Ramirez v. Sessions

• Decision Date: 17 April 2018
• Docket Number: No. 16-2444,16-2444
• Citation: 887 F.3d 693
• Parties: Jose Luis RAMIREZ, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

887 F.3d 693

Jose Luis RAMIREZ, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 16-2444

United States Court of Appeals, Fourth Circuit.

Argued: December 5, 2017

Decided: April 17, 2018

Amended: June 7, 2018

ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Vanessa M. Otero, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Chad A. Readler, Acting Assistant Attorney General, Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before GREGORY, Chief Judge, MOTZ and TRAXLER, Circuit Judges.

Petition for review granted, order of removal vacated, and remanded with directions by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Motz and Judge Traxler joined.

GREGORY, Chief Judge:

Jose Ramirez seeks review of the decision of the Board of Immigration Appeals (BIA) finding him ineligible for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA). Specifically, the question is whether Ramirez's convictions for obstruction of justice pursuant to Va. Code Ann. § 18.2-460(A) qualify as crimes involving moral turpitude (CIMTs). We hold that obstruction of justice under § 18.2-460(A) is not a CIMT because it may be committed without fraud, deception, or any other aggravating element that shocks the public conscience. We therefore grant Ramirez's petition for review, vacate the BIA's order of removal, and remand with directions for the Government to facilitate Ramirez's return to the United States to participate in further proceedings.

I.

Jose Ramirez, a citizen of El Salvador, first entered the United States in 1996 when he was seventeen years old. Nearly twenty years later, Ramirez was placed in removal proceedings and charged with being present in the United States without being admitted or paroled under 8 U.S.C. § 1182(a)(6)(A)(i). At his hearing, Ramirez conceded that he had entered the country unlawfully. A.R. 69.

Ramirez then applied for special rule cancellation of removal under section 203 of NACARA, Pub. L. No. 105-100, 111 Stat. 2160, 2196–2199 (1997). Section 203 allows certain nationals from El Salvador and other designated countries to apply for suspension of deportation or special rule cancellation of removal and adjust their status to permanent residency. See id . To qualify under NACARA, an alien ordinarily must establish at least seven years of continuous presence in the United States, among other eligibility criteria. 8 C.F.R. § 1240.66(b)(2)–(4). However, an applicant who is inadmissible or removable for having committed a CIMT must establish at least ten years of continuous presence after becoming inadmissible or removable. See Matter of Castro–Lopez , 26 I & N Dec. 693, 693 (BIA 2015) ; 8 C.F.R. §§ 1240.66(b) and (c).

The Department of Homeland Security (DHS) moved to pretermit Ramirez's application for relief under NACARA, arguing that his prior convictions triggered the ten-year requirement. In 2012, Ramirez was convicted of one count of petit larceny under Va. Code Ann. § 18.2-96 and two counts of obstruction of justice under § 18.2-460(A). A.R. 135, 138, 144. DHS argued that those convictions qualified as CIMTs, thereby subjecting Ramirez to the ten-year physical presence requirement, which he could not meet.¹ The decision turned on whether the obstruction offenses were CIMTs because petit larceny, which Ramirez conceded was a CIMT, was not independently sufficient to trigger inadmissibility and the heightened ten-year requirement.²

The Immigration Judge (IJ) concluded that obstruction of justice under Va. Code Ann. § 18.2-460(A) was a CIMT. In a brief oral decision, the IJ reasoned that "the statute requires an act indicating an intention to prevent an officer from performing his or her duties and that such impairing or obstructing an officer is morally turpitudinous." A.R. 64. The IJ then found that Ramirez was removable and did not qualify for relief under section 203 of NACARA. A.R. 65.

In a brief single-member decision, the BIA agreed that obstruction under § 18.2-460(A) was a CIMT and affirmed. A.R. 3–4. In response, Ramirez filed a motion for a stay of removal with this Court. This Court denied the motion, and Ramirez was removed to El Salvador.

Ramirez filed a timely petition for review with this Court. In his petition, Ramirez argues that the BIA erred in finding that obstruction of justice under Va. Code Ann. § 18.2-460(A) was a CIMT. Ramirez also asks this Court to order the Government to facilitate his return to the United States. In response, the Government argues that this Court lacks jurisdiction because Ramirez has failed to exhaust his administrative remedies, that the BIA did not err, and that ordering Ramirez's return is unnecessary.

II.

