Shaw v. Sessions, 17-1213

• Decision Date: 07 August 2018
• Docket Number: No. 17-1213,17-1213
• Citation: 898 F.3d 448
• Parties: Andrew Richard SHAW, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

898 F.3d 448

Andrew Richard SHAW, Petitioner,

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

No. 17-1213

United States Court of Appeals, Fourth Circuit.

Argued: March 20, 2018

Decided: August 7, 2018

ARGUED: Lida Duke Angier, DEHGHANI & ASSOCIATES, LLC, New Haven, Connecticut, for Petitioner. Anna Juarez, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Kevin E. Dehghani, Ross W. Hakala, DEHGHANI & ASSOCIATES, LLC, New Haven, Connecticut, for Petitioner. Chad A. Readler, Acting Assistant Attorney General, M. Jocelyn Lopez Wright, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before GREGORY, Chief Judge, and WILKINSON and AGEE, Circuit Judges.

Petition for review denied by published opinion. Judge Agee wrote an opinion, in which Judge Wilkinson joined. Chief Judge Gregory wrote a dissenting opinion.

AGEE, Circuit Judge:

Petitioner Andrew Richard Shaw, a native and citizen of the United Kingdom and a Lawful Permanent Resident, was convicted under New Jersey law of conspiracy in the third degree and was sentenced to two years’ probation. Later, after returning from a trip abroad, the Department of Homeland Security ("DHS") determined that Shaw was inadmissible under Section 212(a)(2)(A)(i)(II) (the "Controlled Substance Provision") of the Immigration and Nationality Act (the "INA"), denied him entry into the United States and began removal proceedings. The Controlled Substance Provision states, "[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of ... a violation of (or a conspiracy or attempt to violate) any law or regulation of a State ... relating to a controlled substance (as defined in section 802 of Title 21) ... is inadmissible." 8 U.S.C. § 1182(a)(2)(A)(i)(II). An immigration judge ("IJ") agreed, concluded that Shaw was inadmissible, and ordered him removed under 8 U.S.C. § 1227(a)(1)(A).¹ The Board of Immigration Appeals (the "Board") dismissed Shaw’s appeal.

Shaw now petitions this Court for review. We find no error with the Board’s decision and deny Shaw’s petition for review.

I.

In March 2007, Shaw was charged in New Jersey state court with, among other things, possession of "twenty-five pounds or more" of marijuana with the intent to distribute and conspiracy to commit that crime. A.R. 195. Shaw pleaded guilty to the conspiracy offense and the state court sentenced him to two years’ probation. As relevant to Shaw’s instant petition, the statute to which he pleaded guilty, N.J. Stat. Ann. § 2C:5-2 (the "Conspiracy Statute"), is a generic conspiracy statute: it forbids any agreement to "engage in conduct which constitutes [a] crime." N.J. Stat. Ann. § 2C:5-2(a).² In exchange for his plea, the State dismissed the remaining charges in the indictment.

Several years after Shaw’s conviction, he briefly left the United States for the United Kingdom. In June 2014, Shaw returned to the United States through Raleigh–Durham International Airport, in North Carolina. At the airport, Shaw applied for admission to the United States as a lawful permanent resident. His application was denied.

Following that denial of admission, DHS initiated removal proceedings by serving Shaw with a Notice to Appear. The operative Notice to Appear alleged that Shaw was subject to removal because his conviction under the Conspiracy Statute rendered him inadmissible under the Controlled Substance Provision.

Shaw contested his removability and filed a motion to terminate the removal proceedings, contending that he was not inadmissible under the Controlled Substance Provision. According to Shaw, the Conspiracy Statute did not categorically relate to a controlled substance and, thus, that he was not inadmissible under the Controlled Substance Provision. He also maintained that the Conspiracy Statute was not divisible and, therefore, that the IJ should use the categorical rather than the modified categorical approach adopted in Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Under the categorical approach, the Board would examine the fact of Shaw’s conviction, not its circumstances, to determine whether the Conspiracy Statute as a whole necessarily related to a controlled substance. See Omargharib v. Holder , 775 F.3d 192, 196 (4th Cir. 2014). The "modified categorical approach applies only if a state crime consists of multiple, alternative elements creating several different crimes, some of which would" necessarily involve a controlled substance, and others that would not. Id. (internal quotation marks omitted).

