Amreya Shefa v. William P. Barr ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-1496
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Amreya Rahmeto Shefa
Petitioner
v.
William P. Barr, Attorney General of the United States
Respondent
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Standpoint, formerly known as Battered Women's Legal Advocacy Project;
Tubman; Minnesota Coalition for Battered Women; Boston College Law School
Immigration Clinic; Harvard Immigration and Refugee Clinical Program;
Immigrant Legal Resource Center; The Advocates For Human Rights
Amici on Behalf of Petitioner
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No. 19-2698
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Amreya Rahmeto Shefa
Petitioner
v.
William P. Barr, Attorney General of the United States
Respondent
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Standpoint; The Human Trafficking Legal Center; Freedom Network USA
Amici 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: March 12, 2020
Filed: May 11, 2020
[Unpublished]
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Before ERICKSON, GRASZ, and KOBES, Circuit Judges.
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PER CURIAM.
Amreya Rahmeto Shefa, a citizen of Ethiopia and lawful permanent resident
of the United States, seeks judicial review of a final order for her removal issued by
the Board of Immigration Appeals (“Board”). We have jurisdiction pursuant to 8
U.S.C. § 1252 and remand for a hearing on the government’s claim that Shefa
committed a “particularly serious crime” under 8 U.S.C. § 1231(b)(3)(B)(ii) of the
Immigration and Nationality Act (“INA”).
On February 14, 2019, the Board found Shefa removable and ineligible for
withholding under the INA because the circumstances underlying her conviction for
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first-degree manslaughter, Minn. Stat. § 609.20(1), made it a “particularly serious
crime” within the meaning of § 1231(b)(3)(B)(ii). Shefa argues that she was denied
a hearing on the issue of withholding in violation of the Fifth Amendment’s Due
Process Clause. We review this constitutional claim de novo. Ortega-Marroquin v.
Holder, 600 F.3d 814, 818 (8th Cir. 2011) (citation omitted).
The Due Process Clause guarantees subjects of removal proceedings a fair
hearing. Reno v. Flores, 507 U.S. 292, 306 (1993); Al Khouri v. Ashcroft, 362 F.3d
461, 464 (8th Cir. 2004). A fair hearing includes the opportunity to “present
evidence, offer arguments, and develop the record.” Tun v. Gonzalez, 485 F.3d 1014,
1025 (8th Cir. 2007). The Immigration Judge (“IJ”) presiding over Shefa’s case
noted that because Shefa’s sentence was 86 months, the conviction was per se a
“particularly serious crime.” See 8 U.S.C. § 1231(b)(3)(B) (stating that an aggravated
felony conviction exceeding five years shall be considered a “particularly serious
crime”). The length-of-sentence finding obviated the need to determine whether the
circumstances of Shefa’s conviction rendered her crime “particularly serious.” See
id. (“[T]he Attorney General . . . [may] determin[e] that, notwithstanding the length
of sentence imposed, an alien has been convicted of a particularly serious crime.”).
The necessity for a hearing on whether Shefa’s crime was “particularly serious”
arose when the Board found her ineligible for withholding by relying on the
underlying circumstances of her conviction rather than the length of her sentence.
See Tian v. Holder, 576 F.3d 890, 897 (8th Cir. 2009). As we noted in Tian, when
the Board does not rely on the length of a sentence to make a particular seriousness
finding, it “generally examine[s] a variety of factors,” including “consideration of the
individual facts and circumstances” underlying the conviction. Id. (quoting In re N-
A-M-, 24 I. & N. Dec. 336, 342 (B.I.A. 2007)). Under these circumstances, a hearing
should have been held to allow Shefa the opportunity to provide a complete picture
of the unusually abusive atmosphere leading up to her criminal actions. Although this
extra process may have ended in the same result, it also had the potential to affect the
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outcome. See Tun, 485 F.3d at 1026 (stating that a petitioner is entitled to relief for
a due-process violation if she demonstrates that it had the potential to affect the
outcome).
We grant Shefa’s petition in part, remanding her case for a hearing on whether
her conviction was for a “particularly serious crime” under the INA. Because further
proceedings before the IJ will have the incidental effect of enabling Shefa to continue
to pursue relief in the form of T and U visas before the United States Citizenship and
Immigration Services, we need not address her request for a stay.
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