Whyte v. Lynch

• Citation: 807 F.3d 463
• Decision Date: 09 December 2015
• Docket Number: No. 14–2357.,14–2357.
• Parties: Anthony McKay WHYTE, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

807 F.3d 463

Anthony McKay WHYTE, Petitioner,

v.Loretta E. LYNCH,^* Attorney General of the United States, Respondent.

No. 14–2357.

United States Court of Appeals, First Circuit.

Dec. 9, 2015.

Virginia Benzan, pro bono, Suffolk University Law School, Immigration Clinic, was on brief, for petitioner.

Anthony W. Norwood, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Lisa Morinelli, Attorney, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

Sejal Zota, on brief for the National Immigration Project of the National Lawyers Guild and the Immigrant Defense Project, as amicus curiae in support of petitioner.

Before TORRUELLA, LYNCH, and KAYATTA, Circuit Judges.

KAYATTA, Circuit Judge.

Permanent resident non-citizens such as petitioner Anthony Whyte are removable under United States immigration laws if they are convicted of an "aggravated felony" under 8 U.S.C. § 1227(a)(2)(A)(iii). An "aggravated felony" includes any offense defined in 18 U.S.C. § 16 as a "crime of violence," for which the term of imprisonment is at least one year. See 8 U.S.C. § 1101(a)(43)(F). Because Whyte was convicted in 1999 of third-degree assault under a Connecticut statute, Conn. Gen.Stat. § 53a–61(a)(1), the Board of Immigration Appeals ("BIA") ordered his removal, reasoning that the Connecticut offense was categorically a crime of violence, and thus was necessarily an "aggravated felony." Resolving an issue left undecided in our recent decision in Villanueva v. Holder, 784 F.3d 51, 55 (1st Cir.2015), we join the Second Circuit Court of Appeals, Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir.2003), in holding that third-degree assault as defined by Connecticut law does not require proof of all of the required elements of a "crime of violence." In light of this holding, Whyte's conviction for that offense, standing by itself, does not constitute proof that he has been convicted of an aggravated felony calling for his removal. We therefore grant his petition to vacate the removal order.

I.

Anthony McKay Whyte, a citizen of Jamaica, was admitted to the United States as a permanent resident in 1981. The Department of Homeland Security ("DHS") first placed Whyte in removal proceedings in March 2012 in Boston on the basis of a 2011 conviction for selling marijuana in Connecticut. An immigration judge found him removable in May 2012. Whyte subsequently lost both his BIA appeal of that decision and a motion to reconsider. During his subsequent petition to this court, the U.S. Supreme Court decided Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), holding that "[i]f a noncitizen's conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the [Immigration and Nationality Act ('INA') ]," id. at 1693–94. At the government's request, we therefore remanded Whyte's case back to the BIA to reassess the case in light of the Supreme Court's ruling.

On remand, DHS amended its notice of removal against Whyte. DHS replaced the 2011 marijuana distribution offense with Whyte's 1999 conviction for assault in the third-degree under section 53a–61(a)(1) of the Connecticut criminal code, for which Whyte received a prison sentence of one year, suspended after 45 days, and three years of probation. In an oral decision at the close of a removal hearing, the immigration judge found Whyte removable as charged, relying on an earlier BIA decision ruling that third-degree assault under Connecticut law qualified as a "crime of violence" under 18 U.S.C. § 16(a). In re Martin, 23 I. & N. Dec. 491, 499 (BIA 2002) (en banc). In a timely appeal to the BIA, Whyte pointed out that the Second Circuit had expressly overruled In re Martin in 2003, finding that third-degree assault under Connecticut law is not a "crime of violence." Chrzanoski, 327 F.3d at 196–97. Agreeing that Chrzanoski had reversed the agency's interpretation in the Second Circuit, the BIA nevertheless observed that Chrzanoski did not control in this circuit. Reviewing the immigration judge's legal conclusions de novo, the BIA held that "[w]hile subsequent Supreme Court and Board decisions have endeavored to more precisely define the mens rea and the term 'physical force' required for determining a crime of violence under 18 U.S.C. § 16(a) since Matter of Martin ... they do not change our holding in Martin and the outcome of the instant case." Whyte's BIA appeal was dismissed and this petition was undertaken.¹

II.

