Jose Ramirez v. Jefferson Sessions III

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16-2444

JOSE LUIS RAMIREZ,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Argued: December 5, 2017 Decided: April 17, 2018 Amended: June 7, 2018

Before GREGORY, Chief Judge, MOTZ and TRAXLER, Circuit Judges.

Petition for review granted, order of removal vacated, and remanded with directions by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Motz and Judge Traxler joined.

ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Vanessa M. Otero, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Chad A. Readler, Acting Assistant Attorney General, Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. GREGORY, Chief Judge:

Jose Ramirez seeks review of the decision of the Board of Immigration Appeals

(BIA) finding him ineligible for special rule cancellation of removal under the Nicaraguan

Adjustment and Central American Relief Act (NACARA). Specifically, the question is

whether Ramirez’s convictions for obstruction of justice pursuant to Va. Code Ann. § 18.2-

460(A) qualify as crimes involving moral turpitude (CIMTs). We hold that obstruction of

justice under § 18.2-460(A) is not a CIMT because it may be committed without fraud,

deception, or any other aggravating element that shocks the public conscience. We

therefore grant Ramirez’s petition for review, vacate the BIA’s order of removal, and

remand with directions for the Government to facilitate Ramirez’s return to the United

States to participate in further proceedings.

I.

Jose Ramirez, a citizen of El Salvador, first entered the United States in 1996 when

he was seventeen years old. Nearly twenty years later, Ramirez was placed in removal

proceedings and charged with being present in the United States without being admitted or

paroled under 8 U.S.C. § 1182(a)(6)(A)(i). At his hearing, Ramirez conceded that he had

entered the country unlawfully. A.R. 69.

Ramirez then applied for special rule cancellation of removal under section 203 of

NACARA, Pub. L. No. 105-100, 111 Stat. 2160, 2196–2199 (1997). Section 203 allows

certain nationals from El Salvador and other designated countries to apply for suspension

of deportation or special rule cancellation of removal and adjust their status to permanent

2 residency. See id. To qualify under NACARA, an alien ordinarily must establish at least

seven years of continuous presence in the United States, among other eligibility criteria. 8

C.F.R. § 1240.66(b)(2)–(4). However, an applicant who is inadmissible or removable for

having committed a CIMT must establish at least ten years of continuous presence after

becoming inadmissible or removable. See Matter of Castro-Lopez, 26 I & N Dec. 693,

693 (BIA 2015); 8 C.F.R. §§ 1240.66(b) and (c).

The Department of Homeland Security (DHS) moved to pretermit Ramirez’s

application for relief under NACARA, arguing that his prior convictions triggered the ten-

year requirement. In 2012, Ramirez was convicted of one count of petit larceny under Va.

Code Ann. § 18.2-96 and two counts of obstruction of justice under § 18.2-460(A). A.R.

135, 138, 144. DHS argued that those convictions qualified as CIMTs, thereby subjecting

Ramirez to the ten-year physical presence requirement, which he could not meet. 1 The

decision turned on whether the obstruction offenses were CIMTs because petit larceny,

which Ramirez conceded was a CIMT, was not independently sufficient to trigger

inadmissibility and the heightened ten-year requirement. 2

1 When an alien incurs a new ground for inadmissibility or removability, the clock for establishing a period of continuous presence restarts for purposes of NACARA eligibility. See Matter of Castro-Lopez, 26 I & N Dec. at 693. Here, if Ramirez’s convictions were in fact CIMTs, then his clock would have restarted in 2012, and he would not have accrued ten years by the time of his petition. 2 The parties agreed that petit larceny otherwise fell within the so-called “petty offense” exception, which exempts certain minor CIMTs from being considered as the ground for inadmissibility. A.R. 48. The exception applies only if three criteria are satisfied: the alien has been convicted of no more than one CIMT, the offense is punishable with a term of imprisonment not exceeding one year, and the alien was sentenced to a term

3 The Immigration Judge (IJ) concluded that obstruction of justice under Va. Code

Ann. § 18.2-460(A) was a CIMT. In a brief oral decision, the IJ reasoned that “the statute

requires an act indicating an intention to prevent an officer from performing his or her

duties and that such impairing or obstructing an officer is morally turpitudinous.” A.R. 64.

