Dale v. Holder

Case: 08-60661 Document: 00511153275 Page: 1 Date Filed: 06/24/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

June 24, 2010

No. 08-60661 Lyle W. Cayce

Clerk

CARLYLE LESLIE OWEN DALE,

Petitioner,

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of an Final Order of

the Board of Immigration Appeals

Before JONES, Chief Judge, SMITH and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge.

Carlyle Leslie Owen Dale petitions this court for review of a decision by

the Board of Immigration Appeals (BIA) upholding his order of removal under

8 U.S.C. § 1101(a)(43)(F) for being convicted of an aggravated felony (a crime of

violence). Dale contends that the BIA incorrectly interpreted New York law in

determining that his guilty plea to attempted assault under New York Penal

Law § 120.10 (1)-(4) in New York state court was necessarily a plea to either

subsection (1) or (2), both of which he concedes are crimes of violence, rather

than subsections (3) and (4), which are not. The government does not contest

Dale’s characterization of the BIA’s legal error, but argues only that this court

lacks jurisdiction to review the BIA’s decision because Dale failed to exhaust his

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administrative remedies by failing to bring a motion for reconsideration to the

BIA. We hold that this court does have jurisdiction to review the decision and

that the BIA’s legal conclusion was in error.

I. Factual and Procedural History

Dale, a Jamaican citizen and lawful permanent resident of the United

States, pleaded guilty to attempted assault in the first degree in violation of New

York Penal Law § 120.10 (McKinney 2009). The Department of Homeland

Security (DHS) later instituted removal proceedings, charging him as an alien

convicted of an aggravated felony. The Immigration Judge (IJ) found that Dale

was removable as charged. The BIA affirmed the IJ’s decision, and Dale

petitioned for review. This court remanded the case to the IJ on the

government’s request because Dale’s conviction record did not specify which of

the four crimes1 defined by § 120.10 Dale pleaded to in his attempt conviction.

The BIA in turn remanded to the IJ. The IJ found that because the

indictment charged Dale with a § 120.10(1) violation, Dale must have pleaded

guilty to an attempted violation of § 120.10(1)—a “crime of violence” constituting

an aggravated felony. Accordingly, the IJ ordered him removed. See 8 U.S.C.

§ 1229a(c)(3)(A); 18 U.S.C. § 16(a)-(b). Dale appealed that decision to the BIA,

1

New York Penal Law § 120.10 provides that a person is guilty of assault in the first

degree when:

1. With intent to cause serious physical injury to another person, he causes

such injury to such person or to a third person by means of a deadly weapon or

a dangerous instrument; or

2. With intent to disfigure another person seriously and permanently, or to

destroy, amputate or disable permanently a member or organ of his body, he

causes such injury to such person or to a third person; or

3. Under circumstances evincing a depraved indifference to human life, he

recklessly engages in conduct which creates a grave risk of death to another

person, and thereby causes serious physical injury to another person; or

4. In the course of and in furtherance of the commission or attempted

commission of a felony or of immediate flight therefrom, he, or another

participant if there be any, causes serious physical injury to a person other than

one of the participants.

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contending that DHS did not meet its burden of proving that he was convicted

of an aggravated felony where there was no evidence in the judgment specifying

which subsection of § 120.10 he violated, as not all subsections of § 120.10 define

aggravated felonies.

The BIA did not address the IJ’s determination that the indictment was

sufficient to imply a conviction under that subsection, nor did it specifically

address Dale’s claim that the government failed to produce any evidence that he

had been convicted under the actual subsection charged in the indictment. The

BIA instead concluded sua sponte that, as a matter of law, Dale must have been

convicted under either subsection (1) or subsection (2) of § 120.10. The BIA

reasoned that only these two subsections contain a mens rea requirement that

could support attempt liability. Accordingly, it determined that New York courts

would not have permitted Dale to plead guilty to subsections (3) and (4) because

attempted reckless assault (§ 120.10(3)) and attempted felony assault

(§ 120.10(4)) are legally impossible crimes. The BIA then dismissed his appeal,

finding it unnecessary to determine whether Dale was convicted under

subsection (1) or (2), as either constituted a “crime of violence” warranting Dale’s

removal from the United States.

Dale remains in the United States pursuant to an order by this court

staying removal. He filed a timely petition for review with the Second Circuit,

and his petition was subsequently transferred to this court.

