Ihar Sotnikau v. Loretta Lynch

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-2073

IHAR SOTNIKAU,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals.

Argued: December 8, 2016 Decided: January 24, 2017

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Petition for review granted; vacated and remanded by published

opinion. Judge King wrote the opinion, in which Judge Niemeyer

and Judge Agee joined.

ARGUED: Jason Matthew Zarrow, O’MELVENY & MYERS LLP, Washington,

D.C., for Petitioner. Keith Ian McManus, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON

BRIEF: Mary Patrice Brown, O’MELVENY & MYERS LLP, Washington,

D.C., for Petitioner. Benjamin C. Mizer, Principal Deputy

Assistant Attorney General, Cindy S. Ferrier, Assistant

Director, Office of Immigration Litigation, Civil Division,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

KING, Circuit Judge:

After pleading guilty to involuntary manslaughter under

Virginia law, Ihar Sotnikau — a native of Belarus who was

admitted to the United States as a lawful permanent resident in

2008 — was subjected to removal proceedings. The Department of

Homeland Security (the “DHS”) instituted those proceedings

because, in its view, Virginia’s involuntary manslaughter

offense constitutes a crime involving moral turpitude. Sotnikau

sought asylum, withholding of removal, and protection under the

Convention Against Torture (the “CAT”), contesting the DHS’s

interpretation of Virginia’s involuntary manslaughter offense.

After various proceedings, an immigration judge (the “IJ”) and

the Board of Immigration Appeals (the “BIA”) rejected Sotnikau’s

applications, deeming him subject to removal. Importantly, both

the IJ and the BIA concluded that involuntary manslaughter as

defined by Virginia law is categorically a crime involving moral

turpitude. As explained below, that ruling was erroneous, and

we therefore grant Sotnikau’s petition for review, vacate the

order of removal, and remand.

I.

In the early hours of June 18, 2010, Sotnikau and his

friend Randy Hines were drinking on a pier along the Elizabeth

River in Portsmouth, Virginia. At some point, Hines fell down a

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series of concrete steps and into the river. After fruitless

efforts to locate Hines in the river’s dark waters, Sotnikau

retreated to a local homeless shelter. He did not otherwise

seek assistance or alert the authorities.

At the shelter, someone overheard Sotnikau relating what

had occurred at the pier and that Hines had died. That

individual promptly relayed Sotnikau’s remarks to the

authorities. Thereafter, the police located Sotnikau, took him

into custody, and questioned him. Sotnikau then related to the

police what had transpired at the pier. Hines’s body was found

in the Elizabeth River on June 19, 2010. Sotnikau was charged

with involuntary manslaughter by way of a one-count indictment

in the Circuit Court of the City of Portsmouth. He pleaded

guilty and was sentenced to five years in prison.

On October 21, 2011, the DHS instituted removal proceedings

against Sotnikau, alleging removability based on his having been

convicted in Virginia of a crime involving moral turpitude

committed within five years of being admitted to the United

States. See 8 U.S.C. § 1227(a)(2)(A)(i)(I) (rendering removable

an alien who “is convicted of a crime involving moral turpitude

committed within five years . . . after the date of admission”).

On August 14, 2012, the IJ issued an oral decision (the “Initial

IJ Decision”), which summarily denied Sotnikau’s requests for

asylum, withholding of removal, and protection under the CAT.

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Sotnikau appealed the Initial IJ Decision to the BIA. In

its January 8, 2013 order (the “Initial BIA Order”), the BIA

observed that the IJ had failed to “set forth his reasoning as

to why he ruled that the respondent was convicted of a [crime

involving moral turpitude].” See Initial BIA Order 1. In the

absence of a reasoned opinion, the BIA found itself unable to

review the matter and, for that and other reasons, remanded to

the IJ for further proceedings.

