Mumad v. Garland

11 F.4th 834

Ararso Umare MUMAD, Petitioner

v.Merrick B. GARLAND,¹ Attorney General of the United States, Respondent

No. 20-2140

United States Court of Appeals, Eighth Circuit.

Submitted: April 15, 2021

Filed: August 27, 2021

Barbara S. Isaacman, Minneapolis, MN, for Petitioner.

Peter B. Berg, U.S. Immigration & Naturalization Service, Bloomington, MN, Eoir, Eoir, Department of Justice, Executive Office for Immigration Review, Falls Church, VA, Carl H. McIntyre, Rodolfo D. Saenz, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.

Before KELLY, GRASZ, and KOBES, Circuit Judges.

GRASZ, Circuit Judge.

Ararso Umare Mumad asks us to stop his deportation to Ethiopia—where he fears ethnically and politically-motivated violence. To do so, he asks us to declare part of the Immigration and Nationality Act unconstitutional. While Congress bars the Department of Homeland Security from returning Mumad to Ethiopia if the Attorney General decides that doing so would threaten Mumad's freedom or life ( 8 U.S.C. § 1231(b)(3)(A) ), that bar disappears if the Attorney General determines that Mumad has a "particularly serious crime" ("PSC") conviction. To Mumad, that undefined statutory term is void for vagueness because it gives the executive and judicial branches free rein to label any conviction a PSC. Alternatively, he challenges the Board of Immigration Appeals's decision to deny treaty-based relief. We deny Mumad's petition for review.

I. Background

As a child in the Ethiopian state of Oromia, Mumad experienced violence, torture, and loss in the conflict between the Oromos and the Tigrayans, a rival ethnic group.² There, Mumad's father helped arm the Oromo Liberation Front. In turn, Tigrayan soldiers took Mumad's father into custody to question him about his dissident activities. Mumad never heard from him again.

A few years later, Tigrayan soldiers killed his mother. And, when Tigrayan soldiers set his house ablaze, one brother died inside, while Mumad and his other brother jumped from a second-story window. Tigrayan soldiers later killed that brother. Meanwhile, Mumad spent weeks in a coma.

Soon after, the United States welcomed the fourteen-year-old orphan as a refugee in Minnesota. Since then, he experienced homelessness and received mental-health diagnoses, including for post-traumatic-stress disorder. He also encountered legal trouble, receiving a juvenile-delinquency adjudication for sexually assaulting another minor, which triggered predatory-offender-registration duties.

A few years later, a state court sentenced Mumad to serve a year-and-a-day for failing to register as a predatory offender. See Minn. Stat. § 243.166, subd. 5(a). Citing that conviction, DHS asked the Immigration Judge to rule that she could remove (i.e., deport) Mumad to Ethiopia.

Fearing that his ethnicity and his political views would mark him for death in Ethiopia, Mumad applied for asylum. Although the IJ denied that relief, she allowed Mumad to stay in the United States by granting withholding of removal under 8 U.S.C. § 1231(b)(3)(A). Seven years later, DHS wanted to end that withholding, citing intervening state criminal convictions and corresponding prison sentences: (1) 18 months for felony theft from a person; (2) 15 months for failing to register as a predatory offender; and (3) 33 months for simple robbery.³

The IJ granted DHS's request, finding that Mumad had committed multiple non-per-se PSCs. In particular, the IJ focused on Mumad's underlying conduct during the theft and simple robbery—namely, his threatened or actual use of physical force against people. For the theft conviction, the IJ looked at the state's allegations that Mumad "demanded the victim's cell phone," "put his arm around [her] neck[,]" and "put his hand over her mouth" when she screamed. For the simple robbery, Mumad took a cellphone from a van while another person struck the phone's owner.

And, while confirming that Mumad had experienced torture, the IJ denied Convention-Against-Torture relief because the state department described "evolving and improving" conditions in Ethiopia. That conclusion included electing Abiy Ahmed Ali, an ethnically Oromo prime minister. The IJ differentiated Ethiopia's ongoing and "[g]eneralized conditions of ethnic violence in the Oromo region" from Mumad's likelihood of torture. The Board affirmed. Now, Mumad asks us to review those decisions on constitutional, statutory, and treaty-based grounds.