II. Jurisdiction and Standard of Review

Our jurisdiction to review the BIA’s removal order is governed by § 242 of

the Immigration and Nationality Act, 8 U.S.C. § 1252. Section § 1252(a)(2)(C)

generally prohibits review of “any final order of removal against an alien who is

removable by reason of having committed [an aggravated felony].” However, the

REAL ID Act grants us jurisdiction to review “constitutional claims or questions

of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D). The question

whether a past conviction constitutes an aggravated felony is “a purely legal

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one,” which we review de novo. Patel v. Mukasey, 526 F.3d 800, 802 (5th Cir.

2008).

We review “only an order of the BIA, not the IJ, unless the IJ’s decision

has some impact on the BIA’s decision.” Mikhael v. I.N.S., 115 F.3d 299, 302

(5th Cir. 1997) (citation omitted). Because the BIA adopted only the IJ’s

“ultimate conclusion” and not its reasoning, we review only the decision of the

BIA.

III. Discussion

Dale argues that the BIA committed legal error in concluding that his

guilty plea to attempted assault under § 120.10 was necessarily a plea to

subsection (1) or (2)—both of which constitute crimes of violence—as opposed to

subsection (3) or (4)—which do not. He concedes that New York law does not

allow a conviction by a jury for an attempt crime where the principal crime has

a mens rea requirement of recklessness or less, but he argues that New York

courts routinely permit defendants to plead guilty to hypothetical or legally

impossible crimes. See, e.g., People v. Foster, 225 N.E.2d 200, 202 (N.Y. 1967)

(finding no due process violation where a defendant pleaded guilty to a

hypothetical crime); People v. Griffin, 166 N.E.2d 684, 686 (N.Y. 1960). The

government filed no response to this allegation of legal error on the part of the

BIA. It argues only that Dale failed to exhaust administrative remedies because

he did not file a motion for the BIA to reconsider whether New York courts

permit guilty pleas to legally impossible crimes. We turn first to the issue of

jurisdiction.

A. Jurisdiction.

The government argues that Dale failed to exhaust administrative

remedies where he admits that he did not file a motion requesting that the BIA

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reconsider its conclusion that Dale was convicted of an aggravated felony under

subsection (1) or (2) of § 120.10. Under its theory, Dale’s challenge to the BIA’s

interpretation of New York law must necessarily be considered an unexhausted

issue because the BIA reached its conclusion sua sponte, in absence of any

argument from Dale as to whether New York courts permit pleas to

“hypothetical crimes.” Dale concedes that he could have filed a discretionary

motion to reconsider under 8 C.F.R. § 1003.2, but he asserts that his failure to

do so does not deprive this court of jurisdiction. He argues that his allegation of

BIA error is not a “new issue,” but merely a more “specific formulation” of the

issue raised in his brief to the BIA—whether the IJ committed legal error in

finding that he was convicted of an aggravated felony. He also contends that

such a motion would be redundant where the BIA has already addressed and

ruled upon the same issue he now brings before the court.

It is well-established that “[j]udicial review of a final removal order is

available only if the applicant has exhausted all administrative remedies as of

right.” Carranza-de Salinas v. Gonzales, 477 F.3d 200, 206 (5th Cir. 2007)

(citation and internal quotation marks omitted); see also 8 U.S.C. § 1252(d)(1).

Although an alien is not required to re-articulate verbatim the precise

arguments presented to the BIA, an alien nevertheless “fails to exhaust his

administrative remedies with respect to an issue when the issue is not raised in

the first instance before the BIA—either on direct appeal or in a motion to

reopen.” Id. (citing Wang v. Ashcroft, 260 F.3d 488, 452 (5th Cir. 2001)).

To determine whether Dale was required to file a motion for

reconsideration, we must discern whether Dale’s allegation of BIA error presents

a “new issue” that the BIA never had a chance to consider. A motion for

reconsideration is “not generally required” to challenge an error in the BIA’s

opinion, but our recent decision in Omari v. Holder recognizes that such a

motion is a jurisdictional prerequisite where petitioner asserts a wholly new

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ground for relief arising only as a consequence of some error in the deportation

proceedings. Omari, 562 F.3d 314, 319–21 (5th Cir. 2009). There, we

distinguished this situation from general allegations of error in BIA proceedings,

explaining that

if a party disagrees with the BIA’s resolution of an issue previously

raised before the BIA, there is no need to reargue [that] issue in a

motion for reconsideration. But where the BIA’s decision itself

results in a new issue and the BIA has an available and adequate

means for addressing that issue, a party must first bring it to the

BIA’s attention through a motion for reconsideration.

Id. at 320.

