Coelho v. Lynch

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Sandra L. Lynch, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [16-2220]

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Document: 00117180941

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Date Filed: 07/24/2017

Entry ID: 6108102

United States Court of Appeals
For the First Circuit
No. 16-2220
JOAO LOPES COELHO,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before
Torruella, Lynch, and Kayatta,
Circuit Judges.

Todd Pomerleau, with whom Jeffrey B. Rubin and Rubin Pomerleau
P.C. were on brief, for petitioner.
Andrew N. O'Malley, with whom Lindsay M. Murphy, Trial
Attorney, Office of Immigration Litigation, Civil Division, U.S.
Department of Justice, Chad A. Readler, Acting Assistant Attorney
General, Civil Division, and Cindy S. Ferrier, Assistant Director,
were on brief, for respondent.
Emma Winger, Immigration Impact Unit, Committee for Public
Counsel Services, on brief for the Massachusetts Committee for
Public Counsel Services Immigration Impact Unit, the National
Immigration Project of the National Lawyers Guild, and the
Immigrant Defense Project, amici curiae.

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LYNCH, Circuit Judge.

Date Filed: 07/24/2017

Entry ID: 6108102

This appeal presents the question

of whether the Board of Immigration Appeals ("BIA") committed
reversible error when it held that the Massachusetts crime of
assault and battery with a dangerous weapon ("ABDW"), in violation
of Mass. Gen. Laws ch. 265, § 15A(b), is categorically a crime
involving

moral

turpitude

("CIMT")

under

the

Immigration

and

Nationality Act ("INA"), Pub. L. No. 82-414, 66 Stat. 163 (1952)
(codified as amended in scattered sections of 8 U.S.C.).

The

consequence of this BIA ruling is that petitioner Joao Lopes Coelho
is not eligible for cancellation of removal.

Because we remain

uncertain about the BIA's views on the relevant Massachusetts law
governing

its

CIMT

determination,

we

remand

for

further

consideration consistent with this opinion.
I.
Coelho entered the United States without inspection in
1986.

He has continued to reside here since that date and now has

a U.S. citizen son.

In September 1996, Coelho pled guilty to one

count of Massachusetts ABDW against his wife. After the Department
of Homeland Security ("DHS") initiated removal proceedings against
Coelho in June 2010, he conceded his removability under 8 U.S.C.
§ 1182(a)(6)(A)(i) but submitted an application for cancellation
of removal pursuant to 8 U.S.C. § 1229b(b)(1).

"Cancellation of

removal is a form of discretionary relief, the granting of which
allows a non-resident alien, otherwise removable, to remain in the

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United States."

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Ayeni v. Holder, 617 F.3d 67, 70 (1st Cir. 2010).

In his application, Coelho noted in particular that his removal
"would result in exceptional and extremely unusual hardship" to
his son.

8 U.S.C. § 1229b(b)(1)(D).

DHS moved to pretermit

Coelho's application on the ground that his Massachusetts ABDW
conviction constituted a conviction for a CIMT and thus rendered
him

ineligible

for

cancellation

of

removal.

See

id.

§ 1229b(b)(1)(C) (providing that an alien, to be eligible for
cancellation of removal, must not have been "convicted of an
offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)," the
first two of which refer to crimes involving moral turpitude).
After Coelho failed to timely respond to the motion to pretermit,
the immigration judge ("IJ") granted the government's motion.
Coelho filed a motion to reconsider, which the IJ denied.
Explaining the denial, the IJ concluded that Massachusetts ABDW is
categorically a CIMT because of the presence of an aggravating
element, namely the use of a dangerous weapon.
acknowledged

that

Massachusetts

case

law

The IJ further

defines

"dangerous

weapon" to include "common objects," but noted that this definition
"should not be a determinative factor because it is the defendant's
use of the object in a dangerous manner which is the vile act."
Finally, the IJ found that "based on the statute's requirement
that a dangerous weapon be used, [she could reasonably] conclude
that there is no realistic probability that [the Massachusetts

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ABDW statute] would be applied to reach conduct that does not
involve moral turpitude."
The BIA dismissed Coelho's appeal in an opinion dated
October 31, 2013.

Applying de novo review, the BIA agreed with

the IJ's conclusion that Massachusetts ABDW is categorically a
CIMT because "assault or battery which necessarily involves an
aggravating factor indicative of the perpetrator's moral depravity
is a crime involving moral turpitude" and "the knowing or attempted
use of deadly force is deemed to be an act of moral depravity."
Coelho petitioned for review of the October 31, 2013
decision.

