Saqr v. Eric H. Holder, Jr.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0331p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
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AMWAR I. SAQR,
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Petitioner,
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No. 07-3794
v.
,
>
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Respondent. -
ERIC H. HOLDER, JR., Attorney General,*
N
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On Petition for Review from a Final Order
of the Board of Immigration Appeals.
No. A72 221 034.
Argued: December 5, 2008
Decided and Filed: September 9, 2009
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Before: CLAY and GIBBONS, Circuit Judges; STAMP, District Judge.
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COUNSEL
ARGUED: Blake P. Somers, Cincinnati, Ohio, for Petitioner. Blair O’Connor, U.S.
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent ON BRIEF: Blake
P. Somers, Cincinnati, Ohio, for Petitioner. Blair O’Connor, Michelle Gorden Latour,
U.S. DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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OPINION
_________________
FREDERICK P. STAMP, JR., District Judge. Anwar I. Saqr (“Saqr”) seeks
review of the decision by the Board of Immigration Appeals (“BIA”) upholding the
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr.
is automatically substituted for former Attorney General Michael B. Mukasey as the respondent in this
case.
**
The Honorable Frederick P. Stamp, Jr., United States District Judge for the Northern District
of West Virginia, sitting by designation.
1
No. 07-3794 Saqr v. Holder Page 2
Immigration Court’s finding that Saqr is subject to removal on the grounds that his
criminal conviction for second degree assault under extreme emotional disturbance
under Kentucky law is an aggravated felony and that his conviction for reckless
homicide is a crime of moral turpitude. This Court has jurisdiction pursuant to 8 U.S.C.
§ 1252(a). For the reasons that follow, the BIA’s finding that Saqr is removable on the
basis of his conviction for second degree assault under extreme emotional disturbance
is reversed, and this action is remanded for further proceedings to determine whether
Saqr’s conviction for reckless homicide constitutes a crime of moral turpitude.
I. BACKGROUND
While in the United States in valid non-immigrant status, Saqr was involved in
a motor vehicle accident in which one person was killed and another person seriously
injured. Pursuant to a plea agreement with state authorities, Saqr pled guilty to one
count of reckless homicide in violation of Kentucky Revised Statute § 507.050 and one
count of assault in the second degree under extreme emotional disturbance in violation
of Kentucky Revised Statutes §§ 508.020 and 508.040. On January 7, 1994, Saqr was
sentenced to a four-year period of imprisonment on each count, to be served
consecutively.
On February 11, 1994, the Immigration and Naturalization Service1 served Saqr
with an Order to Show Cause (“OSC”), ordered him to appear for a hearing before an
immigration judge at a time and place to be determined, and issued a warrant for his
arrest. The OSC charged Saqr with having committed a crime involving moral turpitude
and violating the terms of his non-immigrant status, thereby rendering him subject to
removal pursuant to Sections 241(a)(2)(A)(i) and 241(a)(1)(C)(i), respectively, of the
Immigration and Nationality Act. The OSC did not include a charge that Saqr had
committed an aggravated felony.
1
Pursuant to the Homeland Security Act of 2002, the functions of the former Immigration and
Naturalization Service were transferred from the Department of Justice to the Department of Homeland
Security on March 1, 2003.
No. 07-3794 Saqr v. Holder Page 3
The INS did not file the OSC with an Immigration Court. However, the INS also
does not appear to have canceled the February 11, 1994 OSC at any time, and the arrest
warrant appears to have remained in effect, as well. In early July 1998, Saqr was
released into INS custody. On August 18, 1998, while Saqr remained in INS custody,
the INS served him with a second OSC, now called a Notice to Appear (“NTA”). The
NTA, like the OSC served on Saqr in 1994, charged only that he was subject to removal
based upon his conviction for a crime involving moral turpitude and, separately, based
upon his having failed to maintain or comply with the conditions of his non-immigrant
status; it did not include a charge that he was subject to removal based upon an
aggravated felony conviction. On September 9, 1998, the INS lodged the additional
charge that Saqr was subject to removal for an aggravated felony conviction and, on the
same date, filed the NTA with the Immigration Court.