Utilizing this distinction, we considered whether a petitioner raised a new

issue where he argued, for the first time on appeal, that the BIA made “its own

factual findings instead of properly deferring to those of the IJ.” Id. We

determined that the allegation of impermissible fact-finding, by definition, was

a new “issue stemming from the BIA’s act of decisionmaking, . . . one that

neither party could have possibly raised prior to the BIA’s decision.” Id. at

320–21. Because this particular ground for relief came into existence only as a

result of the BIA decision, we held that allegations of impermissible factfinding

are within the class of “certain allegations of BIA error [that] must first be

brought to the BIA in a motion for reconsideration.” Id. at 320; Sidabutar v.

Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007) (same); see also Goonsuwan v.

Ashcroft, 252 F.3d 383, 386 (5th Cir. 2001) (holding that habeas petitioner was

required to first file a motion to reopen where he sought habeas relief based on

an allegation of ineffective assistance of counsel rendered in deportation

proceedings ).

Omari stands in contrast to such cases in which a petitioner alleges BIA

error in regard to the same ground for relief already presented to the BIA. In

such instances, a petitioner need only “ma[ke] some concrete statement before

the BIA to which [he] could reasonably tie [his] claims before this court.” Omari,

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562 F.3d at 322. So long as the petitioner has satisfied this requirement, no

motion to reconsider is necessary despite subsequent variations in the depth of

analysis a petitioner gives to an issue or changes in the scope of the argument.

See Hongyok v. Gonzales, 492 F.3d 547, 550 (5th Cir. 2007) (noting that mere

“semantic differences” will not deprive this court of jurisdiction); see Burke v.

Mukasey, 509 F.3d 695, 696 (5th Cir. 2007) (per curiam) (holding that the

petitioner’s argument to the BIA that his conviction for possession of stolen

property did not qualify as an aggravated felony encompassed the narrower

issue of whether his conviction was a “theft offense,” which is an aggravated

felony for the purpose of 8 U.S.C. § 1101(a)(43)(G)); Carranza-de Salinas v.

Gonzales, 477 F.3d 200, 206–07 (5th Cir. 2007) (holding that a petitioner

exhausted administrative remedies by presenting an issue in a “less developed”

form to the BIA).

In Carranza-de Salinas, we held that the petitioner had exhausted her

administrative remedies where she argued before both the BIA and this court

that the BIA should not have ordered her deported without first allowing her to

present evidence of her continued reliance on the then-repealed Illegal

Immigration Reform and Responsibility Act § 212(c) despite a material

modification in her theory of reliance. See id. In that case, the government

advocated that the petitioner had failed to exhaust her administrative remedies

where she abandoned her theory of reliance advocated before the BIA in favor

of an unrelated, alternative theory after an interim decision foreclosed her

original theory. See id. Despite this modification, we recognized that the proper

inquiry was whether her theory—as modified—could be considered part of the

argument she advanced before the BIA. We answered this question in the

affirmative, finding that her argument before the BIA could be considered a “less

developed form” of her new argument, as both ultimately asserted that

petitioner had a right to present and have the agency consider her reliance on

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the continued availability of § 212(c) relief. See id. The substitution of reliance

theories did not impact jurisdiction because “the BIA clearly had the opportunity

to address her [broader] claim that actual reliance by an alien on the continued

availability of § 212(c) relief triggered an impermissible retroactive effect after

St. Cyr.” Id. at 207.

With these cases in mind, we compare Dale’s arguments before the BIA

with his arguments before this court to determine whether the BIA’s decision

resulted in a “new issue,” or whether Dale is advancing an issue that has

already been presented to the BIA. Before the BIA, Dale argued that “the

Immigration Judge erroneously found that his conviction was a crime of violence

and an aggravated felony under the act, because the statute in question should

be considered to be ‘divisible,’ as criminalizing both conduct that does and

conduct that does not qualify as an aggravated felony.” In his brief in support

of his petition for review, Dale presents his “statement of issue” as

[w]hether the BIA erred in finding as a matter of law that due to the

legal impossibility of attempted recklessness and of attempted felony

assault, Petitioner must have been convicted under a subsection of

a divisible statute amounting to a crime of violence, particularly

where the government was not put to its burden to prove as a factual

matter that Petitioner was convicted of a crime amounting to a crime

of violence, and where New York courts routinely accept a guilty

pleas for attempted recklessness and have evinced a willingness to

accept guilty pleas for attempted felony assault?

