The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0010p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JULIO EDGARDO MOLINA HERNANDEZ, ┐
Petitioner, │
│
> No. 17-3977
V. │
│
│
MATTHEW G. WHITAKER, Acting Attorney General, │
Respondent. │
┘
On Petition for Review from the Board of Immigration Appeals;
No. A 205 657 285.
Decided and Filed: January 23, 2019
Before: SUHRHEINRICH, GIBBONS, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Russell Reid Abrutyn, ABRUTYN LAW PLLC, Berkley, Michigan, for Petitioner.
Kathryn M. McKinney, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Julio Molina Hernandez (“Molina”) appeals
the Board of Immigration Appeals (“BIA”) decision (1) finding him removable on the basis that
his felonious assault conviction under Mich. Comp. Laws § 750.82 is a crime involving moral
turpitude (“CIMT”), (2) denying him asylum and withholding of removal, and (3) denying him
protection under the Convention Against Torture (“CAT”). Molina also argues that the term
“CIMT” is unconstitutionally vague. Because Molina reasonably relied on this circuit’s decision
No. 17-3977 Molina Hernandez v. Whitaker Page 2
in Hanna v. Holder, 740 F.3d 379 (6th Cir. 2014), which held that the Michigan felonious assault
statute is not categorically a CIMT, we reverse the BIA and find that Molina is not removable
based on his prior conviction. Accordingly, Molina’s applications for asylum, withholding of
removal, and protection under the CAT are moot and we will not issue a ruling on those
arguments.
I.
Molina was born in El Salvador and grew up in an area where the “18th Street” gang was
active. The gang attempted to recruit Molina, and Molina claims that his uncle was murdered in
2008 because he refused to join the gang. Soon thereafter, Molina moved to San Vicente, which
was located in MS-13 gang territory. Again, the MS-13 gang pressured Molina to join and beat
him up several times when he refused. On September 25, 2012, when he was fifteen, Molina
illegally entered the United States. He was granted permanent resident status on July 9, 2014 as
a Special Immigrant Juvenile. See 8 U.S.C. §§ 1101(a)(27)(J), 1255(h). He was eventually
declared dependent by a juvenile court of the United States and placed in foster care.
On March 16, 2016, Molina pled guilty to assault with intent to rob, unarmed, under
MCL § 750.88. Immigration and Customs Enforcement (“ICE”) initiated removal proceedings
under 8 U.S.C. § 1227(a)(2)(A)(i), alleging that removal was appropriate because Molina had
been convicted of a CIMT within five years of his admission for which a sentence of at least one
year could be imposed. However, Molina’s conviction was vacated because he did not receive
the constitutionally required advice about the immigration consequences of his plea. He then
pled guilty to felonious assault under MCL § 750.82. ICE continued to assert that he was
removable, arguing that felonious assault also constituted a CIMT.
The immigration judge (“IJ”) denied Molina’s motion to terminate his removal
proceedings, and his application for asylum, withholding of removal, and protection under the
CAT, and ordered him removed. The IJ determined that Molina was ineligible for asylum,
withholding of removal, and protection under the CAT because his conviction was for a
particularly serious crime. Alternatively, the IJ denied Molina’s petition for asylum and
withholding of removal on the merits, finding that there was no nexus between the harm that
No. 17-3977 Molina Hernandez v. Whitaker Page 3
Molina experienced and his fears of returning to El Salvador. The IJ also denied Molina’s
application for CAT protection on the merits because Molina had not demonstrated that the
government of El Salvador would torture him or acquiesce to such treatment.
Molina timely appealed to the BIA, but the BIA denied his appeal and sustained the
CIMT removal charge. The BIA also agreed that Molina had been convicted of a particularly
serious crime and denied protection under CAT. Molina now appeals this BIA decision.
II.
In appeals from the BIA, this court reviews questions of law de novo. Khalili v. Holder,
557 F.3d 429, 435 (6th Cir. 2009). The BIA’s factual determinations are reviewed deferentially
for substantial evidence—reversal is appropriate not where the court may have decided
differently, but only if the court is compelled to the opposite conclusion. Koulibaly v. Mukasey,
541 F.3d 613, 619 (6th Cir. 2008). Additionally, we review both the BIA’s decision and the IJ’s
decision to the extent that the IJ’s decision was adopted by the BIA as the final agency
determination. See Khalili, 557 F.3d at 435.
