Narayan Ganesh v. Loretta Lynch , 623 F. App'x 692 ( 2015 )

Case: 14-60181 Document: 00513164969 Page: 1 Date Filed: 08/21/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60181 United States Court of Appeals
Fifth Circuit
FILED
August 21, 2015
Lyle W. Cayce
NARAYAN MISHRA GANESH, Clerk
Petitioner,
versus
LORETTA LYNCH, U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
BIA No. A 096 723 435
Before JONES, SMITH, and COSTA, Circuit Judges.
PER CURIAM:*
Narayan Ganesh petitions for review of an order of the Board of Immi-
gration Appeals (“BIA”) holding him eligible for removal. Because one of his
challenges was not presented to the BIA and the other is without merit, we
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-60181
dismiss in part and deny in part the petition.
I.
Ganesh is a native and citizen of India who became a lawful permanent
resident in 2006. In July 2012, he was charged with one count of deadly con-
duct in violation of Section 22.05(b)(2) of the Texas Penal Code. 1 The indict-
ment charged that he “knowingly discharge[d] a firearm at and in the direction
of a habitation . . . and was reckless as to whether the habitation was occupied.”
He pleaded guilty and was sentenced to two years’ imprisonment.
In October 2012, the Department of Homeland Security (“DHS”) served
Ganesh with a Notice to Appear (“NTA”) that charged him with being remova-
ble on account of his conviction of an aggravated felony under Section
101(a)(43)(F) of the Immigration and Nationality Act. Before the immigration
judge (“IJ”), Ganesh contended that he had not been convicted of an aggravated
felony and was therefore not removable on that basis. The IJ ruled that the
conviction was an aggravated felony because it was “a felony . . . 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(b). The IJ denied Ganesh’s application for withholding of
removal, and Ganesh was ordered removed to India.
Ganesh appealed to the BIA, asserting that the IJ had erred because
§ 16(b) “specifically requires a finding that the threat of force against a person
or property is a requisite to the completion of the crime.” Additionally, Ganesh
1 The IJ determined that Ganesh had been convicted under § 22.05(b)(2), which states
that “[a] person commits an offense if he knowingly discharges a firearm at or in the direction
of . . . a habitation, building, or vehicle and is reckless as to whether the habitation, building,
or vehicle is occupied.” It does not appear that Ganesh contests the IJ’s use of the modified
categorical approach or the conclusion that § 22.05(b)(2) is Ganesh’s offense of conviction, and
Ganesh’s brief before the IJ stated that he was convicted under that subsection.
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contended that § 16(b) required “the specific intent to harm.” He did not
address the IJ’s determination that the offense involved a substantial risk of
the use of physical force. The BIA dismissed the appeal, stating that Ganesh
was confusing the crime-of-violence (“COV”) definition in the U.S. Sentencing
Guidelines with the one found in § 16; the former requires that the use,
attempt, or threat of force be an element of the crime, but the latter is the
definition used by the INA and includes a definition (§ 16(b)) that does not
require that the use of force be an element.
Because Ganesh is proceeding pro se in this petition (though he was rep-
resented by counsel before the IJ and BIA), we liberally construe his brief.
Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988). So read, his
brief raises two challenges to the BIA’s decision. First, his conviction was not
a COV because a violation of § 22.05(b)(2) does not, “by its nature, involve[ ] 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(b). Sec-
ond, § 22.05(b)(2) has too low a mens rea requirement. Ganesh also challenges
the classification of his offense as a firearms offense, but our resolution of his
COV issues moots the firearms-offense question.
II.
Although we ordinarily lack jurisdiction to review final orders of removal
against aliens who have committed aggravated felonies, 8 U.S.C. § 1252-
(a)(2)(C), we have jurisdiction over questions of law. 8 U.S.C. § 1252(a)(2)(D).
