Maria C. LUGO, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
Docket No. 13-1484-ag.
United States Court of Appeals, Second Circuit.
Argued: Dec. 19, 2014. Decided: April 9, 2015.
785 F.3d 119
Before: CALABRESI, B.D. PARKER and LIVINGSTON, Circuit Judges.
Victor M. Lawrence (William C. Peachey and Mona Maria Yousif on the brief), for Stuart F. Delery, Assistant Attorney General, Civil Division, U.S. Dep‘t of Justice, Washington, D.C., for Respondent.
CALABRESI, Circuit Judge:
I. FACTUAL BACKGROUND
On January 25, 2007, the Department of Homeland Security charged Ms. Lugo as removable from the United States. Ms. Lugo applied for cancellation of removal based on hardship to her U.S. citizen child, and for relief under the United Nations Convention Against Torture (“CAT“). In March 2011, Immigration Judge Vivienne E. Gordon-Uruakpa issued an oral decision finding that Ms. Lugo was barred from cancellation of remоval because of her conviction for misprision of felony. The Immigration Judge held, relying on the Board of Immigration Appeals’ (“Board“) decision in Matter of Robles-Urrea, 24 I. & N. Dec. 22 (BIA 2006), that misprision of felony is a “crime involving moral turpitude” (“CIMT“) which autоmatically stops the clock on the ten-year “continuous physical presence” requirement for cancellation of removal under
II. DISCUSSION
In appeals from Board decisions, this Court reviews legal conclusions de novo, giving deference to the Board‘s published, precedential interpretation of the Immigration and Nationality Act. Rosario-Mijangos v. Holder, 717 F.3d 269, 277 (2d Cir.2013). This Court, however, grants no deference to the Board‘s interpretation оf federal criminal laws. Higgins v. Holder, 677 F.3d 97, 102 (2d Cir.2012) (per curiam). The Board‘s factual findings are reviewed under the substantial evidence standard, and must be supported by “reasonable, substantial, and probative evidence in the record when considered as a whole.” Kone v. Holder, 596 F.3d 141, 146 (2d Cir.2010).
This case raises a series of questions we believe are best addressed in the first instance by the Board in a precedential opinion.
A. Whether Misprision of Felony is a Crime Involving Moral Turpitude
The initial question is whether, in view of an existing circuit split, the Board will interpret misprision of felony under
B. Whether a Rule that Misprision of Felony is a CIMT May be Retroactively Applied
Should the Board decide to adhere, in circuits other than the Ninth, to the rule that misprision of felony is a CIMT, the question then becomes whether application of such a rule in this case is impermissibly retroactive. In the decision under review, the Bоard took the wrong approach to this question. See Special App‘x at 3. It is irrelevant whether the statute terminating an alien‘s “continuous physical presence” upon commission of a CIMT was еnacted before Lugo‘s misprision of felony conviction, because the Board decision that classified that offense as a CIMT was handed down only after her guilty plea. Whether an agency decisiоn may permissibly be applied retroactively is determined by looking at five factors: (1) whether the case is one of first impression, (2) whether the new rule presents an abrupt departure from well-established рractice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order places on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard. N.L.R.B. v. Oakes Mach. Corp., 897 F.2d 84, 90 (2d Cir.1990); accord, e.g., Velasquez-Garcia v. Holder, 760 F.3d 571, 581 (7th Cir.2014); Miguel-Miguel v. Gonzales, 500 F.3d 941, 951 (9th Cir.2007).
We believe that factors one and four are not seriously at issue in the case before us. They clearly favor Ms. Lugo. The case is not one of first impression, and the degree of the burden is massive (removal from the United States, with life-changing consequences for Ms. Lugo and her children).
Factors two, three, and five, however, raise issues that are best addressed in the first instance by the Board. We therefore remand the case for consideration of thesе three factors. We do so because we believe that the Board should have the opportunity to act first, and because we would benefit from the Board‘s precedential opinion. Cf., e.g., NLRB v. Coca-Cola Bottling Co., 55 F.3d 74, 78 (2d Cir. 1995) (indicаting that retroactivity is a question for the agency in the first instance where the agency announces a new rule while an appeal of an order previously decided under the old rule is pending (citing NLRB v. Food Store Emps.’ Union, 417 U.S. 1, 10 n. 10, 94 S.Ct. 2074, 40 L.Ed.2d 612 (1974))).
