Cabrera v. Barr

930 F.3d 627

Melvin Josue Rodriguez CABRERA, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 18-1314

United States Court of Appeals, Fourth Circuit.

Argued: May 9, 2019

Decided: July 19, 2019

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, Director, 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.

Petition for review granted; vacated and remanded with instructions by published opinion. Judge Agee wrote the opinion, in which Judge Motz and Judge Harris joined.

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 categorically qualifies as a crime involving moral turpitude.

II.

Before reaching the merits of Cabrera’s petition, we must address our jurisdiction over this case. By statute, we have jurisdiction over final orders of removal "only if" "the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). Because Congress wrote the exhaustion requirement into the jurisdictional grant to the Court for the review of removal orders, the Court lacks jurisdiction to consider petitions for review when an alien has not exhausted his administrative remedies. Massis v. Mukasey , 549 F.3d 631, 638 (4th Cir. 2008) ("We have previously interpreted [ 8 U.S.C. § 1252(d)(1) ] as a jurisdictional bar."); cf. Kporlor v. Holder, 597 F.3d 222, 226–27 (4th Cir. 2010) ("The exhaustion doctrine embodies a policy of respect for administrative agencies, which allows them to carry out their responsibilities and to discover and correct their own errors."). That said, no statute defines what constitutes "exhaustion" for purposes of § 1252(d)(1).

Our case law informs the analysis of when administrative exhaustion has occurred, but the precise question raised in this case is an issue of first impression in this Circuit: was Cabrera required to appeal the IJ’s order of removal to the BIA before filing his petition for review with this Court in order to exhaust his administrative remedies? That question is presented within the additional context that the sole issue raised in Cabrera’s petition relates to a legal question the BIA conclusively decided earlier in his removal proceeding.

Ordinarily, a petitioner exhausts his administrative remedies by raising an argument challenging the IJ’s decision in an appeal to the BIA. E.g. , Kporlor , 597 F.3d at 226 ("It is well established that an alien must raise each argument to the BIA before we have jurisdiction to consider it."). Consequently, arguments that a petitioner did not raise in the BIA proceedings have not been exhausted and the Court lacks jurisdiction to consider them. Asika v. Ashcroft , 362 F.3d 264, 267 n.3 (4th Cir. 2004) ("We have no jurisdiction to consider this argument, however, because [the petitioner] failed to make it before the [BIA] and, therefore, failed to exhaust all administrative remedies."). Only after the BIA has rendered a decision on an argument or claim is that argument or claim said to have been exhausted. See Lizama v. Holder , 629 F.3d 440, 448–49 (4th Cir. 2011) (holding that an alien exhausted remedies by raising a claim in his notice of appeal to the BIA—even if he neglects to brief the issue—if the BIA has nonetheless addressed the issue in its decision). In sum, we have consistently held that when the BIA has never been part of a petitioner’s removal proceedings we lack jurisdiction to consider the petition for review and when a petition contains an argument that has never been presented to the BIA for consideration, we lack jurisdiction to consider it even if other arguments in the petition have been exhausted.

Relying on these principles, DHS contends that Cabrera did not exhaust his administrative remedies because he had the right to appeal the IJ’s removal order to the BIA, but he chose to waive that right. DHS argues that the BIA must first determine whether Cabrera’s removal was proper before this Court can consider Cabrera’s petition for review and that his decision not to appeal directly to the BIA deprived the BIA of the opportunity to do so. In addition, DHS asserts that the BIA’s earlier decision concerning Cabrera’s Virginia conviction did not relieve him of his obligation to appeal the removal order to the BIA because there is no futility exception to the exhaustion requirement.

Relying on the same principles, Cabrera responds that he has exhausted his administrative remedies because the BIA definitively ruled in the earlier appeal that his Virginia conviction is for a crime involving moral turpitude and that ruling is the sole issue he raises in his petition for review. He observes that although this Court has not decided whether administrative remedies have been exhausted in these circumstances, three circuit courts of appeals have considered it and have unanimously held in favor of finding exhaustion. Our sister circuits have determined that a petitioner has exhausted his administrative remedies when the BIA conclusively determined the issue(s) for which a petitioner seeks review even...