Villanueva v. Holder, Jr. ( 2015 )


Menu:
  •           United States Court of Appeals
    For the First Circuit
    Nos. 14-1217
    14-1787
    FREDY VILLANUEVA,
    Petitioner,
    v.
    ERIC H. HOLDER, JR., Attorney General,
    Respondent.
    PETITIONS FOR REVIEW OF AN ORDER
    OF THE BOARD OF IMMIGRATION APPEALS
    Before
    Lynch, Chief Judge,
    Kayatta and Barron, Circuit Judges.
    Eduardo Masferrer and Masferrer & Associates, P.C. on
    brief for petitioner.
    Joyce R. Branda, Acting Assistant Attorney General, Civil
    Division, Terri J. Scadron, Assistant Director, Office of
    Immigration Litigation, and Corey L. Farrell, Attorney, Office of
    Immigration Litigation, Civil Division, on brief for respondent.
    April 24, 2015
    LYNCH, Chief Judge.      This is a petition for review of a
    Board of Immigration Appeals (BIA) determination that petitioner
    Fredy Villanueva is ineligible for consideration for discretionary
    relief from removal under a special program.           The BIA's result
    depends on an analytical error, and petitioner is eligible for
    consideration.    We remand so that petitioner may be considered for
    discretionary relief.
    In June 2009, Villanueva, a native of El Salvador living
    in the United States, was charged with removability for being a
    non-citizen present in the United States without being admitted or
    paroled.     See 8 U.S.C. § 1182(a)(6)(A)(i).         Villanueva sought
    relief from removal by requesting review of an earlier denial of
    his application for Temporary Protected Status (TPS) under 8 U.S.C.
    §   1254a.      The   TPS   statute   affords   undocumented   immigrants
    protection from removal from the United States upon a determination
    by the Attorney General that conditions in the individual's home
    country prevent his or her safe return.         Shul-Navarro v. Holder,
    
    762 F.3d 146
    , 147 (1st Cir. 2014). The Attorney General designated
    El Salvador for TPS in 2001 because of a disruption of living
    conditions in El Salvador resulting from a series of earthquakes
    that occurred that year.        See Designation of El Salvador Under
    Temporary Protected Status Program, 66 Fed. Reg. 14,214 (Mar. 9,
    2001); see also 
    Shul-Navarro, 762 F.3d at 147
    .
    -2-
    A non-citizen is ineligible for TPS if he or she has been
    convicted       of    an    "aggravated       felony."         See     8      U.S.C.
    §§ 1158(b)(2)(A)(ii), (B)(i); 
    id. § 1254a(c)(2)(B)(ii).
                        After an
    October      2011     hearing,    the   Immigration      Judge       (IJ)    denied
    Villanueva's application for TPS on the ground that he had a 2006
    conviction for third-degree assault under Connecticut law, which
    the IJ determined was a "crime of violence" under 18 U.S.C. § 16,
    and       therefore    an   "aggravated       felony."         See     8      U.S.C.
    § 1101(a)(43)(F) (defining "aggravated felony" to include "a crime
    of violence (as defined in [18 U.S.C. § 16], but not including a
    purely political offense) for which the term of imprisonment [is]
    at least one year").        The BIA affirmed the IJ's ruling and later
    denied Villanueva's motion for reconsideration.1
    Villanueva    now   petitions     for   review     of    the    BIA's
    decisions, arguing that the agency erred in its determination that
    1
    The first BIA decision endorsed the IJ's reasoning on the
    "crime of violence" issue in two pages of analysis, but ended its
    opinion with the following non-sequitur: "As the respondent has
    failed to show that he has not been convicted of a felony or two
    misdemeanors committed in the United States, he has not shown
    eligibility for TPS." Villanueva argues, and the government does
    not dispute, that third-degree assault under Connecticut law is not
    a "felony" for purposes of the TPS statute (which is defined
    differently from an "aggravated felony" for purposes of 8 U.S.C.
    § 1101(a)(43)(F)) because it does not carry a possible punishment
    of more than one year imprisonment. See 8 C.F.R. § 1244.1. The
    BIA's order on reconsideration makes clear that the ground for its
    denial of Villanueva's TPS application was its holding that
    Villanueva had been convicted of an "aggravated felony," as defined
    in 8 U.S.C. § 1101(a)(43)(F), not a holding that Villanueva's prior
    conviction was a "felony" under the TPS statute.
    -3-
    his conviction for third-degree assault under Connecticut law
    constituted a "crime of violence."              Applying de novo review to the
    BIA's analytical method, see United States v. Fish, 
    758 F.3d 1
    , 4
    (1st Cir. 2014), "including its determination that a non-citizen's
    criminal conviction is grounds for removal," Patel v. Holder, 
    707 F.3d 77
    ,    79   (1st     Cir.   2013),   we   agree   with   Villanueva.
    Accordingly, we vacate the BIA's decision and remand this case to
    the agency for further proceedings.
    The statute of conviction, Conn. Gen. Stat. § 53a-61,
    provides as follows:
    A person is guilty of assault in the third
    degree when: (1) With intent to cause physical
    injury to another person, he causes such
    injury to such person or to a third person; or
    (2) he recklessly causes serious physical
    injury to another person; or (3) with criminal
    negligence, he causes physical injury to
    another person by means of a deadly weapon, a
    dangerous instrument or an electronic defense
    weapon.
    
