Melvin Rodriguez Cabrera v. William Barr

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-1314

MELVIN JOSUE RODRIGUEZ CABRERA,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued: May 9, 2019 Decided: July 19, 2019

Before MOTZ, AGEE and HARRIS, Circuit Judges.

Petition for review granted; vacated and remanded with instructions by published

opinion. Judge Agee wrote the opinion, in which Judge Motz and Judge Harris joined.

ARGUED: Teresa Rubinger, GEORGETOWN UNIVERSITY LAW CENTER,

Washington, D.C., for Petitioner. Victoria Marie Braga, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Erica

Hashimoto, Diretor, Anjali Parekh Prakash, Supervising Attorney, Elijah Staggers,

Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW

CENTER, Washington, D.C., for Petitioner. Joseph H. Hunt, Assistant Attorney General,

Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Civil Division,

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

AGEE, Circuit Judge:

Melvin Josue Rodriguez Cabrera, a native and citizen of El Salvador, became a

lawful permanent resident of the United States in 2014. Three years later, the Department

of Homeland Security (“DHS”) initiated removal proceedings against him based on his

2017 Virginia conviction under Va. Code § 18.2-46.2 for participation in a criminal street

gang. The immigration judge (“IJ”) determined that this Virginia offense did not

categorically constitute a crime involving moral turpitude and thus could not be a basis

for removing Cabrera. DHS appealed, and the Board of Immigration Appeals (“BIA”)

issued a decision holding that a Virginia conviction for participation in a criminal street

gang categorically constitutes a crime involving moral turpitude. The BIA reinstated

removal proceedings against Cabrera and remanded to the IJ for a determination on the

other statutory requirements for removal. After the IJ determined that those other

elements were met and ordered Cabrera’s removal, he filed a petition for review directly

in this Court. We conclude, first, that we have jurisdiction over Cabrera’s petition

because he has exhausted his administrative remedies, and second, that the Virginia

offense of participating in criminal street gang activity is not categorically a crime

involving moral turpitude. We therefore grant Cabrera’s petition for review, vacate the

order of removal, and remand with instructions.

I.

The Virginia statute prohibiting participation in a criminal street gang states, in

relevant part:

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Any person who actively participates in or is a member of a criminal street

gang and who knowingly and willfully participates in any predicate

criminal act committed for the benefit of, at the direction of, or in

association with any criminal street gang shall be guilty of a Class 5 felony.

Va. Code § 18.2-46.2(A). See generally Va. Code § 18.2-10(e) (authorizing punishment

for a Class 5 felony of “a term of imprisonment of not less than one year nor more than

10 years”).

In 2017, Cabrera pleaded guilty to a violation of this statute, for which he was

sentenced to a suspended term of imprisonment of five years. Thereafter, DHS served

Cabrera with a Notice to Appear before an IJ for removal proceedings initiated under

section 212(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”), codified at 8

U.S.C. § 1227(a)(2)(A)(i), which authorizes the removal of an alien who has been

convicted for a crime involving moral turpitude committed within five years of admission

and for which a term of imprisonment of one year or longer could be imposed. DHS

asserted that Va. Code § 18.2-46.2’s offense is categorically a crime “involving moral

turpitude,” which is defined as a crime that “not only violates a statute but also

independently violates a moral norm.” Jimenez-Cedillo v. Sessions, 885 F.3d 292, 294

(4th Cir. 2018).

The IJ terminated removal proceedings after concluding that Cabrera’s conviction

was not for a crime involving moral turpitude. DHS successfully appealed this decision to

the BIA, which held that when an offense is committed “in association with a gang, the

reprehensibility of that act can no longer be viewed in isolation; its inherent moral

character is changed—and aggravated—by its gang related nature.” A.R. 21. The BIA

3

further explained that Va. Code § 18.2-46.2’s requirement that the underlying offense be

committed “in association with” a gang meant, at a minimum, that the act was committed

with “conscious affiliation, not mere accidental correlation” to a gang, and thus ensured

that the act was also committed with the requisite morally reprehensible state of mind to

constitute a crime involving moral turpitude. A.R. 21. The BIA reinstated the proceedings

against Cabrera and remanded his case to the IJ for a determination of whether Cabrera’s

conviction satisfied the other requirements for removability under 8 U.S.C.

§ 1227(a)(2)(A)(i).

The IJ entered an order of removal after determining that the other statutory

requirements were met. That order indicates that Cabrera affirmatively waived his right

to appeal the IJ’s decision to the BIA, making the IJ’s order a final order of removal. See

generally 8 C.F.R. § 1241.1(b) (stating that an IJ’s order of removal “shall become final”

“[u]pon waiver of appeal by the respondent”).

