Granados v. Garland

• Decision Date: 04 November 2021
• Docket Number: No. 20-2028,20-2028
• Citation: 17 F.4th 475
• Parties: Jose Neftaly Canales GRANADOS, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

17 F.4th 475

Jose Neftaly Canales GRANADOS, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-2028

United States Court of Appeals, Fourth Circuit.

Filed: November 4, 2021

Argued: September 23, 2021

Decided: November 4, 2021

ARGUED: Samantha Hsieh, CAPITAL AREA IMMIGRANTS' RIGHTS (CAIR) COALITION, Washington, D.C., for Petitioner. Allison Frayer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian Boynton, Acting Assistant Attorney General, Jessica A. Dawgert, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Petition for review denied by published opinion. Judge Wilkinson wrote the opinion in which Judge Niemeyer and Judge Agee joined.

WILKINSON, Circuit Judge

Jose Neftaly Canales Granados, a citizen of El Salvador, challenges an order of removal based on his conviction for two crimes involving moral turpitude (CIMTs). At issue is whether the phrase "crime involving moral turpitude" is either unconstitutionally vague or violative of the nondelegation doctrine, and whether Virginia's felony eluding statute, Va. Code § 46.2-817(B), qualifies as such an offense. For the reasons that follow, we conclude that the CIMT definition does not violate the Constitution and that Virginia felony eluding constitutes a CIMT.

I.

Canales Granados was born in El Salvador but was admitted to the United States as a lawful permanent resident in March 2001. In 2018, he was convicted of a series of criminal offenses, which he attributes to a multi-year struggle with substance abuse. On February 5, 2018, he pleaded guilty to Virginia petit larceny, and on July 31, 2018, he pleaded guilty to Virginia felony eluding, felony hit and run, and driving under the influence. For the latter three convictions, he was sentenced to 15 years and 60 days in prison. All but five days of the sentence were suspended, and he was instead sentenced to a residential addiction treatment program.

Following his criminal detention, Immigration & Customs Enforcement transferred Canales Granados to the Farmville Detention Facility in Virginia. The Department of Homeland Security issued him a Notice to Appear. The Notice charged him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii) because he was an alien convicted of two or more CIMTs not arising out of a single scheme of criminal misconduct. The crimes at issue were his Virginia petit larceny, felony eluding, and felony hit-and-run convictions.

Canales Granados moved to terminate the removal proceedings. While he conceded that his petit larceny conviction was a CIMT, he contended that neither Virginia felony hit and run nor Virginia felony eluding qualified. On July 31, 2019, the immigration judge (IJ) denied his motion. The IJ agreed with Canales Granados that the hit and run conviction was not a CIMT. However, the IJ determined that felony eluding was. That conviction, when combined with Canales Granados' petit larceny conviction, gave him two CIMTs, rendering him removable. He appealed to the BIA, which upheld the IJ's determination.

Canales Granados timely petitioned this court for review of the BIA's decision, and we granted a stay of removal pending our review.

II.

We first address Canales Granados' contention that the CIMT definition is unconstitutionally vague. It is unremarkable to note that utter precision in statutory language is impossible. A law is therefore only unconstitutionally vague in contravention of the Due Process Clause if it "fails to give ordinary people fair notice of the conduct it punishes, or [is] so standardless that it invites arbitrary enforcement." Johnson v. United States , 576 U.S. 591, 595, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The CIMT definition clears this constitutional hurdle.

The statute at issue, 8 U.S.C. § 1227(a)(2)(A)(ii), provides that aliens convicted of two or more "crimes involving moral turpitude" not arising from a single scheme are deportable. CIMTs have "two essential elements: a culpable mental state and reprehensible conduct." Sotnikau v. Lynch , 846 F.3d 731, 736 (4th Cir. 2017). A culpable mental state requires criminal recklessness, while reprehensible conduct must "independently violate[ ] a moral norm" and "shock[ ] the public conscience as being inherently base, vile, or depraved." Id. at 735–36. Of course, individuals concerned by this definition can avoid any vagueness problem by ensuring their conduct remains squarely on the right side of the legal line. Because the CIMT definition provides "ordinary people fair notice of the conduct it" encompasses, both the Supreme Court and Fourth Circuit have made clear that the CIMT definition passes constitutional muster.

