Sanchez v. Holder

• Decision Date: 11 September 2014
• Docket Number: No. 13–2653.,13–2653.
• Citation: 757 F.3d 712
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: Fredy Arnoldo SANCHEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

757 F.3d 712

Fredy Arnoldo SANCHEZ, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 13–2653.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 24, 2014.

Decided July 9, 2014.

Rehearing Denied Sept. 11, 2014.

Jonathan H. Ebner, William Lynch Schaller, Baker & McKenzie LLP, Charles Roth, Chicago, IL, for Petitioner.

Jennifer R. Khouri, OIL, Department of Justice, Washington, DC, for Respondent.

Before FLAUM and ROVNER, Circuit Judges, and KENDALL, District Judge. ^*

FLAUM, Circuit Judge.

Fredy Arnoldo Sanchez seeks review of a Board of Immigration Appeals decision dismissing his appeal of the immigration judge's order of removal. The Board determined that Sanchez was ineligible for cancellation of removal because he failed to prove that he had not been convicted of a crime involving moral turpitude. Because the Board did not properly conduct the three-step inquiry prescribed in Matter of Silva–Trevino, 24 I. & N. Dec. 687 (A.G.2008), we grant Sanchez's petition and remand for further proceedings.

I. Background

Fredy Arnoldo Sanchez, a citizen and native of El Salvador, entered the United States without inspection in 1989. Sanchez is now forty-seven, is married to a lawful permanent resident, and has four children, all of whom are U.S. citizens. He lives in Indianapolis, Indiana.

In either 1989 or 1994 (the parties dispute this, but it does not matter for this appeal), Sanchez filed an application for asylum and withholding of removal. In 2002, he filed an additional application for special rule cancellation of removal under § 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub.L. No. 105–100, 111 Stat. 2160, as amended by Pub.L. No. 105–139, 111 Stat. 2644 (1997). After an interview, the Department of Homeland Security referred Sanchez's applications to an immigration judge (IJ). He was charged with removability under § 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without admission or parole.

Sanchez conceded his removability during his initial appearance before the IJ in August 2006. At his next hearing, in December 2007, Sanchez submitted a renewed application for NACARA special rule cancellation of removal along with an application for cancellation of removal under INA § 240A(b), 8 U.S.C. § 1229b(b), based on exceptional hardship to his U.S. citizen children. While his removal proceedings were pending, the government submitted evidence that Sanchez was not eligible for NACARA relief because he had assisted in the persecution of others while serving in the El Salvador military. Sanchez asked for a continuance to respond to the government's allegations.

At Sanchez's next hearing, in August 2009, a new issue arose. Sanchez told the IJ that he had been arrested in Indiana in September 2008 “for leaving the scene of an accident where serious bodily injury occurred.” Apparently hearing this information for the first time, the government argued that Sanchez's conduct constituted a crime involving moral turpitude. An alien convicted of a crime involving moral turpitude (a CIMT, for short) is statutorily ineligible for cancellation of removal under either the INA or NACARA, subject to exceptions not at issue here. See8 U.S.C. § 1182(a)(2)(A)(i) (“any alien convicted of, or who admits having committed, or who admits committing acts that constitute the essential elements of ... a crime involving moral turpitude” is inadmissible, subject to exceptions); id. § 1101(f)(3) (a person cannot show good moral character if she has been convicted of a crime of moral turpitude during the relevant period); id. § 1229b(b)(1)(C) (the Attorney General may cancel the removal of a nonpermanent resident who “has not been convicted of an offense under section 1182(a)(2)”). The INA does not define the term. However, the Board of Immigration Appeals and our circuit have described a CIMT as “conduct that shocks the public conscience as being ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’ ” Lagunas–Salgado v. Holder, 584 F.3d 707, 710 (7th Cir.2009) (quoting In re Solon, 24 I. & N. Dec. 239, 240 (B.I.A.2007)).