Cabrera filed a timely petition for review that raised one issue: whether the BIA

erred in determining that the gang-related offense prohibited under Va. Code § 18.2-46.2

categorically qualifies as a crime involving moral turpitude.

II.

Before reaching the merits of Cabrera’s petition, we must address our jurisdiction

over this case. By statute, we have jurisdiction over final orders of removal “only if” “the

alien has exhausted all administrative remedies available to the alien as of right.” 8

U.S.C. § 1252(d)(1). Because Congress wrote the exhaustion requirement into the

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jurisdictional grant to the Court for the review of removal orders, the Court lacks

jurisdiction to consider petitions for review when an alien has not exhausted his

administrative remedies. Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008) (“We

have previously interpreted [8 U.S.C. § 1252(d)(1)] as a jurisdictional bar.”); cf. Kporlor

v. Holder, 597 F.3d 222, 226–27 (4th Cir. 2010) (“The exhaustion doctrine embodies a

policy of respect for administrative agencies, which allows them to carry out their

responsibilities and to discover and correct their own errors.”). That said, no statute

defines what constitutes “exhaustion” for purposes of § 1252(d)(1).

Our case law informs the analysis of when administrative exhaustion has occurred,

but the precise question raised in this case is an issue of first impression in this Circuit:

was Cabrera required to appeal the IJ’s order of removal to the BIA before filing his

petition for review with this Court in order to exhaust his administrative remedies? That

question is presented within the additional context that the sole issue raised in Cabrera’s

petition relates to a legal question the BIA conclusively decided earlier in his removal

proceeding.

Ordinarily, a petitioner exhausts his administrative remedies by raising an

argument challenging the IJ’s decision in an appeal to the BIA. E.g., Kporlor, 597 F.3d at

226 (“It is well established that an alien must raise each argument to the BIA before we

have jurisdiction to consider it.”). Consequently, arguments that a petitioner did not raise

in the BIA proceedings have not been exhausted and the Court lacks jurisdiction to

consider them. Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004) (“We have no

jurisdiction to consider this argument, however, because [the petitioner] failed to make it

5

before the [BIA] and, therefore, failed to exhaust all administrative remedies.”). Only

after the BIA has rendered a decision on an argument or claim is that argument or claim

said to have been exhausted. See Lizama v. Holder, 629 F.3d 440, 448–49 (4th Cir. 2011)

(holding that an alien exhausted remedies by raising a claim in his notice of appeal to the

BIA—even if he neglects to brief the issue—if the BIA has nonetheless addressed the

issue in its decision). In sum, we have consistently held that when the BIA has never been

part of a petitioner’s removal proceedings we lack jurisdiction to consider the petition for

review and when a petition contains an argument that has never been presented to the

BIA for consideration, we lack jurisdiction to consider it even if other arguments in the

petition have been exhausted.

Relying on these principles, DHS contends that Cabrera did not exhaust his

administrative remedies because he had the right to appeal the IJ’s removal order to the

BIA, but he chose to waive that right. DHS argues that the BIA must first determine

whether Cabrera’s removal was proper before this Court can consider Cabrera’s petition

for review and that his decision not to appeal directly to the BIA deprived the BIA of the

opportunity to do so. In addition, DHS asserts that the BIA’s earlier decision concerning

Cabrera’s Virginia conviction did not relieve him of his obligation to appeal the removal

order to the BIA because there is no futility exception to the exhaustion requirement.

Relying on the same principles, Cabrera responds that he has exhausted his

administrative remedies because the BIA definitively ruled in the earlier appeal that his

Virginia conviction is for a crime involving moral turpitude and that ruling is the sole

issue he raises in his petition for review. He observes that although this Court has not

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decided whether administrative remedies have been exhausted in these circumstances,

three circuit courts of appeals have considered it and have unanimously held in favor of

finding exhaustion. Our sister circuits have determined that a petitioner has exhausted his

administrative remedies when the BIA conclusively determined the issue(s) for which a

petitioner seeks review even though the BIA’s review occurred before a remand to the IJ

and even though the petitioner did not appeal the IJ’s removal order to the BIA before

filing a petition for review directly with the court of appeals. See Shepherd v. Holder, 678

F.3d 1171, 1176–78 (10th Cir. 2012); Popal v. Gonzales, 416 F.3d 249, 252–53 (3d Cir.

