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Sotnikau v. Lynch

United States Court of Appeals, Fourth Circuit

January 24, 2017

IHAR SOTNIKAU, Petitioner,
v.
LORETTA E. LYNCH, Attorney General, Respondent.

          Argued: December 8, 2016

         On Petition for Review of an Order of the Board of Immigration Appeals.

         ARGUED:

          Jason Matthew Zarrow, O'MELVENY & MYERS LLP, Washington, D.C., for Petitioner.

          Keith Ian McManus, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

         ON BRIEF:

          Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Mary Patrice Brown, O'MELVENY & MYERS LLP, Washington, D.C., for Petitioner.

          Before NIEMEYER, KING, and AGEE, Circuit Judges.

         Petition for review granted; vacated and remanded by published opinion. Judge King wrote the opinion, in which Judge Niemeyer and Judge Agee joined.

          KING, CIRCUIT JUDGE:

         After pleading guilty to involuntary manslaughter under Virginia law, Ihar Sotnikau - a native of Belarus who was admitted to the United States as a lawful permanent resident in 2008 - was subjected to removal proceedings. The Department of Homeland Security (the "DHS") instituted those proceedings because, in its view, Virginia's involuntary manslaughter offense constitutes a crime involving moral turpitude. Sotnikau sought asylum, withholding of removal, and protection under the Convention Against Torture (the "CAT"), contesting the DHS's interpretation of Virginia's involuntary manslaughter offense. After various proceedings, an immigration judge (the "IJ") and the Board of Immigration Appeals (the "BIA") rejected Sotnikau's applications, deeming him subject to removal. Importantly, both the IJ and the BIA concluded that involuntary manslaughter as defined by Virginia law is categorically a crime involving moral turpitude. As explained below, that ruling was erroneous, and we therefore grant Sotnikau's petition for review, vacate the order of removal, and remand.

         I.

         In the early hours of June 18, 2010, Sotnikau and his friend Randy Hines were drinking on a pier along the Elizabeth River in Portsmouth, Virginia. At some point, Hines fell down a series of concrete steps and into the river. After fruitless efforts to locate Hines in the river's dark waters, Sotnikau ...


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