Under 8 U.S.C. § 1227(a)(2)(A)(i)(I), “[a]ny alien who is convicted of a crime involving
moral turpitude committed within five years . . . after the date of admission . . . is deportable.”
Our decision here involves interpreting a statute administered by a federal agency, so we review
the agency’s interpretation under Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Under that standard, if “Congress has directly spoken to the precise
question at issue” in the text of the statute, we give effect to Congress’s answer without regard to
any divergent answers offered by the agency or anyone else. Id. at 842–43. But if the statute is
ambiguous with respect to the specific issue, “the question for the court is whether the agency’s
answer is based on a permissible construction of the statute.” Id. at 843. This court has
previously held that the term “crime of moral turpitude,” as used in 8 U.S.C.
§ 1227(a)(2)(A)(i)(I) is ambiguous, and thus that the BIA’s interpretation of that term is
generally entitled to deference. See Ruiz-Lopez v. Holder, 682 F.3d 513, 516 (6th Cir. 2012).
Yet the Board’s interpretation of that term in this case is not entitled to deference, because it
comes in an unpublished, single-member decision that lacks precedential value. See Lockhart v.
No. 17-3977 Molina Hernandez v. Whitaker Page 4
Napolitano, 753 F.3d 251, 262 (6th Cir. 2009). Therefore, the court “review[s] de novo the
BIA’s interpretation of state criminal statutes in decisions regarding CIMTs.” Id. at 477 (citing
Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007); Partyka v. Attorney Gen. of the United
States, 417 F.3d 408, 411 (3d Cir. 2005)); see also Kellermann v. Holder, 592 F.3d 700, 703 (6th
Cir. 2010), rev’d on other grounds, Sellers v. Lynch, 630 F. App’x 464 (6th Cir. 2015) (“[W]e
review de novo whether the elements of a federal crime fit the BIA’s definition of a CIMT.”
(citing Smalley v. Ashcroft, 354 F.3d 332, 336 (5th Cir. 2003))).
At issue in this case is the Michigan felonious assault statute:
[A] person who assaults another person with a gun, revolver, pistol, knife, iron
bar, club, brass knuckles, or other dangerous weapon without intending to commit
murder or to inflict great bodily harm less than murder is guilty of a felony
punishable by imprisonment for not more than 4 years or a fine of not more than
$2,000.00, or both.
MCL § 750.82. Here, the BIA held that MCL § 750.82 constituted a CIMT because the
“dangerous weapon” element elevated the crime from simple assault to CIMT status. However,
the BIA’s decision is at odds with this circuit’s precedent in Hanna v. Holder.1 In Hanna, the
alien, Hanna, had been convicted of Michigan felonious assault under MCL § 750.82 and had
conceded removability through his first attorney. 740 F.3d 379, 382 (6th Cir. 2014). Later,
when represented by new counsel, he argued that his MCL § 750.82 conviction did not constitute
a CIMT. Id. at 384–85. The BIA held that Hanna’s admission of removability was binding. Id.
at 385. This circuit reversed, determining that the Michigan statute was divisible and that it
encompassed both CIMT and non-CIMT offenses. Id. at 392. Specifically, the court pointed out
that if Hanna’s crime involved only “intent to place the victim in apprehension of an immediate
battery” as opposed to “intent to injure,” then his offense would not qualify as a CIMT. Id.
(citing Singh, 321 F. App’x at 475–76, 480.) The court then remanded the case to the BIA, id. at
393, as the immigration court “ha[d] yet to consider directly whether Hanna’s underlying offense
is a CIMT,” and noted that nothing in the record indicated whether Hanna’s conviction had
involved intent to injure or merely intent to instill apprehension, id. at 392.
1We do not defer to Molina’s BIA decision because it is an unpublished, single member decision that lacks
precedential value. Lockhart v. Napolitano, 573 F.3d 251, 262 (6th Cir. 2009) (“Moreover, even if the statute were
ambiguous, a non-precedential decision . . . is not entitled to Chevron deference.”).