Even at first glance, it is obvious that this case is not like Omari and

Goonsuwan, in which the petitioners alleged wholly new grounds for relief which

came about only as a result of factual circumstances arising during or as a result

of the administrative proceedings. Rather, Dale disputes only the BIA’s answer

to the issue he previously raised before it—namely whether Dale was convicted

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under § 120.10(1) or (2), the subsections of the divisible statute that define

aggravated felonies.2

Further, although the argument Dale presented to the BIA is not identical

to that which he raises in his petition for review, the arguments are sufficiently

related to establish that Dale “presented [his] ground for relief to the

administrative agency in the first instance.” Hongyok, 492 F.3d at 550. We find

this to be an easier case than Carranza-De Salinas, as Dale has not substituted

one legal theory for another at any stage of proceedings. See 477 F.3d at 206–07.

Rather, his ground for relief and its supporting theories have remained logically

consistent throughout. Dale’s fundamental claim is that § 120.10 is a divisible

statute, and the government has not borne its burden of proving that Dale was

convicted under a subsection of § 120.10 that defines an aggravated felony. His

BIA argument focused on the government’s failure to provide affirmative

evidence that he pleaded guilty to subsection (1) or (2), but that argument

logically encompassed the narrower argument, presented to this court, that pleas

to subsections (3) and (4) are possible. Indeed, his critique of the government’s

evidentiary inadequacies would ring hollow but for that assumption. As Dale’s

broader argument to the BIA includes the more specific claim presented here,

we conclude that he has presented a “concrete statement” to which “[he] could

reasonably tie [his] claims before this court.” Omari, 562 F.3d at 322.

Regardless of the degree of relation between Dale’s argument before the

BIA and his brief to this court, the government argues that administrative

exhaustion is not satisfied until the BIA is given the opportunity to correct the

2

We also note that the BIA’s sua sponte determination that Dale could not have

pleaded guilty to a “hypothetical crime” implicitly answers the precise question Dale raised

before the BIA—whether the government had submitted sufficient evidence to prove he had

been convicted under §120.10(1) or (2). If Dale could not legally plead guilty to the other two

sections, any evidence that the government submitted demonstrating his conviction under

§120.10 must necessarily be viewed as proof that he was convicted under those subsections

that constitute an aggravated felony.

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specific error in its interpretation of New York law. We disagree. Federal

jurisdiction is not conditioned upon the petitioner affording the BIA a second bite

at the apple to rid its opinion of any legal error; administrative exhaustion

requires only that federal courts refrain from “‘address[ing] an immigration

issue until the appropriate administrative authority has had the opportunity to

apply its specialized knowledge and experience to the matter.’” Toledo-

Hernandez v. Mukasey, 521 F.3d 332, 334 (5th Cir. 2008) (quoting Padilla v.

Gonzales, 470 F.3d 1209, 1214 (7th Cir. 2006)). “In cases where the BIA has

previously ruled on an issue, we do not hold that in order to exhaust their

administrative remedies for purposes of invoking federal court jurisdiction that

petitioners must file a motion to reopen in order to have the agency reconsider

the same issue.” Id. at 336. In this instance, it is apparent that the BIA has

ruled upon the question of whether New York Courts would permit a defendant

to plead guilty to legally impossible crimes such as attempted reckless assault

or attempted felony assault pursuant to § 120.10(3) and (4). As we are unable

to discern any goal of administrative exhaustion that would be served by simply

calling the BIA to ponder once again the very issue upon which it has already

ruled, we hold that we have jurisdiction to consider Dale’s petition for review.

B. Ventura Remand

Although Dale has exhausted administrative remedies and jurisdiction is

otherwise proper, the government urges us to remand pursuant to INS v.

Ventura for the BIA to decide the question whether New York law permits a

person to plead guilty to attempting those crimes defined at § 120.10(3) and (4).

See Ventura, 537 U.S. 12 (2002) (per curiam). We decline this invitation.

Ventura provides that “a court of appeals should remand a case to an agency for

a decision of a matter that statutes place primarily in agency hands.” Id. at 16.

This case presents no such matter. Although the BIA possesses expertise in

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interpreting immigration regulations and applying those regulations to the facts

of an immigration case, it brings no specialized knowledge and expertise to the

issue at hand—the proper interpretation of New York criminal law. Indeed,

“[n]o deference is owed to the BIA’s conclusions of law” apart from the

interpretation of immigration regulations. Carranza-de Salinas, 477 F.3d at

203–04. We therefore proceed to examine the merits of the BIA’s legal

conclusion.