Before assessing the merits of Ramirez's claims, "[w]e first consider whether we have jurisdiction" over his petition for review. Etienne v. Lynch , 813 F.3d 135, 138 (4th Cir. 2015). When Congress passed the REAL ID Act in 2005, it limited our jurisdiction over certain final orders of removal. Kporlor v. Holder , 597 F.3d 222, 225–26 (4th Cir. 2010) (citing 8 U.S.C. § 1252(a)(2) ). However, we retain jurisdiction "to review constitutional claims or questions of law," provided that the petitioner has complied with the administrative exhaustion requirement. 8 U.S.C. § 1252(a)(2)(D) ; Etienne , 813 F.3d at 138. As the Government rightly concedes, determining whether a crime involves moral turpitude is a question of law. Gov. Br. at 3; see Mbea v. Gonzales , 482 F.3d 276, 277–78 & n.1 (4th Cir. 2007). But, the Government argues, that this Court lacks jurisdiction because Ramirez failed to exhaust his administrative remedies. For the reasons below, we conclude that Ramirez has complied with the exhaustion requirement and that this Court has jurisdiction over his petition for review.

"A court may review a final order of removal against an alien only if ‘the alien has exhausted all administrative remedies available to the alien as of right.’ " Etienne , 813 F.3d at 138 (quoting 8 U.S.C. § 1252(d)(1) ). "When an alien has an opportunity to raise a claim in administrative proceedings but does not do so, he fails to exhaust his administrative remedies as to that claim." Id .

However, § 1252 only prohibits "the consideration of bases for relief that were not raised below, and of general issues that were not raised below, but not of specific, subsidiary legal arguments, or arguments by extension, that were not made below." Gill v.INS , 420 F.3d 82, 86 (2d Cir. 2005) ; see also Garcia v. Lynch , 786 F.3d 789, 792–93 (9th Cir. 2015) (holding that petitioner satisfied exhaustion requirement by raising argument during administrative proceedings, albeit in limited way); Chuen Piu Kwong v. Holder , 671 F.3d 872, 877 (9th Cir. 2011) (holding that general challenge to sufficiency of evidence to support finding by IJ as to aggravated felony conviction was sufficient to meet exhaustion requirement, even though petitioner raised issue below in "slightly different manner"), cert. denied 570 U.S. 931, 133 S.Ct. 2885, 186 L.Ed.2d 933 (2013) ; Higgs v. Atty. Gen. of the U.S. , 655 F.3d 333, 338 (3d Cir. 2011) (finding that exhaustion requirement is met if petitioner made "some effort, however insufficient, to place the BIA on notice of a straightforward issue being raised on appeal" (citation omitted) ); Dale v. Holder , 610 F.3d 294, 300–01 (5th Cir. 2010) ("[A]lthough the argument [petitioner] presented to the BIA is not identical to that which he raises in his petition for review, the arguments are sufficiently related to establish that [he] presented his ground for relief to the administrative agency in the first instance." (internal quotation marks omitted) ).

The Government does not dispute that Ramirez argued below that obstruction of justice under Virginia law is not a CIMT. A.R. 31. Instead, the Government argues that administrative exhaustion bars Ramirez's appellate counsel from making more specific and nuanced points to demonstrate how and why obstruction is not a CIMT. In particular, the Government takes issue with appellate counsel citing certain cases for the first time on appeal in order to elaborate on the breadth of the Virginia statute. The Government has not provided any basis for applying the exhaustion requirement at this level of granularity.³ Indeed, such an approach would strip appellate counsel's ability to bolster existing arguments—and limit the universe of available case law and precedent to those already cited below. Cf. Massis v. Mukasey , 549 F.3d 631, 638 (4th Cir. 2008) (finding lack of exhaustion because petitioner completely failed to contest below whether reckless endangerment was crime of violence). No decision of this Court has so undermined the basics of appellate advocacy and review, and we, like our sister circuits, decline the Government's invitation to do so.

We therefore conclude that Ramirez satisfied the exhaustion requirement under § 1252(d)(1) when he argued below that obstruction of justice is not a CIMT. Accordingly, we have jurisdiction over this question of law.

III.

We now turn to the merits of Ramirez's argument. The dispositive issue is whether obstruction of justice under Va. Code Ann. § 18.2-460(A) is categorically a crime involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I). The obstruction statute provides,

If any person ... knowingly obstructs ... any law-enforcement officer ... in the performance of his duties as such or fails or refuses without just cause to cease such obstruction when requested to do so by such ... law-enforcement officer ... shall be guilty of a Class 1 misdemeanor.

Va. Code Ann. § 18.2-460(A).

In a two-page, non-precedential, one-member decision, the BIA concluded that obstruction under § 18.2-460(...