2005); Perkovic v. I.N.S., 33 F.3d 615, 619–20 (6th Cir. 1994). 1

1

DHS relies on various nuances between these cases and Cabrera’s in an effort to

distinguish them. We conclude that these differences are immaterial to the exhaustion

analysis and present sufficiently similar circumstances to the posture of Cabrera’s case to

be analogous and persuasive. We need not recount the underlying facts at length given

that this case turns on the underlying legal principles.

Briefly, though, in Shepherd, the IJ had initially dismissed the removal

proceedings against the petitioner based on collateral estoppel, the government

successfully “appealed to the BIA, which reversed the IJ’s collateral estoppel ruling,” and

“remanded for further proceedings and the entry of a new decision.” 678 F.3d at 1176.

The IJ then entered a final order of removal and the petitioner filed her petition for review

without first appealing that decision to the BIA. Id. The Tenth Circuit held that she had

exhausted her administrative remedies to challenge the collateral estoppel issue in federal

court because “exhaustion does not require repeated presentations of issues already

finally resolved” and two circuit courts had also “disavow[ed] the need for redundant

appeals to the BIA.” Id. at 1178.

In Popal, the IJ had initially terminated removal proceedings against the petitioner

after concluding that the state offense relied on to initiate the proceedings did not qualify

as a crime of violence. 416 F.3d at 251. “DHS appealed [that decision] to the BIA, which

reversed,” and held that the petitioner was eligible for removal. Id. The BIA then

remanded “to allow [the petitioner] to apply for any relief from removal for which he

may be eligible.” Id. The petitioner declined the opportunity to apply for any other relief,

(Continued)

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We agree with Cabrera—and our sister circuits—that a petitioner has exhausted

his administrative remedies when the BIA has issued a definitive ruling on the issue

raised in the petition for review, even though the BIA ruling came before the IJ’s entry of

an order of removal and even though the petitioner did not appeal that order to the BIA

before filing the petition for review. This conclusion follows from applying several

principles related to the exhaustion requirement.

First, the exhaustion requirement “serves the twin purposes of protecting

administrative agency authority and promoting judicial efficiency.” Kurfees v. I.N.S., 275

F.3d 332, 336 (4th Cir. 2001); accord Kporlor, 597 F.3d at 226–27. Both objectives are

the IJ ordered the petitioner removed, and the petitioner filed his petition for review

without appealing the removal order to the BIA first. Id. The Third Circuit held that the

petitioner exhausted his administrative remedies because the IJ’s decision “made no new

findings of fact or conclusions of law, and considered no issues that had not been decided

by the BIA,” and instead simply “implemented the BIA’s decision.” Id. at 253. The court

observed that “the purposes of exhaustion would [not] be served by a further appeal to

the BIA” given that “[t]here are no factual allegations or legal arguments before us that

were not raised before the BIA.” Id.

In Perkovic, the IJ had initially determined “that the petitioners should be granted

asylum,” and “INS appealed the decision” to the BIA, which “reversed the [IJ’s] decision

and remanded the case” after determining that they were ineligible for asylum. 33 F.3d at

618. The IJ then entered a final order of removal after allowing the petitioners to select

their destination country and granting voluntary departure, which the petitioners appealed

to the Sixth Circuit without first seeking the BIA’s review. Id. at 618–19. The Sixth

Circuit held that the petitioners had exhausted their administrative remedies as to their

eligibility for asylum “because [that issue was] presented to the immigration judge and

then to the Board, which definitively resolved the claims on their merits.” Id. at 619. The

court further observed that it would be “pointless to interpret the exhaustion rule as

requiring that . . . uncontested matters be presented to the Board before” the final removal

order “can be considered by this court.” Id. at 620.

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served when, as is the case before us, the BIA has exercised its authority by issuing a

conclusive ruling on a particular issue in the petitioner’s agency proceedings and the

Court knows the agency’s final adjudication of the issue in the petitioner’s case.

Conversely, none of the traditional principles favoring exhaustion would be served by

requiring a second appeal to the BIA after the IJ’s final entry of the removal order when

the petitioner does not challenge the decisions made in that order. See Popal, 416 F.3d at

253 (“The issues have been fairly presented to, and fully adjudicated by, the BIA. There

are no factual allegations or legal arguments before us that were not raised before the

BIA. Judicial economy would not be served by requiring [the petitioner] to take a second,

essentially frivolous appeal to the BIA raising the same issues that the Board had already

rejected in [his] own case.”).

