Jose Ramirez v. Jefferson Sessions III , 887 F.3d 693 ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-2444
JOSE LUIS RAMIREZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: December 5, 2017 Decided: April 17, 2018
Before GREGORY, Chief Judge, MOTZ and TRAXLER, Circuit Judges.
Petition for review granted, order of removal vacated, and remanded with directions by
published opinion. Chief Judge Gregory wrote the opinion, in which Judge Motz and
Judge Traxler joined.
ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER,
LLC, Alexandria, Virginia, for Petitioner. Vanessa M. Otero, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Chad
A. Readler, Acting Assistant Attorney General, Anthony P. Nicastro, Assistant Director,
Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
GREGORY, Chief Judge:
Jose Ramirez seeks review of the decision of the Board of Immigration Appeals
(BIA) finding him ineligible for special rule cancellation of removal under the Nicaraguan
Adjustment and Central American Relief Act (NACARA). Specifically, the question is
whether Ramirez’s convictions for obstruction of justice pursuant to Va. Code Ann. § 18.2-
460(A) qualify as crimes involving moral turpitude (CIMTs). We hold that obstruction of
justice under § 18.2-460(A) is not a CIMT because it may be committed without fraud,
deception, or any other aggravating element that shocks the public conscience. We
therefore grant Ramirez’s petition for review, vacate the BIA’s order of removal, and
remand with directions for the Government to facilitate Ramirez’s return to the United
States to participate in further proceedings.
I.
Jose Ramirez, a citizen of El Salvador, first entered the United States in 1996 when
he was seventeen years old. Nearly twenty years later, Ramirez was placed in removal
proceedings and charged with being present in the United States without being admitted or
paroled under 8 U.S.C. § 1182(a)(6)(A)(i). At his hearing, Ramirez conceded that he had
entered the country unlawfully. A.R. 69.
Ramirez then applied for special rule cancellation of removal under section 203 of
NACARA, Pub. L. No. 105-100, 111 Stat. 2160, 2196–2199 (1997). Section 203 allows
certain nationals from El Salvador and other designated countries to apply for suspension
of deportation or special rule cancellation of removal and adjust their status to permanent
2
residency. See id. To qualify under NACARA, an alien ordinarily must establish at least
seven years of continuous presence in the United States, among other eligibility criteria. 8
C.F.R. § 1240.66(b)(2)–(4). However, an applicant who is inadmissible or removable for
having committed a CIMT must establish at least ten years of continuous presence after
becoming inadmissible or removable. See Matter of Castro-Lopez, 26 I & N Dec. 693,
693 (BIA 2015); 8 C.F.R. §§ 1240.66(b) and (c).
The Department of Homeland Security (DHS) moved to pretermit Ramirez’s
application for relief under NACARA, arguing that his prior convictions triggered the ten-
year requirement. In 2012, Ramirez was convicted of one count of petit larceny under Va.
Code Ann. § 18.2-96 and two counts of obstruction of justice under § 18.2-460(A). A.R.
135, 138, 144. DHS argued that those convictions qualified as CIMTs, thereby subjecting
Ramirez to the ten-year physical presence requirement, which he could not meet. 1 The
decision turned on whether the obstruction offense was a CIMT because petit larceny,
which Ramirez conceded was a CIMT, was not independently sufficient to trigger
inadmissibility and the heightened ten-year requirement. 2
1
When an alien incurs a new ground for inadmissibility or removability, the clock
for establishing a period of continuous presence restarts for purposes of NACARA
eligibility. See Matter of Castro-Lopez, 26 I & N Dec. at 693. Here, if Ramirez’s
convictions were in fact CIMTs, then his clock would have restarted in 2012, and he would
not have accrued ten years by the time of his petition.