Noncitizens who are convicted of an "aggravated felony" after admission into the United States are removable. 8 U.S.C. § 1227(a)(2)(A)(iii). Such individuals are also statutorily ineligible for discretionary forms of relief from removal, such as asylum or cancellation based on their established, lawful presence in the United States. See Moncrieffe, 133 S.Ct. at 1682 (citing 8 U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i) ; §§ 1229b(a)(3), (b)(1)(C)). Elsewhere in the Code, "aggravated felony" is defined as, inter alia , "a crime of violence ... for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F).²

In this case we are, yet again, asked to determine whether an individual convicted under a given state law is guilty of a "crime of violence," as defined by Congress. Rather than draw up a master list of offenses that would meet this definition or task an administrative agency with determining which state crimes are "violent," Congress requires that we measure each state offense we meet against a two-part test defining a "crime of violence" as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and 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.

18 U.S.C. § 16. The parties agree that Whyte's offense was not a felony, so we need only concern ourselves with subsection (a).

A.

"Whether a prior conviction is a qualifying offense under section 16 is a question of law that we review de novo." United States v. Fish, 758 F.3d 1, 4 (1st Cir.2014) (citing Aguiar v. Gonzáles, 438 F.3d 86, 88 (1st Cir.2006) ). In this posture, our review is focused on the decision promulgated by the BIA, not the earlier decision of the immigration judge. Vásquez v. Holder, 635 F.3d 563, 565 (1st Cir.2011). While "[w]e afford deference to the BIA's reasonable interpretations of the INA," we do not defer to "its reading of an underlying criminal statute (as to which it has no expertise)." Patel v. Holder, 707 F.3d 77, 79 (1st Cir.2013).

In part because "[e]ach state defines its own crimes, generally without reference to (and often, we presume, without knowledge of) the section 16 definitions," a flood of appellate ink has been poured in attempts to classify various state laws under this federal statute. Fish, 758 F.3d at 4. Nor do the results of these assays always align with expectations intuited from the names or apparent seriousness of the state offenses. Thus, a state misdemeanor conviction can qualify as a federal "aggravated felony," see United States v. Cordoza–Estrada, 385 F.3d 56, 58–59 (1st Cir.2004) (per curiam) (noting the statute's semantic oddities but joining the majority of other circuits in reading the law literally), while a crime captioned "assault and battery with a deadly weapon" can fail to qualify as one that has the mens rea required of a "crime of violence," Fish, 758 F.3d at 8–10.

An additional complication is introduced by Congress's repeated, overlapping use of the phrase "crime of violence" in other statutes such as the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(g)(4), the Domestic Violence Offender Gun Ban, 18 U.S.C. § 922(g)(9) (referring to a "crime of domestic violence"), and the United States Sentencing Guidelines, U.S.S.G. § 2L1.2. The appellate landscape interpreting these provisions is equally daunting. Compare, e.g. , United States v. Cruz–Rodriguez, 625 F.3d 274, 277 (5th Cir.2010) (per curiam) (conviction under California statute punishing the making of a criminal threat not a "crime of violence" under the Sentencing Guidelines); with United States v. Villavicencio–Burruel, 608 F.3d 556, 563 (9th Cir.2010) (exactly the opposite).

We have previously explained in detail how we navigate this landscape to figure out whether a specific conviction qualifies as a crime of violence under section 16. See Fish, 758 F.3d at 4–7. In a nutshell, without reference to the underlying facts of a state conviction, "we compare the elements of the crime for which the defendant was previously convicted with Congress's definition of the type of crime that may serve as a predicate offense." Id. at 5.

Sometimes the state law that we examine sets forth alternative versions of an offense, at least one of which satisfies section 16's definition of a crime of violence, and at least one of which does not. In such a circumstance, we look at any so-called Shepard documents that are presented to see if we can determine the version of the offense of which the person was convicted. See Shepard v. United States, 544 U.S. 13, 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The "limited class" of documents available to us in performing this task includes documents "such as indictments and jury instructions." Fish, 758 F.3d at 6 (quoting Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013) ).

Finally, in conducting our analysis of state law, we are mindful that courts are not to rely solely on their "legal imagination" in positing what minimum conduct could hypothetically support a conviction...