Second, the exhaustion requirement is consistently described in terms of substance

rather than timing. The significant inquiry is that the BIA has definitively ruled on the

petitioner’s argument in adjudicating his case, not when it has done so. Kporlor, 597 F.3d

at 226 (“It is well established that an alien must raise each argument to the BIA before we

have jurisdiction to consider it.” (emphasis added)); see Telyatitskiy v. Holder, 628 F.3d

628, 631 (1st Cir. 2011) (considering both the petitioner’s BIA appeal and motion to

reconsider to determine whether the petitioner had raised the argument made in his

petition for review and thus exhausted his administrative remedies as to that argument);

cf. Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) (observing that “an

alien must present the same specific legal theory to the BIA before he or she may

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advance it in [this] court”). Here, the BIA has definitively addressed the argument

Cabrera makes in his petition.

Third, the exhaustion requirement is satisfied when the BIA has definitively

spoken on a particular issue in the petitioner’s case one time. Petitioners need not file a

motion to reconsider the same argument the BIA has already rejected in order to exhaust

their remedies. See Woodford v. Ngo, 548 U.S. 81, 92 (2006) (describing the exhaustion

requirement in the context of habeas corpus as “properly present[ing] his or her claims

through one complete round of the . . . established appellate review process” (emphasis

added)); Shepherd, 678 F.3d at 1177; see also Parlak v. Holder, 578 F.3d 457, 463 (6th

Cir. 2009) (observing that, “as a general rule,” petitioners do not have to file a motion to

reconsider with the BIA to exhaust administrative remedies as to an argument the BIA

has already rejected); Toledo-Hernandez v. Mukasey, 521 F.3d 332, 336 (5th Cir. 2008)

(“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.”); Padilla v. Gonzales, 470 F.3d 1209, 1214 (7th Cir. 2006) (“[I]n the typical

case an alien will first present his arguments to the BIA, and if the BIA orders his

removal after considering those arguments, the alien need not ask the BIA to reconsider

its decision before he may petition a court for review.”). Requiring Cabrera to appeal the

IJ’s removal order to the BIA as a mandatory prerequisite to challenge in the court of

appeals the BIA’s prior decision that his conviction was for a crime involving moral

turpitude “would [be] the functional equivalent of” requiring him to move to reconsider

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before filing a petition for review. Perkovic, 33 F.3d at 620. It is therefore just as

unnecessary.

Lastly, exercising jurisdiction under the circumstances presented in this case does

not—as DHS contends—amount to allowing a petitioner to avoid the exhaustion

requirement based on general futility. Generally speaking, a petitioner must raise his

arguments before the BIA even when he is almost assuredly not going to prevail, such as

when the BIA has rejected the argument in a different case or binding precedent

forecloses it from adopting his position. See Popal, 416 F.3d at 252–53 (“[T]he

exhaustion requirement of 8 U.S.C. § 1252(d) is jurisdictional, and . . . there is no general

futility exception. Indeed, the fact that the BIA has considered and rejected the

petitioner’s argument in another case will not normally excuse [his] failure to raise it in

his own appeal to the BIA. An alien must exhaust all administrative remedies available to

him, even if he reasonably predicts that these remedies are unlikely to do him any

good.”). 2 Although a limited exception for “futility” exists in other contexts where

exhaustion of administrative remedies is required, e.g., Ham v. North Carolina, 471 F.2d

406, 407 (4th Cir. 1973), the Supreme Court has held that such exceptions are not

appropriately “read . . . into statutory exhaustion requirements” unless Congress has

provided for them, Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). See Bowles v.

Russell, 551 U.S. 205, 214 (2007) (stating courts have “no authority to create equitable

2

We have omitted any internal quotation marks, alterations, and citations here and

throughout this opinion, unless otherwise noted.

11

exceptions to jurisdictional requirements”); Massis, 549 F.3d at 640 (declining to read a

“miscarriage of justice” exception into § 1252(d)’s exhaustion requirement in light of

Bowles’s instruction and observing that “[s]ince Bowles, courts of appeals have declined

to entertain equitable exceptions to section 1252(d)’s administrative exhaustion

requirement”). Our conclusion in this case is grounded on Cabrera having exhausted his

administrative remedies, not on his being excused from this requirement. The record

demonstrates that the BIA considered and rejected the argument Cabrera has raised in his

petition for review in Cabrera’s own administrative proceedings. The BIA’s dispositive

ruling—not futility—is the basis for concluding we have jurisdiction over his petition for

review. See Popal, 416 F.3d at 253 (holding the same).