2
The parties agreed that petit larceny otherwise fell within the so-called petty
offense exception, which exempts certain minor CIMTs from being considered as the
ground for inadmissibility. A.R. 48. The exception applies only if three criteria are
satisfied: the alien has been convicted of no more than one CIMT, the offense is punishable
with a term of imprisonment not exceeding one year, and the alien was sentenced to a term
3
The Immigration Judge (IJ) concluded that obstruction of justice under Va. Code
Ann. § 18.2-460(A) was a CIMT. In a brief oral decision, the IJ reasoned that “the statute
requires an act indicating an intention to prevent an officer from performing his or her
duties and that such impairing or obstructing an officer is morally turpitudinous.” A.R. 64.
The IJ then found that Ramirez was removable and did not qualify for relief under section
203 of NACARA. A.R. 65.
In a brief single-member decision, the BIA agreed that obstruction under § 18.2-
460(A) was a CIMT and affirmed. A.R. 3–4. In response, Ramirez filed a motion for a
stay of removal with this Court. This Court denied the motion, and Ramirez was removed
to El Salvador.
Ramirez filed a timely petition for review with this Court. In his petition, Ramirez
argues that the BIA erred in finding that obstruction of justice under Va. Code Ann. § 18.2-
460(A) was a CIMT. Ramirez also asks this Court to order the Government to facilitate
his return to the United States. In response, the Government argues that this Court lacks
jurisdiction because Ramirez has failed to exhaust his administrative remedies, that the
BIA did not err, and that ordering Ramirez’s return is unnecessary.
of imprisonment not exceeding six months. 8 U.S.C. § 1182(a)(2)(A)(ii)(II). Because a
conviction for such a petty offense would not constitute a ground for inadmissibility, it
therefore would not trigger the heightened standard under NACARA.
4
II.
Before assessing the merits of Ramirez’s claims, “[w]e first consider whether we
have jurisdiction” over his petition for review. Etienne v. Lynch, 813 F.3d 135, 138 (4th
Cir. 2015). When Congress passed the REAL ID Act in 2005, it limited our jurisdiction
over certain final orders of removal. Kporlor v. Holder, 597 F.3d 222, 225–26 (4th Cir.
2010) (citing 8 U.S.C. § 1252(a)(2)). However, we retain jurisdiction “to review
constitutional claims or questions of law,” provided that the petitioner has complied with
the administrative exhaustion requirement. 8 U.S.C. § 1252(a)(2)(D); Etienne, 813 F.3d at
138. As the Government rightly concedes, determining whether a crime involves moral
turpitude is a question of law. Gov. Br. at 3; see Mbea v. Gonzales, 482 F.3d 276, 277–78
& n.1 (4th Cir. 2007). But, the Government argues, that this Court lacks jurisdiction
because Ramirez failed to exhaust his administrative remedies. For the reasons below, we
conclude that Ramirez has complied with the exhaustion requirement and that this Court
has jurisdiction over his petition for review.
“A court may review a final order of removal against an alien only if ‘the alien has
exhausted all administrative remedies available to the alien as of right.’” Etienne, 813 F.3d
at 138 (quoting 8 U.S.C. § 1252(d)(1)). “When an alien has an opportunity to raise a claim
in administrative proceedings but does not do so, he fails to exhaust his administrative
remedies as to that claim.” Id.
However, § 1252 only prohibits “the consideration of bases for relief that were not
raised below, and of general issues that were not raised below, but not of specific,
subsidiary legal arguments, or arguments by extension, that were not made below.” Gill v.
5
INS, 420 F.3d 82, 86 (2d Cir. 2005); see also Garcia v. Lynch, 786 F.3d 789, 792‒93 (9th
Cir. 2015) (holding that petitioner satisfied exhaustion requirement by raising argument
during administrative proceedings, albeit in limited way); Chuen Piu Kwong v. Holder,
671 F.3d 872, 877 (9th Cir. 2011) (holding that general challenge to sufficiency of evidence
to support finding by IJ as to aggravated felony conviction was sufficient to meet
exhaustion requirement, even though petitioner raised issue below in “slightly different
manner”), cert. denied 133 S. Ct. 2885 (2013); Higgs v. Atty. Gen. of the U.S., 655 F.3d
333, 338 (3d Cir. 2011) (finding that exhaustion requirement is met if petitioner made
“some effort, however insufficient, to place the BIA on notice of a straightforward issue
being raised on appeal” (citation omitted)); Dale v. Holder, 610 F.3d 294, 300–01 (5th Cir.
