Kong Meng Xiong v. Loretta E. Lynch , 836 F.3d 948 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1428
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Kong Meng Xiong,
lllllllllllllllllllllPetitioner,
v.
Loretta E. Lynch, Attorney General of the United States,
lllllllllllllllllllllRespondent.
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National Immigration Project of the National Lawyers Guild; Immigrant Law
Center of Minnesota; Hennepin County Public Defender’s Office; Immigrant
Legal Resource Center,
lllllllllllllllllllllAmici on Behalf of Petitioner.
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: July 26, 2016
Filed: September 8, 2016
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Before SMITH, ARNOLD, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Kong Meng Xiong petitions for review of an order of the Board of Immigration
Appeals concluding that he is ineligible for cancellation of removal under 8 U.S.C.
§ 1229(b), because he had sustained a prior conviction for an aggravated felony.
8 U.S.C. § 1227(a)(2)(A)(iii). “Aggravated felony” is defined in 8 U.S.C.
§ 1101(a)(43). The Board upheld a determination of an immigration judge that
Xiong’s prior conviction for second-degree burglary under Minn. Stat. § 609.582,
subd. 2(a)(1) is an aggravated felony, because it is a “crime of violence” within the
meaning of § 1101(a)(43)(F).
Section 1101(a)(43)(F) incorporates the definition of “crime of violence” in
18 U.S.C. § 16. That definition encompasses an offense “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 Board
concluded that Xiong’s Minnesota burglary conviction qualified as a crime of
violence under § 16(b) and declined to consider Xiong’s contention that the definition
is unconstitutionally vague. A.R. 4. According to the Board, “it is well settled we
do not address the constitutionality of the laws we administer.” Id.
Xiong filed in this court a petition for review and an opening brief in which his
lead argument challenges the constitutionality of 18 U.S.C. § 16(b). He contends that
two circuits have declared the provision unconstitutionally vague in light of the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015),
concerning 18 U.S.C. § 924(e)(2)(B)(ii). See United States v. Vivas-Ceja, 808 F.3d
719, 722-23 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015);
see also Shuti v. Lynch, No. 15-3835, 2016 WL 3632539, at *5-8 (6th Cir. July 7,
2016). He urges this court to follow suit. But see United States v. Gonzalez-
Longoria, No. 15-40041, 2016 WL 4169127, at *4-5 (5th Cir. Aug. 5, 2016); cf.
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United States v. Prickett, No. 15-3486, 2016 WL 4010515, at *1 (8th Cir. July 27,
2016).
Before filing a responsive brief, the government moved to remand the case to
the Board for further proceedings. To evaluate the motion, it is necessary to review
briefly the course of proceedings before the agency.
In front of the immigration judge, the government argued that Xiong was
ineligible for cancellation of removal as an aggravated felon on two independent
grounds: a prior conviction for a “crime of violence” under § 1101(a)(43)(F) and a
prior conviction for “burglary” under § 1101(a)(43)(G). The immigration judge ruled
that second-degree burglary in Minnesota is a crime of violence under
§ 1101(a)(43)(F) and said that the court “need not reach the issue of whether the
burglary conviction is also an aggravated felony under INA § 101(a)(43)(G),” i.e., 8
U.S.C. § 1101(a)(43)(G). A.R. 78 n.2.
Xiong appealed the Board. In its response brief to the Board, the government
argued that the immigration judge correctly ruled that Xiong’s burglary conviction
was a crime of violence under § 1101(a)(43)(F). Alternatively, the government
maintained that Xiong’s burglary conviction also constituted a “burglary” under
§ 1101(a)(43)(G). A.R. 18-19. The Board upheld the immigration judge’s decision
on “crime of violence” under § 1101(a)(43)(F) and did not address “burglary” under
§ 1101(a)(43)(G).
In its motion to remand, the government argues that the Board should consider
whether a second-degree burglary in Minnesota constitutes a generic “burglary”
within the meaning of § 1101(a)(43)(G). We conclude that the suggestion of a
remand is well taken.
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“A fundamental and longstanding principle of judicial restraint requires that
courts avoid reaching constitutional questions in advance of the necessity of deciding
them.” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988).
“This rule must bind not only the courts, but also the administrative agencies which
they review, for if it did not, such agencies, ‘by unnecessarily deciding constitutional
issues, would compel the courts to resolve such issues as well.’” Gutierrez v. INS,
745 F.2d 548, 550 (9th Cir. 1984) (Kennedy, J.) (quoting Tung Chi Jen v. INS, 566
F.2d 1095, 1096 (9th Cir. 1977)).
As the appeal comes to us, Xiong argues that we must consider the
constitutionality of the definition of “crime of violence” in 8 U.S.C. § 1101(a)(43)(F)
and 18 U.S.C. § 16(b). Although the government argued before the immigration
judge and the Board that Xiong’s burglary conviction also qualified as an aggravated
felony under § 1101(a)(43)(G), we may not consider whether to affirm the denial of
relief on that ground, because the Board did not decide the issue. See SEC v. Chenery
Corp., 318 U.S. 80, 94 (1943). Rather than allowing the Board’s treatment of the
case to force a decision on a constitutional question that might be unnecessary, we
conclude that a remand is warranted for the Board to consider in the first instance
whether Xiong’s burglary conviction is an aggravated felony under § 1101(a)(43)(G).
See Gutierrez, 745 F.2d at 550. We express no view on the merits of the issue, but
the Board should decide it one way or the other. Xiong may then file a renewed
petition for review.
For these reasons, the government’s motion to remand is granted, and the case
is remanded to the Board of Immigration Appeals for further proceedings consistent
with this opinion.
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