At the conclusion of the remand proceedings, by his March

26, 2013 decision (the “Remand IJ Decision”), the IJ again

concluded that Sotnikau had been convicted of a crime involving

moral turpitude, i.e., Virginia’s involuntary manslaughter

offense. After outlining Virginia law on involuntary

manslaughter, the IJ discussed the BIA’s 1994 decision in In re

Franklin, 20 I. & N. Dec. 867 (BIA 1994). There, the IJ

explained, the BIA had concluded that an involuntary

manslaughter offense in Missouri constituted a crime involving

moral turpitude because “the Missouri statute defined

involuntary manslaughter as ‘recklessly causing the death of

another person.’” See Remand IJ Decision 3. According to the

Remand IJ Decision, the mental state required to support a

conviction for involuntary manslaughter under Virginia law is

identical to the mental state at issue in the Franklin decision,

rendering Virginia’s involuntary manslaughter offense

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categorically a crime involving moral turpitude. See id. The

IJ also determined that Sotnikau is ineligible for withholding

of removal because the crime for which he was convicted was

“particularly serious.” See id. (citing Immigration and

Nationality Act § 241(b)(3)(B), 8 U.S.C. § 1231(b)(3)(B)).

Thereafter, Sotnikau moved for reconsideration of the Remand IJ

Decision, but the IJ denied that motion.

Again, Sotnikau appealed to the BIA. By its order of

August 14, 2015 (the “Final BIA Order”), the BIA affirmed the

Remand IJ Decision. Like the Remand IJ Decision, the Final BIA

Order — which is the subject of the pending petition for review

— ruled that the Franklin decision controls the outcome of this

matter: “[W]e conclude that the offense of involuntary

manslaughter in Virginia contains all of the requisite elements

outlined in [Franklin] to make the offense categorically qualify

as a crime involving moral turpitude.” See Final BIA Order 3-4.

The BIA therein also approved of the IJ’s determination that

Sotnikau had been convicted of a particularly serious crime,

making both withholding of removal and asylum unavailable to

him. As a result, the BIA dismissed Sotnikau’s appeal and

ordered his removal. 1

1

As the Final BIA Order explained, the IJ had theretofore,

on September 19, 2013, deferred removal of Sotnikau, having

granted his application for relief under the CAT. See Final BIA

(Continued)

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Sotnikau has timely petitioned this Court for review of the

Final BIA Order. Our jurisdiction in this matter is provided by

8 U.S.C. § 1252.

II.

The dispositive issue in this proceeding is whether

Sotnikau is subject to removal because involuntary manslaughter

under Virginia law is categorically a crime involving moral

turpitude. 2 Whether a crime is one involving moral turpitude, as

that term is used in 8 U.S.C. § 1227(a)(2)(A)(i), “is a question

of law that we review de novo.” See Mohamed v. Holder, 769 F.3d

885, 888 (4th Cir. 2014). To resolve that question, we

“consider only the statutory elements, not the facts underlying

the particular violation of the statute.” Id.

Order 1 n.1 (“Neither party has appealed the [IJ’s] decision to

grant deferral of removal [under the CAT], and therefore, that

application is not before us.”). The CAT application is not

otherwise considered in the Remand IJ Order or the Final BIA

Order.

2By his petition for review, Sotnikau also seeks to

litigate a second issue, contending that he is entitled to

asylum or withholding of removal because both the IJ and the BIA

erroneously determined that his involuntary manslaughter

conviction constituted a particularly serious crime. We do not

address that issue, however, because we conclude that Sotnikau

is not subject to removal.

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III.

The order of removal with respect to Sotnikau is predicated

on 8 U.S.C. § 1227(a)(2)(A)(i), pursuant to which an alien is

subject to removal if he “is convicted of a crime involving

moral turpitude committed within five years . . . after the date

of admission” and “for which a sentence of one year or longer

may be imposed.” It is readily apparent that the temporal

aspect of that statutory provision is satisfied in this matter:

Sotnikau was admitted to the United States as a lawful permanent

resident in April 2008 and committed the relevant crime in June

2010. The same is true for the sentence component of that

provision: involuntary manslaughter carries a penalty of “not

less than one year nor more than 10 years.” See Va. Code

§ 18.2-10(e) (specifying permissible punishment for Class 5

felony); see also Va. Code § 18.2-36 (“Involuntary manslaughter

is punishable as a Class 5 felony.”).

Sotnikau contends in his petition for review that his

involuntary manslaughter offense under Virginia law does not

constitute a crime involving moral turpitude. The Remand IJ

Decision and the Final BIA Order ruled otherwise, concluding

that Virginia’s involuntary manslaughter offense constitutes a

crime involving moral turpitude. They reached that conclusion

on the basis of the BIA’s decision in In re Franklin, 20 I. & N.