2010) (“[A]lthough the argument [petitioner] presented to the BIA is not identical to that
which he raises in his petition for review, the arguments are sufficiently related to establish
that [he] presented his ground for relief to the administrative agency in the first instance.”
(internal quotation marks omitted)).
The Government does not dispute that Ramirez argued below that obstruction of
justice under Virginia law is not a CIMT. A.R. 31. Instead, the Government argues that
administrative exhaustion bars Ramirez’s appellate counsel from making more specific and
nuanced points to demonstrate how and why obstruction is not a CIMT. In particular, the
Government takes issue with appellate counsel citing certain cases for the first time on
appeal in order to elaborate on the breadth of the Virginia statute. The Government has
6
not provided any basis for applying the exhaustion requirement at this level of granularity.3
Indeed, such an approach would strip appellate counsel’s ability to bolster existing
arguments—and limit the universe of available case law and precedent to those already
cited below. Cf. Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008) (finding lack of
exhaustion because petitioner completely failed to contest below whether reckless
endangerment was crime of violence). No decision of this Court has so undermined the
basics of appellate advocacy and review, and we, like our sister circuits, decline the
government’s invitation to do so.
We therefore conclude that Ramirez satisfied the exhaustion requirement under
§ 1252(d)(1) when he argued below that obstruction of justice is not a CIMT. Accordingly,
we have jurisdiction over this question of law.
III.
We now turn to the merits of Ramirez’s argument. The dispositive issue is whether
obstruction of justice under Va. Code Ann. § 18.2-460(A) is categorically a crime
3
The cases cited by the Government are clearly distinguishable. See Gonzales v.
Thomas, 547 U.S. 183, 184–87 (2006) (holding that court of appeal should have remanded
to allow agency to apply correct asylum standard); INS v. Ventura, 537 U.S. 12, 17 (2002)
(holding that court of appeal should have remanded to allow agency to consider issue that
it previously declined to address); Tiscareno-Garcia v. Holder, 780 F.3d 205, 210 (4th Cir.
2015) (finding failure to exhaust because petitioner did not claim below that prior offense
fell outside relevant time period); Kporlor, 597 F.3d at 226–27 (finding failure to exhaust
because petitioner did not appeal CAT claim to BIA); Kurfees v. INS, 275 F.3d 332, 336
(4th Cir. 2001) (finding failure to exhaust because petitioner neglected to appeal to BIA).
Neither Gonzales nor Ventura concerned a failure to exhaust, and the remaining cases all
involved entirely new bases or theories for relief that were not presented to the BIA.
7
involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I). The obstruction statute
provides,
If any person . . . knowingly obstructs . . . any law-enforcement officer . . . in
the performance of his duties as such or fails or refuses without just cause to
cease such obstruction when requested to do so by such . . . law-enforcement
officer . . . shall be guilty of a Class 1 misdemeanor.
Va. Code Ann. § 18.2-460(A).
In a two-page, non-precedential, one-member decision, the BIA concluded that
obstruction under § 18.2-460(A) is a CIMT. In reaching that conclusion, the BIA invoked
its precedential decision in Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA 2006).
For the reasons below, we conclude that Matter of Jurado-Delgado is inapposite
and that the BIA decision in this case is not entitled to any deference. We then address de
novo whether obstruction under Virginia law is a CIMT and ultimately conclude that it is
not.
A.
