Ihar Sotnikau v. Loretta E. Lynch
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: A 059-467-652. [1000008964]. [15-2073]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2073
IHAR SOTNIKAU,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued:
December 8, 2016
Decided:
January 24, 2017
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Petition for review granted; vacated and remanded by published
opinion. Judge King wrote the opinion, in which Judge Niemeyer
and Judge Agee joined.
ARGUED: Jason Matthew Zarrow, O’MELVENY & MYERS LLP, Washington,
D.C., for Petitioner.
Keith Ian McManus, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON
BRIEF: Mary Patrice Brown, O’MELVENY & MYERS LLP, Washington,
D.C., for Petitioner.
Benjamin C. Mizer, Principal Deputy
Assistant
Attorney
General,
Cindy
S.
Ferrier,
Assistant
Director, Office of Immigration Litigation, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
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KING, Circuit Judge:
After
Virginia
pleading
law,
Ihar
guilty
to
Sotnikau
involuntary
—
a
native
manslaughter
of
Belarus
under
who
was
admitted to the United States as a lawful permanent resident in
2008 — was subjected to removal proceedings.
Homeland
Security
(the
because,
in
view,
its
“DHS”)
instituted
Virginia’s
The Department of
those
involuntary
proceedings
manslaughter
offense constitutes a crime involving moral turpitude.
Sotnikau
sought asylum, withholding of removal, and protection under the
Convention
Against
Torture
(the
“CAT”),
contesting
the
DHS’s
interpretation of Virginia’s involuntary manslaughter offense.
After various proceedings, an immigration judge (the “IJ”) and
the Board of Immigration Appeals (the “BIA”) rejected Sotnikau’s
applications, deeming him subject to removal.
Importantly, both
the IJ and the BIA concluded that involuntary manslaughter as
defined by Virginia law is categorically a crime involving moral
turpitude.
As explained below, that ruling was erroneous, and
we therefore grant Sotnikau’s petition for review, vacate the
order of removal, and remand.
I.
In
the
early
hours
of
June
18,
2010,
Sotnikau
and
his
friend Randy Hines were drinking on a pier along the Elizabeth
River in Portsmouth, Virginia.
At some point, Hines fell down a
2
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series of concrete steps and into the river.
After fruitless
efforts to locate Hines in the river’s dark waters, Sotnikau
retreated to a local homeless shelter.
He did not otherwise
seek assistance or alert the authorities.
At the shelter, someone overheard Sotnikau relating what
had
occurred
individual
at
the
promptly
authorities.
pier
and
relayed
that
Hines
Sotnikau’s
had
died.
remarks
That
to
the
Thereafter, the police located Sotnikau, took him
into custody, and questioned him.
Sotnikau then related to the
police what had transpired at the pier.
Hines’s body was found
in the Elizabeth River on June 19, 2010.
Sotnikau was charged
with involuntary manslaughter by way of a one-count indictment
in the Circuit Court of the City of Portsmouth.
He pleaded
guilty and was sentenced to five years in prison.
On October 21, 2011, the DHS instituted removal proceedings
against Sotnikau, alleging removability based on his having been
convicted
in
committed
within
States.
Virginia
five
of
a
years
crime
of
involving
being
admitted
moral
to
turpitude
the
United
See 8 U.S.C. § 1227(a)(2)(A)(i)(I) (rendering removable
an alien who “is convicted of a crime involving moral turpitude
committed within five years . . . after the date of admission”).
On August 14, 2012, the IJ issued an oral decision (the “Initial
IJ Decision”), which summarily denied Sotnikau’s requests for
asylum, withholding of removal, and protection under the CAT.
3
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Sotnikau appealed the Initial IJ Decision to the BIA.
In
its January 8, 2013 order (the “Initial BIA Order”), the BIA
observed that the IJ had failed to “set forth his reasoning as
to why he ruled that the respondent was convicted of a [crime
involving moral turpitude].”