In short, we hold that Cabrera was not required to appeal the IJ’s removal order to

the BIA before filing his petition for review challenging the BIA’s determination that his

conviction was for an offense that is categorically a crime involving moral turpitude. The

BIA definitively ruled on the argument Cabrera is now challenging in his petition before

it remanded his removal proceedings to the IJ for other factual findings that did not

disturb or affect the BIA’s decision on this issue. As such, Cabrera has exhausted his

administrative remedies, and we have jurisdiction to consider his petition for review.

III.

Turning to the substance of the petition for review, Cabrera poses a

straightforward question of law: did the BIA err in holding that a conviction for violating

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Va. Code § 18.2-46.2 categorically qualifies as a crime involving moral turpitude for

purposes of 8 U.S.C. § 1227(a)(2)(A)(i)?

A.

In resolving this issue, we defer to the BIA’s determination only to the extent that

we find its reasoning persuasive. This is so for two reasons: first, the Court does not defer

to the BIA’s determination that a state statute categorically involves moral turpitude

because that is a question outside the BIA’s authority and expertise. Ramirez v. Sessions,

887 F.3d 693, 702 (4th Cir. 2018). To the extent the BIA’s decision rests on an

interpretation of Va. Code § 18.2-46.2, the Court’s review is de novo. See Uribe v.

Sessions, 855 F.3d 622, 625 (4th Cir. 2017). Second, because the BIA issued a one-

member decision in Cabrera’s case, the decision is non-precedential and “categorically

ineligible for Chevron” 3 deference. Ramirez, 887 F.3d at 702. “In the absence of Chevron

deference, the weight given to a BIA decision ‘hinges on the thoroughness evident in the

BIA’s consideration, the validity of its reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it the power to persuade.’” Id. at 703

(alteration in original) (describing Skidmore 4 deference).

Here, in issuing a non-precedential, one-member decision concluding that the

offense punishable under Va. Code § 18.2-46.2 categorically is a crime involving moral

turpitude, the BIA relied principally on its precedential decision, Matter of E.E.

3

Chevron, U.S.A., Inc. v. Nat’l Res. Defen. Council, Inc., 467 U.S. 837 (1984).

4

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

13

Hernandez, 26 I. & N. Dec. 397 (B.I.A. 2014). That case held that the California Penal

Code’s enhancement for gang-related offenses transformed crimes that were not

otherwise morally turpitudinous into ones that were. A.R. 19; see also id. at 397.

Referencing E.E. Hernandez, the BIA pointed to the “moral depravity of criminal street

gangs” and observed that Va. Code § 18.2-46.2 “does not criminalize mere gang

membership, nor does it cover offenses in which the gang affiliation of the accused was

incidental to the commission of the underlying offense.” From that premise, it concluded

that the combination of a “predicate criminal act” and “the aggravating circumstances

which make it a gang-related violation” caused Va. Code § 18.2-46.2 to necessarily

involve moral turpitude. A.R. 20–21. In addition, the BIA determined that the

requirement in Va. Code § 18.2-46.2 that the defendant acted, at a minimum, “in

association with” a gang provided the requisite level of mental culpability to be a crime

involving moral turpitude. A.R. 21–22. At its core, the BIA’s decision rested on the

premise that acts that are not morally turpitudinous in themselves necessarily become so

“when committed ‘in association with’ a gang by an active gang participant.” A.R. 22.

For the reasons set out below, we conclude that the reasoning in the BIA’s

decision is not persuasive; therefore, we do not afford it Skidmore deference.

B.

“[G]enerally, a crime involves moral turpitude if it is ‘inherently base, vile, or

depraved and contrary to accepted rules of morality and the duties owed between persons

or to society in general.’” Prudencio v. Holder, 669 F.3d 472, 484–85 (4th Cir. 2012).

(quoting Matter of Olquin-Rufino, 23 I. & N. Dec. 896, 896 (B.I.A. 2006)); see also

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Mohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014) (“[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

(4th Cir. 2001)). A criminal statute must require two things in order to satisfy this

definition: “‘a culpable mental state and reprehensible conduct.’” Sotnikau v. Lynch, 846

F.3d 731, 736 (4th Cir. 2017) (quoting Matter of Ortega-Lopez, 26 I. & N. Dec. 99, 100

(B.I.A. 2013)).

