MELVIN JOSUE RODRIGUEZ CABRERA, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
No. 18-1314
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
July 19, 2019
PUBLISHED
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: May 9, 2019 Decided: July 19, 2019
Before MOTZ, AGEE and HARRIS, Circuit Judges.
Petition for review granted; vacated and remanded with instructions by published opinion. Judge Agee wrote the opinion, in which Judge Motz and Judge Harris joined.
ARGUED: Teresa Rubinger, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Petitioner. Victoria Marie Braga, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Erica Hashimoto, Diretor, Anjali Parekh Prakash, Supervising Attorney, Elijah Staggers, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Petitioner. Joseph H. Hunt, Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Melvin Josue Rodriguez Cabrera, a native and citizen of El Salvador, became a lawful permаnent resident of the United States in 2014. Three years later, the Department of Homeland Security (“DHS”) initiated removal proceedings against him based on his 2017 Virginia conviction under
I.
The Virginia statute prohibiting participation in a criminal street gang states, in relevant part:
Any person who actively participates in or is a member of a criminal street gang and who knowingly and willfully participates in any predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang shall be guilty of a Class 5 felony.
In 2017, Cabrera pleaded guilty to a violation of this statute, for which he was sentenced to a suspended term of imprisonment of five years. Thereafter, DHS served Cabrera with a Notice to Appear before an IJ for removal proceedings initiated under section 212(a)(2)(A)(i) of the Immigration and Nationality Aсt (“INA”), codified at
The IJ terminated removal proceedings after concluding that Cabrera’s conviction was not for a crime involving moral turpitude. DHS successfully appealed this decision to the BIA, which held that when an offense is committed “in association with a gang, the reprеhensibility of that act can no longer be viewed in isolation; its inherent moral character is changed—and aggravated—by its gang related nature.” A.R. 21. The BIAfurther explained that
The IJ entered an order of removal after determining that the other statutory requirements were met. That order indicates that Cabrera affirmatively waived his right to appeal the IJ’s decision to the BIA, making the IJ’s order a final order of removal. See generally
Cabrera filed a timely petition for review that raised one issue: whether the
II.
Before reaching the merits of Cabrera’s petition, we must address our jurisdiction over this case. By statute, we havе jurisdiction over final orders of removal “only if” “the alien has exhausted all administrative remedies available to the alien as of right.”
Our case law informs the analysis of when administrative exhaustion has occurred, but the precise question raised in this case is an issue of first impression in this Circuit: was Cabrera required to appeal the IJ’s order of removal to the BIA before filing his petition for review with this Court in order to exhaust his administrative remedies? That question is presented within the additional context that the sole issue raised in Cabrera’s petition relates to a legal question the BIA conclusively decided earlier in his removal proceeding.
Ordinarily, a petitioner exhausts his administrative remedies by raising an argument challenging the IJ’s decision in an appeal to the BIA. E.g., Kporlor, 597 F.3d at 226 (“It is well established that an alien must raise each argument to the BIA before we have jurisdiction to considеr it.”). Consequently, arguments that a petitioner did not raise in the BIA proceedings have not been exhausted and the Court lacks jurisdiction to consider them. Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004) (“We have no jurisdiction to consider this argument, however, because [the petitioner] failed to make itbefore the [BIA] and, therefore, failed to exhaust all administrative remedies.”). Only after the BIA has rendered a decision on an argument or claim is that argument or claim said to have been exhausted. See Lizama v. Holder, 629 F.3d 440, 448–49 (4th Cir. 2011) (holding that an alien exhausted remedies by raising a claim in his notice of appeal to the BIA—even if he neglects to brief the issue—if the BIA has nonetheless addressed the issue in its decision). In sum, we have consistently held that when the BIA has never bеen part of a petitioner’s removal proceedings we lack jurisdiction to consider the petition for review and when a petition contains an argument that has never been presented to the BIA for consideration, we lack jurisdiction to consider it even if other arguments in the petition have been exhausted.