Shortly thereafter, the government -- with Coelho's

assent -- moved this court to remand the case to the BIA for
reconsideration of whether Coelho's Massachusetts ABDW conviction
is

categorically

a

CIMT

cancellation of removal.

that

renders

him

ineligible

for

We granted the government's unopposed

motion and vacated the BIA's decision.
On April 10, 2015, the BIA issued a second opinion, once
again holding that Massachusetts ABDW is categorically a CIMT.
The BIA applied its then-existing framework, as laid out in Matter
of Silva-Trevino, for determining whether an offense involves
moral turpitude.

See 24 I. & N. Dec. 687, 704 (A.G. 2008), vacated

by 26 I. & N. Dec. 550 (A.G. 2015), and overruled by 26 I. & N.
Dec. 826 (B.I.A. 2016).
"to

examine

the

statute

Under this approach, the first step was
of

conviction

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under

the

categorical

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approach and determine whether there was a 'realistic probability'
that the statute would be applied to conduct not involving moral
turpitude."

Id.

If the categorical approach proved inconclusive,

the adjudicator proceeded "to look to the record of conviction
under the modified categorical approach," and, if the modified
categorical approach also proved inconclusive, "to consider any
relevant evidence outside the record of conviction to resolve the
moral turpitude question."

Id.

Applying that framework, the BIA found under the first
step that Massachusetts ABDW is categorically a CIMT.

The BIA

acknowledged that the "presence of an 'aggravating factor'" -here, the use of a dangerous weapon -- "is not always dispositive
as to whether an offense involves moral turpitude," but it noted
that Massachusetts ABDW involves not only an aggravating factor
but also the requisite mental state for an offense to be deemed
morally turpitudinous.

Specifically, when ABDW is intentionally

committed, "the statute requires . . . the intentional application
of force by use of a dangerous weapon."

Alternatively, when ABDW

is recklessly committed, the statute requires "the intentional
commission of a reckless or wanton act with a dangerous weapon,
defined as more than gross negligence, resulting in physical or
bodily injury that interferes with the victim's health or comfort."
Accordingly, "[b]ecause the statute includes the intent to use a

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dangerous weapon and/or a resultant injury," the BIA concluded
that Massachusetts ABDW is categorically a CIMT.
Coelho once again petitioned this court to review the
BIA's April 10, 2015 decision.

We temporarily held the petition

in abeyance while Coelho moved the BIA to reconsider its decision.
The BIA denied that motion in a brief opinion dated September 2,
2015.

On April 5, 2016, with the government moving for another

remand with Coelho's assent, we remanded the case a second time
for

the

BIA

Massachusetts

to
ABDW

consider
is

not

whether

Coelho's

categorically

a

argument

CIMT

that

"because

a

conviction for the reckless commission of [ABDW] does not require
a defendant to be aware of, and consciously disregard, the risk
imposed by his conduct" had been properly raised before the BIA
such that it had been exhausted and could be reviewed by us.

We

accordingly vacated the BIA's April 10, 2015 decision.
In the BIA's fourth and final opinion, dated September
7, 2016, the agency once again dismissed Coelho's appeal.

The BIA

stated that whether or not Coelho had raised this argument before
the

agency,

the

agency

had

previously

addressed

both

the

intentional and reckless prongs of Massachusetts ABDW and had
already found that even reckless ABDW is categorically a CIMT.
The BIA restated its prior finding that "when committed recklessly,
the statute requires an intentional act with a dangerous weapon
resulting in physical or bodily injury." Further, the BIA observed

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that

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Massachusetts

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defines

Date Filed: 07/24/2017

"recklessness"

as

Entry ID: 6108102

"knowingly

or

intentionally disregarding an unreasonable risk that involves a
high degree of probability that death or serious bodily harm will
result" (alterations omitted) (citing Commonwealth v. Welansky, 55
N.E.2d 902, 910 (Mass. 1944)).
parenthetical

--

but

Critically, the BIA noted in a

without

elaboration

--

that

under

Massachusetts law, "[k]nowing facts that would cause a reasonable
man to know the danger is equivalent to knowing the danger"
(quoting Welansky, 55 N.E.2d at 910).

In light of this case law,

the BIA "affirm[ed] [its] prior decision finding that a recklessly
or

wantonly

committed

offense

under

the

[Massachusetts

ABDW]

statute is sufficient to render it a categorical [CIMT]."
This petition for review followed.

After the BIA had

issued its last decision in this case and Coelho had filed his
petition, the BIA issued a decision in Matter of Wu, 27 I. & N.
Dec. 8 (B.I.A. 2017), the potential relevance of which we discuss
below.
II.
Two different standards of review are involved.

"We

review the BIA's legal conclusions de novo, but we afford Chevron
deference to the BIA's interpretation of the [INA], including its
determination that a particular crime qualifies as one of moral
turpitude, unless that interpretation is 'arbitrary, capricious,
or clearly contrary to law.'"