The IJ then found that Ramirez was removable and did not qualify for relief under section

203 of NACARA. A.R. 65.

In a brief single-member decision, the BIA agreed that obstruction under § 18.2-

460(A) was a CIMT and affirmed. A.R. 3–4. In response, Ramirez filed a motion for a

stay of removal with this Court. This Court denied the motion, and Ramirez was removed

to El Salvador.

Ramirez filed a timely petition for review with this Court. In his petition, Ramirez

argues that the BIA erred in finding that obstruction of justice under Va. Code Ann. § 18.2-

460(A) was a CIMT. Ramirez also asks this Court to order the Government to facilitate

his return to the United States. In response, the Government argues that this Court lacks

jurisdiction because Ramirez has failed to exhaust his administrative remedies, that the

BIA did not err, and that ordering Ramirez’s return is unnecessary.

II.

Before assessing the merits of Ramirez’s claims, “[w]e first consider whether we

have jurisdiction” over his petition for review. Etienne v. Lynch, 813 F.3d 135, 138 (4th

of imprisonment not exceeding six months. 8 U.S.C. § 1182(a)(2)(A)(ii)(II). Because a conviction for such a petty offense would not constitute a ground for inadmissibility, it therefore would not trigger the heightened standard under NACARA. 4 Cir. 2015). When Congress passed the REAL ID Act in 2005, it limited our jurisdiction

over certain final orders of removal. Kporlor v. Holder, 597 F.3d 222, 225–26 (4th Cir.

2010) (citing 8 U.S.C. § 1252(a)(2)). However, we retain jurisdiction “to review

constitutional claims or questions of law,” provided that the petitioner has complied with

the administrative exhaustion requirement. 8 U.S.C. § 1252(a)(2)(D); Etienne, 813 F.3d at

138. As the Government rightly concedes, determining whether a crime involves moral

turpitude is a question of law. Gov. Br. at 3; see Mbea v. Gonzales, 482 F.3d 276, 277–78

& n.1 (4th Cir. 2007). But, the Government argues, that this Court lacks jurisdiction

because Ramirez failed to exhaust his administrative remedies. For the reasons below, we

conclude that Ramirez has complied with the exhaustion requirement and that this Court

has jurisdiction over his petition for review.

“A court may review a final order of removal against an alien only if ‘the alien has

exhausted all administrative remedies available to the alien as of right.’” Etienne, 813 F.3d

at 138 (quoting 8 U.S.C. § 1252(d)(1)). “When an alien has an opportunity to raise a claim

in administrative proceedings but does not do so, he fails to exhaust his administrative

remedies as to that claim.” Id.

However, § 1252 only prohibits “the consideration of bases for relief that were not

raised below, and of general issues that were not raised below, but not of specific,

subsidiary legal arguments, or arguments by extension, that were not made below.” Gill v.

INS, 420 F.3d 82, 86 (2d Cir. 2005); see also Garcia v. Lynch, 786 F.3d 789, 792‒93 (9th

Cir. 2015) (holding that petitioner satisfied exhaustion requirement by raising argument

during administrative proceedings, albeit in limited way); Chuen Piu Kwong v. Holder,

5 671 F.3d 872, 877 (9th Cir. 2011) (holding that general challenge to sufficiency of evidence

to support finding by IJ as to aggravated felony conviction was sufficient to meet

exhaustion requirement, even though petitioner raised issue below in “slightly different

manner”), cert. denied 133 S. Ct. 2885 (2013); Higgs v. Atty. Gen. of the U.S., 655 F.3d

333, 338 (3d Cir. 2011) (finding that exhaustion requirement is met if petitioner made

“some effort, however insufficient, to place the BIA on notice of a straightforward issue

being raised on appeal” (citation omitted)); Dale v. Holder, 610 F.3d 294, 300–01 (5th Cir.

2010) (“[A]lthough the argument [petitioner] 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 [he] presented his ground for relief to the administrative agency in the first instance.”

(internal quotation marks omitted)).

