circuit held that “the relevant statutes and corresponding regulations ... did not provide [the alien] with an avenue to challenge the legal conclusion that he does not meet the definition of an alien subject to expedited removal.” Id. at 187. Even though the Fifth Circuit acknowledged that the Notice of Intent “included conclusions of law,” the court reasoned that “the response process is geared toward resolving only issues of fact.” Id.
The government instead points to Malu v. U.S. Atty. Gen., 764 F.3d 1282 (11th Cir.2014). In Malu, the Eleventh Circuit recognized that the relevant regulations require the notice to the alien “to include both ‘allegations of fact and conclusions of law’ that the alien may rebut” and reasoned that it would be “nonsensical to limit the alien‘s rebuttal to allegations of fact.” Id. at 1288 (quoting
We conclude that the Fifth Circuit‘s approach, advanced by Etienne, is more consistent with the language and structure of the expedited removal regulations. Crucially, such a reading is more consistent with Form I-851, the form DHS must provide to aliens in expedited proceedings for aliens to respond to the charge of removability.
First, the language of the expedited removal regulations, read in context with the INA and associated regulations, seems to indicate that only factual challenges to an alien‘s removability may be raised in expedited removal proceedings. The procedures that are explicitly available to the deciding DHS officer after an alien responds to the Notice of Intent contemplate a “genuine issue of material fact” that the officer may attempt to cure by gathering additional evidence.
It is true that
Second, Form I-851 offers no obvious opportunity to raise a legal challenge. “[E]xhaustion of administrative remedies ... means using all steps that the agency holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (first emphasis added) (citation omitted). Here, Form I-851 “holds out” the steps individuals in expedited removal proceedings may follow to respond to DHS‘s allegations, and those steps do not include an option to contest legal determinations. Form I-851 contains several checkboxes for an alien to lodge factual challenges to his or her removal. But it offers no checkbox for lodging any specific legal challenges, a legal challenge in general, or other unenumerated challenges.
The fact that Form I-851 has a checkbox that reads “I am attaching documents in support of my rebuttal and request for further review” does not, as the government argues, create a procedure for aliens to raise any other challenges, including legal challenges. In fact, “my rebuttal” appears to directly refer to the three factual challenges listed directly above that checkbox. In light of the contents of Form I-851, we cannot say that DHS‘s
The above discussion should likewise make plain the limits of our holding. Nothing in our opinion prevents DHS from changing the Form I-851 to make it clear that DHS wishes to require aliens to raise legal arguments in expedited removal proceedings. Such a change would provide clear notice to aliens of their right to raise legal issues in a manner that the present form does not. The opportunity to raise a legal challenge would then become, as we have earlier noted, one of the “steps that the agency holds out” and therefore an administrative remedy that must be exhausted. Woodford v. Ngo, 548 U.S. 81, 90 (2006).
Because the Notice of Intent, Form I-851, expressly prompts aliens to raise only factual challenges to removal, we hold that Etienne was not required to raise his legal challenge to removal in order to meet the exhaustion requirement of INA § 242(d)(1),
B.
Having determined that we have jurisdiction to consider Etienne‘s petition for review, we now turn to the merits of his legal challenge. DHS found Etienne deportable under the INA for being an alien who has been convicted of an “aggravated felony,” a 1996 drug conspiracy under Maryland law. The INA‘s definition of “aggravated felony” includes many types of crimes, including “illicit trafficking in a controlled substance,”
The parties agree that the categorical approach applies to determining whether a state-law crime qualifies as an “aggravated felony” under the INA. Their dispute instead turns on whether, under the categorical approach, the term “conspiracy” in
As we explain below, we find nothing in this context to rebut the presumption that Congress intended to incorporate the common-law meaning of conspiracy when it included that term in the INA. We therefore hold that a state-law conspiracy conviction need not require an overt act as an element for the conviction to qualify as an “aggravated felony.”
1.
Although the categorical approach was first introduced in the context of criminal law, it “has a long pedigree in our Nation‘s immigration law.” Moncrieffe v. Holder, 569 U.S. 184, 191 (2013). “When the
Under the categorical approach, “we consider only the elements of the statute of conviction rather than the defendant‘s conduct underlying the offense,” and compare them with the elements of the “generic” crime. Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir.2014). If the comparison shows that the state offense “has the same elements as the generic INA crime, then the prior conviction constitutes an aggravated felony.” Id. If, however, the state offense “sweeps more broadly ... the prior conviction cannot count as an aggravated felony.” Id. (internal quotation marks and citation omitted). Courts must first determine the meaning of the offense listed in the INA and then compare that “generic” definition to the elements of the crime under state law.