See Initial BIA Order 1.
In the
absence of a reasoned opinion, the BIA found itself unable to
review the matter and, for that and other reasons, remanded to
the IJ for further proceedings.
At the conclusion of the remand proceedings, by his March
26,
2013
decision
(the
“Remand
IJ
Decision”),
the
IJ
again
concluded that Sotnikau had been convicted of a crime involving
moral
turpitude,
offense.
i.e.,
After
Virginia’s
outlining
involuntary
Virginia
law
manslaughter
on
involuntary
manslaughter, the IJ discussed the BIA’s 1994 decision in In re
Franklin,
20
explained,
I.
the
&
N.
867
had
BIA
Dec.
(BIA
1994).
concluded
that
There,
an
the
IJ
involuntary
manslaughter offense in Missouri constituted a crime involving
moral
turpitude
involuntary
manslaughter
another person.’”
Remand
IJ
because
“the
as
Missouri
‘recklessly
causing
See Remand IJ Decision 3.
Decision,
the
mental
state
statute
the
defined
death
of
According to the
required
to
support
a
conviction for involuntary manslaughter under Virginia law is
identical to the mental state at issue in the Franklin decision,
rendering
Virginia’s
involuntary
4
manslaughter
offense
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categorically a crime involving moral turpitude.
See id.
The
IJ also determined that Sotnikau is ineligible for withholding
of removal because the crime for which he was convicted was
“particularly
Nationality
serious.”
Act
See
id.
§ 241(b)(3)(B),
8
(citing
U.S.C.
Immigration
and
§ 1231(b)(3)(B)).
Thereafter, Sotnikau moved for reconsideration of the Remand IJ
Decision, but the IJ denied that motion.
Again,
Sotnikau
appealed
to
the
BIA.
By
its
order
of
August 14, 2015 (the “Final BIA Order”), the BIA affirmed the
Remand IJ Decision.
Like the Remand IJ Decision, the Final BIA
Order — which is the subject of the pending petition for review
— ruled that the Franklin decision controls the outcome of this
matter:
“[W]e
conclude
that
the
offense
of
involuntary
manslaughter in Virginia contains all of the requisite elements
outlined in [Franklin] to make the offense categorically qualify
as a crime involving moral turpitude.”
See Final BIA Order 3-4.
The BIA therein also approved of the IJ’s determination that
Sotnikau had been convicted of a particularly serious crime,
making both withholding of removal and asylum unavailable to
him.
As
a
result,
the
BIA
dismissed
Sotnikau’s
appeal
and
ordered his removal. 1
1
As the Final BIA Order explained, the IJ had theretofore,
on September 19, 2013, deferred removal of Sotnikau, having
granted his application for relief under the CAT. See Final BIA
(Continued)
5
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Sotnikau has timely petitioned this Court for review of the
Final BIA Order.
Our jurisdiction in this matter is provided by
8 U.S.C. § 1252.
II.
The
dispositive
issue
in
this
proceeding
is
whether
Sotnikau is subject to removal because involuntary manslaughter
under
Virginia
turpitude. 2
law
is
categorically
a
crime
involving
moral
Whether a crime is one involving moral turpitude, as
that term is used in 8 U.S.C. § 1227(a)(2)(A)(i), “is a question
of law that we review de novo.”
885,
888
(4th
Cir.
2014).
See Mohamed v. Holder, 769 F.3d
To
resolve
that
question,
we
“consider only the statutory elements, not the facts underlying
the particular violation of the statute.”
Id.
Order 1 n.1 (“Neither party has appealed the [IJ’s] decision to
grant deferral of removal [under the CAT], and therefore, that
application is not before us.”).
The CAT application is not
otherwise considered in the Remand IJ Order or the Final BIA
Order.