Dec. 867 (BIA 1994), reasoning that “involuntary manslaughter in

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Virginia has the same essential elements as involuntary

manslaughter in Missouri, an offense that the [BIA] found

qualifies as a crime involving moral turpitude.” See Final BIA

Order 3; see also Remand IJ Decision 3.

We are thus called upon to decide whether the Virginia

involuntary manslaughter offense is one involving moral

turpitude. In so doing, we are obliged to utilize a categorical

approach. See Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir.

2012). That is, we look at the elements of the crime at issue

and determine whether those elements solely encompass behavior

that involves moral turpitude. If they do, the crime is

categorically one involving moral turpitude. But if those

elements can include behavior that does not involve moral

turpitude, the crime is not categorically one involving moral

turpitude.

In order to properly interpret Virginia’s involuntary

manslaughter offense, we must first understand the meaning of

“moral turpitude.” A crime involving moral turpitude “must

involve conduct that not only violates a statute but also

independently violates a moral norm.” See Mohamed v. Holder,

769 F.3d 885, 888 (4th Cir. 2014); see also id. (“[W]e have

noted that ‘moral turpitude’ refers generally to ‘conduct that

shocks the public conscience as being inherently base, vile, or

depraved.’” (quoting Medina v. United States, 259 F.3d 220, 227

8

(4th Cir. 2001))). That is to say, “[t]o involve moral

turpitude, a crime requires two essential elements: a culpable

mental state and reprehensible conduct.” In re Ortega-Lopez, 26

I. & N. Dec. 99, 100 (BIA 2013). Accordingly, “[w]here knowing

or intentional conduct is an element of an offense,” the BIA has

“found moral turpitude to be present.” See In re Perez-

Contreras, 20 I. & N. Dec. 615, 618 (BIA 1992). Those

circumstances include criminally reckless conduct, which

“reflect[s] a willingness to disregard the risks inherent in the

conduct.” Id. Criminally negligent conduct, on the other hand,

is not included because “there [is] no intent required for

conviction, nor any conscious disregard of a substantial and

unjustifiable risk.” Id. at 619.

With the foregoing principles in mind, we turn to the

elements of the crime of involuntary manslaughter in Virginia.

Under the Code of Virginia, involuntary manslaughter is

punishable as a felony. See Va. Code § 18.2-36. The Supreme

Court of Virginia has defined involuntary manslaughter as “the

accidental killing of a person, contrary to the intention of the

parties, during the prosecution of an unlawful, but not

felonious, act, or during the improper performance of some

lawful act.” See Gooden v. Commonwealth, 311 S.E.2d 780, 784

(Va. 1984). In Virginia, a defendant can be convicted of an

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involuntary manslaughter offense upon a showing of criminal

negligence, which occurs

when acts of a wanton or willful character, committed

or omitted, show a reckless or indifferent disregard

of the rights of others, under circumstances

reasonably calculated to produce injury, or which make

it not improbable that injury will be occasioned, and

the offender knows, or is charged with the knowledge

of, the probable results of his [or her] acts.

See Noakes v. Commonwealth, 699 S.E.2d 284, 288 (Va. 2010)

(alteration in original) (emphasis added) (internal quotation

marks omitted). In simpler terms, an involuntary manslaughter

conviction in Virginia requires that “the offender either knew

or should have known the probable results of his acts.” See

Conrad v. Commonwealth, 521 S.E.2d 321, 326 (Va. Ct. App. 1999

(en banc)).

An involuntary manslaughter conviction can be secured in

Virginia without proving a conscious disregard of risks

attendant to the offender’s conduct; such a conviction can be

predicated on proof that the offender failed to appreciate or be

aware of the risks emanating from his conduct. See Noakes, 699

S.E.2d at 289. Pursuant to the BIA’s decision in Perez-

Contreras, that removes the Virginia involuntary manslaughter

offense from the realm of those crimes that categorically

involve moral turpitude.

In its Perez-Contreras decision in 1992, the BIA decided

that an assault offense in the State of Washington did not

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constitute a crime involving moral turpitude. That was because

a conviction of the assault offense could be based on a showing

of criminal negligence, which “exists when the perpetrator

‘fails to be aware of a substantial risk that a wrongful act may

occur and his failure to be aware of such substantial risk

constitutes a gross deviation from the standard of care that a

reasonable man would exercise in the same situation.’” See

Perez-Contreras, 20 I. & N. at 618 (quoting Wash. Rev. Code

§ 9A.08.010(1)(d)). The BIA explained that, “[s]ince there was

no intent required for conviction, nor any conscious disregard

of a substantial and unjustifiable risk, we find no moral

turpitude inherent in the statute.” Id. at 619.

