Rivas v. Mukasey , 257 F. App'x 639 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2343
JOSE VASQUEZ RIVAS,
Petitioner,
versus
MICHAEL B. MUKASEY, Attorney General,
Respondent.
No. 06-1160
JOSE VASQUEZ RIVAS,
Petitioner,
versus
MICHAEL B. MUKASEY, Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration
Appeals. (A42-072-865)
Argued: October 30, 2007 Decided: December 7, 2007
Before WILKINSON and GREGORY, Circuit Judges, and Jerome B.
FRIEDMAN, United States District Judge for the Eastern District of
Virginia, sitting by designation.
Remanded by unpublished per curiam opinion.
ARGUED: Michael Mitry Hadeed, BECKER, HADEED, KELLOGG & BERRY,
P.C., Springfield, Virginia, for Petitioner. Eric Warren
Marsteller, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
Miguel Rodriquez Rivera, BECKER, HADEED, KELLOGG & BERRY, P.C.,
Springfield, Virginia, for Petitioner. Peter D. Keisler, Assistant
Attorney General, M. Jocelyn Lopez Wright, Assistant Director,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Jose Vasquez Rivas petitions this court for review of two
orders issued by the Board of Immigration Appeals that both
affirmed the Immigration Judge’s decision that Rivas is removable
from the United States. We remand to the Board of Immigration
Appeals (“BIA”) for further proceedings because (1) it is
impossible to discern from the record whether the IJ and the BIA
evaluated Rivas’s removability status in light of the correct
version of the statute under which Rivas was convicted; (2) the BIA
should have the first opportunity to determine whether the version
of the statute under which Rivas was convicted is “divisible;” and
(3) the BIA should have the first opportunity to consider the
import of intervening authority on Rivas’s removability status.
I.
Rivas, a native and citizen of Spain, was admitted to the
United States in August 1990. In November 1996, Rivas was
convicted in the Circuit Court of Fairfax County, Virginia, of
Destruction of Property under § 18.2-137 of the Virginia Code. The
court sentenced Rivas to two years imprisonment, suspending all but
forty-five days of that sentence. On November 14, 2003, the
Immigration and Naturalization Service served Rivas with a Notice
to Appear, charging him removable pursuant to § 237(a)(2)(A)(iii)
of the Immigration and Nationality Act (“INA”), as an alien
3
convicted of an aggravated felony, namely, a “crime of violence” as
defined in 18 U.S.C. § 16, for which the term of imprisonment is
one year or more. See 8 U.S.C. § 1101(a)(43)(F) (2000).
On March 2, 2004, the Immigration Judge (“IJ”), in an oral
decision, declared that the offense of Destruction of Property
found in Va. Code § 18.2-137 constitutes a “crime of violence”
under 18 U.S.C. § 16, as incorporated by INA § 101(a)(43)(F). See
8 U.S.C. § 1101(a)(43)(F). Reasoning that Rivas’s crime was (1) a
felony that (2) involves a risk of physical force against property,
the IJ ordered him removed to Spain.
On November 4, 2005, the BIA affirmed without opinion the IJ’s
decision, making it the final agency determination. See 8 C.F.R.
§ 1003.1(e)(4). Rivas filed a motion to reconsider, which the BIA
denied on January 30, 2006. Rivas filed petitions for review of
both orders with this court, which this court consolidated.
II.
For the reasons that follow, we remand this case to the BIA for
a determination of whether Rivas’s conviction constitutes a “crime
of violence.” The basic principles governing remand are well-
established. It is a fundamental principle of administrative law
that “a ‘judicial judgment cannot be made to do service for an
administrative judgment.’” Gonzales v. Thomas, 547 U.S. 183, 186
(2006) (quoting SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)).
4
Thus, as a general matter, we should remand a case to an agency “for
decision of a matter that statutes place primarily in agency hands.”
INS v. Ventura, 537 U.S. 12, 16 (2002). This principle rests on the
“basic proposition that a reviewing court may not decide matters
that Congress has assigned to an agency.” W. Va. Highlands
Conservancy, Inc. v. Norton, 343 F.3d 239, 248 (4th Cir. 2003).