The IJ continued the proceedings again to allow Sanchez to provide more information about his Indiana arrest. Sanchez then submitted a “case chronology printout” (a docket sheet) from the Criminal Division of the Marion Superior Court. The printout states that in October 2009, Sanchez pleaded guilty to one count of a violation of Ind.Code § 9–26–1–8, “Failure to stop and remain at scene of accident resulting in injury or death.” That provision holds that “[a] person who knowingly or intentionally fails to stop or comply with section 1(1) or 1(2) of this chapter after causing injury to a person commits ... a Class D felony if ... the accident involves serious bodily injury to a person.” The referenced section, Ind.Code § 9–26–1–1, “Duties of driver of vehicle involved in accident resulting in injury, death, or entrapment,” provides:

Except as provided in section 1.5 of this chapter ¹, the driver of a motor vehicle involved in an accident that results in the injury or death of a person or the entrapment of a person in a vehicle shall do the following:

(1) Immediately stop the driver's motor vehicle at the scene of the accident or as close to the accident as possible in a manner that does not obstruct traffic more than is necessary.

(2) Immediately return to and remain at the scene of the accident until the driver does the following:

(A) Gives the driver's name and address and the registration number of the motor vehicle the driver was driving.

(B) Upon request, exhibits the driver's license of the driver to the following:

(i) The person struck.

(ii) The driver or occupant of or person attending each vehicle involved in the accident.

(C) Subject to section 1.5(a) of this chapter, determines the need for and renders reasonable assistance to each person injured or entrapped in the accident, including the removal of, or the making of arrangements for the removal of:

(i) each injured person from the scene of the accident to a physician or hospital for medical treatment; and

(ii) each entrapped person from the vehicle in which the person is entrapped.

(3) Subject to section 1.5(b) of this chapter, immediately give notice of the accident by the quickest means of communication to one (1) of the following:

(A) The local police department, if the accident occurs within a municipality.

(B) The office of the county sheriff or the nearest state police post, if the accident occurs outside a municipality.

The case printout indicates that Sanchez was charged with a Class D felony because the incident involved serious bodily injury, although the Marion Superior Court ultimately entered the conviction as a misdemeanor.² The court gave Sanchez a sentence of 365 days in jail with 363 days suspended. He received 363 days of probation.

Sanchez also submitted his plea agreement to the immigration court. It states that he agreed to plead guilty to “Count I Failure to Stop After Accident Resulting In Serious Bodily Injury Class D Felony.” In addition, Sanchez provided a personal affidavit explaining the circumstances surrounding the accident. It recounts that Sanchez was driving at night on a road without any lights, that it was raining heavily, and that there was a lot of fog. He “heard a noise, which was an impact on [his] car.” Unsure whether he could stop safely in traffic, and believing that he had merely hit “a post or a small object,” Sanchez continued driving. The affidavit states that he only became aware that he had hit a person when police officers arrived at his residence the next day and told him.

During the final hearing, in September 2011, the IJ examined the documents and questioned Sanchez. The IJ then orally denied his applications for cancellation of removal, followed by a written order. Defining a CIMT as a crime “viewed as a reprehensible act” and having “some requirement of mens rea,” the IJ reasoned that because “the record reflects that the respondent pled guilty to knowingly or intentionally failing to stop [after] causing injury to a person,” Sanchez's offense was a CIMT “under the categorical approach.” The IJ ordered Sanchez's removal to El Salvador.

Sanchez appealed the IJ's decision to the Board of Immigration Appeals. The Board began its analysis by emphasizing that under 8 C.F.R. § 1240.8(d), “[t]he respondent has the burden of establishing that he is eligible for any requested benefit,” and “[i]f the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the respondent shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.” The Board then stated that it “agree[d] with the Immigration Judge that the respondent did not meet his burden of proving ... that his criminal conviction is not a CIMT.”

The Board explained its reasoning in three sentences. In the first, it acknowledged Sanchez's argument, made in his briefing, that “there is a realistic probability that the statute has been applied to offenses that both are and are not CIMT[s].” But the Board next concluded that “the respondent has not established that he was not convicted under a portion of the statute that does not qualify as a CIMT,” because “[a]side from the ‘case chronology’ printout from the Indiana court, there is no other evidence regarding his conviction.” Accordingly, the Board dismissed Sanchez's appeal.

II. Discussion

The classification of a crime as one of moral turpitude is a question of law that we have jurisdiction to review. 8 U.S.C. § 1252(a)(2)(D). The parties agree that because the Board issued its own free-standing opinion, “rather than adopting or merely supplementing the...