As to factor two, we would like the Board to address whether its holding in Matter of Robles-Urrea was a departure from prior law. We note that the Board issued an unpublished opinion in 2004, prior to Ms. Lugo‘s guilty plea, holding that misprision of felony was a categorical CIMT. Matter of Aoun, 2004 WL 2952182 (BIA Nov. 10, 2004). This opinion, however, contained explicit language establishing that it was not precedential. Id. at *1. Significantly, the Board subsequently stated in Matter of Robles-Urrea, a precedential opinion, that the prior rule had remained valid until 2006. See Matter of Robles-Urrea, 24 I. & N. Dec. at 25 (“We therefore conclude that Matter of Sloan ... remained binding authority on the
As to the third factor, we invite the Board to consider whether a defendant should automatically be assumed to have relied on existing rules limiting deportation at the time she pled guilty to а crime where that guilty plea, because of a change in rules, subsequently becomes a basis for deporting her. See I.N.S. v. St. Cyr, 533 U.S. 289, 322, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding that a statute attaching new immigration consequences to a guilty plea did nоt apply retroactively in part because “[t]here can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutеly aware of the immigration consequences of their convictions.“).
Additionally, as to both factors two and three, we invite the Board, should it find that these factors do not automatically favor the petitiоner in a case such as this, to consider (A) whether Ms. Lugo in fact had notice that her guilty plea could lead to deportation, (B) whether she relied on the prior rule that it could not, and (C) whether such reliance was reasonable. Answering these questions may require additional factfinding. See
More generally, as to factors two and three, we point the Board to recent analysis from the Supreme Court that raises constitutional concerns with the retroactive use of deportation as a collateral consequence to a guilty plea. In Padilla v. Kentucky, the Court determined that a defendant‘s counsel must inform their client whether a plea bargain carries a risk of deportation, and that failure to do so gives rise to a Sixth Amendment claim for ineffective assistance of counsel. 559 U.S. 356, 374, 130 S.Ct. 1473, 176 L:Ed.2d 284 (2010). The Court further noted that deportation is a “particularly severe penalty,” and is also, “because of its close сonnection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence.” Id. at 365-66, 130 S.Ct. 1473; see also St. Cyr, 533 U.S. at 323, 121 S.Ct. 2271 (“Now that prosecutors have received the benefit of these рlea agreements, agreements that were likely facilitated by the aliens’ belief in their continued eligibility for ... relief, it would surely be contrary to familiar considerations of fair notice, reasonable reliance, and settled expectations to ... deprive them of any possibility of such relief.“) (internal citations and quotations omitted).
In this respect, we note that we have held that the Supreme Court‘s languаge in these cases was insufficient to overturn our prior holdings that retroactive deportation does not violate the Ex Post Facto Clause. See Morris v. Holder, 676 F.3d 309, 316-17 (2d Cir.2012). Nevertheless, the gravitational pull of these сonstitutional norms—the rights of fair notice and effective assistance of counsel—may provide a reason not to apply, retroactively, new agency rules that establish deportation as a consequence of certain crimes. On the other hand, there may well be reasons, that the Board is best suited to proffer, why those cases should have little effect in this context.
Finally, as to factor fivе, we invite the Board to consider the extent of the statutory interest in applying its ruling in Robles-Urrea retroactively to Ms. Lugo‘s conviction and thus rendering her ineligible for cancellation of removal. See, e.g.,
We value and look forward to receiving the Board‘s considered precedential opinion on however many of these questions it needs, or wishes, to address in deсiding this case.
C. Ms. Lugo‘s Convention Against Torture Claim
Because we vacate the Board‘s holding with respect to Ms. Lugo‘s claim for cancellation of removal, we do not reach her CAT claim.
III. CONCLUSION
We VACATE the Board‘s decision and REMAND the case for further proceedings consistent with this opinion. In the interests of judicial economy, any further appeals in this case by either party will return to this panel.