II. Discussion

We review the Board's decision as the final agency action, including the IJ's findings and reasoning to the extent that the Board expressly adopted them. See Fofanah v. Gonzales , 447 F.3d 1037, 1040 (8th Cir. 2006). We review constitutional challenges like this one de novo. Lasu v. Barr , 970 F.3d 960, 964 (8th Cir. 2020).

Under the Immigration and Nationality Act, Congress directs the Attorney General to remove an alien from the country within ninety days of a removal order. 8 U.S.C. § 1231(a)(1)(A). But the Attorney General "may not remove an alien to a country if [it] decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." Id . § 1231(b)(3)(A). We call this protection "withholding of removal."

But the IJ cannot grant that relief "if the Attorney General decides that: ... the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States[.]" Id . § 1231(b)(3)(B)(ii) (emphasis added). Separately, the statute states that:

an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime [.]

Id . § 1231(b)(3)(B)(iv) (emphasis added).

Applying that text, we have concluded that a per se PSC exists when an aggravated felony (or felonies), 8 U.S.C. § 1101(a)(3), results in (at least) a five-year aggregate sentence. Shazi v. Wilkinson , 988 F.3d 441, 447–48 (8th Cir. 2021). Even for those crimes outside of the per se category, though, the Attorney General may still decide that an alien committed a PSC based on § 1231(b)(3)(B)(ii) ’s final sentence, which we emphasized. Id . at 448. So, we have identified that two PSC categories exist: (1) the per-se PSCs; and (2) the non-per-se PSCs.

A. Vagueness

Mumad challenges only the non-per-se-PSC term ( § 1231(b)(3)(B)(ii) ) as unconstitutionally vague, mainly because he argues that it gives DHS carte blanche to decide that any crime counts as a PSC.

Recently, we labeled the non-per-se PSC term—the part that Mumad challenges—as ambiguous. Shazi , 988 F.3d at 449. We did so after recognizing that "the statute and accompanying regulations merely define a category of per se [PSCs] but are otherwise silent[.]" Id . at 448 (citing 8 U.S.C. § 1231(b)(3)(B)(ii) ; 8 C.F.R. § 1208.16(d) ). We also said that "[t]he statute provides no further guidance as to how the Attorney General should view other convictions outside of th[e] per se category[.]" Id. (discussing 8 U.S.C. § 1231(b)(3)(B) ).

In reaching that conclusion, we expressly declined to read § 1231(b)(3)(B)(ii) as meaning "that every conviction outside of [the per-se-PSC] category requires a case-by-case analysis." Id . at 448 (disagreeing with Gomez-Sanchez v. Sessions , 892 F.3d 985 (9th Cir. 2018) ); see also id. at 449 ("The B[oard], not the statute, created the traditional case-by-case analysis for those convictions falling outside of the per se category."). Rather, the "unqualified grant" to DHS bolstered our inclination to see congressional silence on the matter as "just that: silence." Id . at 449.

But "[a] statute is not necessarily void for vagueness simply because it may be ambiguous or open to two constructions." Williams v. Brewer , 442 F.2d 657, 660 (8th Cir. 1971). Mumad's vagueness challenge, then, needs more than ambiguity.

His challenge has some support. He points us to three Supreme Court cases that declared similarly worded "crime of violence" definitions as void for vagueness.⁴

The void-for-vagueness doctrine "rests on the twin constitutional pillars of due process and separation of powers." See United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2325, 204 L.Ed.2d 757 (2019). "Vague laws contravene the ‘first essential of due process of law’ that statutes must give people ‘of common intelligence’ fair notice of what the law demands of them." Id. (quoting Connally v. Gen. Constr. Co. , 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926) ).

"Vague laws also undermine the Constitution's separation of powers and the democratic self-governance it aims to protect." Id. While only elected representatives can criminalize conduct, see id. , "[v]ague statutes threaten to hand responsibility for defining crimes to relatively unaccountable" officials in the judicial and executive branches, which "erod[es] the people's ability to oversee the creation of the laws they are expected to abide." Id. Vague, "standardless" statutes also "invite[ ] arbitrary enforcement." Johnson v. United States , 576 U.S. 591, 595, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).

In Johnson , Dimaya , and Davis , the Court took a "categorical approach." E.g. , Johnson , 576 U.S. at 596, 135 S.Ct. 2551 (citing Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (deciding what counts as a "violent felony")). That approach analyzes "how the law defines the offense[,]" not how the individual committed it. Id. at 596, 135 S.Ct. 2551 ; see also Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1252–53, 200 L.Ed.2d 549 (...