Da Silva Neto v. Holder, 680 F.3d

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25, 28 (1st Cir. 2012) (quoting Idy v. Holder, 674 F.3d 111, 117
(1st Cir. 2012)).
deference

to

the

Under these standards of review, we give
BIA's

"construction

of

the

term

'moral

turpitude,'" but we do not give deference to "its reading of an
underlying criminal statute (as to which it has no expertise)."
Patel v. Holder, 707 F.3d 77, 79 (1st Cir. 2013).
Although the INA does not define "crime involving moral
turpitude," this circuit has adopted the BIA's definition of that
term as "conduct that shocks the public conscience as being
inherently base, vile, or depraved, and contrary to the accepted
rules of morality and the duties owed between persons or to society
in general."

Maghsoudi v. INS, 181 F.3d 8, 14 (1st Cir. 1999)

(quoting Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996)); see
also Da Silva Neto, 680 F.3d at 29 (defining CIMT alternatively as
"'an act which is per se morally reprehensible and intrinsically
wrong' and is 'accompanied by a vicious motive or a corrupt mind'"
(quoting Maghsoudi, 181 F.3d at 14)).
This circuit's approach to the CIMT analysis "has been
generally consistent with the first two steps of the . . .
framework" applied by the BIA in its April 10, 2015 decision.
Silva Neto, 680 F.3d at 29.

Da

Specifically, "[w]e have begun by

looking 'to the inherent nature of the crime of conviction, as
defined in the criminal statute,' to determine whether it fits the

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CIMT definition.
end there.'"

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If it does, we have said that 'our inquiry may

Id. (quoting Idy, 674 F.3d at 118).1

The criminal statute at issue in this case establishes
certain imprisonment terms and fine amounts for "[w]hoever commits
an assault and battery upon another by means of a dangerous
weapon."

Mass. Gen. Laws ch. 265, § 15A(b).

Massachusetts common

law, which supplies the substantive definition of ABDW, see United
States v. Tavares, 843 F.3d 1, 12 (1st Cir. 2016), recognizes "two
separate aspects" to the crime of ABDW, Commonwealth v. Burno, 487
N.E.2d 1366, 1368 (Mass. 1986).

The intentional theory of ABDW

punishes "the intentional and unjustified use of force upon the
person of another, however slight."
omitted).

Meanwhile,

the

Id. at 1368–69 (citation

reckless

theory

punishes

"the

intentional commission of a wanton or reckless act (something more
than

gross

another."

negligence)

causing

physical

or

bodily

injury

to

Id. at 1369.
The Massachusetts definition of "recklessness" departs

from the definition employed by the Model Penal Code ("MPC") and
a majority of states in that a defendant in Massachusetts need not
have been subjectively aware of the risk posed by his conduct in

1

Under this categorical approach, neither we
can consider Coelho's actual conduct, but rather only
of th[e] acts' criminalized." Moncrieffe v. Holder,
1678, 1684 (2013) (alteration in original) (quoting
United States, 559 U.S. 133, 137 (2010)).
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nor the BIA
the "'least
133 S. Ct.
Johnson v.

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order to have acted recklessly. Cf. Model Penal Code § 2.02(2)(c).
That is, the "classic formulation of recklessness" requires an
"actual awareness and a conscious disregard for a 'substantial and
unjustifiable risk'" on the defendant's part.
119

(citing

N.H.

Rev.

Stat.

Ann.

§§

Idy, 674 F.3d at

626:2,

631:3).

In

Massachusetts, by contrast, the SJC has said that "even if a
particular defendant is so stupid or so heedless that in fact he
did not realize the grave danger [posed by his conduct], he cannot
escape

the

imputation

of

wanton

or

reckless

conduct

in

his

dangerous act or omission, if an ordinary normal man under the
same circumstances would have realized the gravity of the danger."
Welansky, 55 N.E.2d at 910 (alterations omitted).

Indeed, in

Massachusetts, "[k]nowing facts that would cause a reasonable man
to know the danger is equivalent to knowing the danger."

Id.

Much of the briefing and oral argument before us has
focused

on

this

recklessness.

aspect

of

the

Specifically,

Massachusetts

Coelho

argues

formulation
that

the

of
BIA

mischaracterized Massachusetts law by failing to take adequate
account of the state's departure from the "classic" MPC formulation
of recklessness.

Accordingly, Coelho says, we must remand so that

the BIA can consider in the first instance whether, even under the

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correct articulation of Massachusetts law, the crime of reckless
ABDW is categorically a CIMT.2
There

are

some

difficulties

with

Coelho's

argument

because the BIA did expressly include in its discussion the crucial
quote from Welansky that "[k]nowing facts that would cause a
reasonable man to know the danger is equivalent to knowing the
danger."