Relying on these principles, DHS contends that Cabrera did not exhaust his administrative remedies because he had the right to appeal the IJ’s removal order to the BIA, but he chose to waive that right. DHS argues that the BIA must first determine whether Cabrera’s removal was proper before this Court can consider Cabrera’s petition for review and that his decision not to appeal directly to the BIA deprived the BIA of the opportunity to do so. In addition, DHS asserts that the BIA’s earlier decision concerning Cabrera’s
Relying on the same principles, Cabrera responds that he has exhausted his administrative remedies because the BIA definitively ruled in the earlier appeal that his Virginia conviction is for a crime involving moral turpitude and that ruling is the sole issue he raises in his petition for review. He observes that although this Court has notdecided whether administrative remedies have been exhausted in these circumstances, three circuit courts of appeals have considered it and have unanimously held in favor of finding exhaustion. Our sister circuits have determined that a petitioner has exhausted his administrative remedies when the BIA conclusively determined the issue(s) for which a petitioner seeks review even though the BIA’s review occurred before a remand to the IJ and even though the petitioner did not appeal the IJ’s removal order to the BIA before filing a petition for review directly with the court of appeals. See Shepherd v. Holder, 678 F.3d 1171, 1176–78 (10th Cir. 2012); Popal v. Gonzales, 416 F.3d 249, 252–53 (3d Cir. 2005); Perkovic v. I.N.S., 33 F.3d 615, 619–20 (6th Cir. 1994).1
First, the exhaustion requirement “serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency.” Kurfees v. I.N.S., 275 F.3d 332, 336 (4th Cir. 2001); accord Kporlor, 597 F.3d at 226–27. Both objectives are2
served when, as is the case before us, the BIA has exercised its authority by issuing a conclusive ruling on a particular issue in the petitioner’s agency proceedings and the Court knows the agency’s final adjudication of the issue in the petitioner’s case. Conversely, none of the traditional principles favoring exhaustion would be served by requiring a second appeal to the BIA after the IJ’s final entry of the removal order when the petitioner does not challenge the decisions made in that order. See Popal, 416 F.3d at 253 (“The issues have been fairly presented to, and fully adjudicated by, the BIA. There are no factual allegations or legal arguments before us that were not raised before the BIA. Judicial economy would not be served by requiring [the petitioner] to take a second, essentially frivolous appeal to the BIA raising the same issues that the Board had already rejected in [his] own case.”).
Second, the exhaustion requirement is consistently described in terms of substance rather than timing. The significant inquiry is that the BIA has definitively ruled on the petitioner’s argument in adjudicating his case, not when it has done so. Kporlor, 597 F.3d at 226 (“It is well established that an alien must raise each argument to the BIA before we have jurisdiction to consider it.” (emphasis added)); see Telyatitskiy v. Holder, 628 F.3d 628, 631 (1st Cir. 2011) (considering both the petitioner’s BIA appeal and motion to reconsider to determine whether the petitioner had raised the argument made in his petition for review and thus exhausted his administrative remedies as to that argument); cf. Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) (observing that “an alien must present the same specific legal theory to the BIA before he or she mayadvance it in [this] court”). Here, the BIA has definitively addressed the argument Cabrera makes in his petition.
Third, the exhaustion requirement is satisfied when the BIA has definitively spoken on a particular issue in the petitioner’s case one timе. Petitioners need not file a motion to reconsider the same argument the BIA has already rejected in order to exhaust their remedies. See Woodford v. Ngo, 548 U.S. 81, 92 (2006) (describing the exhaustion requirement in the context of habeas corpus as “properly present[ing] his or her claims through one complete round of the . . . established appellate review process” (emphasis added)); Shepherd, 678 F.3d at 1177; see also Parlak v. Holder, 578 F.3d 457, 463 (6th Cir. 2009) (observing that, “as a general rule,” petitioners do not have to file a motion to
Lastly, exercising jurisdiction under the circumstances presented in this case does not—as DHS contends—amount to allowing a petitioner to avoid the exhaustion requirement based on general futility. Generally speaking, a petitioner must raise his arguments before the BIA even when he is almost assuredly not going to prevail, such as when the BIA has rejected the argument in a different case or binding precedent forecloses it from adopting his position. See Popal, 416 F.3d at 252–53 (“[T]he exhaustion requirement of
exceptions to jurisdictional requirements”); Massis, 549 F.3d at 640 (declining to read a “miscarriage of justice” exception into
In short, we hold that Cabrera was not required to appeal the IJ’s removal order to the BIA before filing his petition for
III.