Whether a conviction is for an aggravated felony is a purely legal question and
therefore appropriate for review. Rodriguez v. Holder, 705 F.3d 207, 210 (5th
Cir. 2013). Our jurisdiction is, however, limited; “parties must fairly present
their contentions to the BIA to satisfy exhaustion.” Omari v. Holder, 562 F.3d
314, 323 (5th Cir. 2009); see also 8 U.S.C. § 1252(d).
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III.
This petition centers on whether Ganesh’s conviction was an aggravated
felony under the INA. “Any alien who is convicted of an aggravated felony at
any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The term
“aggravated felony” includes “a crime of violence,” as defined in 18 U.S.C. § 16,
if the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(F).
Section 16 describes two types of offenses that qualify as COVs:
(a) an offense that has as an element the use, attempted use, or threat-
ened 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.
The IJ held that Ganesh had committed a COV under § 16(b) because a viola-
tion of § 22.05(b)(2) involves a substantial risk of the use of physical force.
Ganesh had disputed that conclusion before the IJ but did not mention the
issue in his appeal to the BIA despite the IJ’s basing his decision on that
holding.
Ganesh’s failure to challenge that holding is fatal to our jurisdiction. The
BIA was presented with an appeal that contested two alleged deficiencies in
the IJ’s holding: the lack of a force element and inadequate mens rea. But
Ganesh did not indicate to the BIA that he disagreed with the IJ’s conclusion
that, whatever other shortcomings existed, his conviction was for a felony that
involves a substantial risk of the use of force. The BIA therefore had no reason
to address whether such a substantial risk existed. Indeed, the BIA’s decision
faulted Ganesh for failing to address the grounds for the IJ’s decision; Ganesh
chose to use the definition of COV under the Sentencing Guidelines, which is
different from § 16’s.
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It is not necessary that an alien’s arguments before the BIA precisely
match his brief in this court. The petition for review can narrow the scope of
the argument or provide more depth to an argument that was presented to the
BIA in a less developed form. Dale v. Holder, 610 F.3d 294, 298–99 (5th Cir.
2010). But Ganesh made only two very specific challenges to his offense’s clas-
sification as a COV, and they are related to the new substantial-risk challenge
only in that all three seek to have the offense classified differently. It cannot
fairly be said that the BIA was therefore on notice that Ganesh disputed that
his offense created a substantial risk of physical force. “[C]laims that parties
have effectively placed the BIA on notice that they contest an issue, even
though they never actually stated as much to the BIA, have no place in our
§ 1252(d) exhaustion analysis.” Omari, 562 F.3d at 322–23.
Ganesh also contends that Leocal v. Ashcroft, 543 U.S. 1 (2004), excludes
from § 16(b)’s reach those crimes with a mens rea of recklessness. Several
courts of appeals have held that in the wake of Leocal, reckless crimes cannot
be COVs under § 16(b). See Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 560
(7th Cir. 2008) (collecting cases). But Ganesh’s offense of conviction has a mens
rea of knowledge; the perpetrator under Section 22.05(b)(2) must “knowingly
discharge[ ] a firearm in the direction of . . . a habitation, building, or vehi-
cle . . . .” The offense also has a recklessness component regarding whether the
habitation is occupied, but that does not change that the statute requires
greater culpability than mere recklessness. 2 We therefore need not answer
2 See Jiminez-Gonzalez, 548 F.3d at 561–62 (identifying cases involving laws that pro-
hibited intentional acts with reckless disregard for the risk presented); see also Nguyen v.
Ashcroft, 366 F.3d 386, 388–90 (5th Cir. 2004) (affirming the applicability of § 16(b) to a
conviction of facilitating the intentional discharge of a firearm in conscious disregard for the
safety of others); Quezada-Luna v. Gonzales, 439 F.3d 403, 406 (7th Cir. 2006) (holding that
§ 16(b) applied to a statute prohibiting the knowing discharge of a firearm at a building that
the shooter knows or should know is occupied).
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whether Leocal excludes reckless crimes from § 16(b).
For the reasons we have explained, the petition for review is
DISMISSED in part and DENIED in part.
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