Lauria v. Sessions ( 2017 )

15-1068-ag
Lauria v. Sessions
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 24th day of February, two thousand seventeen.
PRESENT: REENA RAGGI,
RAYMOND J. LOHIER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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SALVATORE LAURIA,
Petitioner,
v. No. 15-1068-ag
JEFF SESSIONS, UNITED STATES ATTORNEY
GENERAL,
Respondent.
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APPEARING FOR PETITIONER: THOMAS E. MOSELEY, Law Offices of
Thomas E. Moseley, Newark, New Jersey.
APPEARING FOR RESPONDENT: SONG E. PARK, Senior Litigation Counsel
(Benjamin C. Mizer, Principal Deputy Assistant
Attorney General; Cindy S. Ferrier, Assistant
Director, on the brief), Office of Immigration

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jeff
Sessions is automatically substituted for former Attorney General Loretta E. Lynch as
Respondent.
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Litigation, Civil Division, United States
Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is GRANTED, the BIA’s order is VACATED,
and the case is REMANDED to the agency for further proceedings.
Petitioner Salvatore Lauria, a native and citizen of Italy, seeks review of a March
30, 2015 decision of the BIA affirming an August 28, 2013 decision of an Immigration
Judge (“IJ”) denying Lauria’s application for relief under the Convention Against Torture
(“CAT”). In re Salvatore Lauria, No. A030 990 439 (B.I.A. Mar. 30, 2015), aff’g No.
A030-990-439 (Immig. Ct. N.Y.C. Aug. 28, 2013). A lawful permanent resident,
Lauria was deemed an applicant for admission pursuant to 8 U.S.C. § 1101(a)(13)(C)(v)
upon his return in 2007 from a trip abroad based on a 2004 conviction for violating the
Racketeer Influenced and Corrupt Organizations (“RICO”) statute. He argues that
§ 1101(a)(13)(C)(v), a provision of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), was applied to him in an impermissibly
retroactive manner because IIRIRA became effective on April 1, 1997, and his RICO
crime was committed prior to that date. The BIA rejected this argument, reading
Vartelas v. Holder, 566 U.S. 257 (2012), to approve the application of
§ 1101(a)(13)(C)(v) to Lauria because his RICO conviction occurred after the statute’s
effective date. In its brief and more emphatically at oral argument, respondent argued
that this court did not need to decide whether Vartelas required that an alien have
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committed as well as been convicted of a crime identified in 8 U.S.C. § 1182(a)(2) after
IIRIRA’s effective date to avoid retroactivity because Lauria’s money-laundering
predicate act had continued after the statute’s effective date. That question, however,
cannot be decided on the present record. We assume the parties’ familiarity with the
facts and record of prior proceedings, which we reference only as necessary to explain
our decision to grant the petition, vacate the BIA’s judgment, and remand to the agency.
Under the circumstances of this case, we review both the IJ and BIA opinions, see
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006), applying well
established standards of review, see 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165–66 (2d Cir. 2008). Although we generally lack jurisdiction to review
a final order of removal against an alien who is removable by reason of having
committed a criminal offense identified in 8 U.S.C. § 1182(a)(2), we retain jurisdiction to
review questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D).
Lauria has raised a question of law as to whether the BIA engaged in improper
fact-finding regarding the commission of his crime. He contends that his racketeering
offenses were “committed no later than 1996, when [he] ceased involvement” with the
company through which he had engaged in the predicate acts of securities fraud. Pet’r’s
Br. 16. The record offers some support for this claim insofar as Lauria, in a March 1,
2013 hearing before the IJ, testified that he had committed the predicate act of money
laundering “from ’93 to ’96.” C.A.R. 164. Respondent, nevertheless, relies on the
criminal information in the record to which Lauria pleaded guilty to argue that
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commission of the crime continued through September 1998, the end date of one RICO
predicate act of money laundering, i.e., after the effective date of § 1101(a)(13)(C)(v).
The IJ never made a finding as to the date Lauria committed the RICO crime of
conviction because Lauria conceded inadmissibility at that point in the removal
proceedings. When on appeal, Lauria first argued retroactivity, the BIA stated that
Lauria had committed the RICO crime of conviction “between March 1993 and
September 1996.” C.A.R. 3. Respondent suggests this reflects a scrivener’s error and
that the crime’s concluding date was September 1998. No matter. The existing
administrative record, which does not include the record of Lauria’s plea allocution or
any related plea agreement, does not admit a legal determination as to the concluding
date of the RICO crime’s commission. To the extent the question required further
factual inquiry, any finding had to be made by the IJ. See 8 C.F.R. § 1003.1(d)(3)(iv)
(prohibiting BIA from engaging in factfinding other than “taking administrative notice of
commonly known facts such as current events or the contents of official documents”);
Padmore v. Holder, 609 F.3d 62, 68 (2d Cir. 2010) (stating that, in conducting
independent factfinding, BIA “exceeded its authority,” and thus raised reviewable error
of law).
Accordingly, without now deciding whether Vartelas identifies commission or
conviction as the relevant date, but relying on the parties’ view that the matter may be
decided by reference to commission, we remand for the agency to develop the record as
to the date of commission of Lauria’s RICO crime of conviction. See Padmore v.
Holder, 609 F.3d at 70. Such remand is not futile, see Lianping Li v. Lynch, 839 F.3d
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144, 149 (2d Cir. 2016), because the concluding date of the crime is potentially
dispositive; if the crime continued after the effective date of § 1101(a)(13)(C)(v) as the
government urges, that provision’s application to Lauria could not be impermissibly
retroactive, even under Lauria’s urged reading of Vartelas v. Holder, 566 U.S. at 272.
We do not here decide how we would construe Vartelas if Lauria’s RICO crime was
committed before the effective date of § 1101(a)(13)(C)(v) and only his conviction
post-dated the statute.
In sum, we GRANT the petition, VACATE the BIA’s judgment, and REMAND
for further proceedings.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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