C. Interpretation of New York Penal Law § 120.10

Dale argues that the BIA erred in concluding, as a matter of law, that Dale

must have been convicted under § 120.10(1) or (2)—both of which constitute

“crimes of violence” warranting removal—due to the legal impossibility of a

conviction for attempted recklessness or attempted felony assault. We review

the BIA’s conclusion 3 de novo, owing no deference to the BIA’s conclusion of law,

which does not arise from the interpretation of an immigration regulation. See

id.

We note at the outset that the government’s brief, which encompassed only

two pages of argument, provided no response to Dale’s allegation that the BIA’s

legal ruling was incorrect. However, our review of New York law confirms that

the BIA erred in precisely the manner Dale articulates. Although New York law

recognizes attempt liability only for crimes that involve a mens rea of specific

intent—as opposed to crimes of recklessness and crimes with no mens rea

element such as felony assault—New York courts permit convictions by plea to

hypothetical or legally impossible offenses such as attempted recklessness. To

wit, a defendant cannot be tried and convicted of attempted reckless assault.

3

As noted above, we review only the decision of the BIA because the BIA reached the

same conclusion as the IJ without adopting his reasoning. See Mikhael v. INS, 115 F.3d 299,

302 (5th Cir. 1997) (explaining that we have “authority to review only an order of the BIA, not

the IJ, unless the IJ’s decision has some impact on the BIA’s decision.”).

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See, e.g., People v. Williams, 338 N.Y.S.2d 980, 982 (N.Y. App. Div. 1972)

(overturning a jury conviction under §120.10(3) for attempted reckless assault

because that subsection contained no element of intent); People v. Campbell, 72

N.Y.2d 602, 606 (N.Y. 1988); People v. Foster, 19 N.Y.2d 150, 152–53 (N.Y. 1967).

However, New York courts have permitted defendants to plead guilty to crimes

of attempted recklessness. Torres v. McGrath, 407 F. Supp. 2d 551, 561–62

(S.D.N.Y. 2006) (denying petitioner’s habeas petition where he pleaded guilty

to “attempted reckless endangerment in the first degree in violation of [New

York] Penal Law §§ 110.00 and 120.25.”). A number of other decisions reflect

New York courts’ willingness to accept guilty pleas to hypothetical crimes,

including that of attempted felony assault. See In re Maldonado, 516 N.Y.S.2d

673, 674 (N.Y. App. Div. 1987) (“Like attempted felony murder, there is no such

crime as attempted felony assault . . . . [but] [a] different result may be reached

where the conviction of an attempt to commit a crime, itself not involving intent,

is obtained by way of a plea of guilty.” (citations and internal quotation marks

omitted)); see also People v. Guishard, 789 N.Y.S.2d 332, 333 (N.Y. App. Div.

2005) (affirming plea conviction to attempted assault in the first degree although

the crime was a “legal impossibility”); People v. Barker, 635 N.Y.S.2d 383, 384

(N.Y. App. Div. 1995) (sustaining plea conviction to the “non-existent crime” of

attempted first-degree manslaughter, but noting that “a jury verdict convicting

a person of that crime would be invalid.”).

Despite the seeming logical inconsistency of permitting a defendant to

plead guilty to a legally impossible crime, New York courts sustain such pleas

on the ground that they are “sought by the defendant and freely taken as part

of [the] bargain which was struck for the defendant’s benefit.” Foster, 19 N.Y.2d

at 154. These courts recognize that it is often in the interest of defendants to

“plead to a nonexistent crime in satisfaction of an indictment charging a crime

with a heavier penalty” and thereby avoid risking a conviction for the more

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serious crime even though a jury could not convict a defendant of a legally

impossible crime. People v. Martinez, 611 N.E.2d 277, 812 (N.Y. 1993); see also

Guishard, 789 N.Y.S.2d at 333 (“Although the crime of attempted assault in the

first degree is a legal impossibility, a defendant may plead guilty to a

nonexistent crime in satisfaction of an indictment charging a crime for which a

greater penalty may be imposed.”). Therefore, we conclude that New York courts

would permit a defendant to plead guilty to such nonexistent crimes as would

result had Dale pleaded guilty to the attempted violation of either § 120.10(3) or

(4).

CONCLUSION

In sum, we conclude that Dale has exhausted his administrative remedies

and we may exercise jurisdiction to rule on his allegation of legal error in the

BIA’s determination. We further hold that the BIA erred as a matter of law in

concluding that Dale could not legally plead guilty to an attempted violation of

§ 120.10(3) or (4). Accordingly, we GRANT the petition for review, VACATE the

BIA’s order, and REMAND for further proceedings consistent with this opinion.

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