55 N.E.2d at 910.

Nonetheless, the BIA did so merely in

a parenthetical without any explanation of how this aspect of
Massachusetts law figures into its CIMT determination.

Further,

the BIA did not include the "so stupid or so heedless" clause from
Welansky.
The government responds that regardless of the BIA's
sparse

discussion

of

Massachusetts

law

on

recklessness,

the

agency's subsequent decision in Matter of Wu allows us to uphold
the outcome in this case.

See 27 I. & N. Dec. 8.

There, the BIA

concluded that the crime of assault with a deadly weapon or force
likely to produce great bodily injury, in violation of section
245(a)(1) of the California Penal Code ("CPC"), categorically
constitutes a CIMT. Id. at 8–9, 14. As the government emphasizes,
a conviction under section 245(a)(1) of the CPC, like a conviction

2

We have recently held, in a different statutory context,
that Massachusetts reckless ABDW is not categorically a "violent
felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e)(2)(B). See United States v. Windley, No. 16-1949, slip
op. at 6 (1st Cir. July 21, 2017) (per curiam).
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for

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Massachusetts

reckless

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ABDW,

Date Filed: 07/24/2017

"requires

Entry ID: 6108102

knowledge

of

the

relevant facts but does not require subjective appreciation of the
ordinary consequences of those facts."

Id. at 10; see also id. at

12 (noting that an element of section 245(a)(1) is the fact that
"when the defendant acted, he or she . . . was aware of facts that
would lead a reasonable person to realize that his or her act by
its nature would directly and probably result in the application
of

force

to

someone"

but

that

the

defendant

need

not

have

"subjectively perceive[d] the risk posed by his or her conduct").
While the mens rea requirements of CPC section 245(a)(1)
and Massachusetts reckless ABDW do share that commonality, the
government leaves unaddressed other aspects of Matter of Wu that
complicate matters.

For one, the government does not comment on

the extent to which the BIA's holding in Matter of Wu relies on
the Ninth Circuit's reading of the mental state required for a
conviction under section 245(a)(1).

See id. at 13–14, 14 nn.8–9

(discussing United States v. Grajeda, 581 F.3d 1186 (9th Cir.
2009)).

Nor does the government address the BIA's caveat that it

"would reach a different conclusion if faced with a statute, such
as one criminalizing driving under the influence . . . , that does
not require knowledge that the conduct is itself dangerous or of
the facts that make the proscribed conduct dangerous."

Id. at 14–

15 n.10; accord United States v. Hart, 674 F.3d 33, 43 n.8 (1st
Cir.

2012)

(noting

that

"[i]n

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Massachusetts,

conduct

that

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underlies a conviction for operating under the influence . . . and
causing serious bodily injury may also be charged as ABDW" and
collecting cases).

As the government has not fully briefed these

issues, Matter of Wu does not alleviate our uncertainty about the
BIA's views on Massachusetts law on recklessness.

Simply put, we

are left with too many questions about the BIA's thinking on the
mental state required for a Massachusetts reckless ABDW conviction
and cannot proceed with reviewing the BIA's CIMT determination
before those questions are resolved.3
Accordingly, we remand so that the BIA can consider the
following three issues: First, what is the effect, if any, of
Matter

of

Wu

on

the

categorically a CIMT?

outcome

that

Massachusetts

ABDW

is

Second, how does Welansky's prescription

-- that a defendant "so stupid or so heedless that . . . he did
not realize" the risk posed by his conduct can nonetheless be
deemed to have acted recklessly, so long as "an ordinary normal
man under the same circumstances would have realized" the risk -impact the BIA's analysis of the moral depravity of Massachusetts

3

We acknowledge how much Coelho's removal proceedings
have been prolonged. After all, his ABDW conviction occurred more
than two decades ago, removal proceedings were instituted seven
years ago, the IJ ruled against him five years ago, and proceedings
in this court started almost four years ago. Much of that delay,
however, was occasioned by the government, which sought two remands
to the BIA prior to the instant petition.

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reckless ABDW?

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55 N.E.2d at 910 (alterations omitted).

Entry ID: 6108102

Finally,

was Coelho convicted of intentional or reckless ABDW?4
III.
We vacate the BIA's September 7, 2016 opinion, the effect
of which was to render Coelho ineligible for cancellation of
removal, and remand for further proceedings consistent with our
opinion.

4

We include this final question because the BIA's answer
may obviate the need for us to address whether Massachusetts
reckless ABDW is categorically a CIMT once this case returns to
us.
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