The IJ rejected Shaw’s arguments. At the outset, the IJ determined that neither the categorical nor the modified categorical approach was appropriate, but rather that the Controlled Substance Provision required application of the "circumstance-specific" approach. Under that approach, the IJ may review the "attendant circumstance[s] of the underlying conviction." Hernandez-Zavala v. Lynch , 806 F.3d 259, 263 (4th Cir. 2015). To determine those attendant circumstances, the IJ consulted the indictment and criminal judgment in Shaw’s New Jersey criminal case. Relying on those documents, the IJ concluded that Shaw’s Conspiracy Statute conviction was founded on a conspiracy to distribute more than twenty-five pounds of marijuana, a controlled substance. The IJ thus held that Shaw was inadmissible, denied Shaw’s motion, and ordered him removed.

Shaw appealed the IJ’s order to the Board. There, he principally contended that the IJ "erred in holding that [he] was inadmissible because of a conspiracy conviction." A.R. 47. In other words, Shaw stuck to his previously unsuccessful position and argued that his conviction did not categorically relate to a controlled substance and that the Conspiracy Statute was otherwise indivisible. Shaw also introduced a back-up position: even if the Conspiracy Statute were divisible, the IJ improperly considered the indictment in contravention of 8 C.F.R. § 1003.41, which, Shaw argued, prohibited the use of indictments (and other non-certified court documents) as evidence in removal proceedings.

The Board dismissed Shaw’s appeal. Initially, it rejected the IJ’s use of the circumstance-specific approach. Even so, the Board concluded that the IJ’s methodology—reviewing the indictment—was permissible because the Conspiracy Statute was divisible. Finally, reviewing the IJ’s conclusion, the Board agreed: Shaw’s conviction under the Conspiracy Statute rendered him inadmissible.

Shaw timely petitioned this Court for review of the Board’s adverse decision. We have jurisdiction to consider Shaw’s petition for review under 8 U.S.C. § 1252.

II.

We review the Board’s legal determinations de novo, but afford Chevron³ deference to those determinations when the Board interprets or applies the INA. Turkson v. Holder , 667 F.3d 523, 527 (4th Cir. 2012). We have limited power to review administrative findings of fact. Such "facts are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

III.

A.

In his petition for review, Shaw revisits his earlier-made arguments. First, he contends that the Board improperly applied the modified categorical approach and should have used the categorical approach. Consequently, Shaw argues that the Board should have looked no further than the face of the Conspiracy Statute. He also asserts that, even if the Conspiracy Statute were divisible, his indictment wasn’t proper evidence under the INA. We address each of these arguments in turn.

1.

Shaw first contends that the Board must apply the categorical approach to a generic conspiracy conviction like that at issue here; it cannot consider the conspiracy’s object. Accepting Shaw’s argument would mean that the Board could not look beyond the fact of his conviction to determine whether it involved a controlled substance. Shaw gives two reasons to support his position: First, such statutes are not divisible because they do not list alternative elements, but rather only one crime: conspiracy. Second, generic conspiracy statutes do not categorically relate to any controlled substance because they touch on any agreement to violate the law. We find Shaw’s contention without merit.

Shaw’s argument rests on the incorrect assumption that the Board must analyze inchoate crimes—attempt, conspiracy, and solicitation—like any other: by looking only to the elements of the statute criminalizing the inchoate conduct.⁴ But Board precedent recognizes that inchoate crimes are unique because they "presuppose[ ] a purpose to commit another crime." See Matter of Beltran , 20 I. & N. Dec. 521, 526–27 (B.I.A. 1992). That distinction, in turn, makes the underlying criminal purpose—the statute the alien conspired to violate, for example—the focal point of the Board’s analysis.

In Matter of Beltran , the Board held that if the object of an inchoate offense "would constitute a ground of deportability under [the Controlled Substance Provision]," it would "likewise consider a conviction for solicitation [or attempt or conspiracy] to commit that crime to be a violation of a law ‘relating to a controlled substance.’ " Id. at 527. More specifically, the Board looked through the aliens’ conviction under Arizona’s generic criminal solicitation statute and, instead, analyzed whether the solicited crime—possession of narcotic drugs—was a ground for inadmissibility under the Controlled Substance Provision. See id. at 525–27. And, regardless of the term used by the Board, it followed that same procedure here: faced with a generic conspiracy statute, it looked through the statute and performed its categorical analysis on the object of Shaw’s conspiracy: possession of a controlled substance with the intent to distribute it.

With Board precedent solidly against his position, Shaw argues...