Sotnikau v. Lynch, 012417 FED4, 15-2073

Attorney: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. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Office of Immigration Liti...
Judge Panel:Before NIEMEYER, KING, and AGEE, Circuit Judges.
Opinion Judge:KING, CIRCUIT JUDGE:
Party Name:IHAR SOTNIKAU, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent.
Case Date:January 24, 2017
Docket Nº:15-2073
 
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IHAR SOTNIKAU, Petitioner,

v.

LORETTA E. LYNCH, Attorney General, Respondent.

No. 15-2073

United States Court of Appeals, Fourth Circuit

January 24, 2017

          Argued: December 8, 2016

         On Petition for Review of an Order of the Board of Immigration Appeals.

         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:

          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.

          Mary Patrice Brown, O'MELVENY & MYERS LLP, Washington, D.C., for Petitioner.

          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.

          KING, CIRCUIT JUDGE:

         After pleading guilty to involuntary manslaughter under Virginia law, Ihar Sotnikau - a native of Belarus who was admitted to the United States as a lawful permanent resident in 2008 - was subjected to removal proceedings. The Department of Homeland Security (the "DHS") instituted those proceedings because, in its view, Virginia's involuntary 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 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 at the pier and that Hines had died. That individual promptly relayed Sotnikau's remarks to the authorities. 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 Virginia of a crime involving moral turpitude committed within five years of being admitted to the United States. 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.

         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 ...

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