The Government does not dispute that Ramirez argued below that obstruction of

justice under Virginia law is not a CIMT. A.R. 31. Instead, the Government argues that

administrative exhaustion bars Ramirez’s appellate counsel from making more specific and

nuanced points to demonstrate how and why obstruction is not a CIMT. In particular, the

Government takes issue with appellate counsel citing certain cases for the first time on

appeal in order to elaborate on the breadth of the Virginia statute. The Government has

not provided any basis for applying the exhaustion requirement at this level of granularity.3

3 The cases cited by the Government are clearly distinguishable. See Gonzales v. Thomas, 547 U.S. 183, 184–87 (2006) (holding that court of appeal should have remanded to allow agency to apply correct asylum standard); INS v. Ventura, 537 U.S. 12, 17 (2002) (holding that court of appeal should have remanded to allow agency to consider issue that it previously declined to address); Tiscareno-Garcia v. Holder, 780 F.3d 205, 210 (4th Cir.

6 Indeed, such an approach would strip appellate counsel’s ability to bolster existing

arguments—and limit the universe of available case law and precedent to those already

cited below. Cf. Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008) (finding lack of

exhaustion because petitioner completely failed to contest below whether reckless

endangerment was crime of violence). No decision of this Court has so undermined the

basics of appellate advocacy and review, and we, like our sister circuits, decline the

Government’s invitation to do so.

We therefore conclude that Ramirez satisfied the exhaustion requirement under

§ 1252(d)(1) when he argued below that obstruction of justice is not a CIMT. Accordingly,

we have jurisdiction over this question of law.

III.

We now turn to the merits of Ramirez’s argument. The dispositive issue is whether

obstruction of justice under Va. Code Ann. § 18.2-460(A) is categorically a crime

involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I). The obstruction statute

provides,

If any person . . . knowingly obstructs . . . any law-enforcement officer . . . in the performance of his duties as such or fails or refuses without just cause to cease such obstruction when requested to do so by such . . . law-enforcement officer . . . shall be guilty of a Class 1 misdemeanor.

2015) (finding failure to exhaust because petitioner did not claim below that prior offense fell outside relevant time period); Kporlor, 597 F.3d at 226–27 (finding failure to exhaust because petitioner did not appeal CAT claim to BIA); Kurfees v. INS, 275 F.3d 332, 336 (4th Cir. 2001) (finding failure to exhaust because petitioner neglected to appeal to BIA). Neither Gonzales nor Ventura concerned a failure to exhaust, and the remaining cases all involved entirely new bases or theories for relief that were not presented to the BIA. 7 Va. Code Ann. § 18.2-460(A).

In a two-page, non-precedential, one-member decision, the BIA concluded that

obstruction under § 18.2-460(A) is a CIMT. In reaching that conclusion, the BIA invoked

its precedential decision in Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA 2006).

For the reasons below, we conclude that Matter of Jurado-Delgado is inapposite

and that the BIA decision in this case is not entitled to any deference. We then address de

novo whether obstruction under Virginia law is a CIMT and ultimately conclude that it is

not.

A.

We first consider what deference, if any, this Court owes to the BIA’s legal

conclusions in this case. Under the well-known Chevron doctrine, an agency’s

interpretation of the statute(s) that it administers is entitled to deferential review if the

agency exercises delegated authority to “make rules carrying the force of law.” United

States v. Mead Corp., 533 U.S. 218, 226–27 (2001); Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837, 842–43 (1984). Once eligible for Chevron review, the

agency’s interpretation is controlling to the extent that “Congress has not directly addressed

the precise question at issue” and “the agency’s answer is based on a permissible

construction of the statute.” 467 U.S. at 842–43; Sijapati v. Boente, 848 F.3d 210, 215 (4th

Cir. 2017). Absent Chevron deference, agency decisions are given a level of respect

commensurate with their persuasiveness. Mead, 533 U.S. at 221. Here, the BIA decision

on review is not eligible for Chevron deference to the extent that it interprets the Virginia

obstruction statute, which it does not administer, and to the extent that it lacks the force of

8 law as a non-precedential decision and is not controlled by BIA precedent. We further

conclude that the BIA’s abbreviated analysis is unpersuasive and does not merit any

deference.

The BIA’s legal conclusion here—that a conviction under state law is categorically

a CIMT—involves two interpretative questions, one about the Immigration and Nationality

Act (INA) and one about a state criminal statute. See Prudencio v. Holder, 669 F.3d 472,

482–84 (4th Cir. 2012) (citing Taylor v. United States, 495 U.S. 575, 600–01 (1990)). We

may apply Chevron to BIA decisions interpreting the INA but not the agency’s

interpretations of state criminal law and other statutes that lie beyond the BIA’s authority

and expertise. 4 Soliman v. Gonzales, 419 F.3d 276, 281 (4th Cir. 2005).

