Prudencio v. Holder

• Citation: 669 F.3d 472
• Decision Date: 30 January 2012
• Docket Number: No. 10–2382.,10–2382.
• Parties: Ricardo A. PRUDENCIO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.Immigrant Defense Project; National Immigration Project of the National Lawyers Guild; Immigrant Legal Resource Center; Kathryn O. Greenberg Immigration Justice Clinic of the Benjamin N. Cardozo School of Law, Amici Supporting Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

669 F.3d 472

Ricardo A. PRUDENCIO, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.Immigrant Defense Project; National Immigration Project of the National Lawyers Guild; Immigrant Legal Resource Center; Kathryn O. Greenberg Immigration Justice Clinic of the Benjamin N. Cardozo School of Law, Amici Supporting Petitioner.

No. 10–2382.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 21, 2011.Decided: Jan. 30, 2012.

ARGUED: Hilario Mercado, Jr., Mercado Law Firm, PLC, Falls Church, Virginia, for Petitioner. Jesse Matthew Bless, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Tony West, Assistant Attorney General, Civil Division, Jennifer Paisner–Williams, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent. Peter L. Markowitz, Benjamin N. Cardozo School of Law, New York, New York, for Amici Supporting Petitioner.

Before TRAXLER, Chief Judge, and SHEDD and KEENAN, Circuit Judges.

Petition granted; vacated and final judgment by published opinion. Judge KEENAN wrote the opinion, in which Chief Judge TRAXLER joined. Judge SHEDD wrote a dissenting opinion.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

Ricardo A. Prudencio is a native and citizen of El Salvador who has been granted lawful permanent resident alien status in the United States. He petitions this Court for review of a decision of the Board of Immigration Appeals (the Board), in which the Board dismissed his appeal from an immigration judge's decision classifying him as an alien subject to removal under section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(i).

The order of removal was based on the immigration judge's determination that Prudencio previously had been convicted of a crime involving moral turpitude. In making this determination, the immigration judge considered information obtained using the three-step procedural framework established by the Attorney General in Matter of Silva–Trevino, 24 I. & N. Dec. 687 (A.G.2008). Because we conclude that the moral turpitude provisions of the INA are not ambiguous and do not contain any gap requiring agency clarification, we hold that the procedural framework established in Silva–Trevino was not an authorized exercise of the Attorney General's authority under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Accordingly, we grant Prudencio's petition and vacate the Board's decision and the order providing for Prudencio's removal.

I.

Before the decision in Silva–Trevino, the majority of our sister circuits applied the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), in determining whether an alien's prior conviction qualified as a crime involving moral turpitude under the INA. The Attorney General purported to alter application of these traditional approaches in Silva–Trevino. Primarily, the Attorney General concluded that if, after application of the categorical and modified categorical approaches, an alien's record of conviction still is inconclusive, immigration judges should engage in an additional third step of analysis and “consider any additional evidence the adjudicator determines is necessary or appropriate” to resolve whether the alien was convicted of a crime involving moral turpitude. 24 I. & N. Dec. at 704.

II.

Prudencio was accorded lawful permanent resident alien status in September 2005. In October 2009, he was charged in Prince William County, Virginia, with a violation of Virginia Code § 18.2–63 for the carnal knowledge, without the use of force, of a 13–year–old child (the carnal knowledge statute). In March 2010, in the Prince William County Juvenile and Domestic Relations District Court, Prudencio pleaded guilty to the amended charge of contributing to the delinquency of a minor (the 2010 conviction), in violation of Virginia Code § 18.2–371 (the delinquency statute), a misdemeanor. He received a sentence of 12 months' incarceration with six months suspended.

In June 2010, the Department of Homeland Security (DHS) initiated removal proceedings against Prudencio under 8 U.S.C. § 1227(a)(2)(A)(i).¹ DHS argued that Prudencio was subject to removal because, within five years of his admission into the United States, he had been convicted of a crime involving moral turpitude for which a sentence of one year or longer could have been imposed. DHS based its action on Prudencio's conviction under the delinquency statute, which provides in relevant part:

Any person 18 years of age or older, including the parent of any child, who (i) willfully contributes to, encourages, or causes any act, omission, or condition which renders a child delinquent, in need of services, in need of supervision, or abused or neglected as defined in § 16.1–228, or (ii) engages in consensual sexual intercourse with a child 15 or older not his spouse, child, or grandchild, shall be guilty of a Class 1 misdemeanor.Va.Code § 18.2–371.