We first consider what deference, if any, this Court owes to the BIA’s legal
conclusions in this case. Under the well-known Chevron doctrine, an agency’s
interpretation of the statute(s) that it administers is entitled to deferential review if the
agency exercises delegated authority to “make rules carrying the force of law.” United
States v. Mead Corp., 533 U.S. 218, 226–27 (2001); Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842–43 (1984). Once eligible for Chevron review, the
agency’s interpretation is controlling to the extent that “Congress has not directly addressed
the precise question at issue” and “the agency’s answer is based on a permissible
8
construction of the statute.” 467 U.S. at 842–43; Sijapati v. Boente, 848 F.3d 210, 215 (4th
Cir. 2017). Absent Chevron deference, agency decisions are given a level of respect
commensurate with their persuasiveness. Mead, 533 U.S. at 221. Here, the BIA decision
on review is not eligible for Chevron deference to the extent that it interprets the Virginia
obstruction statute, which it does not administer, and to the extent that it lacks the force of
law as a non-precedential decision and is not controlled by BIA precedent. We further
conclude that the BIA’s abbreviated analysis is unpersuasive and does not merit any
deference.
The BIA’s legal conclusion here—that a conviction under state law is categorically
a CIMT—involves two interpretative questions, one about the Immigration and Nationality
Act (INA) and one about a state criminal statute. See Prudencio v. Holder, 669 F.3d 472,
482–84 (4th Cir. 2012) (citing Taylor v. United States, 495 U.S. 575, 600–01 (1990)). We
may apply Chevron to BIA decisions interpreting the INA but not the agency’s
interpretations of state criminal law and other statutes that lie beyond the BIA’s authority
and expertise. 4 Soliman v. Gonzales, 419 F.3d 276, 281 (4th Cir. 2005).
The first interpretative question is what the term “moral turpitude” means in the
INA. Because the term “moral turpitude” is ambiguous, we defer, under Chevron, to the
agency’s reasonable construction of the term and definition of the types of conduct it
4
The Attorney General has delegated his discretion and authority in interpreting the
INA to the BIA, which “shall exercise [its] independent judgment and discretion in
considering and determining the cases coming before the board.” 8 C.F.R.
§ 1003.1(d)(1)(ii).
9
encompasses. Mohamed v. Holder, 769 F.3d 885, 889 (4th Cir. 2014); Prudencio, 669
F.3d at 484.
The second interpretative question is whether the state statute of conviction
necessarily involved the type of conduct defined to be morally turpitudinous. On this
question of state law, we do not owe any deference to the BIA. See Soliman, 419 F.3d at
281 (“[W]e need not accord deference to the BIA’s ultimate finding that [petitioner’s]
particular offense was an aggravated felony, which involves . . . an interpretation of
Virginia criminal law.”). In other words, “we do not defer to the BIA’s application of
[INA] definitions to particular state statutes.” Amos v. Lynch, 790 F.3d 512, 518 n.5 (4th
Cir. 2015).
Regardless of the nature of the interpretative question, non-precedential opinions by
the BIA are categorically ineligible for Chevron review because they do not carry the force
of law. Martinez v. Holder, 740 F.3d 902, 909–10 (4th Cir. 2014); see also Amos, 790 F.3d
at 519. To be precedential, opinions of the BIA must be issued, at minimum, by a three-
member panel and must be designated as precedential by a majority of the permanent
members of the Board. 8 C.F.R. § 1003.1(g). In this case, the BIA’s one-member decision
does not carry the force of law, and we do not review its legal conclusions, whether as to
the INA or as to state law, under the Chevron two-step framework. Accordingly, the BIA’s
determination here that any intentional act “to obstruct, impair, or pervert the lawful
operations of government” inherently involves moral turpitude under the INA is not
eligible for Chevron deference. A.R. 4.
10
But, because the BIA determination here relied on Matter of Jurado-Delgado, 24 I.