During the interim between February 11, 1994, when the OSC was served upon
Saqr, and September 9, 1998, when the NTA was filed with the Immigration Court,
Congress adopted a new definition of the term “aggravated felony.” See Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), § 321, 110
Stat. 3009-627. Under the previous definition, an offense constituted an aggravated
felony if it was “a crime of violence (as defined in section 16 of title 18, but not
including a purely political offense) for which the term of imprisonment imposed
(regardless of any suspension of imprisonment) is at least 5 years. . . .” 8 U.S.C.
§ 1101(a)(43)(F) (1994). Under the new definition, an offense qualifies as an aggravated
felony if it is “a crime of violence (as defined in section 16 of title 18, but not including
a purely political offense) for which the term of imprisonment [is] at least one year.”
8 U.S.C. § 1101(a)(43)(F) (1996).
At an individual hearing on the merits, held before the Immigration Court on
March 1, 2000, Saqr argued that his crimes of conviction were not crimes involving
moral turpitude. Saqr also argued that neither offense was an aggravated felony under
the law as it existed at the time of his plea and conviction and that applying the expanded
No. 07-3794 Saqr v. Holder Page 4
definition of “aggravated felony” adopted by Congress in 1996 to his case would be an
impermissibly retroactive application of the law.
In an oral decision and order dated March 1, 2000, the Immigration Court
rejected the Government’s contention that Saqr had failed to maintain his non-immigrant
status or had violated the terms of that status by virtue of his criminal convictions.
However, the Immigration Court found that the conviction for reckless homicide
constitutes a crime of moral turpitude. The Immigration Court made no finding on
whether the assault offense also constitutes a crime of moral turpitude. Furthermore,
although the Immigration Court did not specifically address the issue of retroactivity, the
Immigration Judge applied the post-IIRIRA definition of aggravated felony to Saqr’s
convictions and found that both qualify as aggravated felonies. On the basis of these
findings, the Immigration Court found Saqr removable. Additionally, the Immigration
Judge concluded that the reckless homicide offense constitutes not only an aggravated
felony, thereby rendering Saqr ineligible for asylum, but also a “particularly serious
offense,” thereby rendering Saqr ineligible for withholding of removal. Finally, the
Immigration Court found that Saqr had abandoned his application for relief from
removal under the Convention Against Torture (“CAT”).
Saqr appealed to the BIA, which affirmed in part and reversed in part. In an
order dated April 7, 2003, the BIA upheld the Immigration Court’s finding that Saqr was
removable for having committed an aggravated felony. The BIA did not specify whether
only one conviction or both qualify as an aggravated felony, but presumably it intended
to encompass both convictions because the Immigration Court had determined both to
be aggravated felonies. Similarly, although the BIA found that the Immigration Court
properly determined that Saqr had committed a particularly serious crime, thereby
rendering him ineligible for withholding of removal, the Immigration Court did not
discuss whether it deemed both offenses or only the reckless homicide offense to be
particularly serious. Because the BIA did not specify otherwise, it presumably intended
this finding to apply only to the reckless homicide conviction given that the Immigration
Judge made no finding concerning whether the assault offense is a particularly serious
No. 07-3794 Saqr v. Holder Page 5
crime. Finally, the BIA found the record insufficient on the issue of Saqr’s request for
relief under the CAT and remanded for further proceedings on that issue.
The BIA order left a number of issues unaddressed entirely. First, although the
Immigration Court had found the reckless homicide conviction to be a crime of moral
turpitude, the BIA made no determination on that issue. Second, the BIA, like the
Immigration Court, failed to address whether the assault conviction constitutes a crime
of moral turpitude. Third, the BIA did not address the Immigration Court’s
determination that Saqr was not removable on the basis of a violation of his non-
immigrant status. However, the BIA did address the retroactivity issue, stating that it
lacked authority to rule on the constitutionality of laws enacted by Congress.
On remand from the BIA, the Immigration Court denied Saqr’s claim for relief
under the CAT. In light of that denial, the Immigration Court reinstated its March 1,
2000 order of removal.