No. 17-3977 Molina Hernandez v. Whitaker Page 5
The BIA argues that Hanna only suggested that MCL § 750.82 was not a CIMT, without
affirmatively so holding, and remanded for the BIA to decide the question officially. This is
incorrect—the Hanna court explicitly held that § 750.82 is not categorically a CIMT. For
example, the Hanna decision includes statements such as “Mich. Comp. Laws § 750.82 is a
divisible statute, encompassing offenses that are and are not CIMTs,” Hanna, 740 F.3d at 392,
and “We now recognize Mich. Comp. Laws § 750.82 as divisible, and as such, the statute
encompasses non-CIMT offenses,” id. at 390. The most natural reading of these statements
indicates that the court found the statute to include offenses that are not CIMTs.
Although the Hanna court remanded the case, it instructed the BIA to determine under
which divisible part of the statute Hanna had been convicted. In other words, if the BIA found
that Hanna had only the intent to instill apprehension, rather than the intent to injure, the Hanna
court would have the BIA conclude that he had not been convicted of a CIMT. In fact, the
court’s specific instructions for the BIA to review the record implies that the BIA was supposed
to determine the factual question of Hanna’s intent level, rather than the legal question of
whether intent to instill apprehension alone is sufficient for an offense to qualify as a CIMT. See
id. at 393 (“The immigration courts should have the opportunity to review the record and
determine [whether Hanna’s underlying offense is a CIMT].”). Moreover, the Hanna court
repeatedly focused on the unresolved factual issue of Hanna’s intent: “[a]lthough it is not
dispositive, Hanna’s record of conviction does not suggest facts qualifying his offense as a
CIMT,” and “[i]n our review of the record, we find nothing suggesting that Hanna’s November
1996 assault necessarily involved the intent to injure as opposed to the intent to place the victim
in apprehension of an immediate battery.” Id. at 392. This focus on the record and the equivocal
statements about the exact intent underlying Hanna’s assault conviction show that that was the
question left for the agency to decide upon remand. Thus, in Hanna, we held that MCL § 750.82
encompasses convictions that are not CIMTs, and we did not remand the case to the agency to
decide that issue.
The IJ also argues that Hanna is not binding because it was incorrect about the divisibility
of MCL § 750.82. In light of more recent Supreme Court decisions, both parties agree that the
statute in question is not divisible. See United States v. Harris, 853 F.3d. 318, 320 (6th Cir.
No. 17-3977 Molina Hernandez v. Whitaker Page 6
2017) (treating MCL § 750.82 as indivisible.) However, given that the Hanna court explicitly
held that MCL § 750.82 included conduct that did not qualify as a CIMT, whether the statute is
divisible or not is irrelevant. In fact, if the statute is indivisible, that means that no conviction
under it can constitute a CIMT. See In Re Solon, 24 I. & N. Dec. 239, 241 (BIA 2007) (“[A]
conviction will be found to be for a crime involving moral turpitude only if the full range of the
conduct prohibited in the statute supports such a finding.”); see also Lovano v. Lynch, 846 F.3d
815, 817–18 (6th Cir. 2017) (applying the “categorical approach” to determine whether a state
assault-and-battery statute was a CIMT and considering “whether the full range of conduct
encompassed by the statute constitutes a [CIMT].” (quoting Serrato–Soto v. Holder, 570 F.3d
686, 689 (6th Cir. 2009))). The Hanna court’s error in determining the statute to be divisible
does not affect its analysis of whether the statute encompasses conduct that would not qualify as
a CIMT; the lack of divisibility merely means that we need not determine whether Molina was
convicted under the intent to threaten or the intent to injure prong of the statute.
In Hanna, we held that MCL § 750.82 is not categorically a CIMT. Today, we conclude
that the Michigan statute is not divisible. Thus, we hold that MCL § 750.82 is not a CIMT, and
that Molina is not removable based on a conviction for a CIMT.
III.
Accordingly, we reverse the BIA and remand for further proceedings in accordance with
this opinion.