Ihar Sotnikau v. Loretta Lynch , 846 F.3d 731 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2073
IHAR SOTNIKAU,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: December 8, 2016 Decided: January 24, 2017
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Petition for review granted; vacated and remanded by published
opinion. Judge King wrote the opinion, in which Judge Niemeyer
and Judge Agee joined.
ARGUED: Jason Matthew Zarrow, O’MELVENY & MYERS LLP, Washington,
D.C., for Petitioner. Keith Ian McManus, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Mary Patrice Brown, O’MELVENY & MYERS LLP, Washington,
D.C., for Petitioner. Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Cindy S. Ferrier, Assistant
Director, Office of Immigration Litigation, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
KING, Circuit Judge:
After pleading guilty to involuntary manslaughter under
Virginia law, Ihar Sotnikau — a native of Belarus who was
admitted to the United States as a lawful permanent resident in
2008 — was subjected to removal proceedings. The Department of
Homeland Security (the “DHS”) instituted those proceedings
because, in its view, Virginia’s involuntary manslaughter
offense constitutes a crime involving moral turpitude. Sotnikau
sought asylum, withholding of removal, and protection under the
Convention Against Torture (the “CAT”), contesting the DHS’s
interpretation of Virginia’s involuntary manslaughter offense.
After various proceedings, an immigration judge (the “IJ”) and
the Board of Immigration Appeals (the “BIA”) rejected Sotnikau’s
applications, deeming him subject to removal. Importantly, both
the IJ and the BIA concluded that involuntary manslaughter as
defined by Virginia law is categorically a crime involving moral
turpitude. As explained below, that ruling was erroneous, and
we therefore grant Sotnikau’s petition for review, vacate the
order of removal, and remand.
I.
In the early hours of June 18, 2010, Sotnikau and his
friend Randy Hines were drinking on a pier along the Elizabeth
River in Portsmouth, Virginia. At some point, Hines fell down a
2
series of concrete steps and into the river. After fruitless
efforts to locate Hines in the river’s dark waters, Sotnikau
retreated to a local homeless shelter. He did not otherwise
seek assistance or alert the authorities.
At the shelter, someone overheard Sotnikau relating what
had occurred at the pier and that Hines had died. That
individual promptly relayed Sotnikau’s remarks to the
authorities. Thereafter, the police located Sotnikau, took him
into custody, and questioned him. Sotnikau then related to the
police what had transpired at the pier. Hines’s body was found
in the Elizabeth River on June 19, 2010. Sotnikau was charged
with involuntary manslaughter by way of a one-count indictment
in the Circuit Court of the City of Portsmouth. He pleaded
guilty and was sentenced to five years in prison.
On October 21, 2011, the DHS instituted removal proceedings
against Sotnikau, alleging removability based on his having been
convicted in Virginia of a crime involving moral turpitude
committed within five years of being admitted to the United
States. See 8 U.S.C. § 1227(a)(2)(A)(i)(I) (rendering removable
an alien who “is convicted of a crime involving moral turpitude
committed within five years . . . after the date of admission”).
On August 14, 2012, the IJ issued an oral decision (the “Initial
IJ Decision”), which summarily denied Sotnikau’s requests for
asylum, withholding of removal, and protection under the CAT.
3
Sotnikau appealed the Initial IJ Decision to the BIA. In
its January 8, 2013 order (the “Initial BIA Order”), the BIA
observed that the IJ had failed to “set forth his reasoning as
to why he ruled that the respondent was convicted of a [crime
involving moral turpitude].” See Initial BIA Order 1. In the
absence of a reasoned opinion, the BIA found itself unable to
review the matter and, for that and other reasons, remanded to
the IJ for further proceedings.