Saqr appealed to the BIA, essentially requesting reconsideration of the finding
that the reckless homicide conviction qualifies as an aggravated felony in light of the
United States Supreme Court’s intervening decision in Leocal v. Ashcroft, 543 U.S. 1
(2004).2 The BIA concluded that the reckless homicide offense is an aggravated felony
because the mens rea element of the crime was greater than negligence. Accordingly,
the BIA upheld the Immigration Court’s earlier order finding Saqr removable on the
basis of the reckless homicide conviction, which the BIA concluded was an aggravated
felony. The BIA also stated that the aggravated felony conviction rendered Saqr
ineligible for asylum or withholding of removal.
Saqr petitioned this Court for review. After Saqr had filed his opening brief, the
Government moved to remand on the issue of whether the definition of “recklessly” as
set forth in Kentucky Revised Statutes § 501.020(4) shares the same meaning as the
common law definition of criminal negligence, and if so, whether Saqr’s case was
2
Leocal held that a crime which has as an element a mens rea of negligence or which has no mens
rea element is not a crime of violence under 18 U.S.C. § 16 and therefore does not constitute an aggravated
felony. Leocal v. Ashcroft, 543 U.S. 1, 13 (2004).
No. 07-3794 Saqr v. Holder Page 6
controlled by Leocal. This Court, noting that Saqr did not oppose the motion so long as
the remand was limited to that issue, granted the motion. This Court’s remand order
limited the scope of the remand to the above-described issue.
While Saqr’s case was pending before the BIA on remand, this Court decided
United States v. Portela, 469 F.3d 496 (6th Cir. 2006). In Portela, this Court determined
that “a crime requiring only recklessness does not qualify as a ‘crime of violence’ under
18 U.S.C. § 16.” Id. at 499. The Government conceded that Portela disposed of the
issue on remand in Saqr’s favor. However, the Government also briefed what it entitled
“Additional Issues to be Considered.” Specifically, the Government reminded the BIA
that Saqr had also been convicted of second degree assault under extreme emotional
disturbance, which the Immigration Court had determined to be an aggravated felony--a
determination previously upheld by the BIA. The Government also reminded the BIA
that the Immigration Court had found the reckless homicide offense to be a particularly
serious crime. The Government argued that because of the aggravated felony conviction
for assault, Saqr was removable and ineligible for asylum and that because of the finding
that reckless homicide was a particularly serious crime, he was ineligible for withholding
of removal. In a footnote, the Government pointed out that the Immigration Court found
reckless homicide to be a crime of moral turpitude and argued that the assault offense
should also be found to be a crime of moral turpitude. Also in a footnote, the
Government argued that the assault conviction should be deemed a particularly serious
crime and observed that the Immigration Court had failed to address that issue.
The BIA issued a decision on May 21, 2007, addressing not only the remanded
issue specified by this Court, but also some of the “loose end” issues identified by the
Government. The BIA recognized that in light of Portela, the reckless homicide
conviction is not an aggravated felony. However, the BIA found that the Immigration
Court correctly determined that the assault conviction is an aggravated felony because
intent is an element of the offense, thereby making the offense a crime of violence, and
because the term of imprisonment for the offense is at least one year. Accordingly, the
BIA held that Saqr is removable and ineligible for asylum based upon his assault
No. 07-3794 Saqr v. Holder Page 7
conviction. The BIA further determined that the Immigration Court was correct in
concluding that the reckless homicide offense is a particularly serious offense, thereby
making Saqr ineligible for withholding of removal. The BIA did not reach the issue of
whether one or both of Saqr’s offenses may be a crime involving moral turpitude, nor
did it address whether the assault offense is a particularly serious crime.