Federal law entrusts the Attorney General with the task of
determining whether an alien is removable from the United States for
having been convicted of an “aggravated felony.” 8 U.S.C.
§ 1227(a)(2)(A)(iii).
Here, we remand to the BIA for consideration of whether Rivas’s
conviction constitutes a “crime of violence” as defined in 8 U.S.C.
§ 16(b), and thus renders Rivas removable from the United States as
an aggravated felon. 8 U.S.C. § 1101(a)(43)(F). We remand to the
BIA so that it can clarify whether, in affirming without opinion the
IJ’s determination that Rivas’s conviction constituted a crime of
violence, it was applying the correct version of the statute under
which Rivas was convicted. Rivas was convicted in 1996 under the
version of Va. Code § 18.2-137 then in effect. However, the
Department of Homeland Security’s brief to the IJ contained a
version of § 18.2-137 that was enacted in 1999 and differs in
material ways from the 1996 version. Indeed, the record of
proceedings for Rivas’s initial petition for review does not include
the version of § 18.2-137 in effect at the time of Rivas’s
5
conviction. Thus, it is unclear whether either the IJ or the BIA
was considering the correct version of § 18.2-137.
Remand is appropriate for two additional reasons. First, the
BIA should have an opportunity to consider in the first instance
whether the version of § 18.2-137 in effect in 1996 is “divisible.”
This determination bears directly upon the analysis of whether
Rivas’s conviction constitutes a “crime of violence.” If the BIA --
after looking at the statutory definition of the offense pursuant
to the “categorical approach” set forth in Taylor v. United States,
495 U.S. 575, 600-02 (1990) -- determines that the version of
§ 18.2-137 under which Rivas was convicted is “divisible,” the BIA
would be obliged to consult other conclusive court documents
permitted under the “modified categorical approach” to determine
whether Rivas’s conviction is a “crime of violence.” See Gonzales
v. Duenas-Alvarez, 549 U.S. __ (2007); Soliman v. Gonzales, 419 F.3d
276, 284 (4th Cir. 2005). Moreover, the BIA would then have the
opportunity to analyze whether it can consult documents beyond those
generally permitted under the “modified categorical approach” to
determine whether Rivas was convicted of a “crime of violence.” See
In re Babaisakov, 24 I. & N. Dec. 306, 316-21 (BIA 2007).
Second, remand will give the BIA a chance to consider whether
Rivas was convicted of a “crime of violence” in light of our recent
decision interpreting that term in 18 U.S.C. § 16(b). Garcia v.
Gonzales, 455 F.3d 465 (4th Cir. 2006). In Garcia, we made clear
6
that for a conviction to qualify as a crime of violence under 18
U.S.C. § 16(b), “the substantial risk involved [must] be a
substantial risk that force will be employed as a means to an end
in the commission of the crime, not merely that reckless conduct
could result in injury.” Id. at 469. Neither the IJ nor the BIA had
the opportunity to determine whether the crime for which Rivas was
convicted met this standard. Therefore, it is appropriate to remand
to the BIA for consideration of that issue.
In essence, this court is unable to review Rivas’s petition at
this point because the BIA has given us nothing to review. “It will
not do for a court to be compelled to guess at the theory underlying
the agency’s action; nor can a court be expected to chisel that
which must be precise from what the agency has left vague and
indecisive.” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). While
the BIA may of course issue summary decisions, see Blanco de
Belbruno v. Ashcroft, 362 F.3d 272, 281-82 (4th Cir. 2004), in light
of the foregoing circumstances and issues requiring resolution, this
court needs more in this case than the BIA has provided.
Accordingly, it is the BIA, not this court, that should have the
first opportunity to “bring its expertise to bear upon the matter”:
“it can evaluate the evidence; it can make an initial determination;
and, in doing so, it can, through informed discussion and analysis,
help a court later determine whether its decision exceeds the leeway
that the law provides.” Ventura, 537 U.S. at 17.
7
For the foregoing reasons, we remand for further proceedings
consistent with this opinion.
REMANDED
8