In Jordan v. De George , 341 U.S. 223, 231 n.15, 71 S.Ct. 703, 95 L.Ed. 886 (1951), the Supreme Court held that "[t]he phrase ‘crime involving moral turpitude’ presents no greater uncertainty or difficulty than language found in many other statutes repeatedly sanctioned by [this] Court." The Court upheld a deportation warrant based on two fraud convictions, concluding that the CIMT definition provided "sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Id. at 231–32, 71 S.Ct. 703. And in Boggala v. Sessions , 866 F.3d 563, 564 (4th Cir. 2017), this court read De George to uphold an order of removal based upon a conviction for soliciting a child by computer to commit a sex act. We found "no reason to depart" from De George 's "general pronouncement" sanctioning the CIMT definition. Id. at 570.

De George and Boggala were not, as Canales Granados argues, implicitly overruled by Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018). The latter two cases found specific provisions seeking to define violent crimes—the residual clauses—unconstitutionally vague. See 18 U.S.C. § 924(e)(2)(B)(ii) (defining "violent felony" to include felonies involving "conduct that presents a serious potential risk of physical injury to another"); 18 U.S.C. § 16(b) (defining "crime of violence" as a felony that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."). And those holdings were specific to the residual clauses, which required judges to depart from the categorical approach, "imagine" an "idealized ordinary case of the crime," estimate the risk of injury posed by that hypothetical crime, and then determine whether that risk was sufficient to be termed a "violent felony." Johnson , 576 U.S. at 597–98, 604, 135 S.Ct. 2551. Three factors dictated the unconstitutional vagueness of the residual clauses: First, the "grave uncertainty" inherent in departing from the categorical approach and estimating the risk posed by a crime's "ordinary case." Dimaya , 138 S. Ct. at 1213–14. Second, the fundamental uncertainty in determining what level of imagined risk was sufficient to render a crime violent. Id. And finally, the "repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause." Johnson , 576 U.S. at 598, 135 S.Ct. 2551.

In contrast to the residual clauses, the CIMT definition relies on the categorical approach. Nunez-Vasquez v. Barr , 965 F.3d 272, 281 (4th Cir. 2020). That approach examines the elements of an offense and the least culpable conduct necessary to sustain a conviction. Id. at 281–82. It therefore does not require imagining the "ordinary case" of an offense. Likewise, it does not involve determining what level of imagined risk is sufficient. See Dimaya , 138 S. Ct. at 1215 ("[W]e do not doubt the constitutionality of applying [a] substantial risk [standard] to real-world conduct." (internal quotation marks omitted)). Finally, Boggala found no "evidence of unworkability surrounding [the CIMT definition] comparable to" the "repeated attempts and repeated failures to craft a principled and objective standard" out of the residual clause. 866 F.3d at 570 (quoting Johnson , 576 U.S. at 598, 135 S.Ct. 2551 ). The application of the categorical approach to define CIMTs thus avoids the aspects of the residual clauses that rendered them unconstitutionally vague in Johnson and Dimaya.

Underscoring this point, Johnson and Dimaya did not strike down the elements (or force) clauses of the violent felony definitions, which likewise rely on the categorical approach. See 18 U.S.C. § 924(e)(2)(B)(i) (defining "violent felony" to include crimes that have "as an element the use, attempted use, or threatened use of physical force against the person of another"); 18 U.S.C. § 16(a) (defining "crime of violence" as an "offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another"). Only one year after Dimaya , the Supreme Court applied the categorical approach to hold that Florida robbery constitutes a "violent felony" under the still-very-much-constitutional elements clause. Stokeling v. United States , ––– U.S. ––––, 139 S. Ct. 544, 202 L.Ed.2d 512 (2019). If application of the categorical approach renders the elements clause definition of "violent felony" sufficiently concrete to overcome a vagueness challenge, it does the same for the CIMT definition. There is thus no indication that De George , which explicitly recognized the constitutionality of the CIMT definition, was implicitly overruled by Johnson or Dimaya. The CIMT definition provides sufficient notice to overcome a vagueness challenge and we remain bound by De George and Boggala.

III.

Canales Granados next argues that the statutory phrase "crime involving moral turpitude" impermissibly delegates a legislative function to the executive branch, violating the nondelegation doctrine. He is...