The first interpretative question is what the term “moral turpitude” means in the

INA. Because the term “moral turpitude” is ambiguous, we would defer, under Chevron,

to the agency’s reasonable construction of the term and definition of the types of conduct

it encompasses. Mohamed v. Holder, 769 F.3d 885, 889 (4th Cir. 2014); Prudencio, 669

F.3d at 484.

The second interpretative question is whether the state statute of conviction

necessarily involved the type of conduct defined to be morally turpitudinous. On this

question of state law, we do not owe any deference to the BIA. See Soliman, 419 F.3d at

281 (“[W]e need not accord deference to the BIA’s ultimate finding that [petitioner’s]

4 The Attorney General has delegated his discretion and authority in interpreting the INA to the BIA, which “shall exercise [its] independent judgment and discretion in considering and determining the cases coming before the board.” 8 C.F.R. § 1003.1(d)(1)(ii). 9 particular offense was an aggravated felony, which involves . . . an interpretation of

Virginia criminal law.”). In other words, “we do not defer to the BIA’s application of

[INA] definitions to particular state statutes.” Amos v. Lynch, 790 F.3d 512, 518 n.5 (4th

Cir. 2015).

However, regardless of the nature of the interpretative question, non-precedential

opinions by the BIA are categorically ineligible for Chevron review because they do not

carry the force of law. Martinez v. Holder, 740 F.3d 902, 909–10 (4th Cir. 2014); see also

Amos, 790 F.3d at 519. To be precedential, opinions of the BIA must be issued, at

minimum, by a three-member panel and must be designated as precedential by a majority

of the permanent members of the Board. 8 C.F.R. § 1003.1(g). In this case, the BIA’s one-

member decision does not carry the force of law, and we do not review its legal

conclusions, whether as to the INA or as to state law, under the Chevron two-step

framework. Accordingly, the BIA’s determination here that any intentional act “to

obstruct, impair, or pervert the lawful operations of government” inherently involves moral

turpitude under the INA is not eligible for Chevron deference. A.R. 4.

But, because the BIA determination here relied on Matter of Jurado-Delgado, 24 I.

& N. Dec. at 35, which is precedential, we must determine whether the latter is apposite

and entitled to Chevron deference. Sijapati, 848 F.3d at 215; Larios-Reyes v. Lynch, 843

F.3d 146, 155 (4th Cir. 2016); Amos, 790 F.3d at 519. In Matter of Jurado-Delgado, deceit

was the critical aggravator that rendered an obstruction offense a CIMT. In that case, the

question was whether a conviction for making false statements to a government official

“with intent to mislead a public servant in performing his official function” involved moral

10 turpitude. 24 I. & N. Dec. at 33–35. Indeed, the BIA answered in the affirmative, reasoning

that the “intent to mislead [] is the controlling factor.” Id. at 35 (emphasis added). In turn,

the BIA in Matter of Jurado-Delgado relied on its prior precedential decision in Matter of

Flores, where the BIA concluded that a conviction for falsifying immigration papers under

18 U.S.C. § 1426(b) qualified as a CIMT. 17 I. & N. Dec. 225, 225 (BIA 1980). There,

the BIA found that “crimes in which fraud [is] an ingredient have always been regarded as

involving moral turpitude.” Id. at 228. Thus, the Matter of Jurado-Delgado line of

precedent merely determined that conduct involving “deceit, graft, trickery, or dishonest

means” is morally turpitudinous. 5 See 24 I. & N. Dec. at 35.

In relation to those cases, the BIA’s one-member decision in this case attempts to

significantly expand the definition of a CIMT by removing deceit, a critical indicator of

moral turpitude, from the equation. Since this non-precedential decision departs from,

rather than relies on, precedential BIA decisions, it is not eligible for Chevron review.