Turning to the substance of the petition for review, Cabrera poses a straightforward question of law: did the BIA err in holding that a conviction for violating
A.
In resolving this issue, we defer to the BIA’s determination only to the extent that we find its reasoning persuasive. This is so for two reasons: first, the Court does not defer to the BIA’s determination that a state statute categorically involves moral turpitude because that is a question outside the BIA’s authority and expеrtise. Ramirez v. Sessions, 887 F.3d 693, 702 (4th Cir. 2018). To the extent the BIA’s decision rests on an interpretation of
Here, in issuing a non-precedential, one-member decision concluding that the offense punishable under
That case held that the California Penal Code’s enhancement for gang-related offenses transformed crimes that were not otherwise morally turpitudinous into ones that were. A.R. 19; see also id. at 397. Referencing E.E. Hernandez, the BIA pointed to the “moral depravity of criminal street gangs” and observed that
For the reasons set out below, we conclude that the reasoning in the BIA’s decision is not persuasive; therefore, we do not afford it Skidmore deference.
B.
“[G]enerally, a crime involves moral turpitude if it is ‘inherently base, vile, or depraved and contrary to accepted rules of morality and the duties owed betweеn persons or to society in general.’” Prudencio v. Holder, 669 F.3d 472, 484–85 (4th Cir. 2012) (quoting Matter of Olquin-Rufino, 23 I. & N. Dec. 896, 896 (B.I.A. 2006)); see alsoMohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014) (“[W]e have noted that ‘moral turpitude’ refers generally to ‘conduct that shocks the public conscience as being inherently base, vile, or depraved.’” (quoting Medina v. United States, 259 F.3d 220, 227 (4th Cir. 2001))). A criminal statute must require two things in order to satisfy this definition: “a culpable mental state and reprehensible conduct.” Sotnikau v. Lynch, 846 F.3d 731, 736 (4th Cir. 2017) (quoting Matter of Ortega-Lopez, 26 I. & N. Dec. 99, 100 (B.I.A. 2013)).
When undertaking this review, the Court uses the categorical approach, looking to the elements of the crime rather than the particular circumstances of the petitioner’s violation. Prudencio, 669 F.3d at 484. Under this approach, a crime does not involve moral turpitude if there is a “realistic probability” that the statute of conviction could “be applied to reach conduct that does not involve moral turpitude.” Matter of Louissant, 24 I. & N. Dec. 754, 757 (B.I.A. 2009). Put another way, “[i]f all permutations of the conduct proscribed by the elements of the offense involve moral turpitude, then the offense categorically qualifies as” one involving moral turpitude. Martinez v. Sessions, 892 F.3d 655, 658 (4th Cir. 2018).5
Several aspects of
First, a person must actively participate in or be a member of a criminal street gang. Second, the person must knowingly and willfully participate in a predicate criminal act. Third, the act must be committed for the benefit of, at the direction of, or in association with the gang.
Hamilton v. Commonwealth, 688 S.E.2d 168, 177 (Va. 2010).6 Further, the
and battery statute can be a predicate criminal act for purposes of
Turning to the first element of
Similarly, the third element—that the predicate criminal act was “committed for the benefit of, at the direction of, or in association with the gang”—can be committed in any one of these three disjunctive ways. See Morris v. Commonwealth, 716 S.E.2d 139, 141 (Va. Ct. App. 2011) (“[U]nder the plain language of Code
Having earlier concluded that the second element of the statute cannot provide the requisite combination of “a culpable mental state and reprehensible conduct” to make
The following example illustrates our conclusion that a conviction under
At bottom, neither
We find support for our conclusion in the well-reasoned opinion of the Ninth Circuit in Hernandez-Gonzalez v. Holder, 778 F.3d 793 (9th Cir. 2015).7 There, the BIA held that the petitioner’s conviction for weapons possession that was “committed for the benefit of, at the direction of, or in association with any criminal street gang” and “with the specific intent to promote, further, or assist in any criminal conduct by gang members” categorically constituted a crime involving moral turpitude. Id. at 797–98 (quoting
necessary changes to the text at issue here, its explanation applies equally to the gang-related elements of
In sum, we cannot say based on the sole fact that
IV.