In considering DHS's request for removal, the immigration judge used the three-step procedural framework established by the Attorney General in Silva–Trevino. Under this procedural framework, the immigration judge first applied the categorical approach approved in Taylor and Shepard to determine if every conviction under the delinquency statute inherently involved moral turpitude. Because he concluded that the statute was divisible, encompassing some crimes that involve moral turpitude and others that do not, the immigration judge proceeded to the second step of the Silva–Trevino framework, under which he applied the modified categorical approach articulated in Taylor and Shepard and reviewed Prudencio's record of conviction. Upon determining that the record of conviction was inconclusive, the immigration judge proceeded to apply the third step of the Silva–Trevino procedural framework.

Pursuant to this third step, when the record of conviction does not establish conclusively under which portion of a divisible statute an alien was convicted, the Attorney General has authorized immigration judges to consider evidence beyond the record of conviction to the extent they deem it “necessary and appropriate.” ² Silva–Trevino, 24 I. & N. Dec. at 690. Applying this third step in the present case, the immigration judge reviewed the narrative report prepared by the Prince William County Police Department relating to the 2010 conviction, which indicated that Prudencio had sexual relations with a 13–year–old girl when he was over the age of 18. Based on this information, the immigration judge sustained the removal charge and ordered that Prudencio be removed to El Salvador.

Prudencio appealed the order of removability to the Board, advancing two main arguments. First, he challenged the procedural framework established in Silva–Trevino, asserting that the framework was predicated on an impermissible reading of the INA. Second, he contended that the documents reviewed by the immigration judge under the third step of the Silva–Trevino framework conclusively established that Prudencio was convicted under subsection (i) of the delinquency statute, which does not encompass crimes involving moral turpitude.

Prudencio argued that only a conviction under subsection (ii) of the delinquency statute, involving consensual sexual intercourse with a child 15 or older, qualified as a crime involving moral turpitude. Because the documents considered by the immigration judge showed that the victim was not 15 years of age or older, Prudencio asserted that he could not have been convicted under subsection (ii) of the delinquency statute and, therefore, must have been convicted under subsection (i) of that statute.

The Board rejected Prudencio's arguments and dismissed his appeal. In reaching its decision, the Board upheld the immigration judge's application of the three-step procedural framework established in Silva–Trevino. The Board further concluded that Prudencio did “not dispute the immigration judge's findings of fact,” and that Prudencio had acknowledged that his initial charge under the carnal knowledge statute was based on a sexual encounter with a female minor.

III.

A.

Prudencio argues on appeal that we should not defer to the Silva–Trevino procedural framework, but instead should limit our review to the categorical and modified categorical approaches in determining whether he was convicted of a crime involving moral turpitude. Prudencio contends that under either of these approaches, his conviction cannot be classified as a crime involving moral turpitude.

Because the Silva–Trevino procedural framework is central to the resolution of this appeal, we begin our analysis with a review of that case. Cristoval Silva–Trevino was a native of Mexico admitted to the United States as a lawful permanent resident. Silva–Trevino, 24 I. & N. Dec. at 690. In 2004, he entered a plea of “no contest” in a Texas state court to the felony offense of “indecency with a child,” in violation of Texas Penal Code § 21.11(a)(1). Silva–Trevino, 24 I. & N. Dec. at 690. That statute prohibits, among other things, sexual contact with a child younger than 17 years of age by a person at least three years older who is not married to the child. Tex. Penal Code Ann. § 21.11(a)(1).

Arguing that Silva–Trevino had been convicted of an aggravated felony, DHS began removal proceedings against him the following year under 8 U.S.C. § 1227(a)(2)(A)(iii). Silva–Trevino, 24 I. & N. Dec. at 691. The immigration court determined that Silva–Trevino's conviction was categorically a crime involving moral turpitude, rendering him ineligible for adjustment of status. Id. Therefore, the immigration court ordered his removal from the United...