On appeal, Saqr first argues that these proceedings must be terminated because
the BIA violated this Court’s remand order by addressing issues that were not within the
scope of that order. Saqr also argues that the BIA erred by finding him removable
because it impermissibly retroactively applied the new definition of aggravated felony
to his convictions; because even if the BIA was correct in applying the new definition,
his offenses do not constitute crimes of violence under 18 U.S.C. § 16 and are therefore
not aggravated felonies; and because his reckless homicide conviction is not a crime
involving moral turpitude.3
II. ANALYSIS
A. Violation of Scope of Remand Order
Saqr argues that the BIA improperly exceeded the scope of this Court’s remand
order by considering issues other than the one for which remand was granted. This
argument lacks merit.
In this circuit, an agency has inherent authority to reconsider a prior decision,
provided that such reconsideration occurs within a reasonable time after the first
decision. Citizens Against the Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d
412, 416-17 (6th Cir. 2004) (“CAPPE”) (citing Belville Mining Co. v. United States, 999
F.2d 989, 997 (6th Cir. 1993)). “[W]hen an agency makes an error of law in its
administrative proceedings, a reviewing court should remand the case to the agency so
that the agency may take further action consistent with the correct legal standards.”
3
The BIA made no finding regarding whether either offense constitutes a crime of moral
turpitude, which would subject Saqr to removal; rather, the BIA found the reckless homicide offense to
be a particularly serious crime, which bars Saqr from obtaining relief through withholding of removal.
No. 07-3794 Saqr v. Holder Page 8
Cissell Mfg. Co. v. United States Dep’t of Labor, 101 F.3d 1132, 1136 (6th Cir. 1996)
(citing South Prairie Constr. Co. v. Local No. 627, Int’l Union of Operating Eng’rs., 425
U.S. 800, 806 (1976)(per curiam)). Considerations of judicial efficiency militate in
favor of remand. CAPPE, 375 F.3d at 417. However, where a court has considered the
merits and remanded on certain issues, an agency or lower court is not permitted to
review anew those issues already addressed by the reviewing court if they are not part
of the remand because issues addressed on the merits and not within the scope of remand
become the law of the case. See United States v. Campbell, 168 F.3d 263, 265 (6th Cir.
1999); United States v. Moore, 131 F.3d 595, 598 (6th Cir. 1997).
Here, this Court granted remand on a particular issue, which it identified in its
June 28, 2006 remand order. However, at the time of remand, this Court had not
considered the merits of any of the issues then before it. Therefore, the BIA properly
clarified its position on certain issues. Accordingly, this Court rejects Saqr’s argument
that proceedings should be terminated because the BIA delineated its position on issues
that were not part of this Court’s remand order.
B. Application of Pre-IIRIRA or Post-IIRIRA Law
This Court reviews de novo the BIA’s determination “that a particular state
conviction amounts to an aggravated felony conviction . . . because such a conclusion
depends upon interpreting state statutes and federal statutes unrelated to immigration.”
Patel v. Ashcroft, 401 F.3d 400, 407 (6th Cir. 2005).
This Court finds that the BIA erred when it applied the post-IIRIRA definition
of “aggravated felony” to Saqr’s case. Section 237 of the Immigration and Nationality
Act provides that “any alien who is convicted of an aggravated felony . . . is deportable”
and may be removed upon an order of the Attorney General. 8 U.S.C.
§ 1227(a)(2)(A)(iii). Before 1996, an aggravated felony was defined as “a crime of
violence (as defined in section 16 of title 18, but not including a purely political offense)
for which the term of imprisonment imposed (regardless of any suspension of
imprisonment) is at least 5 years . . . .” 8 U.S.C. § 1101(a)(43)(F) (1994). In 1996,
Congress expanded the definition of “aggravated felony.” See Antiterrorism and
No. 07-3794 Saqr v. Holder Page 9
Effective Death Penalty Act of 1996, § 440(e), 110 Stat. 1277; Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, § 321, 110 Stat. 3009-627. Under
the revised definition, more offenses render an alien removable in that a crime now
constitutes an aggravated felony if it is “a crime of violence (as defined in section 16 of
title 18, but not including a purely political offense) for which the term of imprisonment
[is] at least one year.” 8 U.S.C. § 1101(a)(43)(F) (1996).
When enacting IIRIRA, Congress provided that the revised definition of
“aggravated felony,” while applying to all convictions regardless of when they occurred,
would be effective only in “actions taken” on or after the enactment of IIRIRA.