When undertaking this review, the Court uses the categorical approach, looking to

the elements of the crime rather than the particular circumstances of the petitioner’s

violation. Prudencio, 669 F.3d at 484. Under this approach, a crime does not involve

moral turpitude if there is a “realistic probability” that the statute of conviction could “be

applied to reach conduct that does not involve moral turpitude.” Matter of Louissant, 24

I. & N. Dec. 754, 757 (B.I.A. 2009). Put another way, “[i]f all permutations of the

conduct proscribed by the elements of the offense involve moral turpitude, then the

offense categorically qualifies as” one involving moral turpitude. Martinez v. Sessions,

892 F.3d 655, 658 (4th Cir. 2018). 5

5

In the agency proceedings, both DHS and Cabrera based their arguments on the

categorical approach. On appeal, DHS contends for the first time that if the Court

concludes Va. Code § 18.2-46.2 is not categorically a crime involving moral turpitude,

then we should consider in the first instance whether the modified categorical approach

should be used or, in the alternative, remand for the BIA to undertake that initial review.

DHS Br. 40–41 n.9.

The modified categorical approach “applies in cases involving ‘divisible’

statutes,” meaning statutes that “set[] out alternate elements that create multiple forms of

(Continued)

15

Several aspects of Va. Code § 18.2-46.2 are undisputed. It has three elements:

First, a person must actively participate in or be a member of a criminal

street gang. Second, the person must knowingly and willfully participate in

a predicate criminal act. Third, the act must be committed for the benefit of,

at the direction of, or in association with the gang.

Hamilton v. Commonwealth, 688 S.E.2d 168, 177 (Va. 2010). 6 Further, the second

element cannot form the basis for the conclusion that the offense involves moral turpitude

because, as DHS concedes, this element’s “predicate criminal act” encompasses offenses

that the BIA and this Court have determined are not crimes involving moral turpitude for

immigration purposes. DHS Br. 15; compare Parada v. Commonwealth, No. 0572-07-4,

the criminal offense and at least one form of the offense qualifies—by its elements—as

the generic predicate offense.” Martinez, 892 F.3d at 659. But “[a] statute that lists

alternative means of committing a single offense, rather than alternative elements, is not

divisible.” Id.

The modified categorical approach cannot be used to analyze Va. Code § 18.2-

46.2 because the statute is not divisible. As discussed above, the statute contains three

elements, with two elements listing alternative means of satisfying that element. We

therefore confine our analysis to whether the proscribed offense is categorically a crime

involving moral turpitude.

6

Virginia law defines “criminal street gang” to mean

any ongoing organization, association, or group of three or more persons,

whether formal or informal, (i) which has as one of its primary objectives

or activities the commission of one or more criminal activities; (ii) which

has an identifiable name or identifying sign or symbol; and (iii) whose

members individually or collectively have engaged in the commission of,

attempt to commit, conspiracy to commit, or solicitation of two or more

predicate criminal acts, at least one of which is an act of violence, provided

such acts were not part of a common act or transaction.

Va. Code § 18.2-46.1.

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2008 WL 2497334, at *1 (Va. Ct. App. June 24, 2008) (holding that Virginia’s assault

and battery statute can be a predicate criminal act for purposes of Va. Code § 18.2-46.2),

with Matter of Jing Wu, 27 I. & N. Dec. 8, 10–11 (B.I.A. 2017) (holding that Virginia’s

assault and battery statute is not a crime involving moral turpitude). As a consequence,

for this offense to involve moral turpitude, the conduct proscribed by the first or third

elements of the statute must encompass moral turpitude. And because the categorical

approach requires us to “presume that the prior conviction rested upon nothing more than

the least of the acts criminalized and then determine whether even those acts are

encompassed by” the statute, we focus on “the minimum conduct criminalized by the

statute of conviction.” Mena v. Lynch, 820 F.3d 114, 117 (4th Cir. 2016); accord

Martinez, 892 F.3d at 664.

Turning to the first element of Va. Code § 18.2-46.2, the Supreme Court of

Virginia has recognized that this element requires proof of “either membership or

participation” in a criminal street gang. Hamilton, 688 S.E.2d at 177 (emphasis added);

accord Rushing v. Commonwealth, 726 S.E.2d 333, 338 (Va. 2012) (“A defendant

charged with gang participation, although not an actual member of the gang, may be

convicted upon a showing that he participated in a gang-related crime.”). Of these two

means of satisfying the element, active participation in the gang would be the lesser

conduct. Virginia courts have held, for example, that a defendant’s choice to wear a red

hat and shirt to a party where other Bloods wearing red clothing were also present and

where the defendant told a third party dressed in red, “You’re a Blood and you don’t even

17

know it,” was sufficient evidence of “participation” to satisfy this element. Hamilton, 688

S.E.2d at 177.