Virginia’s involuntary manslaughter offense is not

materially different from the Washington offense. Like the

assault offense underlying the Perez-Contreras decision, the

crime at issue here can be predicated on the offender’s failure

to be aware of the risks attendant to his actions. See Perez-

Contreras, 20 I. & N. Dec. at 618 (observing that criminal

negligence exists when “the perpetrator ‘fails to be aware of a

substantial risk’” (quoting Wash. Rev. Code § 9A.08.010(1)(d)));

see also Conrad, 521 S.E.2d at 326 (recognizing that criminal

negligence arises when the offender “should have known the

probable results of his acts”). As in the Perez-Contreras

decision, Sotnikau’s involuntary manslaughter offense could have

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been proven under Virginia law without a showing that he

consciously disregarded any particularly serious risks.

Accordingly, Virginia’s involuntary manslaughter offense is not

categorically a crime involving moral turpitude.

Notwithstanding the views expressed by the IJ and the BIA

in the underlying proceedings, the BIA’s Franklin decision does

not compel a conclusion to the contrary. There, the BIA

recognized that Missouri defined involuntary manslaughter as

“[r]ecklessly caus[ing] the death of another person.” See

Franklin, 20 I. & N. Dec. at 870 (first alteration in original)

(quoting Mo. Rev. Stat. § 562.016(4)). The BIA further observed

in Franklin that Missouri’s definition of “recklessness” is

“essentially identical” to the definitions of recklessness

construed in its other cases — “a conscious disregard for a

substantial and unjustifiable risk, where the disregard

constitutes a gross deviation from the standard of care which a

reasonable person would employ.” Id. (citing In re Wojtkow, 18

I. & N. Dec. 111 (BIA 1981); In re Medina, 15 I. & N. Dec. 611

(BIA 1976)). The BIA therefore reasoned in Franklin that,

“because the statute under which the respondent was convicted

requires that she acted with a ‘conscious disregard of a

substantial and unjustifiable risk,’ the conclusion necessarily

follows that she has been convicted of a crime involving moral

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turpitude.” Id. (quoting Perez-Contreras, 20 I. & N. Dec. at

619).

As we have already explained, a defendant need not

consciously disregard a risk to be convicted of Virginia’s

involuntary manslaughter offense. See, e.g., Conrad, 521 S.E.2d

at 326. Because the definition of involuntary manslaughter in

Virginia is materially distinguishable from the definition of

involuntary manslaughter in Missouri, the Franklin decision does

not control the outcome of this matter. The IJ and the BIA

failed to recognize material differences between the two

definitions of involuntary manslaughter, leading them to

incorrectly conclude that the Franklin decision controls the

outcome here. Nor did the Franklin decision jettison the

principles applied in the Perez-Contreras decision. To the

contrary, the Franklin decision reaffirmed those principles but

distinguished the Missouri crime then under review from the

Washington offense that was at issue in the Perez-Contreras

decision. See Franklin, 20 I. & N. Dec. at 870.

Crimes involving criminal negligence — like the Virginia

involuntary manslaughter offense — are generally excluded from

the category of crimes that involve moral turpitude. See, e.g.,

Rodriguez-Castro v. Gonzales, 427 F.3d 316, 323 (5th Cir. 2005)

(collecting decisions and recognizing that “negligence-based

crimes usually do not amount to [crimes involving moral

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turpitude]”). There is simply no reason for us to depart from

that practice here. Instead, we will adhere to the applicable

rule recognized by the BIA in the Perez-Contreras decision:

“Since there was no intent required for conviction, nor any

conscious disregard of a substantial and unjustifiable risk, we

find no moral turpitude inherent in the statute.” See Perez-

Contreras, 20 I. & N. Dec. at 619. Put succinctly, involuntary

manslaughter under Virginia law does not categorically

constitute a crime involving moral turpitude because a

conviction thereof can be predicated on mere criminal

negligence. We are therefore satisfied that Sotnikau is not

subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(i).

IV.

Pursuant to the foregoing, we grant the petition for

review, vacate the Final BIA Order, and remand for such other

and further proceedings as may be appropriate.

PETITION FOR REVIEW GRANTED;

VACATED AND REMANDED

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