    Id. § 53a-61(a).
                 Third-degree assault is a misdemeanor under
    Connecticut law.         
    Id. § 53a-61(b).
          However, it carries a maximum
    one-year term of imprisonment, see 
    id., meaning that
    it would
    constitute an "aggravated felony" within the meaning of the TPS if
    it qualifies as a "crime of violence" under 18 U.S.C. § 16.               See 8
    U.S.C. § 1101(a)(43)(F).2
    2
    The conviction is not a "felony" within the meaning of
    the TPS statute because that definition requires the crime to be
    punishable by a term of imprisonment strictly greater than one
    year. See 8 C.F.R. § 1244.1; see also supra note 1.
    -4-
    Section 16 defines the term "crime of violence" as
    follows:
    (a) an offense that has as an element the use,
    attempted use, or threatened use of physical
    force against the person or property of
    another, or
    (b) any other offense that is a felony and
    that, by its nature, involves a substantial
    risk that physical force against the person or
    property of another may be used in the course
    of committing the offense.
    18 U.S.C. § 16.      The parties agree that, because third-degree
    assault is a misdemeanor under Connecticut law, only subsection (a)
    of § 16 is at issue.
    In determining whether a past conviction fits within the
    definition of a "crime of violence," we generally apply the
    "categorical approach," under which we examine the elements of the
    predicate    crime   and    determine     whether   those   elements   are
    categorically the same as, or narrower than, the "generic offense"
    described by the federal statute.         See Descamps v. United States,
    
    133 S. Ct. 2276
    , 2281 (2013); see also 
    Fish, 758 F.3d at 5-6
    .
    However, if a statute is "divisible," -- that is, "if it
    sets forth one or more elements of a particular offense in the
    alternative" -- we may apply the "modified categorical approach."
    