& N. Dec. at 35, which is precedential, we must determine whether the latter is apposite
and entitled to Chevron deference. Sijapati, 848 F.3d at 215; Larios-Reyes v. Lynch, 843
F.3d 146, 155 (4th Cir. 2016); Amos, 790 F.3d at 519. In Matter of Jurado-Delgado, deceit
was the critical aggravator that rendered an obstruction offense a CIMT. In that case, the
question was whether a conviction for making false statements to a government official
“with intent to mislead a public servant in performing his official function” involved moral
turpitude. 24 I. & N. Dec. at 33–35. Indeed, the BIA answered in the affirmative, reasoning
that the “intent to mislead [] is the controlling factor.” Id. at 35 (emphasis added). In turn,
the BIA in Matter of Jurado-Delgado relied on its prior precedential decision in Matter of
Flores, where the BIA concluded that a conviction for falsifying immigration papers under
18 U.S.C. § 1426(b) qualified as a CIMT. 17 I. & N. Dec. 225, 225 (BIA 1980). There,
the BIA found that “crimes in which fraud [is] an ingredient have always been regarded as
involving moral turpitude.” Id. at 228. Thus, the Matter of Jurado-Delgado line of
precedent merely determined that conduct involving “deceit, graft, trickery, or dishonest
means” is morally turpitudinous. 5 See 24 I. & N. Dec. at 35.
5
Our sister circuits have similarly construed Matter of Jurado-Delgado and related
decisions addressing obstruction, perjury, and false statements. See Idelfonso-Candelario
v. Att’y Gen. of the U.S., 866 F.3d 102, 105–07 (3d Cir. 2017) (“Matter of Jurado-Delgado
focused on the intent to mislead, not the mere intent to obstruct. Thus, the intent to impair
or obstruct governmental functions, standing alone, is not morally turpitudinous under the
BIA’s decisions; the obstruction must occur ‘by deceit, graft, trickery, or dishonest
means.’”); Flores-Molina v. Sessions, 850 F.3d 1150, 1171–72 (10th Cir. 2017) (collecting
cases).
11
In relation to those cases, the BIA’s one-member decision in this case attempts to
significantly expand the definition of a CIMT by removing deceit, a critical indicator of
moral turpitude, from the equation. Since this non-precedential decision departs from,
rather than relies on, precedential BIA decisions, it is not eligible for Chevron review.
In the absence of Chevron deference, the weight given to a BIA decision “hinges on
‘the thoroughness evident in [the BIA’s] consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors which give it
power to persuade.’” Zavaleta-Policiano v. Sessions, 873 F.3d 241, 246 n.2 (4th Cir. 2017)
(quoting Martinez, 740 F.3d at 909–10); see Mead, 533 U.S. at 221. Here, the BIA
provides only three sentences of analysis that are conclusory in nature and disregards the
agency’s prior emphasis on fraud or deceit as a critical determinant without identifying an
alternative aggravator. Consequently, the BIA decision is also undeserving of so-called
Skidmore respect because it lacks the power to persuade. See Mead, 533 U.S. at 221.
In sum, under Chevron, BIA decisions defining morally turpitudinous conduct are
controlling if they are precedential and reasonable. However, the BIA’s interpretations of
laws that it does not administer, such as the Virginia obstruction of justice statute, and its
non-precedential decisions are only given weight to the extent that this Court finds the
reasoning persuasive. Here, because we do not find persuasive the BIA’s abbreviated and
non-precedential opinion, we do not accord it any deference.
B.
We now determine de novo whether Ramirez’s conviction under Va. Code Ann.
§ 18.2-460(A) fits within the INA’s definition of a CIMT. Uribe v. Sessions, 855 F.3d 622,
12
625 (4th Cir. 2017). To answer this question, we apply the categorical approach, which
examines only the statutory elements of the prior offense, not the particular conduct
underlying the conviction. 6 See Descamps v. United States, 570 U.S. 254, 261 (2013);
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). In this case, obstruction of justice
under § 18.2-460(A) qualifies as a CIMT if even the minimum conduct needed to violate
the state statute would involve moral turpitude. See Larios-Reyes, 843 F.3d at 152 (noting
that minimum conduct must have “realistic probability, not a theoretical possibility” of
being prosecuted). We first examine how moral turpitude has been defined for purposes
of the INA and then consider whether obstruction under § 18.2-460(A) prohibits any
conduct that is not morally turpitudinous.