Similarly, the third element—that the predicate criminal act was “committed for

the benefit of, at the direction of, or in association with the gang”—can be committed in

any one of these three disjunctive ways. See Morris v. Commonwealth, 716 S.E.2d 139,

141 (Va. Ct. App. 2011) (“[U]nder the plain language of Code § 18.2-46.2(A), the

Commonwealth . . . was required to prove that the predicate criminal act appellant

participated in with the . . . gang was committed ‘for the benefit of’ or ‘at the direction

of’ or ‘in association with’ the . . . gang.”). Of the three, “in association with” appears to

be the lowest threshold for satisfying the element. Virginia courts have held that this

component of the statute requires proof only that the defendant shared an intent to

commit the predicate criminal act, and it “does not expressly require that the defendant

ha[d] the same, specific objective” as the gang for committing that act. Id. at 141. Thus,

for example, the Court of Appeals of Virginia held that sufficient evidence existed to

show that the defendant committed the predicate act “in association with” a gang where

he “associated himself with [gang] members in order to attack innocent individuals” and

“shared the same general objective as the . . . gang members” by “join[ing] in the”

predicate criminal act. Id. at 141–42. It rejected the defendant’s argument that the

Commonwealth had to demonstrate that he had the same specific reason for participating

in the attack as the participating gang members, i.e., “achieving rank within the criminal

street gang.” Id. at 141.

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Having earlier concluded that the second element of the statute cannot provide the

requisite combination of “a culpable mental state and reprehensible conduct” to make Va.

Code § 18.2-46.2 categorically qualify as a crime involving moral turpitude, we reach the

same conclusion as to elements one and three. Contrary to the BIA’s conclusion, the mere

fact that an act was committed “in association with” a gang by someone who “actively

participate[d] in” the gang does not necessarily involve moral turpitude. To hold

otherwise would allow a statute to be classified as involving depraved conduct based on a

characteristic unrelated to that conduct, whether it be the defendant’s identity or that of

the individuals with whom he acted. The fact that the defendant or his associates may

have committed other morally depraved conduct that would satisfy the gang-related

elements of Va. Code § 18.2-46.2 has no nexus to the predicate criminal act of conviction

to recast it into a crime involving moral turpitude for purposes of the INA. And in

enacting 8 U.S.C. § 1227(a)(2)(A)(i), Congress required DHS to prove just that: to be

removable under this provision, the alien must have been “convicted of a crime involving

moral turpitude.” (Emphasis added.)

The following example illustrates our conclusion that a conviction under Va. Code

§ 18.2-46.2 does not categorically qualify as a crime involving moral turpitude. A

predicate criminal act under Va. Code § 18.2-46.2 includes violating Va. Code § 18.2-

128—trespass upon church or school property. See Va. Code § 18.2-46.1 (listing a

violation of Va. Code § 18.2-128 among the potential predicate criminal acts for purposes

of Va. Code § 18.2-46.2). Virginia law generally classifies that crime as a Class 3

misdemeanor, Va. Code § 18.2-128(A), meaning that the maximum punishment for its

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violation is a “fine of not more than $500,” Va. Code § 18.2-11(c). No one contends that

a simple trespass upon church property is a crime involving moral turpitude. Yet, under

the DHS framework, if two active participants in a criminal street gang (first element:

“actively participates in . . . a criminal street gang”) knowingly trespass upon church

property (second element: knowingly participate in any predicate criminal act) to attend a

gang meeting elsewhere (third element: the predicate criminal act was committed “for the

benefit of, at the direction of, or in association with the gang”), then upon conviction for

violating Va. Code § 18.2-46.2, those two individuals have also committed a crime

involving moral turpitude under the INA. But no one can seriously contend that two gang

participants trespassing on church property to get from Point A to Point B is “inherently

base, vile or depraved and contrary to accepted rules of morality and the duties owed

between persons or to society in general.” Prudencio, 669 F.3d at 484–85 (quoting

Matter of Olquin-Rufino, 23 I. & N. Dec. at 896). Accordingly, under the categorical

approach, not “all permutations of the conduct proscribed by the elements of the offense

involve moral turpitude.” Martinez, 892 F.3d at 658.