Specifically, section 321 of IIRIRA provides in relevant part:
(b) EFFECTIVE DATE OF DEFINITION.-Section 101(a)(43)
(8 U.S.C. § 1101(a)(43)) is amended by adding at the end the following
new sentence: “Notwithstanding any other provision of law (including
any effective date), the term [“aggravated felony”] applies regardless of
whether the conviction was entered before, on, or after the date of
enactment of this paragraph.”
(c) EFFECTIVE DATE.-The amendments made by this section
shall apply to actions taken on or after the date of the enactment of this
Act, regardless of when the conviction occurred. . . .
P.L. 104-208, 110 Stat. 3009-628. Thus, although subsection (b) specifically provides
for using the new definition of “aggravated felony” to convictions which were entered
before IIRIRA’s enactment date, September 30, 1996, subsection (c) limits such use to
“actions taken on or after the date of enactment, regardless of when the conviction
occurred.” Id. The question then becomes what constitutes “actions taken” under
§ 321(c).
This Court has never squarely addressed the question of what constitutes an
“action[ ] taken” under § 321(c), and the parties cite two decisions by this Court which
potentially yield conflicting guidance. The Government relies upon Asad v. Reno, 242
F.3d 702 (6th Cir. 2001), for the proposition that the revised definition applies to
proceedings commenced after September 30, 1996. According to Asad, and pursuant to
8 C.F.R § 1003.14, immigration proceedings “commence” on the date a charging
document is filed with the Immigration Court. Asad, 242 F.3d at 705; 8 C.F.R
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§ 1003.14. By implication, any act taken before the date of filing is not an “action
taken” under § 321(c) because immigration proceedings have not commenced. Saqr, on
the other hand, cites Tran v. Gonzales, 447 F.3d 937 (6th Cir. 2006), for the proposition
that the use of the revised definition of “aggravated felony” is limited to proceedings
initiated after September 30, 1996. Pursuant to 8 U.S.C. § 1229, “initiation of removal
proceedings” is effected by serving the alien with the OSC or NTA.
The terms “initiate” and “commence” are not synonymous in immigration law.
As this Court noted in Asad, “commence” is a term of art which defines when
jurisdiction vests in an Immigration Court. Asad, 242 F.3d at 705. However, by statute,
proceedings are “initiat[ed]” by providing written notice to the alien to appear before an
immigration judge. See 8 U.S.C. § 1229 (entitled “Initiation of removal proceedings”).
Additional regulations also suggest that “action taken” does not depend upon when
proceedings “commence” via the vesting of jurisdiction in the Immigration Court. First,
8 C.F.R. § 236.1 authorizes the arrest and detention of aliens “[a]t the time of issuance
of the notice to appear, or at any time thereafter and up to the time removal proceedings
are completed.” 8 C.F.R. § 236.1(b)(1). Moreover, pursuant to 8 C.F.R. § 239.2, any
officer authorized to issue a notice to appear “may cancel such notice prior to
jurisdiction vesting with the immigration judge” under certain specified circumstances.
8 C.F.R.§ 239.2(a). The cancellation of a notice to appear also cancels any outstanding
warrants issued by the Attorney General for the alien’s arrest. 8 C.F.R.§ 239.2(e).
Further, aliens taken into INS custody make seek release on bond, and “no charging
document is required to be filed with the Immigration Court to commence bond
proceedings . . . .” 8 C.F.R. § 1003.14. Given this more fully explicated statutory and
regulatory scheme, it is difficult to conceive how “action taken” is limited to the time
jurisdiction vests in the Immigration Court. Furthermore, the issuance of an arrest
warrant by INS which has not been cancelled is more than adequate to constitute an
“action taken” for purposes of triggering application of the pre-IIRIRA definition of
aggravated felony.
No. 07-3794 Saqr v. Holder Page 11
At least two other Circuits have taken this approach in the context of whether an
alien is eligible for discretionary relief under INA §212(c). See Alanis-Bustamante v.
