Annor v. Garland

95 F.4th 820

David ANNOR, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.Capital Area Immigrants' Rights Coalition; Refugeeand Immigrant Center for Education and Legal Services, Amici Supporting Petitioner.

No. 23-1281

United States Court of Appeals, Fourth Circuit

Argued: January 23, 2024

Decided: March 15, 2024

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

ARGUED: Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Robert Michael Stalzer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Adam N. Crandell, ELDRIDGE, NACHTMAN & CRANDELL LLC, Baltimore, Maryland, for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney General, Stephen J. Flynn, Assistant Director, Kathryn M. McKinney, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Samantha Hsieh, Peter Alfredson, CAPITAL AREA IMMIGRANTS' RIGHTS (CAIR) COALITION, Washington, D.C.; Keith Armstrong, Vanessa Rivas, REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES (RAICES), San Antonio, Texas, for Amici Curiae.

Before HEYTENS and BENJAMIN, Circuit Judges, and MOTZ, Senior Circuit Judge.

Petition for review granted; vacated and remanded by published opinion. Senior Judge Motz wrote the opinion, in which Judge Heytens and Judge Benjamin joined.

DIANA GRIBBON MOTZ, Senior Circuit Judge:

David Annor, a citizen of Ghana and a lawful permanent resident of the United States, used his business to funnel the proceeds of a "romance fraud scheme" to militiamen in Ghana. After Annor pled guilty to one count of conspiracy to commit money laundering, the Department of Homeland Security ("DHS") placed him in removal proceedings, where he applied for withholding of removal and deferral under the Convention Against Torture ("CAT"). An Immigration Judge ("IJ") denied relief, and the Board of Immigration Appeals ("BIA") affirmed, holding that Annor's money laundering conspiracy conviction constituted a "particularly serious crime" barring withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii). But in so holding, the BIA misapplied its own precedent, both by relying on the elements of the wrong statute and by failing to assess whether the nature of Annor's offense indicates that he presents a danger to the community. Accordingly, we vacate the BIA's decision and remand for further proceedings.

I.

In 2014, when Annor's father became a United States citizen, Annor immigrated to the United States as a lawful permanent resident. His family settled in Gaithersburg, Maryland, where Annor attended community college to study cybersecurity, and worked as a residential counselor at a group home for adults and children with autism. Annor also founded Ravid Enterprises, a business that purchased cars at auction and resold them in Ghana.

In 2017, Steven Antwi, who had attended school with Annor in Ghana and was now living in Ohio, asked Annor to funnel money through Wells Fargo bank accounts held by Ravid Enterprises and Annor personally. Annor agreed to do so. Over the next few years, Antwi and Annor handled money procured through a "romance fraud scheme" — in which members of the conspiracy made false romantic advances online to induce victims, many of whom were isolated or elderly, to send the conspirators money. Over a period of three years, the conspiracy swindled more than $6.2 million from over 200 victims across the United States. For his part, Annor did not recruit or interact with any victims. Instead, he acted as a middleman, accepting the proceeds of the scheme into his bank accounts before sending these proceeds to conspirators in Ghana. Annor helped launder just over $3.9 million through his accounts, and received a 10% cut of the proceeds.

In 2020, federal agents arrested Annor and charged him with conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). Annor immediately cooperated with the Government, made two factual proffers, and testified against Antwi. In May 2021, Annor pled guilty, admitting that he: (1) with "at least one other person entered into . . . an agreement to commit [a] substantive money laundering offense[ ]"; (2) "knew that the money laundering proceeds had been derived from an illegal activity"; and (3) "knowingly and willfully became a member of that conspiracy." The United States Sentencing Guidelines recommended a sentence of 70 to 87 months, but the Government requested a downward variance to 51 to 63 months in recognition of Annor's "substantial assistance" in the investigation of the scheme. The district court varied even further, and sentenced Annor to 36 months' imprisonment.

In 2022, DHS charged Annor with removability under 8 U.S.C. § 1227(a)(2)(A)(iii) as a noncitizen convicted of an aggravated felony. Annor conceded this charge, and applied for withholding of removal and CAT relief. He based his claims of persecution and torture on his fear of retaliation by the Ghana-based "land guards," a mercenary militia that had orchestrated the romance fraud scheme and allegedly knew of Annor's cooperation with United States prosecutors.