For the reasons stated above, we conclude that Virginia’s statute prohibiting participation in criminal gang activity does not categorically qualify as a crime involving moral turpitude for purposes of
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED WITH INSTRUCTIONS
Notes
Briefly, though, in Shepherd, the IJ had initially dismissed the removal proceedings against the petitioner based on collateral estoppel, the government successfully “appealed to the BIA, which reversed the IJ’s collateral estoppel ruling,” and “remanded for further proceedings and the entry of a new decision.” 678 F.3d at 1176. The IJ then entered a final order of removal and the petitioner filed her petition for review without first appealing that decision to the BIA. Id. The Tenth Circuit held that she had exhausted her administrative remedies to challenge the collateral estoppel issue in federal court because “exhaustion does not require repeated presentations of issues already finally resolved” and two circuit courts had also “disavow[ed] the need for redundant appeals to the BIA.” Id. at 1178.
In Popal, the IJ had initially terminated removal proceedings against the petitioner after concluding that the state offense relied on to initiate the proceedings did not qualify as a crime of violence. 416 F.3d at 251. “DHS appealed [that decision] to the BIA, which reversed,” and held that the petitioner was eligible for removal. Id. The BIA then remanded “to allow [the petitioner] to apply for any relief from removal for which he may be eligible.” Id. The petitioner declined the opportunity to apply for any other relief, the IJ ordered the petitioner removed, and the petitioner filed his petition for review without appealing the removal order to the BIA first. Id. The Third Circuit held that the petitioner exhausted his administrative remedies because the IJ’s decision “made no new findings of fact or conclusions of law, and considered no issues that had not been decided by the BIA,” and instead simply “implemented the BIA’s decision.” Id. at 253. The court observed that “the purposes of exhaustion would [not] be served by a further appeal to the BIA” given that “[t]here are no factual allegations or legal arguments before us that were not raised before the BIA.” Id.
In Perkovic, the IJ had initially determined “that the petitioners should be granted asylum,” and “INS appealed the decision” to the BIA, which “reversed the [IJ’s] decision and remanded the case” after determining that they were ineligible for asylum. 33 F.3d at 618. The IJ then entered a final order of removal after allowing the petitioners to select their destination country and granting voluntary departure, which the petitioners appealed to the Sixth Circuit without first seeking the BIA’s review. Id. at 618–19. The Sixth Circuit held that the petitioners had exhausted their administrative remedies as to their eligibility for asylum “because [that issue was] presented to the immigration judge and then to the Board, which definitively resolved the claims on their merits.” Id. at 619. The court further observed that it would be “pointless to interpret the exhaustion rule as requiring that . . . uncontested matters be presented to the Board before” the final removal order “can be considered by this court.” Id. at 620.
The modified categorical approach “applies in cases involving ‘divisible’ statutes,” meaning statutes that “set[] out alternate elements that create multiple forms of the criminal offense and at least one form of the offense qualifies—by its elements—as the generic predicate offense.” Martinez, 892 F.3d at 659. But “[a] statute that lists alternative means of committing a single offense, rather than alternative elements, is not divisible.” Id.
The modified categorical approach cannot be used to analyze
any ongoing organization, association, or group of three or more рersons, whether formal or informal, (i) which has as one of its primary objectives or activities the commission of one or more criminal activities; (ii) which has an identifiable name or identifying sign or symbol; and (iii) whose members individually or collectively have engaged in the commission of, attempt to commit, conspiracy to commit, or solicitation of two or more predicate criminal acts, at least one of which is an act of violence, provided such acts were not part of a common act or transaction.