At bottom, neither Va. Code § 18.2-46.2’s requirement that the defendant

participated in a street gang nor its requirement that the predicate crime was committed

“in association with” a criminal street gang ensure that a violation of the statute involves

moral turpitude. Moreover, beyond pointing to the evil deeds of criminal street gangs writ

large, neither the BIA’s decision in this case nor its prior decision in E.E. Hernandez

explains why non-morally turpitudinous conduct (here, the predicate criminal act)

transforms into morally turpitudinous behavior simply because it was committed by or in

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association with gang-related individuals. As such, the BIA’s decision is not persuasive.

And because 8 U.S.C. § 1227(a)(2)(A)(i) requires DHS to prove that an alien has a

conviction for a crime involving moral turpitude in order to prove his eligibility for

removal, DHS fails to meet its burden of proof based on the alien having a conviction for

violating Va. Code § 18.2-46.2.

We find support for our conclusion in the well-reasoned opinion of the Ninth

Circuit in Hernandez-Gonzalez v. Holder, 778 F.3d 793 (9th Cir. 2015). 7 There, the BIA

held that the petitioner’s conviction for weapons possession that was “committed for the

benefit of, at the direction of, or in association with any criminal street gang” and “with

the specific intent to promote, further, or assist in any criminal conduct by gang

members” categorically constituted a crime involving moral turpitude. Id. at 797–98

(quoting Cal. Penal Code § 186.22(b)(1)). The Ninth Circuit reversed, and, with the

7

Hernadez-Gonzalez also found unpersuasive the BIA’s decision in E.E.

Hernandez. 778 F.3d at 808. When deciding Cabrera’s case, the BIA noted the conflict,

but observed that it was bound by E.E. Hernandez given that it was a precedential

decision of the BIA. See A.R. 19 n.1. We, of course, are not bound by either the Ninth

Circuit’s holding or E.E. Hernandez. Although E.E. Hernandez is a published decision by

the BIA and thus afforded Chevron deference, it is afforded deference only in its

interpretation of the INA, not in its interpretation of state law. See, e.g., Sijpati v. Boente,

848 F.3d 210, 214 (4th Cir. 2017) (stating that Chevron deference is afforded to

precedential decisions of the BIA concerning the agency’s interpretation of the INA,

meaning that its “interpretation of an ambiguous provision in the INA must be given

controlling weight unless that interpretation is arbitrary, capricious, or manifestly

contrary to the statute” (alteration in original)). Our analysis turns on the definition of a

crime involving moral turpitude, the text of Va. Code § 18.2-46.2, and Virginia case law

interpreting the statute’s provisions. Many differences between California’s gang-related

enhancement and Va. Code § 18.2-46.2 exist and some of the Ninth Circuit’s reasoning is

inapplicable, but portions of its reasoning are nonetheless persuasive.

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necessary changes to the text at issue here, its explanation applies equally to the gang-

related elements of Va. Code § 18.2-46.2. Like the gang-related enhancement before the

Ninth Circuit, the first and third elements of the Virginia statute “do[] not require an

intent to injure, actual injury, or a protected class of victims. Nor does it require the use

of any violence. Rather, the two elements of the gang enhancement” look solely to

establishing an association with a criminal street gang. Hernandez-Gonzalez, 778 F.3d at

802. Similarly “[t]here is nothing in the statute that would prevent it from applying to

run-of-the-mill criminal conduct. Of course, all gang-related criminal conduct is, at some

level, both serious and morally questionable, but not all gang-related criminal conduct

necessarily involves grave acts of baseness or depravity.” Id. at 802–03.

In sum, we cannot say based on the sole fact that Va. Code § 18.2-46.2 punishes

gang-related crimes that all convictions for violating Va. Code § 18.2-46.2 involve the

requisite base, vile, and morally depraved conduct so as to be crimes involving moral

turpitude. Acknowledging this truth in no way “minimize[s] the often serious, antisocial

and morally depraved aspects of gang-related crime[s].” Id. at 805. We recognize only

that not every act committed by a participant in a criminal street gang and in association

with a criminal street gang involves moral turpitude. Given that an individual can be

convicted under Va. Code § 18.2-46.2 for conduct that does not necessarily involve moral

turpitude, it does not categorically qualify as a crime that does.

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IV.

For the reasons stated above, we conclude that Virginia’s statute prohibiting

participation in criminal gang activity does not categorically qualify as a crime involving

moral turpitude for purposes of 8 U.S.C. § 1227(a)(2)(A)(i). We therefore grant the

petition for review, vacate the IJ’s order of removal, and remand with instructions to

terminate the removal proceedings.

PETITION FOR REVIEW GRANTED;

VACATED AND REMANDED

WITH INSTRUCTIONS

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