The BIA defines the term “moral turpitude” as behavior “that shocks the public
conscience as being inherently base, vile, or depraved.” 7 Mohamed, 769 F.3d at 888 (citing
Matter of Tobar-Lobo, 24 I. & N. Dec. 143, 144 (BIA 2007); Matter of Danesh, 19 I. & N.
Dec. 669, 670 (BIA 1988)). A CIMT must involve both a morally culpable mental state
6
In a “narrow range of cases,” a criminal statute may consist of “multiple,
alternative versions” of a crime, only a subset of which qualify as a CIMT. See Descamps,
570 U.S. at 262–63. For these so-called “divisible” statutes, we look to the record of
conviction to determine whether the petitioner was necessarily convicted of a version of
the crime that qualifies as a CIMT. Even under this “modified categorical approach,” we
are still focused on the elements of conviction, not the underlying facts of what the
petitioner did. Id. In this case, neither party argues that § 18.2-460(A) is divisible into a
CIMT version and a non-CIMT version, nor do we discern such a division. Accordingly,
we need not and do not consider the modified categorical approach.
7
As previously discussed, we afford Chevron deference to the BIA’s reasonable
interpretation of the term “crime involving moral turpitude,” used in the INA. See
Mohamed, 769 F.3d at 888. Ramirez does not challenge the applicability of these
established BIA definitions.
13
and morally reprehensible conduct. Sotnikau v. Lynch, 846 F.3d 731, 736 (4th Cir. 2017)
(citing In re Ortega-Lopez, 26 I. & N. Dec. 99, 100 (BIA 2013)). To meet the mens rea
requirement, the crime must have, as an element, an intent to achieve an immoral result or
willful disregard of an inherent and substantial risk that an immoral act will occur. See id.
(citing In re Perez-Contretas, 20 I. & N. Dec. 615, 619 (BIA 1992)). To meet the actus
reus requirement, the crime “must involve conduct that not only violates a statute but also
independently violates a moral norm.” Id.; see Mohamed, 769 F.3d at 888 (“[T]he phrase
‘involving moral turpitude’ . . . refers to more than simply the wrong inherent in violating
the statute. Otherwise the requirement . . . would be superfluous.”). Therefore, for
obstruction under § 18.2-460(A) to categorically qualify as a CIMT, it must exclusively
criminalize knowing or intentional acts that violate a moral norm. See Sotnikau, 846 F.3d
at 735 (“We look at the elements of the crime at issue and determine whether those
elements solely encompass behavior that involves moral turpitude.”).
With that definition of moral turpitude in mind, we turn to the elements of § 18.2-
460(A). See Uribe, 855 F.3d at 626. Under Virginia law, to constitute obstruction, “there
must be acts clearly indicating an intention on the part of the accused to prevent [an] officer
from performing his duty.” Ruckman v. Commonwealth, 505 S.E.2d 388, 389 (Va. Ct.
App. 1998) (citing Jones v. Commonwealth, 126 S.E. 74, 77 (Va. 1925)). Because
obstruction in Virginia requires a showing of intent, the offense may have the mens rea
necessary to qualify as a CIMT if the intended obstruction is an immoral act or result.
However, § 18.2-460(A) does not require morally reprehensible conduct. As the
BIA’s rationale in Matter of Jurado-Delgado suggests, an act of obstruction, standing
14
alone, does not categorically involve moral turpitude. See 24 I. & N. Dec. at 33–35. In
other words, there must be some other aggravating element that pushes a mere violation of
the law into the territory of moral depravity. Unlike the statute the BIA considered in
Matter of Jurado-Delgado, § 18.2-460(A) does not require the use of fraud or deceit.
Indeed, in Virginia, obstruction via deception is punished under a different subsection. See
Va. Code Ann. § 18.2-460(D). Nor does a conviction under § 18.2-460(A) require any use
of threats or force, let alone force or violence that rises to the level of moral depravity. See
Va. Code Ann. §§ 18.2-460(B), (C); Thorne v. Commonwealth, 784 S.E.2d 304, 305 (Va.
