Argued: December 5, 2017
Petition for Review of an Order of the Board of Immigration
Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER,
LLC, Alexandria, Virginia, for Petitioner.
Vanessa M. Otero, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
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, MOTZ and TRAXLER, Circuit Judges.
GREGORY, CHIEF JUDGE
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
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.
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 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).
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. 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
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.
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.
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.
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 ...