Vurimindi v. Attorney Gen. U.S.

• Decision Date: 24 August 2022
• Docket Number: 19-1848 & 19-2904
• Citation: 46 F.4th 134
• Parties: Vamsidhar VURIMINDI, Petitioner v. ATTORNEY GENERAL UNITED STATES of America
• Court: U.S. Court of Appeals — Third Circuit

46 F.4th 134

Vamsidhar VURIMINDI, Petitioner
v.
ATTORNEY GENERAL UNITED STATES of America

No. 19-1848 & 19-2904

United States Court of Appeals, Third Circuit.

Argued: October 27, 2021
Opinion Filed: August 24, 2022

Rachel A.H. Horton [ARGUED], Courtney G. Saleski, DLA Piper, 1650 Market Street, One Liberty Place, Suite 5000, Philadelphia, PA 19103, Counsel for Petitioner

Victoria M. Braga [ARGUED], United States Department of Justice Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Before: GREENAWAY, JR., KRAUSE, and PHIPPS, Circuit Judges.

KRAUSE, Circuit Judge.

46 F.4th 138

We are called on here to decide whether Pennsylvania's stalking statute, 18 Pa. Stat. and Cons. Stat. § 2709.1(a)(1), constitutes a removable offense under the Immigration and Nationality Act, or, applying the so-called "categorical approach," whether the elements of the Pennsylvania offense are a categorical match to the elements of the generic "crime of stalking" for which a noncitizen is removable under 8 U.S.C. § 1227(a)(2)(E)(i). Because the Board of Immigration Appeals mistakenly found that Petitioner Vamsidhar Vurimindi failed to raise this issue before the Immigration Judge and denied two motions for relief on that basis, we must also decide whether this question is one we may address in the first instance. We conclude that we can and that because the Pennsylvania stalking offense sweeps more broadly than the federal generic under the categorical approach, it is not a removable offense. Accordingly, we will grant Vurimindi's consolidated Petitions for Review.

I. Factual and Procedural Background

Vurimindi, a native of India, came to the United States on a work visa in 2000, and after marrying an American citizen, became a lawful permanent resident in 2008. JA 74. Vurimindi's erratic behavior towards some of his neighbors eventually led to his arrest and conviction on two counts of misdemeanor stalking under Pennsylvania law. JA 74, 187, 244, 420. In relevant part, the Pennsylvania stalking statute makes it a crime to:

engage[ ] in a course of conduct or repeatedly commit[ ] acts toward another person ... under circumstances which demonstrate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person[.]

18 Pa. Stat. and Cons. Stat. § 2709.1(a)(1). Vurimindi was sentenced to two consecutive terms of fifteen to thirty months' imprisonment followed by a period of supervised release. JA 74, 187.

In 2016, while Vurimindi was serving this sentence, the Government initiated removal proceedings against him under 8 U.S.C. § 1227(a)(2)(E)(i), which makes any noncitizen convicted of a "crime of stalking" removable from the United States. JA 72-74. But "crime of stalking" is not defined in the INA, so to ascertain whether Vurimindi's Pennsylvania conviction qualified under this removal provision, the IJ was required to apply the categorical approach, i.e. , comparing the elements of the relevant state offense with the elements of the federal generic offense. See Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), JA 418-19.

After comparing the elements of a crime of stalking under the INA to those of the Pennsylvania stalking statute, the IJ concluded that "[Vurimindi's] conviction under the Pennsylvania statute is the prototypical case for stalking as set forth in [the] INA," and that Vurimindi was removable on that basis. JA 419. Vurimindi appealed to the BIA, arguing that the IJ erred in finding him removable because his "conviction under 18 PA CSA § 2709.1 do[es]n't constitute a crime of ‘Stalking’ under INA § 237(a)(2)(E)(i)." JA 496; see JA 492-96.¹

46 F.4th 139

On appeal, the BIA issued three orders, the second and third of which are before us today. In the first order, the BIA mistakenly found that Vurimindi "does not contest his removability" and affirmed without addressing Vurimindi's argument that his Pennsylvania conviction was not a categorical match with the generic offense under the INA. JA 63 n.4. But see JA 496 (raising challenge to removability on categorical approach grounds). In the second, the BIA denied Vurimindi's motion to reopen, which it construed as a motion to reconsider the same categorical approach argument that it had deemed "waived" in the first order and that it continued to assert had not been "raised earlier in the proceedings." JA 68–69. Vurimindi then filed a motion for reconsideration of that order, which the BIA denied, stating that there was no "factual or legal error in our [prior] decision or any aspect of the respondent's case that was overlooked." JA 71.

Currently before us are Vurimindi's petitions for review of the second and third of these orders—the denials of his motion to reopen and motion for reconsideration. JA 11–13.