2
By his petition for review, Sotnikau also seeks to
litigate a second issue, contending that he is entitled to
asylum or withholding of removal because both the IJ and the BIA
erroneously
determined
that
his
involuntary
manslaughter
conviction constituted a particularly serious crime. We do not
address that issue, however, because we conclude that Sotnikau
is not subject to removal.
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III.
The order of removal with respect to Sotnikau is predicated
on 8 U.S.C. § 1227(a)(2)(A)(i), pursuant to which an alien is
subject to removal if he “is convicted of a crime involving
moral turpitude committed within five years . . . after the date
of admission” and “for which a sentence of one year or longer
may
be
imposed.”
It
is
readily
apparent
that
the
temporal
aspect of that statutory provision is satisfied in this matter:
Sotnikau was admitted to the United States as a lawful permanent
resident in April 2008 and committed the relevant crime in June
2010.
The same is true for the sentence component of that
provision: involuntary manslaughter carries a penalty of “not
less
than
one
§ 18.2-10(e)
year
nor
more
(specifying
than
10
permissible
years.”
See
punishment
for
Va.
Code
Class
5
felony); see also Va. Code § 18.2-36 (“Involuntary manslaughter
is punishable as a Class 5 felony.”).
Sotnikau
involuntary
contends
manslaughter
in
his
petition
offense
under
for
review
Virginia
constitute a crime involving moral turpitude.
law
that
his
does
not
The Remand IJ
Decision and the Final BIA Order ruled otherwise, concluding
that Virginia’s involuntary manslaughter offense constitutes a
crime involving moral turpitude.
They reached that conclusion
on the basis of the BIA’s decision in In re Franklin, 20 I. & N.
Dec. 867 (BIA 1994), reasoning that “involuntary manslaughter in
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Virginia
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has
the
manslaughter
in
same
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essential
Missouri,
an
elements
offense
as
that
involuntary
the
qualifies as a crime involving moral turpitude.”
[BIA]
found
See Final BIA
Order 3; see also Remand IJ Decision 3.
We
are
thus
involuntary
called
manslaughter
upon
to
decide
offense
is
whether
one
the
Virginia
involving
moral
turpitude.
In so doing, we are obliged to utilize a categorical
approach.
See Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir.
2012).
That is, we look at the elements of the crime at issue
and determine whether those elements solely encompass behavior
that
involves
moral
categorically
one
elements
turpitude.
include
can
involving
If
moral
behavior
they
do,
turpitude.
that
does
not
the
crime
is
But
if
those
involve
moral
turpitude, the crime is not categorically one involving moral
turpitude.
In
order
to
properly
interpret
Virginia’s
involuntary
manslaughter offense, we must first understand the meaning of
“moral
involve
turpitude.”
conduct
that
A
crime
not
involving
only
moral
violates
independently violates a moral norm.”
a
turpitude
statute
but
“must
also
See Mohamed v. Holder,
769 F.3d 885, 888 (4th Cir. 2014); see also id. (“[W]e have
noted that ‘moral turpitude’ refers generally to ‘conduct that
shocks the public conscience as being inherently base, vile, or
depraved.’” (quoting Medina v. United States, 259 F.3d 220, 227
8
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Cir.
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2001))).
That
Pg: 9 of 14
is
to
say,
“[t]o
involve
turpitude, a crime requires two essential elements:
mental state and reprehensible conduct.”
I. & N. Dec. 99, 100 (BIA 2013).
moral
a culpable
In re Ortega-Lopez, 26
Accordingly, “[w]here knowing
or intentional conduct is an element of an offense,” the BIA has
“found
moral
Contreras,
turpitude
20
circumstances
I.
&
N.
include
to
be
present.”
Dec.
615,
criminally
618
See
(BIA
reckless
In
re
Perez-
1992).
Those
conduct,
which
“reflect[s] a willingness to disregard the risks inherent in the
conduct.”
is
not
Id.
Criminally negligent conduct, on the other hand,
included
because
“there
[is]
no
intent
required
for
conviction, nor any conscious disregard of a substantial and
unjustifiable risk.”
