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Ramirez v. Sessions

United States Court of Appeals, Fourth Circuit

April 17, 2018

JOSE LUIS RAMIREZ, Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General, Respondent.

          Argued: December 5, 2017

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

         ARGUED:

          Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner.

          Vanessa M. Otero, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

         ON BRIEF:

          Chad 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.

          Before GREGORY, Chief Judge, MOTZ and TRAXLER, Circuit Judges.

          GREGORY, CHIEF JUDGE

         Jose 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 further proceedings.

         I.

         Jose 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.

         Ramirez 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).

         The 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.[1] 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 requirement.[2]

         The 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.

         In a 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.

         Ramirez 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.

         II.

         Before 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 ...


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