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Cabrera v. Barr

United States Court of Appeals, Fourth Circuit

July 19, 2019

MELVIN JOSUE RODRIGUEZ CABRERA, Petitioner,
v.
WILLIAM P. BARR, Attorney General, Respondent.

          Argued: May 9, 2019

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

         ARGUED:

          Teresa Rubinger, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Petitioner.

          Victoria Marie Braga, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

         ON BRIEF:

          Erica Hashimoto, Diretor, Anjali Parekh Prakash, Supervising Attorney, Elijah Staggers, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Petitioner.

          Joseph H. Hunt, Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before MOTZ, AGEE and HARRIS, Circuit Judges.

          AGEE, CIRCUIT JUDGE

         Melvin Josue Rodriguez Cabrera, a native and citizen of El Salvador, became a lawful permanent resident of the United States in 2014. Three years later, the Department of Homeland Security ("DHS") initiated removal proceedings against him based on his 2017 Virginia conviction under Va. Code § 18.2-46.2 for participation in a criminal street gang. The immigration judge ("IJ") determined that this Virginia offense did not categorically constitute a crime involving moral turpitude and thus could not be a basis for removing Cabrera. DHS appealed, and the Board of Immigration Appeals ("BIA") issued a decision holding that a Virginia conviction for participation in a criminal street gang categorically constitutes a crime involving moral turpitude. The BIA reinstated removal proceedings against Cabrera and remanded to the IJ for a determination on the other statutory requirements for removal. After the IJ determined that those other elements were met and ordered Cabrera's removal, he filed a petition for review directly in this Court. We conclude, first, that we have jurisdiction over Cabrera's petition because he has exhausted his administrative remedies, and second, that the Virginia offense of participating in criminal street gang activity is not categorically a crime involving moral turpitude. We therefore grant Cabrera's petition for review, vacate the order of removal, and remand with instructions.

         I.

         The Virginia statute prohibiting participation in a criminal street gang states, in relevant part:

Any person who actively participates in or is a member of a criminal street gang and who knowingly and willfully participates in any predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang shall be guilty of a Class 5 felony.

Va. Code § 18.2-46.2(A). See generally Va. Code § 18.2-10(e) (authorizing punishment for a Class 5 felony of "a term of imprisonment of not less than one year nor more than 10 years").

         In 2017, Cabrera pleaded guilty to a violation of this statute, for which he was sentenced to a suspended term of imprisonment of five years. Thereafter, DHS served Cabrera with a Notice to Appear before an IJ for removal proceedings initiated under section 212(a)(2)(A)(i) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1227(a)(2)(A)(i), which authorizes the removal of an alien who has been convicted for a crime involving moral turpitude committed within five years of admission and for which a term of imprisonment of one year or longer could be imposed. DHS asserted that Va. Code § 18.2-46.2's offense is categorically a crime "involving moral turpitude," which is defined as a crime that "not only violates a statute but also independently violates a moral norm." Jimenez-Cedillo v. Sessions, 885 F.3d 292, 294 (4th Cir. 2018).

         The IJ terminated removal proceedings after concluding that Cabrera's conviction was not for a crime involving moral turpitude. DHS successfully appealed this decision to the BIA, which held that when an offense is committed "in association with a gang, the reprehensibility of that act can no longer be viewed in isolation; its inherent moral character is changed-and aggravated-by its gang related nature." A.R. 21. The BIA further explained that Va. Code § 18.2-46.2's requirement that the underlying offense be committed "in association with" a gang meant, at a minimum, that the act was committed with "conscious affiliation, not mere accidental correlation" to a gang, and thus ensured that the act was also committed with the requisite morally reprehensible state of mind to constitute a crime involving moral turpitude. A.R. 21. The BIA reinstated the proceedings against Cabrera and remanded his case to the IJ for a determination of whether Cabrera's conviction satisfied the other requirements for removability under 8 U.S.C. § 1227(a)(2)(A)(i).

         The IJ entered an order of removal after determining that the other statutory requirements were met. That order indicates that Cabrera affirmatively waived his right to appeal the IJ's decision to the BIA, making the IJ's order a final order of removal. See generally 8 C.F.R. § 1241.1(b) (stating that an IJ's order of removal "shall become final" "[u]pon waiver of appeal by the respondent").

         Cabrera filed a timely petition for review that raised one issue: whether the BIA erred in determining that the gang-related offense prohibited under Va. Code § 18.2-46.2 ...


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