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

power to persuade.’” Zavaleta-Policiano v. Sessions, 873 F.3d 241, 246 n.2 (4th Cir. 2017)

5 Our sister circuits have similarly construed Matter of Jurado-Delgado and related decisions addressing obstruction, perjury, and false statements. See Idelfonso-Candelario v. Att’y Gen. of the U.S., 866 F.3d 102, 105–07 (3d Cir. 2017) (“Matter of Jurado-Delgado focused on the intent to mislead, not the mere intent to obstruct. Thus, the intent to impair or obstruct governmental functions, standing alone, is not morally turpitudinous under the BIA’s decisions; the obstruction must occur ‘by deceit, graft, trickery, or dishonest means.’”); Flores-Molina v. Sessions, 850 F.3d 1150, 1171–72 (10th Cir. 2017) (collecting cases). 11 (quoting Martinez, 740 F.3d at 909–10); see Mead, 533 U.S. at 221. Here, the BIA

provides only three sentences of analysis that are conclusory in nature and disregards the

agency’s prior emphasis on fraud or deceit as a critical determinant without identifying an

alternative aggravator. Consequently, the BIA decision is also undeserving of so-called

Skidmore respect because it lacks the power to persuade. See Mead, 533 U.S. at 221.

In sum, under Chevron, BIA decisions defining morally turpitudinous conduct are

controlling if they are precedential and reasonable. However, the BIA’s interpretations of

laws that it does not administer, such as the Virginia obstruction of justice statute, and its

non-precedential decisions are only given weight to the extent that this Court finds the

reasoning persuasive. Here, because we do not find persuasive the BIA’s abbreviated and

non-precedential opinion, we do not accord it any deference.

B.

We now determine de novo whether Ramirez’s conviction under Va. Code Ann.

§ 18.2-460(A) fits within the INA’s definition of a CIMT. Uribe v. Sessions, 855 F.3d 622,

625 (4th Cir. 2017). To answer this question, we apply the categorical approach, which

examines only the statutory elements of the prior offense, not the particular conduct

underlying the conviction. 6 See Descamps v. United States, 570 U.S. 254, 261 (2013);

6 In a “narrow range of cases,” a criminal statute may consist of “multiple, alternative versions” of a crime, only a subset of which qualify as a CIMT. See Descamps, 570 U.S. at 262–63. For these so-called “divisible” statutes, we look to the record of conviction to determine whether the petitioner was necessarily convicted of a version of the crime that qualifies as a CIMT. Even under this “modified categorical approach,” we are still focused on the elements of conviction, not the underlying facts of what the petitioner did. Id. In this case, neither party argues that § 18.2-460(A) is divisible into a

12 Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013). In this case, obstruction of justice

under § 18.2-460(A) qualifies as a CIMT if even the minimum conduct needed to violate

the state statute would involve moral turpitude. See Larios-Reyes, 843 F.3d at 152 (noting

that minimum conduct must have “realistic probability, not a theoretical possibility” of

being prosecuted). We first examine how moral turpitude has been defined for purposes

of the INA and then consider whether obstruction under § 18.2-460(A) prohibits any

conduct that is not morally turpitudinous.

The BIA defines the term “moral turpitude” as behavior “that shocks the public

conscience as being inherently base, vile, or depraved.” 7 Mohamed, 769 F.3d at 888 (citing

Matter of Tobar-Lobo, 24 I. & N. Dec. 143, 144 (BIA 2007); Matter of Danesh, 19 I. & N.

Dec. 669, 670 (BIA 1988)). A CIMT must involve both a morally culpable mental state

and morally reprehensible conduct. Sotnikau v. Lynch, 846 F.3d 731, 736 (4th Cir. 2017)

(citing In re Ortega-Lopez, 26 I. & N. Dec. 99, 100 (BIA 2013)). To meet the mens rea

requirement, the crime must have, as an element, an intent to achieve an immoral result or

willful disregard of an inherent and substantial risk that an immoral act will occur. See id.

(citing In re Perez-Contretas, 20 I. & N. Dec. 615, 619 (BIA 1992)). To meet the actus

reus requirement, the crime “must involve conduct that not only violates a statute but also

CIMT version and a non-CIMT version, nor do we discern such a division. Accordingly, we need not and do not consider the modified categorical approach. 7 As previously discussed, we afford Chevron deference to the BIA’s reasonable interpretation of the term “crime involving moral turpitude,” used in the INA. See Mohamed, 769 F.3d at 888. Ramirez does not challenge the applicability of these established BIA definitions. 13 independently violates a moral norm.” Id.; see Mohamed, 769 F.3d at 888 (“[T]he phrase

‘involving moral turpitude’ . . . refers to more than simply the wrong inherent in violating

the statute. Otherwise the requirement . . . would be superfluous.”). Therefore, for

obstruction under § 18.2-460(A) to categorically qualify as a CIMT, it must exclusively

criminalize knowing or intentional acts that violate a moral norm. See Sotnikau, 846 F.3d

at 735 (“We look at the elements of the crime at issue and determine whether those

elements solely encompass behavior that involves moral turpitude.”).