    Fish, 758 F.3d at 6
    .       Under the modified categorical approach, we
    may examine certain documents in the record of conviction, such as
    the indictment, plea agreement, and plea colloquy, in order to
    determine under which prong of the divisible statute the defendant
    -5-
    was actually convicted, and then ask whether that particular crime
    categorically falls within the generic offense.          See United States
    v. Carter, 
    752 F.3d 8
    , 19 (1st Cir. 2014); 
    Patel, 707 F.3d at 80
    -
    81; see also 
    Descamps, 133 S. Ct. at 2281
    ; Shepard v. United
    States, 
    544 U.S. 13
    , 26 (2005).
    If those documents are inconclusive, then we must discard
    the modified categorical approach and determine whether all of the
    alternative means of committing the predicate crime fit within the
    federal definition of the generic offense.          See 
    Fish, 758 F.3d at 15
    (noting that, if there is "no indication" in the record "as to
    whether the charge was under a particular subdivision" of a
    criminal statute, the court must determine whether the "minimum
    criminal conduct" encompassed by the statute qualifies as a crime
    of violence (citations and internal quotation marks omitted)).
    The BIA and the government agree that the Connecticut
    assault statute does not categorically fit within the definition of
    a "crime of violence" because it criminalizes reckless conduct in
    subsection (2) and negligent conduct in subsection (3).                 See
    Leocal v. Ashcroft, 
    543 U.S. 1
    , 9-10 (2004) (explaining that "[t]he
    key phrase in § 16(a) -- the 'use . . . of physical force against
    the person or property of another' -- most naturally suggests a
    higher   degree   of   intent   than    negligent   or   merely   accidental
    conduct" (alteration in original)); 
    Fish, 758 F.3d at 9-10
    & n.4
    (holding that "section 16(b) does not reach reckless conduct" and
    -6-
    collecting cases from other circuits holding that reckless conduct
    cannot constitute a crime of violence under § 16).               The BIA, using
    the modified categorical approach, adopted the IJ's finding that
    Villanueva was convicted under subsection (1) of the Connecticut
    statute, which requires intent to cause physical injury and actual
    causation of that injury.           The BIA then held that this subsection
    constitutes a "crime of violence" under § 16(a).               The government's
    brief echoes this line of argument.
    We disagree with the first proposition and do not reach
    the second.         The modified categorical approach cannot resolve this
    case because it is not established from the record of conviction
    under       which    prong   of   the   statute   Villanueva    was   convicted.
    Accordingly, given that the entirety of the Connecticut statute
    does not qualify as a "crime of violence," we cannot conclude that
    Villanueva was convicted of a crime of violence.               We do not reach
    the analytically later question of whether a conviction under the
    first prong of the Connecticut statute would qualify as a crime of
    violence.3
    The BIA's conclusion that Villanueva was convicted under
    subsection (1) of the statute was based on a statement by what it
    3
    In Chrzanoski v. Ashcroft, 
    327 F.3d 188
    (2d Cir. 2003),
    the Second Circuit answered this question in the negative. 
    Id. at 193-97.
    The BIA has reached a contrary conclusion. See In re
    Martin, 23 I. & N. Dec. 491, 498-99 (B.I.A. 2002). The government
    also suggests that there is tension between our decision in United
    States v. Nason, 
    269 F.3d 10
    (1st Cir. 2001), and Chrzanoski.
    -7-
    says was the "respondent's attorney" at the plea colloquy that
    "apparently [the respondent] got into an altercation with [the
    victim] and he said the [respondent] kicked him in the head causing
    a large bump."   But an examination of the plea colloquy in its
    entirety reveals that the BIA misread the colloquy.         At the
    beginning of the plea hearing, the court asked for the "[f]actual
    basis for the assault," and the prosecutor (not Villanueva's
    attorney) responded:
    It was January 11, 2006 in the town of South
    Windsor, Your Honor, at Nutmeg Recycling.
    Apparently he . . . got into an altercation
    with a Samuel [INDECIPHERABLE] and he said
    that the defendant kicked him in the head
    causing a large bump. It was like an argument
    on the loading docks there.
    Villanueva's attorney then initially asked if his client could
    enter an Alford plea to the assault charge, and asked the court to
    explain the consequences of an Alford plea to his client.      The
    following colloquy ensued:
    THE COURT: All right. Fredy, the State just
    indicated on the record what are things
    happened [sic] that constitute the assault in
    the third degree. Under the Alford plea you
    disagree with some of those facts, but after
    talking to [your attorney] you come to the
    conclusion that if you go to trial you could
    be found guilty beyond a reasonable doubt. So
    basically you're asking the Court to accept
    your plea without admitting all the facts so
    you could dispose of this matter by the offer
    that's been made on the record. Is that what
    you want to do?
    MR. VILLANUEVA:    Well [SPANISH]
    -8-
    THE COURT:     Sí or no?
    MR. VILLANUEVA: Um . . . Um . . . It's not
    clear for me now 'cause I don't understand
    what she's talking.
    THE COURT:   Pass it to go out and talk to
    [your attorney].
    After    a   break    in     which    the   court    conducted    other
    business, Villanueva and his attorney returned to continue the plea
    hearing. Villanueva's attorney asked the court "if we could vacate
    the prior pleas and elections including the ones that were just
    entered under the Alford plea because what I'd like to do is submit
    a nolo plea, Your Honor.          So I've explained that to him."                  The
    court agreed and then addressed Villanueva: "All right.                     And you
    understand you have a criminal conviction for assault in the third
    degree.    By submitting a nolo plea the Court will make a finding of
    guilty."    Villanueva responded affirmatively.
    "[T]he facts revealed by the plea colloquy are not
    sufficient    to    identify     which    crime    .    .   .   is   the   crime   of
    conviction."        
    Patel, 707 F.3d at 83
    (citations and internal
    quotation marks omitted).              The record does not establish that
    Villanueva agreed to the prosecutor's version of events.                    He pled
    nolo contendere only to an undifferentiated generic reference to
    the statute.    His attorney was originally going to have Villanueva
    enter an Alford plea (under which Villanueva would admit guilt but
    not the underlying facts), but then, after a break necessitated by
    Villanueva's inability to understand the proceedings and the nature
    -9-
    of the charges against him, the attorney asked the court to "vacate
    the prior pleas and elections" and to allow Villanueva to enter a
    plea of nolo contendere to third-degree assault.                          The court
    obliged,   and      there    was    no   further       discussion   of    the   facts
    underlying    the    plea.         In   short,   the    plea   colloquy    does   not
    establish that Villanueva admitted to an intentional assault under
    subsection (1) of the Connecticut statute, and so the BIA erred in
    concluding that he was convicted under that subsection. Cf. 
    id. at 82-83.
    Because the parties agree that third-degree assault, as
    defined by Connecticut law, is not categorically a crime of
    violence, see 
    Leocal, 543 U.S. at 9
    ; 
    Fish, 758 F.3d at 9-10
    & n.4,
    we hold that Villanueva's conviction does not render him ineligible
    for TPS. Accordingly, we vacate the BIA's decision and remand this
    case to the agency so it may determine whether Villanueva warrants
    TPS relief as a matter of discretion.              See 8 C.F.R. § 1244.2.
    -10-
    

Document Info

Docket Number: 14-1217, 14-1787

Judges: Lynch, Kayatta, Barron

Filed Date: 4/24/2015

Precedential Status: Precedential

Modified Date: 11/5/2024