Carcamo v. Lynch
| Decision Date | 06 May 2016 |
| Docket Number | No. 15-1005,15-1005 |
| Parties | JOSE ABILIO CARCAMO, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
On Petition for Review of an Order of the Board of Immigration Appeals.
Before TRAXLER, Chief Judge, and AGEE and WYNN, Circuit Judges.
Petition for review denied in part and dismissed in part by unpublished opinion. Judge Wynn wrote the opinion, in which Chief Judge Traxler and Judge Agee joined.
ARGUED: Brian Patrick Casson, JOHNSON & ASSOCIATES, P.C., Arlington, Virginia, for Petitioner. Carlton Frederick Sheffield, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., Arlington, Virginia, for Petitioner. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Erica B. Miles, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
Jose Abilio Carcamo petitions for review of the Board of Immigration Appeals's (BIA's) decision finding that Carcamo was an "aggravated felon" under the Immigration and Nationality Act (INA) and denying his applications for relief from removal. We hold that the District of Columbia's criminal statute proscribing possession with intent to distribute a controlled substance, D.C. Code § 48-904.01(a), is a "divisible" statute under Descamps v. United States, 133 S. Ct. 2276 (2013). Applying the modified categorical approach, we find that Carcamo's conviction constitutes an aggravated felony under the INA. Because Carcamo is an aggravated felon, the BIA correctly concluded that he was removable and ineligible for cancellation of removal, asylum, and withholding of removal. Additionally, we lack jurisdiction to review the BIA's denial of Carcamo's petition for deferral of removal under the Convention Against Torture (CAT) because we may not review the BIA's factual conclusions. Accordingly, the petition for review is denied in part and dismissed in part for lack of jurisdiction.
Carcamo, a citizen of El Salvador, entered the United States unlawfully in 1987, and became a lawful permanent resident in 2001. Carcamo was arrested in Washington, D.C., in 2010, and pled guilty to attempted possession with intent to distribute a controlled substance, in violation of D.C. Code §§ 48-904.09 and 48-904.01(a).1 The Superior Court of the District of Columbia sentenced Carcamo to nine months of incarceration and three years of supervised release, but suspended the execution of the sentence.
In 2013, the United States Department of Homeland Security served Carcamo with a notice to appear, alleging that he was removable pursuant to two separate provisions of Section 237 of the INA. First, the notice to appear charged that he was removable as an "alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance." INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). Second, the notice to appear charged that he was removable because he had been "convicted of an aggravated felony." INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
At his initial removal hearing, Carcamo did not contest his removability nor seek any relief from removal. Accordingly, the immigration judge held that Carcamo was removable. Carcamo subsequently filed a motion to reconsider and a request for stay of removal, in which he asserted that he "failed to comprehend the nature of his removal proceedings due to his illiteracy and the ineffective translation by the Court's Spanish language interpreter." A.R. 360. On February 25, 2014, the immigration judge granted Carcamo's motion to reconsider and reopened his removal proceedings.
Carcamo's motion to reconsider raised new legal arguments. While he admitted that he was removable under 8 U.S.C. § 1227(a)(2)(B)(i) for violating a state controlled substance law, Carcamo contested his removability under 8 U.S.C. § 1227(a)(2)(A)(iii) as an aggravated felon. Carcamo also asserted his intention to pursue various forms of relief from removal, some of which are unavailable to those who have been convicted of an aggravated felony. Carcamo argued that his D.C. statute of conviction did not meet the definition of an aggravated felony under the INA because it was not a categorical match with any crime punishable as a felony under the Controlled Substances Act (CSA). See Moncrieffe v. Holder, 133 S. Ct. 1678, 1683-84 (2013). Carcamo subsequently filed applications for cancellation of removal for certain permanent residents, asylum and withholding of removal under the INA, and deferral of removal under the CAT.
After a hearing, the immigration judge determined that Carcamo's statute of conviction, D.C. Code § 48-904.01(a), was divisible, and that Carcamo had violated the portion of the statute that constituted a felony under the CSA. The immigration judge therefore held that Carcamo had been convicted of an aggravated felony under the INA. The immigration judge went on to deny Carcamo's various requests for relief from removal.