Ct. App. 2016). Thus, nothing in the text of § 18.2-460(A) appears to require the
commission of an “inherently base, vile, or depraved” act. See Mohamed, 769 F.3d at 888.
Virginia case law makes clear that § 18.2-460(A) prohibits a wide-range of actions
(and inactions) that do not categorically involve moral depravity. According to the Court
of Appeals of Virginia, one need not take any action at all to be convicted of obstruction.
Thorne, 784 S.E.2d at 308 (“[O]bstruction may be either active or passive.”). In Thorne,
the state court upheld a conviction of a woman who, for only nine minutes, refused to lower
her car windows for a tint inspection because she felt that her rights were being violated by
the officer. Id. at 309. Similarly, other cases have upheld convictions for conduct that,
even if unwise, does not “shock[] the public conscience.” See Mohamed, 769 F.3d at 888.
In Molinet v. Commonwealth, the defendant cursed at and refused to back away from an
officer. 779 S.E.2d 231, 232–33, 235 (Va. Ct. App. 2015). In Mason v. Commonwealth,
the defendant did no more than loudly demand that officers leave his yard. No. 1189-98-
2, 1999 WL 1133677, at *1 (Va. Ct. App. Aug. 3, 1999). These cases demonstrate more
15
than a “realistic probability” that even relatively minor misconduct may be prosecuted
under § 18.2-460(A). See Larios-Reyes, 843 F.3d at 152.
The Government has not shown how such misconduct categorically violates a moral
norm. Instead, the Government merely reiterates the BIA’s non-precedential and
unsupported position that any “intent to obstruct, impair, or pervert the lawful operations
of government” necessarily involves morally turpitude. 8 Resp. Br. at 29–30. However,
morality does not forbid civil disobedience. See United States v. Moylan, 417 F.2d 1002,
1008 (4th Cir. 1969) (“[A] morally motivated act contrary to law may be ethically
justified.”). It simply cannot be that verbal protests against law enforcement and refusals
to comply are categorically immoral. To the contrary, our nation has repeatedly witnessed
how civil disobedience may advance the causes of morality and justice, even if such
opposition runs afoul of statutory proscriptions. See id. (“Faced with the stark reality of
injustice, [persons] of sensitive conscience and great intellect have sometimes found only
one morally justified path, and that path led them inevitably into conflict with established
authority and its laws.”). The Government’s view of obstruction erroneously equates might
with right.
8
The Government cites no relevant authority for this proposition. The Government
claims that two cases from our sister circuits have held that obstruction is a CIMT but
neglects to mention that both cases concerned statutes that have deception as an element.
See Rodriguez v. Gonzales, 451 F.3d 60, 64–65 (2d Cir. 2006); Padilla v. Gonzales, 397
F.3d 1016, 1020–21 (7th Cir. 2005).
16
Because § 18.2-460(A) prohibits conduct that does not necessarily involve moral
turpitude, it sweeps more broadly than the INA’s definition of a CIMT, and Ramirez’s
convictions thereunder do not qualify as CIMTs. 9 We therefore hold that obstruction under
Va. Code Ann. § 18.2-460(A) is not a CIMT for purposes of NACARA and 8 U.S.C.
§ 1182(a)(2)(A)(i)(I).
* * *
Because obstruction of justice under § 18.2-460(A) is not a CIMT, Ramirez’s only
CIMT conviction is his conviction for petit larceny. The parties agree that petty larceny
qualifies for the “petty offense” exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II).
Accordingly, Ramirez is not inadmissible on the grounds of a CIMT conviction and does
not have to meet the heightened ten-year requirement to be eligible for NACARA. We
therefore remand the case to the BIA to determine if Ramirez otherwise qualifies for relief
under section 203 of NACARA, notwithstanding his erroneous removal from this country.
IV.