With
the
Id. at 619.
foregoing
principles
in
mind,
we
turn
to
the
elements of the crime of involuntary manslaughter in Virginia.
Under
the
Code
of
Virginia,
punishable as a felony.
involuntary
manslaughter
See Va. Code § 18.2-36.
is
The Supreme
Court of Virginia has defined involuntary manslaughter as “the
accidental killing of a person, contrary to the intention of the
parties,
during
felonious,
act,
the
or
prosecution
during
the
of
an
improper
unlawful,
but
performance
of
not
some
lawful act.”
See Gooden v. Commonwealth, 311 S.E.2d 780, 784
(Va. 1984).
In Virginia, a defendant can be convicted of an
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involuntary
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manslaughter
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offense
upon
a
showing
of
criminal
negligence, which occurs
when acts of a wanton or willful character, committed
or omitted, show a reckless or indifferent disregard
of
the
rights
of
others,
under
circumstances
reasonably calculated to produce injury, or which make
it not improbable that injury will be occasioned, and
the offender knows, or is charged with the knowledge
of, the probable results of his [or her] acts.
See
Noakes
v.
Commonwealth,
(alteration
in
original)
marks omitted).
699
S.E.2d
(emphasis
284,
added)
288
(Va.
(internal
2010)
quotation
In simpler terms, an involuntary manslaughter
conviction in Virginia requires that “the offender either knew
or should have known the probable results of his acts.”
See
Conrad v. Commonwealth, 521 S.E.2d 321, 326 (Va. Ct. App. 1999
(en banc)).
An involuntary manslaughter conviction can be secured in
Virginia
without
proving
a
conscious
disregard
of
risks
attendant to the offender’s conduct; such a conviction can be
predicated on proof that the offender failed to appreciate or be
aware of the risks emanating from his conduct.
S.E.2d
at
289.
Contreras,
that
offense
from
Pursuant
removes
the
realm
the
of
to
the
BIA’s
Virginia
those
See Noakes, 699
decision
involuntary
crimes
that
in
Perez-
manslaughter
categorically
involve moral turpitude.
In its Perez-Contreras decision in 1992, the BIA decided
that
an
assault
offense
in
the
10
State
of
Washington
did
not
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constitute a crime involving moral turpitude.
That was because
a conviction of the assault offense could be based on a showing
of
criminal
negligence,
which
“exists
when
the
perpetrator
‘fails to be aware of a substantial risk that a wrongful act may
occur
and
his
failure
to
be
aware
of
such
substantial
risk
constitutes a gross deviation from the standard of care that a
reasonable
man
would
exercise
in
the
same
situation.’”
See
Perez-Contreras, 20 I. & N. at 618 (quoting Wash. Rev. Code
§ 9A.08.010(1)(d)).
The BIA explained that, “[s]ince there was
no intent required for conviction, nor any conscious disregard
of
a
substantial
and
unjustifiable
turpitude inherent in the statute.”
Virginia’s
materially
assault
involuntary
different
offense
from
Washington
the
we
find
no
moral
Id. at 619.
manslaughter
the
underlying
risk,
offense
is
not
Like
the
decision,
the
offense.
Perez-Contreras
crime at issue here can be predicated on the offender’s failure
to be aware of the risks attendant to his actions.
Contreras,
20
I.
&
N.
Dec.
at
618
(observing
See Perez-
that
criminal
negligence exists when “the perpetrator ‘fails to be aware of a
substantial risk’” (quoting Wash. Rev. Code § 9A.08.010(1)(d)));
see also Conrad, 521 S.E.2d at 326 (recognizing that criminal
negligence
probable
arises
results
when
of
his
the
offender
acts”).
As
“should
in
the
have
known
the
Perez-Contreras
decision, Sotnikau’s involuntary manslaughter offense could have
11
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been
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proven
Pg: 12 of 14
Virginia
without
under
consciously
disregarded
law
any
a
showing
particularly
that
serious
he
risks.