With that definition of moral turpitude in mind, we turn to the elements of § 18.2-

460(A). See Uribe, 855 F.3d at 626. Under Virginia law, to constitute obstruction, “there

must be acts clearly indicating an intention on the part of the accused to prevent [an] officer

from performing his duty.” Ruckman v. Commonwealth, 505 S.E.2d 388, 389 (Va. Ct.

App. 1998) (citing Jones v. Commonwealth, 126 S.E. 74, 77 (Va. 1925)). Because

obstruction in Virginia requires a showing of intent, the offense may have the mens rea

necessary to qualify as a CIMT if the intended obstruction is an immoral act or result.

However, § 18.2-460(A) does not require morally reprehensible conduct. As the

BIA’s rationale in Matter of Jurado-Delgado suggests, an act of obstruction, standing

alone, does not categorically involve moral turpitude. See 24 I. & N. Dec. at 33–35. In

other words, there must be some other aggravating element that pushes a mere violation of

the law into the territory of moral depravity. Unlike the statute the BIA considered in

Matter of Jurado-Delgado, § 18.2-460(A) does not require the use of fraud or deceit.

Indeed, in Virginia, obstruction via deception is punished under a different subsection. See

Va. Code Ann. § 18.2-460(D). Nor does a conviction under § 18.2-460(A) require any use

14 of threats or force, let alone force or violence that rises to the level of moral depravity. See

Va. Code Ann. §§ 18.2-460(B), (C); Thorne v. Commonwealth, 784 S.E.2d 304, 305 (Va.

Ct. App. 2016). Thus, nothing in the text of § 18.2-460(A) appears to require the

commission of an “inherently base, vile, or depraved” act. See Mohamed, 769 F.3d at 888.

Virginia case law makes clear that § 18.2-460(A) prohibits a wide-range of actions

(and inactions) that do not categorically involve moral depravity. According to the Court

of Appeals of Virginia, one need not take any action at all to be convicted of obstruction.

Thorne, 784 S.E.2d at 308 (“[O]bstruction may be either active or passive.”). In Thorne,

the state court upheld a conviction of a woman who, for only nine minutes, refused to lower

her car windows for a tint inspection because she felt that her rights were being violated by

the officer. Id. at 309. Similarly, other cases have upheld convictions for conduct that,

even if unwise, does not “shock[] the public conscience.” See Mohamed, 769 F.3d at 888.

In Molinet v. Commonwealth, the defendant cursed at and refused to back away from an

officer. 779 S.E.2d 231, 232–33, 235 (Va. Ct. App. 2015). In Mason v. Commonwealth,

the defendant did no more than loudly demand that officers leave his yard. No. 1189-98-

2, 1999 WL 1133677, at *1 (Va. Ct. App. Aug. 3, 1999). These cases demonstrate more

than a “realistic probability” that even relatively minor misconduct may be prosecuted

under § 18.2-460(A). See Larios-Reyes, 843 F.3d at 152.

The Government has not shown how such misconduct categorically violates a moral

norm. Instead, the Government merely reiterates the BIA’s non-precedential and

unsupported position that any “intent to obstruct, impair, or pervert the lawful operations

15 of government” necessarily involves morally turpitude. 8 Resp. Br. at 29–30. However,

morality does not forbid civil disobedience. See United States v. Moylan, 417 F.2d 1002,

1008 (4th Cir. 1969) (“[A] morally motivated act contrary to law may be ethically

justified.”). It simply cannot be that verbal protests against law enforcement and refusals

to comply are categorically immoral. To the contrary, our nation has repeatedly witnessed

how civil disobedience may advance the causes of morality and justice, even if such

opposition runs afoul of statutory proscriptions. See id. (“Faced with the stark reality of

injustice, [persons] of sensitive conscience and great intellect have sometimes found only

one morally justified path, and that path led them inevitably into conflict with established

authority and its laws.”). The Government’s view of obstruction erroneously equates might

with right.

