Fredy Arnoldo SANCHEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
No. 13-2653.
United States Court of Appeals, Seventh Circuit.
July 9, 2014.
Rehearing Denied Sept. 11, 2014.
757 F.3d 712
v.
Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
No. 13-2653.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 24, 2014.
Decided July 9, 2014.
Rehearing Denied Sept. 11, 2014.
Jennifer R. Khouri, OIL, Department of Justice, Washington, DC, for Respondent.
Before FLAUM and ROVNER, Circuit Judges, and KENDALL, District Judge.*
FLAUM, Circuit Judge.
Fredy Arnoldo Sanchez seeks review of a Board of Immigration Appeals decision dismissing his appeal of the immigration judge‘s order of removal. The Board determined that Sanchez was ineligible for cancellation of removal because he failed to prove that he had not been convicted of a crime involving moral turpitude. Because the Board did not properly conduct the three-step inquiry prescribed in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), we grant Sanchez‘s petition and remand for further proceedings.
I. Background
Fredy Arnoldo Sanchez, a citizen and native of El Salvador, entered the United States without inspection in 1989. Sanchez is now forty-seven, is married to a lawful permanent resident, and has four children, all of whom are U.S. citizens. He lives in Indianapolis, Indiana.
In either 1989 or 1994 (the parties dispute this, but it does not matter for this appeal), Sanchez filed an application for asylum and withholding of removal. In 2002, he filed an additional application for special rule cancellation of removal under
Sanchez conceded his removability during his initial appearance before the IJ in August 2006. At his next hearing, in December 2007, Sanchez submitted a renewed application for NACARA special rule cancellation of removal along with an application for cancellation of removal under
* Of the Northern District of Illinois, sitting by designation.
The IJ continued the proceedings again to allow Sanchez to provide more information about his Indiana arrest. Sanchez then submitted a “case chronology printout” (a docket sheet) from the Criminal Division of the Marion Superior Court.
The printout states that in October 2009, Sanchez pleaded guilty to one count of a violation of
Except as provided in section 1.5 of this chapter1, the driver of a motor vehicle involved in an accident that results in the injury or death of a person or the entrapment of a рerson in a vehicle shall do the following:
(1) Immediately stop the driver‘s motor vehicle at the scene of the accident or as close to the accident as possible in a manner that does not obstruct traffic more than is necessary.
(2) Immediately return to and remain at the scene of the accident until the driver does the following:
(A) Gives the driver‘s name and address and the registration number of the motor vehicle the driver was driving.
(B) Upon request, exhibits the driver‘s license of the driver to the following:
(i) The person struck.
(ii) The driver оr occupant of or person attending each vehicle involved in the accident.
(C) Subject to section 1.5(a) of this chapter, determines the need for and
renders reasonable assistance to each person injured or entrapped in the accident, including the removal of, or the making of arrangements for the removal of:
(i) each injured person from the scene of the accident to a physician or hospital for medical treatment; and
(ii) each entrapped person from the vehicle in which the person is entrapped.
(3) Subject to section 1.5(b) of this chapter, immediately give notice of the accident by the quickest means of communication to one (1) of the following:
(A) The local police department, if the accident occurs within a municipality.
(B) The office of the county sheriff or the nearest state police post, if the accident occurs outside a municipality.
The case printout indicates that Sanchez was chаrged with a Class D felony because the incident involved serious bodily injury, although the Marion Superior Court ultimately entered the conviction as a misdemeanor.2 The court gave Sanchez a sentence of 365 days in jail with 363 days suspended. He received 363 days of probation.
Sanchez also submitted his plea agreement to the immigration court. It states that he agreed to plead guilty to “Count I Failure to Stop After Accident Resulting In Serious Bodily Injury Class D Felony.” In addition, Sanchez provided a personal affidavit еxplaining the circumstances surrounding the accident. It recounts that Sanchez was driving at night on a road without any lights, that it was raining heavily, and that there was a lot of fog. He “heard a noise, which was an impact on [his] car.” Unsure whether he could stop safely in traffic, and believing that he had merely hit “a post or a small object,” Sanchez continued driving. The affidavit states that he only became aware that he had hit a person when police officers arrived at his residence the next day and told him.
During the finаl hearing, in September 2011, the IJ examined the documents and questioned Sanchez. The IJ then orally denied his applications for cancellation of removal, followed by a written order. Defining a CIMT as a crime “viewed as a reprehensible act” and having “some requirement of mens rea,” the IJ reasoned that because “the record reflects that the respondent pled guilty to knowingly or intentionally failing to stop [after] causing injury to a person,” Sanchez‘s offense was a CIMT “under the categоrical approach.” The IJ ordered Sanchez‘s removal to El Salvador.
Sanchez appealed the IJ‘s decision to the Board of Immigration Appeals. The Board began its analysis by emphasizing that under
The Board explained its reasoning in three sentences. In the first, it acknowledged Sanchez‘s argument, made in his briefing, that “there is a realistic probability that the statute has been applied to offenses that both are and are not CIMT[s].” But the Board next concluded that “the respondent has not established that he was not convicted under a portion of the statute that does not qualify as a CIMT,” because “[a]side from the ‘case chronology’ printout from the Indiana court, there is no other evidence regarding his conviction.” Accordingly, the Board dismissed Sanchez‘s appeal.
The classification of a crime as one of moral turpitude is a question of law that we have jurisdiction to review.
Here, the Board‘s decision lacks persuasive power because the Board did not use the proper analytical methodology. For this reason, we vacate its decision and remand.
In Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G.2008), the Attorney General established a three-step framework for immigration judges and the Board to use to determine whether an alien‘s conviction qualifies as a CIMT.3 At the first step, the adjudicator is to evaluate the criminal stаtute on a categorical basis and “determine whether there is a ‘realistic probability, not a theoretical possibility,’ that the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude.” Id. at 689-90 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). If it appears that the government in question would apply its criminal statute to reach both turpitudinous and non-turpitudinous acts—perhaps because the statute is divisible, but also because the statute cоuld realistically cover a wide range of conduct—the adjudicator is instructed to proceed to step two. At this point, the adjudicator should examine the alien‘s record of conviction—including the charging document, the judgment of conviction, jury instructions, a signed guilty plea, or a plea transcript—to determine which part of the statute the alien‘s conviction falls under (in the case of a divisible statute), or whether the alien‘s conduct otherwise “evidences a crime that in fact involved moral turpitude.” Id. at 690.
The record of conviction may also fail to resolve the matter. If that‘s the
The individualized inquiry mandated by Silva-Trevino is consistent with our circuit‘s precedent. See Ali v. Mukasey, 521 F.3d 737, 743 (7th Cir.2008) (deferring to Matter of Babaisakov, 24 I. & N. Dec. 306 (B.I.A.2007), and holding that “when deciding how to classify convictions under criteria that go beyond the criminal charge—such as ... whether the crime is one of ‘moral turpitude‘, the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction“). Accordingly, we have deferred to the Attorney General‘s decision. Mata-Guerrero, 627 F.3d at 260; see also Marin-Rodriguez v. Holder, 710 F.3d 734, 738 (7th Cir.2013). The Attorney General‘s determination of this issue оf law is therefore controlling, see
The Board cited Silva-Trevino in passing. But it did not properly employ its methodology. Nowhere in its discussion does the Board state a conclusion—required at Silva-Trevino‘s first step—that some portion of the conduct described in
True, the IJ and the Board retain substantial discretion in making the decision to consider evidence outside the formal record of conviction. Mata-Guerrero v. Holder, 639 F.3d 276, 276-77 (7th Cir.2011). However, the adjudicator must still exercise that discretion: The Board should have explained its determination that additional evidence was not necessary or appropriate to resolve the moral turpitude question, if that was indeed what the Board thought. See Silva-Trevino, 24 I. & N. Dec. at 704. But if anything, the Board‘s reasoning suggests thаt additional evidence was necessary.
Rather than reaching conclusions at each step of the Silva-Trevino analysis, the Board‘s decision rests on a burden-of-proof rationale. Under
However, the Board improperly applied
But in his brief to the Board, Sanchez presented case law establishing that drivers can be convicted under
Instead, the Board moved straight to the second Silva-Trevino step and fоund that Sanchez “did not meet his burden of proving that his criminal conviction is not a CIMT” because he “has not established that he was not convicted under a portion of the statute that does not qualify.” Again, it seems that the Board reached this conclusion because it found the case chronology printout inconclusive regarding Sanchez‘s charge. But if the record of conviction does not answer the question, it does not follow that the alien has failed to carry his burden and the inquiry is over. It only means that the аdjudicator should exercise its discretion to consider additional evidence (or else explain why it declined to do so). Only if the matter is still inconclusive after that step—perhaps because the evidence is closely balanced, or the adjudicator finds that the alien‘s account lacks credibility—will the burden of proof come into play. But just because Sanchez may ultimately lose in the event of a tie does not mean that the Board can end the inquiry early.6
Because the Board did not properly apply the Silva-Trevino framework, we grant Sanchеz‘s petition and remand for further proceedings. See Mata-Guerrero, 627 F.3d at 257 (granting alien‘s petition for review “[b]ecause the Attorney General‘s determination of the appropriate methodology is controlling, and because the Board did not use that methodology in Mata-Guerrero‘s case“). We do not reach the question whether any portion of
As noted above, both the Board and our court have described CIMTs as involving conduct that is “inherently base, vile, or depraved, and contrary to the accepted
Sanchez argues that
That blanket assertion, however, is debatable. Although the statute includes a mens rea of “knowingly or intentionally,” Indiana courts have held that a driver can be convicted under
Sanchez argues that this “reasonably should have known” standard is the equivalent of negligence and further, that negligence is not the equivalent of “evil intent or corruption of the mind” under Board and judicial precedent. See, e.g., Matter of Perez-Contreras, 20 I. & N. Dec. 615, 619 (B.I.A.1992) (“Since there was no intent required for conviction, nor any consciоus disregard of a substantial and unjustifiable risk, we find no moral turpitude inherent in the statute.“); Partyka v. Attorney Gen., 417 F.3d 408, 414-16 (3d Cir.2005) (aggravated assault of a law enforcement officer not a CIMT if committed negligently); Silva-Trevino, 24 I. & N. Dec. at 706 n. 5 (discussing with approval judicial precedents describing CIMTs as crimes involving “reprehensible conduct that is committed intentionally or with some other form of scienter such as willfulness or recklessness“). The upshot of all this is that even if it‘s established that Sanchez was convicted for “knowingly failing to stop” (as his plea agreement indicates), this convictiоn is not necessarily a CIMT. If so, further inquiry into the circumstances of Sanchez‘s offense—in particular, whether he actually knew that he hit a person—could be “necessary or appropriate to resolve accurately the moral turpitude question.” As the Board did not address this argument in dismissing Sanchez‘s appeal, we ask it to consider the matter on remand.7
We therefore GRANT the petition for review and REMAND the case to the Board of Immigration Appeals for further proceedings consistent with this оpinion.
JOEL M. FLAUM
UNITED STATES CIRCUIT JUDGE