Reno, 201 F.3d 1303, 1310 (11th Cir. 2000) (concluding that “[c]onsiderations of
fairness convince us that for purposes of deciding which law applies, the removal
proceedings in this case should be viewed as commencing at least on that date . . . when
the show cause order had been served and the warrant of detainer lodged”); Wallace v.
Reno, 194 F.3d 279, 287 (1st Cir. 1999) (finding that in the context of waiver to
deportation proceedings, “when an order to show cause is served on the alien, the
deportation process has effectively begun”). However, at least one Circuit construing
§ 321(c) has taken the view that any action, including those taken much later in
immigration proceedings, such as an order of removal by an Immigration Court or a
decision by the BIA to uphold an Immigration Court decision, also constitutes an “action
taken” under the statute. See Garrido-Morato v. Gonzales, 485 F.3d 319, 324 (5th Cir.
2007) (concluding that a guilty plea taken before the enactment of IIRIRA is insufficient
to trigger application of the pre-IIRIRA definition of aggravated felony because the
triggering event must be an action taken under the statute and stating that “the definition
of aggravated felony is to be applied retroactively with respect to any action taken that
implicates § 321” ). This Court has no quarrel with the Fifth Circuit’s conclusion that
a pre-IIRIRA guilty plea does not trigger the application of the pre-IIRIRA definition
of aggravated felony because such a plea is not an action taken under the statute.
However, in light of this Circuit’s decisions in both Asad v. Reno, 242 F.3d 702 (6th Cir.
2001), and Tran v. Gonzalez, 447 F.3d 937 (6th Cir. 2006), the term “action taken”
appears to this Court to derive from the point at which the removal action begins for
purposes of determining whether the pre- or post-IIRIRA definition of aggravated felony
applies. Accordingly, this Court is persuaded by the Eleventh and First Circuits that
removal proceedings begin when an alien is served with a Notice to Appear.
Based upon the foregoing, this Court finds that the pre-IIRIRA definition applies
to Saqr’s case. Accordingly, the next question is whether either of Saqr’s convictions
constitutes an aggravated felony under the law in effect at that time. Neither does. To
qualify as an aggravated felony under the pre-IIRIRA definition, an offense had to be a
No. 07-3794 Saqr v. Holder Page 12
crime of violence pursuant to 18 U.S.C. § 16 for which the term of imprisonment
imposed is at least five years. Even assuming arguendo that one or both of the
convictions qualified as a crime of violence, each conviction, independently, resulted in
a term of imprisonment of only four years. Therefore, neither conviction constitutes an
aggravated felony under the pre-IIRIRA definition.
C. Reckless Homicide as Crime of Moral Turpitude
The final issue Saqr raises is whether the BIA erred by upholding the
Immigration Court’s finding that Saqr’s conviction for reckless homicide constitutes a
crime of moral turpitude, thereby subjecting him to removal. The BIA never addressed
this issue, and the Immigration Court merely found that the level of recklessness
required to result in the death of another is morally reprehensible. By stating in its
August 11, 2005 order that it affirmed and adopted the decision of the Immigration
Judge with amplification of only one issue--whether Leocal controlled on the question
of reckless homicide as an aggravated felony--the BIA affirmed without comment the
Immigration Court’s finding that the reckless homicide conviction is a crime involving
moral turpitude.4 The record before this Court is inadequate to determine whether the
BIA properly considered the Immigration Court’s ruling on this issue. Accordingly, this
action must be remanded to the BIA for further development of the record.
III. CONCLUSION
For the foregoing reasons, this Court concludes that the BIA properly considered
issues beyond the one identified in this Court’s June 28, 2006 remand order. However,
the BIA’s finding that Saqr’s conviction for second degree assault under extreme
emotional disturbance constitutes an aggravated felony subjecting him to removal is
REVERSED, and this action is REMANDED to the Board of Immigration Appeals. On
remand, the BIA should consider whether Saqr’s conviction for reckless homicide
constitutes a crime involving moral turpitude.
4
The BIA also did not address whether reckless homicide constitutes a particularly serious crime.
However, Saqr does not raise that issue on appeal.