At the conclusion of the remand proceedings, by his March
26, 2013 decision (the “Remand IJ Decision”), the IJ again
concluded that Sotnikau had been convicted of a crime involving
moral turpitude, i.e., Virginia’s involuntary manslaughter
offense. After outlining Virginia law on involuntary
manslaughter, the IJ discussed the BIA’s 1994 decision in In re
Franklin, 20 I. & N. Dec. 867 (BIA 1994). There, the IJ
explained, the BIA had concluded that an involuntary
manslaughter offense in Missouri constituted a crime involving
moral turpitude because “the Missouri statute defined
involuntary manslaughter as ‘recklessly causing the death of
another person.’” See Remand IJ Decision 3. According to the
Remand IJ Decision, the mental state required to support a
conviction for involuntary manslaughter under Virginia law is
identical to the mental state at issue in the Franklin decision,
rendering Virginia’s involuntary manslaughter offense
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categorically a crime involving moral turpitude. See id. The
IJ also determined that Sotnikau is ineligible for withholding
of removal because the crime for which he was convicted was
“particularly serious.” See id. (citing Immigration and
Nationality Act § 241(b)(3)(B), 8 U.S.C. § 1231(b)(3)(B)).
Thereafter, Sotnikau moved for reconsideration of the Remand IJ
Decision, but the IJ denied that motion.
Again, Sotnikau appealed to the BIA. By its order of
August 14, 2015 (the “Final BIA Order”), the BIA affirmed the
Remand IJ Decision. Like the Remand IJ Decision, the Final BIA
Order — which is the subject of the pending petition for review
— ruled that the Franklin decision controls the outcome of this
matter: “[W]e conclude that the offense of involuntary
manslaughter in Virginia contains all of the requisite elements
outlined in [Franklin] to make the offense categorically qualify
as a crime involving moral turpitude.” See Final BIA Order 3-4.
The BIA therein also approved of the IJ’s determination that
Sotnikau had been convicted of a particularly serious crime,
making both withholding of removal and asylum unavailable to
him. As a result, the BIA dismissed Sotnikau’s appeal and
ordered his removal. 1
1
As the Final BIA Order explained, the IJ had theretofore,
on September 19, 2013, deferred removal of Sotnikau, having
granted his application for relief under the CAT. See Final BIA
(Continued)
5
Sotnikau has timely petitioned this Court for review of the
Final BIA Order. Our jurisdiction in this matter is provided by
8 U.S.C. § 1252.
II.
The dispositive issue in this proceeding is whether
Sotnikau is subject to removal because involuntary manslaughter
under Virginia law is categorically a crime involving moral
turpitude. 2 Whether a crime is one involving moral turpitude, as
that term is used in 8 U.S.C. § 1227(a)(2)(A)(i), “is a question
of law that we review de novo.” See Mohamed v. Holder, 769 F.3d
885, 888 (4th Cir. 2014). To resolve that question, we
“consider only the statutory elements, not the facts underlying
the particular violation of the statute.” Id.Order 1 n.1 (“Neither party has appealed the [IJ’s] decision to
grant deferral of removal [under the CAT], and therefore, that
application is not before us.”). The CAT application is not
otherwise considered in the Remand IJ Order or the Final BIA
Order.
2By his petition for review, Sotnikau also seeks to
litigate a second issue, contending that he is entitled to
asylum or withholding of removal because both the IJ and the BIA
erroneously determined that his involuntary manslaughter
conviction constituted a particularly serious crime. We do not
address that issue, however, because we conclude that Sotnikau
is not subject to removal.
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III.
The order of removal with respect to Sotnikau is predicated
on 8 U.S.C. § 1227(a)(2)(A)(i), pursuant to which an alien is
subject to removal if he “is convicted of a crime involving
moral turpitude committed within five years . . . after the date
of admission” and “for which a sentence of one year or longer
may be imposed.” It is readily apparent that the temporal
aspect of that statutory provision is satisfied in this matter:
Sotnikau was admitted to the United States as a lawful permanent
resident in April 2008 and committed the relevant crime in June
2010. The same is true for the sentence component of that
provision: involuntary manslaughter carries a penalty of “not
less than one year nor more than 10 years.” See Va. Code
§ 18.2-10(e) (specifying permissible punishment for Class 5
felony); see also Va. Code § 18.2-36 (“Involuntary manslaughter
is punishable as a Class 5 felony.”).
Sotnikau contends in his petition for review that his
involuntary manslaughter offense under Virginia law does not
constitute a crime involving moral turpitude. The Remand IJ
Decision and the Final BIA Order ruled otherwise, concluding
that Virginia’s involuntary manslaughter offense constitutes a
crime involving moral turpitude. They reached that conclusion
on the basis of the BIA’s decision in In re Franklin, 20 I. & N.