2.
To determine the meaning of the term “conspiracy” in the INA, our analysis begins with the “settled principle of statutory construction that, absent contrary indications, Congress intends to adopt the common law definition of statutory terms.” United States v. Shabani, 513 U.S. 10, 13 (1994). At common law, conspiracy required only proof of “the act of conspiring,” not of any overt act. See id. at 14 (quoting Nash v. United States, 229 U.S. 373, 378 (1913)). Following the common-law presumption, the Supreme Court has declined to read additional elements into federal law where the federal law uses the term “conspiracy” but is silent on an overt act requirement. See id. at 14. We follow the common-law presumption here, where there is no contrary indication of Congressional intent that rebuts that presumption.4
In Taylor, the Supreme Court considered whether a state-law conviction qualified as a predicate “burglary” offense for the sentencing enhancement of the Armed Career Criminal Act,
First, the Court noted that the various statutory changes to state-law definitions of burglary had “resulted in a modern crime which has little in common with its common-law ancestor except for the title of burglary,” and that adopting the common-law definition would nullify the statute‘s effect under many states’ criminal codes. Id. at 593 (quoting LaFave & Scott, Substantive Criminal
It is significant for our purposes that in Taylor, the common-law definition was more restrictive than the various states’ alternatives. Given that statutory overrides of the common-law served to “expand[]” burglary liability, following the common-law presumption would have “come close to nullifying that term‘s effect in the statute.” Id. at 593, 594. The Court reasoned that, “because few of the crimes now generally recognized as burglaries would fall within the common-law definition,” that definition was “so obviously ill suited to [the statute‘s] purposes.” Id. at 594. Thus, finding no “specific indication that Congress meant to incorporate the common-law meaning” of that term, the Court interpreted “burglary” by its “contemporary meaning.” Id. at 594, 596.
The common-law definition of conspiracy, unlike burglary in Taylor, is neither “obsolete [n]or inconsistent with the [INA‘s] purpose.” See id. at 594. On the other hand, conspiracy under the various states’ laws is little different from that crime at common law. There are only two prevalent definitions of conspiracy, unlike the myriad of formulations of “burglary” in state codes. One-third of the states retain the common-law definition outright, and the states that have modified common-law conspiracy have added a single element: the overt act requirement. Given the comparatively modest modifications to conspiracy liability, it is not the case that the states’ statutory overrides have “little in common” with conspiracy‘s common-law counterpart aside from the name of the crime. See id. at 593.
Further, those states that have added the overt act requirement have narrowed the definition of conspiracy, quite unlike the states that expanded burglary liability by removing elements. Because of this, applying the common-law definition to conspiracy would not “come close to nullifying that term‘s effect,” as it would have for burglary in Taylor. See id. at 594. To the contrary, imposing an overt act requirement would render the term “conspiracy” null and void in all of the states that have retained the common-law definition. Moreover, applying the prevailing contemporary definition would mean that the term does not contemplate “at least the ‘classic’ common-law definition” of conspiracy, contrary to a basic assumption of Congress‘s intent in Taylor. See id. at 593.
Congress‘s desire to have the INA apply broadly is confirmed by the text of
3.
Having determined that the INA incorporates the common-law definition of “conspiracy,” we must compare it to the state-law crime of conviction. Etienne‘s prior conviction was for conspiracy “to violate the controlled substances law of the State of Maryland.” A.R.1 at 17. A conspiracy under Maryland law is a “combination of two or more persons to accomplish some unlawful purpose, or to accomplish a lawful purpose by unlawful means.” Townes v. State, 314 Md. 71, 548 A.2d 832, 834 (Ct. App. 1988).
It is of no moment that this “crime is complete when the unlawful agreement is reached, and no overt act in furtherance of the agreement need be shown.” See id. Because the INA incorporates the common-law definition of conspiracy, the term does not require proof of an overt act. Any state-law conspiracy to commit one of the substantive offenses listed in the INA therefore qualifies as an “aggravated felony” under the categorical approach.
4.
In sum, we conclude that nothing rebuts the common-law presumption when interpreting the term “conspiracy” in the INA. Accordingly, under the categorical approach, a state-law conspiracy need not require proof of an overt act to be classified as an “aggravated felony.” We therefore hold that DHS properly classified Etienne‘s conviction.
III.
For the foregoing reasons, Etienne‘s petition for review is
DENIED.