Kemokai v. U.S. Attorney Gen.

83 F.4th 886

Mucktaru KEMOKAI, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 21-12743

United States Court of Appeals, Eleventh Circuit

Filed: October 2, 2023

Petition for Review of a Decision of the Board of Immigration Appeals, Agency No. AXXX-XX1-957

Arlene Amarante, Lincoln Memorial University, Knoxville, TN, for Petitioner.

Taryn Lee Arbeiter, Appellate Section, Office of Immigration Litigation, Washington, DC, Rebekah Nahas, Imran Raza Zaidi, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before Jordan, Newsom, Circuit Judges, and Grimberg; District Judge.^*

Jordan, Circuit Judge:

The Board of Immigration Appeals ruled that Mucktaru Kemokai is removable as an aggravated felon and denied his requests for asylum and withholding of removal. Mr. Kemokai petitions for review, arguing that his Massachusetts conviction for armed robbery does not constitute a "theft offense" within the meaning of 8 U.S.C. § 1101(a)(43)(G), and therefore is not an "aggravated felony" under 8 U.S.C. § 1227(a)(2)(A)(iii). We reject the argument and deny the petition in that respect.

But we agree with the parties that a remand to the BIA is nevertheless required. The Attorney General has issued an intervening decision which might impact Mr. Kemokai's request for withholding of removal, and the BIA should have the opportunity to consider the effect of that decision. We therefore grant the petition in part.

I

Mr. Kemokai, a native and citizen of Sierra Leone, was admitted to the United States as a lawful permanent resident in 2001. In 2018, he pled guilty to armed robbery in violation of Mass. Gen. Laws ch. 265, § 17, and was sentenced to two years of supervised release. But he violated the terms of his release, and the state court sentenced him to a prison term of one to one-and-a-half years.

The Department of Homeland Security then initiated removal proceedings. As relevant here, the notice to appear charged Mr. Kemokai with removability as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii) on the ground that he had committed a theft offense within the meaning of 8 U.S.C. § 1101(a)(43)(G).¹

After retaining counsel, Mr. Kemokai moved to terminate the removal proceedings, arguing in part that his armed robbery conviction did not constitute a theft offense because the relevant Massachusetts statute was broader than the generic definition of theft. In his view, generic theft requires a taking of property without the victim's consent, but armed robbery under Massachusetts law does not. This, according to Mr. Kemokai, was because larceny in Massachusetts is an element of robbery (and thus, armed robbery) and encompasses both consensual and nonconsensual takings.

The immigration judge disagreed, reasoning that robbery requires the use of force or that the victim be put in fear. This additional element renders any taking under Massachusetts' armed robbery statute nonconsensual. Because the armed robbery statute categorically matches the generic definition of a theft offense, the immigration judge sustained the aggravated felony charge.

Mr. Kemokai appealed to the BIA. The BIA dismissed the appeal, concluding that Massachusetts' armed robbery statute is not broader than generic theft.

II

The INA limits our jurisdiction over final orders of removal to constitutional claims or questions of law. See 8 U.S.C. § 1252(a)(2)(D); Patel v. U.S. Att'y. Gen., 971 F.3d 1258, 1272 (11th Cir. 2020) (en banc). Whether Mr. Kemokai's armed robbery conviction constitutes an aggravated felony is a question of law, so we have jurisdiction. See Cintron v. U.S. Att'y Gen., 882 F.3d 1380, 1383 (11th Cir. 2018).

The government argues, however, that we lack jurisdiction because Mr. Kemokai failed to exhaust his challenge before the BIA. Under 8 U.S.C. § 1252(d)(1), "[a] court may review a final order of removal only if" the noncitizen "has exhausted all administrative remedies available to [him] as of right." Our cases have interpreted this provision as a jurisdictional bar on review of removal challenges not raised before the BIA. See, e.g., Sundar v. I.N.S., 328 F.3d 1320, 1323 (11th Cir. 2003) (holding that, because of § 1251(d)(1), "we lack jurisdiction to consider claims that have not been raised before the BIA"). But the Supreme Court recently held, in Santos-Zacaria v. Garland, 598 U.S. 411, 413, 419, 143 S.Ct. 1103, 215 L.Ed.2d 375 (2023), that § 1252(d)(1) is not jurisdictional. Santos-Zacaria therefore abrogates our prior precedent to the contrary.

Nevertheless, § 1252(d)(1) remains a "claim-processing rule." Id. at 417, 143 S.Ct. 1103. And such a rule is generally applied where, as here, it has been asserted by a party. See Fort Bend Cnty., Texas v. Davis, — U.S. —, 139 S. Ct. 1843, 1849, 204 L.Ed.2d 116 (2019); United States v. Harris, 989 F.3d 908, 910-11 (11th Cir. 2021).