Dec. 867 (BIA 1994), reasoning that “involuntary manslaughter in
7
Virginia has the same essential elements as involuntary
manslaughter in Missouri, an offense that the [BIA] found
qualifies as a crime involving moral turpitude.” See Final BIA
Order 3; see also Remand IJ Decision 3.
We are thus called upon to decide whether the Virginia
involuntary manslaughter offense is one involving moral
turpitude. In so doing, we are obliged to utilize a categorical
approach. See Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir.
2012). That is, we look at the elements of the crime at issue
and determine whether those elements solely encompass behavior
that involves moral turpitude. If they do, the crime is
categorically one involving moral turpitude. But if those
elements can include behavior that does not involve moral
turpitude, the crime is not categorically one involving moral
turpitude.
In order to properly interpret Virginia’s involuntary
manslaughter offense, we must first understand the meaning of
“moral turpitude.” A crime involving moral turpitude “must
involve conduct that not only violates a statute but also
independently violates a moral norm.” See Mohamed v. Holder,
769 F.3d 885, 888 (4th Cir. 2014); see also id. (“[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
8
(4th Cir. 2001))). That is to say, “[t]o involve moral
turpitude, a crime requires two essential elements: a culpable
mental state and reprehensible conduct.” In re Ortega-Lopez, 26
I. & N. Dec. 99, 100 (BIA 2013). Accordingly, “[w]here knowing
or intentional conduct is an element of an offense,” the BIA has
“found moral turpitude to be present.” See In re Perez-
Contreras, 20 I. & N. Dec. 615, 618 (BIA 1992). Those
circumstances include criminally reckless conduct, which
“reflect[s] a willingness to disregard the risks inherent in the
conduct.” Id. Criminally negligent conduct, on the other hand,
is not included because “there [is] no intent required for
conviction, nor any conscious disregard of a substantial and
unjustifiable risk.” Id. at 619.
With the foregoing principles in mind, we turn to the
elements of the crime of involuntary manslaughter in Virginia.
Under the Code of Virginia, involuntary manslaughter is
punishable as a felony. See Va. Code § 18.2-36. The Supreme
Court of Virginia has defined involuntary manslaughter as “the
accidental killing of a person, contrary to the intention of the
parties, during the prosecution of an unlawful, but not
felonious, act, or during the improper performance of some
lawful act.” See Gooden v. Commonwealth, 311 S.E.2d 780, 784
(Va. 1984). In Virginia, a defendant can be convicted of an
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involuntary manslaughter offense upon a showing of criminal
negligence, which occurs
when acts of a wanton or willful character, committed
or omitted, show a reckless or indifferent disregard
of the rights of others, under circumstances
reasonably calculated to produce injury, or which make
it not improbable that injury will be occasioned, and
the offender knows, or is charged with the knowledge
of, the probable results of his [or her] acts.
See Noakes v. Commonwealth, 699 S.E.2d 284, 288 (Va. 2010)
(alteration in original) (emphasis added) (internal quotation
marks omitted). In simpler terms, an involuntary manslaughter
conviction in Virginia requires that “the offender either knew
or should have known the probable results of his acts.” See
Conrad v. Commonwealth, 521 S.E.2d 321, 326 (Va. Ct. App. 1999
(en banc)).
An involuntary manslaughter conviction can be secured in
Virginia without proving a conscious disregard of risks
attendant to the offender’s conduct; such a conviction can be
predicated on proof that the offender failed to appreciate or be
aware of the risks emanating from his conduct. See Noakes, 699
S.E.2d at 289. Pursuant to the BIA’s decision in Perez-
Contreras, that removes the Virginia involuntary manslaughter
offense from the realm of those crimes that categorically
involve moral turpitude.
In its Perez-Contreras decision in 1992, the BIA decided
that an assault offense in the State of Washington did not
10
constitute a crime involving moral turpitude. That was because
a conviction of the assault offense could be based on a showing
of criminal negligence, which “exists when the perpetrator
‘fails to be aware of a substantial risk that a wrongful act may
occur and his failure to be aware of such substantial risk
constitutes a gross deviation from the standard of care that a
reasonable man would exercise in the same situation.’” See
Perez-Contreras, 20 I. & N. at 618 (quoting Wash. Rev. Code
§ 9A.08.010(1)(d)). The BIA explained that, “[s]ince there was
no intent required for conviction, nor any conscious disregard
of a substantial and unjustifiable risk, we find no moral
turpitude inherent in the statute.” Id. at 619.