The BIA also found that D.C. Code § 48-904.01(a) was divisible. Applying the modified categorical approach, the BIA held that Carcamo had committed an aggravated felony and affirmed the immigration judge's denial of Carcamo's applications for relief from removal.
This Court has jurisdiction to review final orders of removal against "criminal aliens" with respect to "constitutional claims or questions of law." 8 U.S.C. § 1252(a)(2)(C), (D). We review the BIA's legal determinations de novo. Martinez v. Holder, 740 F.3d 902, 909 (4th Cir. 2014). The BIA is entitled to deference for its interpretation of immigration statutes, such as the INA. Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014). A precedential decision of a three-member panel of the BIA receives Chevron deference, while a decision by a single member of the BIA—like the one in this case—is entitled to the lesser Skidmore deference. Martinez, 740 F.3d at 909-10; see Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944). However, "where, as here, the BIA construes statutes [and state law] over which it has no particular expertise, its interpretations are not entitled to deference." Omargharib, 775 F.3d at 196 (alteration in original) (quoting Karimi v. Holder, 715 F.3d 561, 566 (4th Cir. 2013)).
Additionally, when the BIA rules on a matter within its area of expertise, we can affirm its decision "solely [on] the grounds invoked by the [BIA]" and may not substitute what we consider to be "a more adequate or proper basis" for the decision. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); see Crespin-Valladares v. Holder, 632 F.3d 117, 123 (4th Cir. 2011). If the BIA rested its decision on improper grounds, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Hussain v. Gonzales, 477 F.3d 153, 157 (4th Cir. 2007) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002)).
Carcamo argues that his prior conviction under D.C. Code §§ 48-904.09 and 48-904.01(a) does not constitute an aggravated felony under the INA. We disagree.
Although the government has the initial burden of establishing by clear and convincing evidence that a noncitizen is deportable, the burden shifts to the noncitizen to prove eligibility for relief from removal. 8 U.S.C. § 1229a(c)(3)(A), (4)(A). Carcamo concedes his removability pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) for violating a state controlled substance law, so he carries the burden of proving that he is entitled to relief from removal. See Mondragón v. Holder, 706 F.3d 535, 545 (4th Cir. 2013); Salem v. Holder, 647 F.3d 111, 115 (4th Cir. 2011). Because Carcamo is eligible for certain forms of relief only if he is not an aggravated felon, he must "show that [his D.C.] conviction was not for an 'aggravated felony' as defined in the INA." Mondragón, 706 F.3d at 545; see also 8 C.F.R. § 1240.8(d).
"When the Government alleges that a state conviction qualifies as an 'aggravated felony' under the INA, we generally employ a 'categorical approach' to determine whether the state offense is comparable to an offense listed in the INA." Moncrieffe, 133 S. Ct. at 1684. The "central feature" of the categorical approach is its "focus on the elements, rather than the facts, of a crime." Descamps, 133 S. Ct. at 2285. "Because Congress predicated deportation 'on convictions, not conduct,' the [categorical] approach looks to the statutory definition of the offense of conviction, not to the particulars of an alien's behavior." Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (quoting Alina Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N.Y.U. L. Rev. 1669, 1701 (2011)). Under the categorical approach, we compare the elements of the state statute of conviction with the "'generic' federal definition of a corresponding aggravated felony." Moncrieffe, 133 S. Ct. at 1684 (citation omitted). A state statute of conviction will be a categorical match with the generic federal offense if every violation of the state statute would necessarily be a violation of the generic crime. See id.
If the state statute of conviction is not a categorical match to the generic offense and the state statute is "divisible," courts may use a tool known as the "modified categorical approach" to determine if the elements of the crime that formed the basis of the noncitizen's conviction align with the generic federal offense. Descamps, 133 S. Ct. at 2283-84. A statute is divisible when it "lists multiple, alternative elements, and so effectively creates 'several different . . . crimes.'" Id. at 2285 ...
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