Accordingly, Virginia’s involuntary manslaughter offense is not
categorically a crime involving moral turpitude.
Notwithstanding the views expressed by the IJ and the BIA
in the underlying proceedings, the BIA’s Franklin decision does
not
compel
recognized
a
conclusion
that
“[r]ecklessly
to
Missouri
caus[ing]
the
contrary.
involuntary
defined
the
death
There,
manslaughter
of
another
the
person.”
BIA
as
See
Franklin, 20 I. & N. Dec. at 870 (first alteration in original)
(quoting Mo. Rev. Stat. § 562.016(4)).
in
Franklin
that
“essentially
Missouri’s
identical”
to
The BIA further observed
definition
the
of
“recklessness”
definitions
of
is
recklessness
construed in its other cases — “a conscious disregard for a
substantial
and
unjustifiable
risk,
where
the
disregard
constitutes a gross deviation from the standard of care which a
reasonable person would employ.”
Id. (citing In re Wojtkow, 18
I. & N. Dec. 111 (BIA 1981); In re Medina, 15 I. & N. Dec. 611
(BIA
1976)).
The
BIA
therefore
reasoned
in
Franklin
that,
“because the statute under which the respondent was convicted
requires
that
she
acted
with
a
‘conscious
disregard
of
a
substantial and unjustifiable risk,’ the conclusion necessarily
follows that she has been convicted of a crime involving moral
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turpitude.”
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Id. (quoting Perez-Contreras, 20 I. & N. Dec. at
619).
As
we
consciously
have
already
disregard
a
explained,
risk
to
involuntary manslaughter offense.
at 326.
a
be
defendant
convicted
of
need
not
Virginia’s
See, e.g., Conrad, 521 S.E.2d
Because the definition of involuntary manslaughter in
Virginia is materially distinguishable from the definition of
involuntary manslaughter in Missouri, the Franklin decision does
not control the outcome of this matter.
failed
to
recognize
definitions
incorrectly
of
outcome
material
involuntary
conclude
here.
principles
that
Nor
applied
in
the
the
differences
between
the
leading
them
to
decision
controls
the
decision
jettison
the
manslaughter,
the
did
The IJ and the BIA
Franklin
Franklin
Perez-Contreras
decision.
two
To
the
contrary, the Franklin decision reaffirmed those principles but
distinguished
Washington
the
decision.
offense
Missouri
that
crime
was
at
then
issue
under
in
review
the
from
the
Perez-Contreras
See Franklin, 20 I. & N. Dec. at 870.
Crimes involving criminal negligence — like the Virginia
involuntary manslaughter offense — are generally excluded from
the category of crimes that involve moral turpitude.
See, e.g.,
Rodriguez-Castro v. Gonzales, 427 F.3d 316, 323 (5th Cir. 2005)
(collecting
crimes
decisions
usually
do
and
not
recognizing
amount
13
to
that
[crimes
“negligence-based
involving
moral
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turpitude]”).
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There is simply no reason for us to depart from
that practice here.
rule
recognized
“Since
there
Pg: 14 of 14
by
was
Instead, we will adhere to the applicable
the
no
BIA
intent
in
the
Perez-Contreras
required
for
decision:
conviction,
nor
any
conscious disregard of a substantial and unjustifiable risk, we
find no moral turpitude inherent in the statute.”
Contreras, 20 I. & N. Dec. at 619.
manslaughter
under
constitute
a
conviction
thereof
negligence.
crime
Virginia
can
be
Put succinctly, involuntary
law
involving
See Perez-
does
moral
not
categorically
turpitude
predicated
on
because
mere
a
criminal
We are therefore satisfied that Sotnikau is not
subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(i).
IV.
Pursuant
to
the
foregoing,
we
grant
the
petition
for
review, vacate the Final BIA Order, and remand for such other
and further proceedings as may be appropriate.
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED
14
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