II. Jurisdiction and Standard of Review

The BIA had jurisdiction over Vurimindi's appeal pursuant to 8 C.F.R. §§ 1003.1 and 1240.15, and over his motion to reconsider under 8 C.F.R. § 1003.2. This Court's jurisdiction is governed by 8 U.S.C. § 1252, which provides for judicial review of final orders of removal. Our review of the purely legal question presented by this appeal is plenary. Moreno v. Att'y Gen. , 887 F.3d 160, 163 (3d Cir. 2018).

We give deference to the BIA's definition of a crime of stalking so long as it is "based on a permissible construction of the statute." Mondragon-Gonzalez v. Att'y Gen. , 884 F.3d 155, 158 (3d Cir. 2018) (citation omitted). But we do not afford deference to its categorical approach determination or its "parsing of the elements of the underlying [state] crime," Mahn v. Att'y Gen. , 767 F.3d 170, 173 (3d Cir. 2014), because that analysis is based on interpretation of state law, see Salmoran v. Att'y Gen. , 909 F.3d 73, 77–78 (3d Cir. 2018).

III. Discussion

On appeal, Vurimindi again urges that his Pennsylvania conviction is not a categorical match to the removable "crime of stalking" offense under the INA because the Pennsylvania statute is indivisible, with a single mens rea element that is satisfied by "either an intent to place [the victim] in reasonable fear of bodily injury or to cause substantial emotional distress to [the victim]," 18 Pa. Stat. and Cons. Stat. § 2709.1(a)(1), while the generic offense in the INA is limited to the intent to place the victim in "fear of bodily injury or death," Matter of Sanchez-Lopez ("Sanchez-Lopez II "), 27 I. & N. Dec. 256, 258 (BIA 2018) (construing 8 U.S.C. § 1227(a)(2)(E)(i) ). For its part, the Government concedes that Vurimindi is not removable if the state statute is indivisible because that offense would then sweep more broadly than the INA's stalking offense. Oral Arg. Tr. 24:50–25:34; 45:42–59. It contends, however, that the state statute is properly considered divisible, with two alternative mens rea elements, one of which—the "intent to place [the] victim in reasonable fear of bodily injury"—is a categorical match to § 1227(a)(2)(E)(i). Answering Br. 18.

So the merits of Vurimindi's petitions come down to the divisibility of Section 2709.1(a)(1), but before we can address that issue, we must determine if we should remand for the BIA to consider that question

46 F.4th 140

in the first instance. That is because, although the parties agree that the BIA erred in holding Vurimindi waived his challenge to removability, see Answering Br. 21–22, the BIA never addressed the merits of the IJ's conclusion that the statutes were a categorical match, see JA 61–71. Thus, we must first determine whether remand is required before we can turn to the proper reading of the Pennsylvania statute and the proper application of the categorical approach.

A. Whether Remand to the BIA Is Required

When faced with an issue that the BIA has not yet addressed, we typically follow the Supreme Court's instruction in INS v. Orlando Ventura to "remand a case to an agency for decision of a matter that statutes place primarily in agency hands." 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). In that case, where the Ninth Circuit reversed the BIA's denial of asylum based in part on de novo consideration of a changed-circumstances argument not addressed by the BIA, the Supreme Court held that failure to follow the ordinary remand rule violated "basic considerations" of administrative law: namely that, for a "decision of a matter that statutes place primarily in agency hands," remand permits an agency to "bring its expertise to bear upon the matter; ... evaluate the evidence; ... make an initial determination; and, in doing so, [the agency] can, through informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the law provides." Id. at 16–17, 123 S.Ct. 353.

Since Ventura , however, we and other Courts of Appeals have identified a number of exceptions to the remand rule where such "basic considerations" of administrative law do not apply. In Jean-Louis v. Attorney General , for example, we declined to remand for the BIA to apply the categorical approach and simply applied it ourselves where the BIA had already utilized its expertise to define the mens rea required for the generic crime under the INA and the only remaining issue—application of the categorical approach—did not implicate the agency's expertise or statutory domain. 582 F.3d 462, 466–68 (3d Cir. 2009). More recently, in Singh v. Attorney General , we again declined to remand after concluding that the BIA erred in opting to apply the categorical approach instead of the modified categorical approach, and we applied the modified categorical approach ourselves, explaining that we would, in any event, be "review[ing] [the BIA's determination] de novo as it implicates a purely legal question." 839 F.3d 273, 282 (3d Cir. 2016) (quoting Restrepo v. Att'y Gen. , 617 F.3d 787, 790 (3d Cir. 2010) ). And the Ninth and Eleventh...