United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema, United States District Judge.
oral argument on defendant's Motion to Dismiss the
Indictment [Dkt. No. 28], the motion was denied. This
Memorandum Opinion explains in more detail the reasons for
Ayaz Khan ("Khan" or "defendant") is
charged with one count of illegal reentry after deportation
or removal, in violation of 8 U.S.C. § 1326(a). Khan was
initially removed from the United States in 2011. This
removal sprung from his 2010 guilty pleas in the Prince
William County Juvenile and Domestic Relations District Court
to two separate charges of assault and battery and assault
and battery on a family member. Def. Mem. [Dkt. No. 28]
1-2.In one incident, he slapped his wife
and threw a tea kettle at her and, in the other, he grabbed
her neck and attempted to choke her. Gov't Opp. 2. Based
on these convictions, the Department of Homeland Security
initiated removal proceedings against Khan, on the ground
that he was removable under a variety of provisions of the
Immigration and Nationality Act. Def. Mem. 2. Represented by
counsel, Khan filed a response admitting the two convictions
but challenging each charge of removability. Gov't Opp.
3. In August 2010, an immigration judge ("IJ")
heard argument over two days from Khan's counsel and the
government. See Id. At the second hearing, the IJ
orally sustained one of the charges of removability, finding
by clear and convincing evidence that Khan's convictions
constituted crimes involving moral turpitude. See id.; Def.
reach this finding, the IJ employed the three-step modified
categorical analysis prescribed by the Attorney General in
In re Silva-Trevino. 24 I. & N. Dec. 687 (A.G.
2008), vacated. In re Silva-Trevino, 26 I.
& N. Dec. 550 (A.G. 2015). Under this analysis, the IJ
was first required to determine whether the statute of
conviction could realistically reach conduct that did not
involve moral turpitude. See Id. at 698. If the
statute could reach such conduct, then the IJ was required to
examine the record of conviction to determine whether it
established that the defendant's conduct involved moral
turpitude. Id. at 698-99. If the record of
conviction was indeterminate, then the IJ was required to
examine additional evidence if "necessary and
appropriate" to determine whether the conviction was
based on morally turpitudinous conduct. Id. at
Khan's case, both parties agreed that the statutes of
conviction could be applied to conduct that did not involve
moral turpitude. See Def. Mem. Ex. B, at 2. Therefore, the IJ
turned to the second Silva-Trevino step, examining
the record of conviction. See Id. The only
potentially relevant document was the criminal complaint,
which established the factual circumstances underlying both
convictions; however, the parties disputed whether the
complaint actually constituted part of the record of
conviction. Id. at 2-3. Rather than resolve that
dispute, the IJ moved to the third Silva-Trevino
step, allowing him to consider the complaint even assuming it
was outside the record of conviction. Id. at 3.
Under the third step, the IJ found that the complaint
established by clear and convincing evidence that Khan's
two convictions involved moral turpitude. Id. at 3
(citing In re Sanudo, 23 I. & N. Dec. 968,
971-72 (B.I.A. 2006) (holding that the infliction of bodily
harm upon a person deserving of special protection, such as a
domestic partner, is morally turpitudinous)).
hearing, the IJ and Khan's counsel had the following
IJ: So, I'd have to agree with the government that the
charge is correct. That said, how do you want to proceed with
the rest of the case?
Khan's Counsel: Well, your Honor, I would like to appeal
Judge: Sure. Well, I mean ...
Khan's Counsel: You mean cancellation [of removal], your
Honor? Yes, your honor....
Gov't Opp. 3, Ex. B.
the IJ determined Khan was removable, the proceedings
continued to address Khan's request for cancellation of
removal. In November 2010, the IJ entered a written decision
explaining his previous oral ruling concerning Khan's
removability and also holding that Khan had shown that he was
eligible for cancellation of removal, Def. Mem. 2, Ex. B;
however, in July 2011, the IJ denied Khan's application
for cancellation of removal and ordered him removed.
Id. at 2, Ex. C. Khan did not seek administrative or
judicial review of any of these decisions and, on September
20, 2011, he was deported to Pakistan. Gov't Opp. 4-5;
Def. Mem. Ex. D.
August 2015, Khan, represented by counsel, filed a motion to
reopen his removal proceedings, in which he argued that his
proceedings should be reopened because of a change in the
law, citing to Prudencio v. Holder, 669 F.3d 472,
484 (4th Cir. 2012). See Gov't Opp. 5, Exs. E, F, G. In
Prudencio, which was decided after Khan was
deported, the Fourth Circuit rejected the third
Silva-Trevino step and directed courts to limit
their modified categorical review to only the record of
conviction. According to the Fourth Circuit, because the
underlying statutory language that Silva-Trevino
purported to interpret "unambiguously directs that an
adjudicator consider only the conviction itself, and not any
underlying conduct, " Silva-Trevino's
direction to consider documents outside the record of
conviction constituted an invalid exercise of the Attorney
General's authority. See Prudencio, 669 F.3d at
482. In 2015, after a circuit split had developed on whether
adjudicators should follow the Silva-Trevino
framework, the Attorney General vacated the
Silva-Trevino decision. See In re
Silva-Trevino, 26 I. & N. Dec. at 552-53. The IJ
rejected both Khan's motion to reopen and his later
motion to reconsider the ...