On July 13, 2022, an IJ held a remote hearing,¹ at which Annor testified about his involvement in the scheme and his fear of persecution. Annor maintained that he had no contact with the victims, and that the land guards had threatened him and his family on multiple occasions upon discovering discrepancies with the funds. He testified that the media had widely reported on his criminal case over the internet, and that "everybody in the Ghanian community . . . got wind of what was going on." He also explained that three high-ranking land guards — Aminu Ahmed, Ibrahim Amadu, and Bassi Abdul King — suspected him of cooperating with the Government, and would retaliate against him upon his return to Ghana. And he claimed that the Ghanian police would not be willing or able to protect him.

Following the hearing, the IJ issued an oral opinion denying relief, finding that Annor's conviction was a "particularly serious crime" barring withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii). The IJ recognized that Annor's conviction was "not a per se particularly serious crime" and was "not violent by nature." JA 40 (emphasis added). But the IJ nonetheless concluded that under Matter of N-A-M-, 24 I. & N. Dec. 336 (BIA 2007), the offense fell "within the ambit of it being a particularly serious crime due to the serious nature of the offense, the amount of loss, the vulnerable group of individuals that were targeted, and the fact that it was a federal conviction." JA 40-41. The IJ then found that the amount of loss, the length of the scheme, and its effects on multiple, vulnerable victims demonstrated that Annor's crime was, in fact, particularly serious. In the alternative, the IJ denied relief on the merits.

Annor appealed, and the BIA affirmed. The BIA found that the elements of 18 U.S.C. § 1956(h), "which include knowingly engaging or attempting to engage in a monetary transaction in criminally derived property that is of a value greater than $10,000 and is derived from specified unlawful activity, potentially bring it into a category of particularly serious crimes." JA 3. The BIA then affirmed the IJ's findings on "the facts and circumstances of the offense," highlighting "the nature of the offense, the substantial amount of money involved in the criminal scheme, and the level of deceit involved." JA 3-4. The BIA declined to reach the IJ's alternative finding that Annor was not entitled to withholding of removal on the merits; but it affirmed the IJ's denial of deferral of removal under CAT.

Annor timely filed this petition for review.

II.

Annor argues that the BIA erred in determining that his conviction for conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), constitutes a particularly serious crime barring withholding of removal. On review of a particularly serious crime finding, we retain jurisdiction to consider colorable constitutional claims and legal issues, 8 U.S.C. § 1252(a)(2)(D), which we review de novo, Tinoco Acevedo v. Garland, 44 F.4th 241, 246 (4th Cir. 2022). We may reverse when the BIA fails to properly apply its own precedent. Id. at 250. And where, as here, "the BIA adopts and affirms the IJ's decision and supplements it with its own opinion, we review both decisions." Nolasco v. Garland, 7 F.4th 180, 186 (4th Cir. 2021) (cleaned up).

A noncitizen is ineligible for withholding of removal if, "having been convicted by a final judgment of a particularly serious crime, [he] is a danger to the community of the United States." 8 U.S.C. § 1231(b)(3)(B)(ii). Under the Immigration and Nationality Act ("INA"), any "aggravated felony . . . for which the [noncitizen] has been sentenced to an aggregate term of imprisonment of at least five years" constitutes a per se particularly serious crime. Hernandez-Nolasco v. Lynch, 807 F.3d 95, 98 (4th Cir. 2015) (quoting 8 U.S.C. § 1231(b)(3)(B)(iv)).² For all other offenses, "adjudicators must determine on a case-by-case basis whether a conviction is for a particularly serious crime," In re B-Z-R-, 28 I. & N. Dec. 563, 563 (A.G. 2022), after considering the following factors:

[1] the nature of the conviction, [2] the circumstances and underlying facts of the conviction, [3] the type of sentence imposed, and, most importantly, [4] whether the type and circumstances of the crime indicate that the [noncitizen] will be a danger to the community.

Gao v. Holder, 595 F.3d 549, 557 (4th Cir. 2010) (quoting In re Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982)). The BIA, assertedly applying this framework, held that Annor's conviction for conspiracy to commit money laundering constitutes a particularly serious crime. Annor asserts that the BIA committed three legal errors in doing so. With respect to two of the alleged errors, we agre...