Virginia’s involuntary manslaughter offense is not
materially different from the Washington offense. Like the
assault offense underlying the Perez-Contreras decision, the
crime at issue here can be predicated on the offender’s failure
to be aware of the risks attendant to his actions. See Perez-
Contreras, 20 I. & N. Dec. at 618 (observing that criminal
negligence exists when “the perpetrator ‘fails to be aware of a
substantial risk’” (quoting Wash. Rev. Code § 9A.08.010(1)(d)));
see also Conrad, 521 S.E.2d at 326 (recognizing that criminal
negligence arises when the offender “should have known the
probable results of his acts”). As in the Perez-Contreras
decision, Sotnikau’s involuntary manslaughter offense could have
11
been proven under Virginia law without a showing that he
consciously disregarded any particularly serious risks.
Accordingly, Virginia’s involuntary manslaughter offense is not
categorically a crime involving moral turpitude.
Notwithstanding the views expressed by the IJ and the BIA
in the underlying proceedings, the BIA’s Franklin decision does
not compel a conclusion to the contrary. There, the BIA
recognized that Missouri defined involuntary manslaughter as
“[r]ecklessly caus[ing] the death of another person.” See
Franklin, 20 I. & N. Dec. at 870 (first alteration in original)
(quoting Mo. Rev. Stat. § 562.016(4)). The BIA further observed
in Franklin that Missouri’s definition of “recklessness” is
“essentially identical” to the definitions of recklessness
construed in its other cases — “a conscious disregard for a
substantial and unjustifiable risk, where the disregard
constitutes a gross deviation from the standard of care which a
reasonable person would employ.” Id. (citing In re Wojtkow, 18
I. & N. Dec. 111 (BIA 1981); In re Medina, 15 I. & N. Dec. 611(BIA 1976)). The BIA therefore reasoned in Franklin that,
“because the statute under which the respondent was convicted
requires that she acted with a ‘conscious disregard of a
substantial and unjustifiable risk,’ the conclusion necessarily
follows that she has been convicted of a crime involving moral
12
turpitude.” Id. (quoting Perez-Contreras, 20 I. & N. Dec. at
619).
As we have already explained, a defendant need not
consciously disregard a risk to be convicted of Virginia’s
involuntary manslaughter offense. See, e.g., Conrad, 521 S.E.2d
at 326. Because the definition of involuntary manslaughter in
Virginia is materially distinguishable from the definition of
involuntary manslaughter in Missouri, the Franklin decision does
not control the outcome of this matter. The IJ and the BIA
failed to recognize material differences between the two
definitions of involuntary manslaughter, leading them to
incorrectly conclude that the Franklin decision controls the
outcome here. Nor did the Franklin decision jettison the
principles applied in the Perez-Contreras decision. To the
contrary, the Franklin decision reaffirmed those principles but
distinguished the Missouri crime then under review from the
Washington offense that was at issue in the Perez-Contreras
decision. See Franklin, 20 I. & N. Dec. at 870.
Crimes involving criminal negligence — like the Virginia
involuntary manslaughter offense — are generally excluded from
the category of crimes that involve moral turpitude. See, e.g.,
Rodriguez-Castro v. Gonzales, 427 F.3d 316, 323 (5th Cir. 2005)
(collecting decisions and recognizing that “negligence-based
crimes usually do not amount to [crimes involving moral
13
turpitude]”). There is simply no reason for us to depart from
that practice here. Instead, we will adhere to the applicable
rule recognized by the BIA in the Perez-Contreras decision:
“Since there was no intent required for conviction, nor any
conscious disregard of a substantial and unjustifiable risk, we
find no moral turpitude inherent in the statute.” See Perez-
Contreras, 20 I. & N. Dec. at 619. Put succinctly, involuntary
manslaughter under Virginia law does not categorically
constitute a crime involving moral turpitude because a
conviction thereof can be predicated on mere criminal
negligence. We are therefore satisfied that Sotnikau is not
subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(i).
IV.
Pursuant to the foregoing, we grant the petition for
review, vacate the Final BIA Order, and remand for such other
and further proceedings as may be appropriate.
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED
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