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Coelho v. Sessions

United States Court of Appeals, First Circuit

July 24, 2017

JOAO LOPES COELHO, Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General, Respondent.

         PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          Todd Pomerleau, with whom Jeffrey B. Rubin and Rubin Pomerleau P.C. were on brief, for petitioner.

          Andrew N. O'Malley, with whom Lindsay M. Murphy, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Cindy S. Ferrier, Assistant Director, were on brief, for respondent.

          Emma Winger, Immigration Impact Unit, Committee for Public Counsel Services, on brief for the Massachusetts Committee for Public Counsel Services Immigration Impact Unit, the National Immigration Project of the National Lawyers Guild, and the Immigrant Defense Project, amici curiae.

          Before Torruella, Lynch, and Kayatta, Circuit Judges.

          LYNCH, Circuit Judge.

         This appeal presents the question of whether the Board of Immigration Appeals ("BIA") committed reversible error when it held that the Massachusetts crime of assault and battery with a dangerous weapon ("ABDW"), in violation of Mass. Gen. Laws ch. 265, § 15A(b), is categorically a crime involving moral turpitude ("CIMT") under the Immigration and Nationality Act ("INA"), Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended in scattered sections of 8 U.S.C.). The consequence of this BIA ruling is that petitioner Joao Lopes Coelho is not eligible for cancellation of removal. Because we remain uncertain about the BIA's views on the relevant Massachusetts law governing its CIMT determination, we remand for further consideration consistent with this opinion.

         I.

         Coelho entered the United States without inspection in 1986. He has continued to reside here since that date and now has a U.S. citizen son. In September 1996, Coelho pled guilty to one count of Massachusetts ABDW against his wife. After the Department of Homeland Security ("DHS") initiated removal proceedings against Coelho in June 2010, he conceded his removability under 8 U.S.C. § 1182(a)(6)(A)(i) but submitted an application for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1). "Cancellation of removal is a form of discretionary relief, the granting of which allows a non-resident alien, otherwise removable, to remain in the United States." Ayeni v. Holder, 617 F.3d 67, 70 (1st Cir. 2010). In his application, Coelho noted in particular that his removal "would result in exceptional and extremely unusual hardship" to his son. 8 U.S.C. § 1229b(b)(1)(D). DHS moved to pretermit Coelho's application on the ground that his Massachusetts ABDW conviction constituted a conviction for a CIMT and thus rendered him ineligible for cancellation of removal. See id. § 1229b(b)(1)(C) (providing that an alien, to be eligible for cancellation of removal, must not have been "convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3), " the first two of which refer to crimes involving moral turpitude). After Coelho failed to timely respond to the motion to pretermit, the immigration judge ("IJ") granted the government's motion.

         Coelho filed a motion to reconsider, which the IJ denied. Explaining the denial, the IJ concluded that Massachusetts ABDW is categorically a CIMT because of the presence of an aggravating element, namely the use of a dangerous weapon. The IJ further acknowledged that Massachusetts case law defines "dangerous weapon" to include "common objects, " but noted that this definition "should not be a determinative factor because it is the defendant's use of the object in a dangerous manner which is the vile act." Finally, the IJ found that "based on the statute's requirement that a dangerous weapon be used, [she could reasonably] conclude that there is no realistic probability that [the Massachusetts ABDW statute] would be applied to reach conduct that does not involve moral turpitude."

         The BIA dismissed Coelho's appeal in an opinion dated October 31, 2013. Applying de novo review, the BIA agreed with the IJ's conclusion that Massachusetts ABDW is categorically a CIMT because "assault or battery which necessarily involves an aggravating factor indicative of the perpetrator's moral depravity is a crime involving moral turpitude" and "the knowing or attempted use of deadly force is deemed to be an act of moral depravity."

         Coelho petitioned for review of the October 31, 2013 decision. Shortly thereafter, the government -- with Coelho's assent -- moved this court to remand the case to the BIA for reconsideration of whether Coelho's Massachusetts ABDW conviction is categorically a CIMT that renders him ineligible for cancellation of removal. We granted the government's unopposed motion and vacated the BIA's decision.

         On April 10, 2015, the BIA issued a second opinion, once again holding that Massachusetts ABDW is categorically a CIMT. The BIA applied its then-existing framework, as laid out in Matter of Silva-Trevino, for determining whether an offense involves moral turpitude. See 24 I. & N. Dec. 687, 704 (A.G. 2008), vacated by 26 I. & N. Dec. 550 (A.G. 2015), and overruled by 26 I. & N. Dec. 826 (B.I.A. 2016). Under this approach, the first step was "to examine the statute of conviction under the categorical approach and determine whether there was a 'realistic probability' that the statute would be applied to conduct not involving moral turpitude." Id. If the categorical approach proved inconclusive, the adjudicator proceeded "to look to the record of conviction under the modified categorical approach, " and, if the modified categorical approach also proved inconclusive, "to consider any relevant evidence outside the record of conviction to resolve the moral turpitude question." Id.

         Applying that framework, the BIA found under the first step that Massachusetts ABDW is categorically a CIMT. The BIA acknowledged that the "presence of an 'aggravating factor'" --here, the use of a dangerous weapon -- "is not always dispositive as to whether an offense involves moral turpitude, " but it noted that Massachusetts ABDW involves not only an aggravating factor but also the requisite mental state for an offense to be deemed morally turpitudinous. Specifically, when ABDW is intentionally committed, "the statute requires . . . the intentional application of force by use of a dangerous weapon." Alternatively, when ABDW is recklessly committed, the statute requires "the intentional commission of a reckless or wanton act with a dangerous weapon, defined as more than gross negligence, resulting in physical or bodily injury that interferes with the victim's ...


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