Ramirez also petitions this Court to order the Government to facilitate his return to
the United States for the completion of his removal proceedings, including his application
9
This ends our inquiry because this case does not fall into the “narrow range of
cases” in which we apply the modified categorical approach to examine the record of
conviction. See Descamps, 570 U.S. at 262–63. Section 18.2-460(A) does not reference
fraud, deception, or any other aggravator needed to qualify as a CIMT. By definition, the
provision does not (and cannot) have a divisible version of obstruction that might otherwise
qualify as a CIMT. Accordingly, the modified categorical approach has no utility here,
and we do not consider whether the statute is otherwise divisible or whether the record of
conviction reveals a CIMT.
17
for relief under NACARA. Under Immigration and Customs Enforcement (ICE)
regulations, “[a]bsent extraordinary circumstances, if an alien who prevails before the U.S.
Supreme Court or a U.S. court of appeals was removed while his or her [petition for review]
was pending, ICE will facilitate the alien’s return to the United States if either the court’s
decision restores the alien to lawful permanent resident (LPR) status, or the alien’s
presence is necessary for continued administrative removal proceedings.” U.S.
Immigration and Customs Enforcement Policy Directive Number 11061.1, Facilitating the
Return to the United States of Certain Lawfully Removed Aliens (Feb. 24, 2012) (saved as
ECF opinion attachment 1). Among other circumstances identified by ICE, an alien’s
presence is necessary when a court orders his or her presence. 10 We conclude in this case
that Ramirez’s presence is necessary to effectuate judicial review and to restore him to the
status he had before his erroneous removal, such that he may apply for relief under
NACARA under the correct standard. We therefore direct the Government to facilitate
Ramirez’s return, pursuant to Directive 11061.1, for that limited purpose. 11
10
See U.S. Immigration and Customs Enforcement, Frequently Asked Questions
(FAQs) on Facilitating Return for Lawfully Removed Aliens (saved as ECF opinion
attachment 2) (“ICE will facilitate your return to the United States if your presence is
necessary for continued adjudication of your case. This may be because the court of
appeals specifically ordered your presence, or because the nature of the court’s order
requires you to return for further testimony.”).
11
Under the Directive, “facilitating an alien’s return” entails enabling an alien to
“engage in activities which allow a lawfully removed alien to travel to the United States
(such as by issuing a Boarding Letter to permit commercial air travel) and, if warranted,
parole the alien into the United States upon his or her arrival at a U.S. port of entry.” U.S.
Immigration and Customs Enforcement Policy Directive Number 11061.1. This “does not
necessarily include funding the alien’s travel via commercial carrier to the United States
or making flight arrangements for the alien.” Id.
18
We note that our order does not confer on Ramirez any immigration benefits beyond
enabling him to apply for special rule cancellation of removal and, if so granted by the IJ
or the BIA, eventual adjustment of status, notwithstanding his erroneous removal from this
country. In other words, the agency retains the authority to lawfully deny him relief on
other grounds. As our sister circuits have done in similar circumstances, we grant this
relief because judicial review would otherwise be frustrated if Ramirez cannot be restored
to the status he had before his removal. See Orabi v. Att’y Gen. of U.S., 738 F.3d 535, 543
(3d Cir. 2014) (vacating the BIA’s order and directing the Government “to return
[petitioner] to the United States”); Samirah v. Holder, 627 F.3d 652, 665 (7th Cir. 2010)
(“We remand . . . for the issuance of a mandamus commanding the Attorney General to
take whatever steps are necessary to enable the plaintiff to reenter the United States for the
limited purpose of reacquiring the status . . . that he enjoyed when he left the United
States.”).
V.
The BIA erred as a matter of law when it concluded that obstruction of justice under
Va. Code Ann. § 18.2-460(A) is a crime involving moral turpitude under the INA. We
therefore grant Ramirez’s petition for review, vacate the order of removal, and remand with
directions for the Government to facilitate Ramirez’s return to the United States for the
purpose of participating in further proceedings.
PETITION FOR REVIEW GRANTED,
ORDER OF REMOVAL VACATED, AND
REMANDED WITH DIRECTIONS
19