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United States v. Khan

United States District Court, E.D. Virginia, Alexandria Division

October 20, 2017

AYAZ KHAN, Defendant.


          Leonie M. Brinkema, United States District Judge.

         After 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 that decision.

         I. BACKGROUND

         Defendant 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.[1]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. Mem. 2.

         To 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 699-700.

         In 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)).

         At that hearing, the IJ and Khan's counsel had the following exchange:

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 that decision.
Judge: Sure. Well, I mean ...
Khan's Counsel: You mean cancellation [of removal], your Honor? Yes, your honor....

Gov't Opp. 3, Ex. B.

         After 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.

         In 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 ...

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