We are satisfied that Mr. Kemokai exhausted his challenge to removability before the BIA. At bottom, he presents the same core argument here that he raised before the immigration judge and the BIA—that his conviction does not constitute an aggravated felony because Massachusetts' armed robbery statute is broader than generic theft. See Indrawati v. U.S. Atty. Gen., 779 F.3d 1284, 1297 (11th Cir. 2015) (explaining that exhaustion "is not a stringent requirement" and is satisfied if the petitioner "previously argued the 'core issue now on appeal' before the BIA") (citation omitted). We therefore move on to the merits.

III

Whether Mr. Kemokai's armed robbery conviction constitutes an aggravated felony presents a question of law subject to plenary review. See Cintron, 882 F.3d at 1383; Accardo v. U.S. Atty. Gen., 634 F.3d 1333, 1335-36 (11th Cir. 2011). As noted earlier, a noncitizen is removable if he "is convicted of an aggravated felony at any time after admission," 8 U.S.C. § 1227(a)(2)(A)(iii), and under 8 U.S.C. § 1101(a)(43)(G) the term "aggravated felony" includes "a theft offense . . . for which the term of imprisonment [is] at least one year."

Because the Immigration and Nationality Act does not define the term "theft offense," we look to the "generic definition of theft." Vassell v. U.S. Atty. Gen., 839 F.3d 1352, 1356 (11th Cir. 2016). Generic theft, as defined by the BIA and by us, means "the taking of, or exercise of control over, property without consent whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent." Id. (quoting In re Garcia-Madruga, 24 I. & N. Dec. 436, 440-41 (BIA 2008)).

To determine if a state conviction falls within the generic federal definition of a corresponding aggravated felony we generally employ a "categorical approach." See Donawa v. U.S. Att'y Gen., 735 F.3d 1275, 1280 (11th Cir. 2013). We look only to the relevant statute of conviction, as construed by the state courts, and ask whether it "categorically fits" within the generic definition of the federal offense. See Moncrieffe v. Holder, 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). In other words, we "compare[ ] the generic offense to the minimum conduct criminalized by the . . . statute [of conviction]." Vassell, 839 F.3d at 1356 (citation and internal quotation marks omitted). See also Mathis v. United States, 579 U.S. 500, 505, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) ("The court . . . lines up th[e] crime's elements alongside those of the generic offense and sees if they match."). A statute of conviction constitutes a categorical match only if "the statute's elements are the same as, or narrower than, those of the generic offense." Descamps v. United States, 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).

A

Mr. Kemokai was convicted of armed robbery in violation of Mass. Gen. Laws ch. 265, § 17. In relevant part, § 17 provides that "[w]hoever, being armed with a dangerous weapon, assaults another and robs, steals or takes from his person money or other property which may be the subject of larceny shall be punished by imprisonment[.]"²

The offense of armed robbery under § 17 entails a number of elements. The prosecution must prove that "(1) the defendant was armed with a dangerous weapon (though it need not be used); (2) the defendant either applied actual force or violence to the body of the person identified in the indictment, or by words or gestures put him in fear (i.e., the defendant committed an assault on that person); and (3) the defendant took the money or . . . the property of another with intent to steal it." United States v. Luna, 649 F.3d 91, 108 (1st Cir. 2011) (citing Commonwealth v. Rogers, 459 Mass. 249,945 N.E.2d 295, 300 n.4 (2011)) (internal quotation marks omitted).³

These elements, under the categorical approach, match the generic definition of theft. Generic theft requires taking the property of another without consent and with intent to steal. See Vassell, 839 F.3d at 1356. The third element of armed robbery under § 17—the taking of property with the intent to steal—matches two of the requirements of a generic theft offense—i.e., the taking of property with the criminal intent to deprive the victim of the rights and benefits of ownership. And the second element of armed robbery under § 17—the taking of property by the use of force or by putting the victim in fear—matches the generic theft requirement that the taking be without the consent of the victim. Massachusetts law teaches that "[t]he essence of robbery is the exertion of force, actual or constructive, against another in order to take personal property . . . which is so within his reach . . . that he could, if not overcome by violence or prevented by fear, retain his possession of it." Commonwealth v. Novicki, 324 Mass. 461, 87 N.E.2d 1, 3 (1949). This understanding satisfies the "without consent" requirement of generic theft, and we find persuasive the BIA's decision in Matter of Ibarra, 26 I. & N. Dec. 809, 811 (BIA 2016), on this point: ...