Because § 18.2-460(A) prohibits conduct that does not necessarily involve moral

turpitude, it sweeps more broadly than the INA’s definition of a CIMT, and Ramirez’s

convictions thereunder do not qualify as CIMTs. 9 We therefore hold that obstruction under

8 The Government cites no relevant authority for this proposition. The Government claims that two cases from our sister circuits have held that obstruction is a CIMT but neglects to mention that both cases concerned statutes that have deception as an element. See Rodriguez v. Gonzales, 451 F.3d 60, 64–65 (2d Cir. 2006); Padilla v. Gonzales, 397 F.3d 1016, 1020–21 (7th Cir. 2005). 9 As noted previously, this ends our inquiry because this case does not fall into the “narrow range of cases” in which we apply the modified categorical approach to examine the record of conviction. See Descamps, 570 U.S. at 262–63. Section 18.2-460(A) does not reference fraud, deception, or any other aggravator needed to qualify as a CIMT. By definition, the provision does not (and cannot) have a divisible version of obstruction that might otherwise qualify as a CIMT. Accordingly, the modified categorical approach has no utility here, and we do not consider whether the statute is otherwise divisible or whether the record of conviction reveals a CIMT. 16 Va. Code Ann. § 18.2-460(A) is not a CIMT for purposes of NACARA and 8 U.S.C.

§ 1182(a)(2)(A)(i)(I).

* * *

Because obstruction of justice under § 18.2-460(A) is not a CIMT, Ramirez’s only

CIMT conviction is his conviction for petit larceny. The parties agree that petty larceny

qualifies for the “petty offense” exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II).

Accordingly, Ramirez is not inadmissible on the grounds of a CIMT conviction and does

not have to meet the heightened ten-year requirement to be eligible for NACARA. We

therefore remand the case to the BIA to determine if Ramirez otherwise qualifies for relief

under section 203 of NACARA, notwithstanding his removal (effectuated due to a legal

error) from this country.

IV.

Ramirez also petitions this Court to order the Government to facilitate his return to

the United States for the completion of his removal proceedings, including his application

for relief under NACARA. Under an Immigration and Customs Enforcement (ICE) policy

directive, “[a]bsent extraordinary circumstances, if an alien who prevails before the U.S.

Supreme Court or a U.S. court of appeals was removed while his or her [petition for review]

was pending, ICE will facilitate the alien’s return to the United States if either the court’s

decision restores the alien to lawful permanent resident (LPR) status, or the alien’s

presence is necessary for continued administrative removal proceedings.” U.S.

Immigration and Customs Enforcement Policy Directive Number 11061.1, Facilitating the

17 Return to the United States of Certain Lawfully Removed Aliens (Feb. 24, 2012) (saved as

ECF opinion attachment 1). Among other circumstances, an alien’s presence is necessary

when a court orders his or her presence. 10 Contrary to the Government’s position, we

conclude in this case that Ramirez’s presence is necessary to effectuate judicial review and

to restore him to the status he had before his removal, such that he may apply for relief

under NACARA under the correct standard. We therefore direct the Government to

facilitate Ramirez’s return, pursuant to Directive 11061.1, for that limited purpose. 11

We note that our order does not confer on Ramirez any immigration benefits beyond

enabling him to apply for special rule cancellation of removal and, if so granted by the IJ

or the BIA, eventual adjustment of status, notwithstanding his removal, which was

premised on a mistaken conclusion of law. In other words, the agency retains the authority

to lawfully deny him relief on other grounds. As our sister circuits have done in similar

circumstances, we grant this relief because judicial review would otherwise be frustrated

if Ramirez cannot be restored to the status he had before his removal. See Orabi v. Att’y

10 See U.S. Immigration and Customs Enforcement, Frequently Asked Questions (FAQs) on Facilitating Return for Lawfully Removed Aliens (saved as ECF opinion attachment 2) (“ICE will facilitate your return to the United States if your presence is necessary for continued adjudication of your case. This may be because the court of appeals specifically ordered your presence, or because the nature of the court’s order requires you to return for further testimony.”). 11 Under the Directive, “facilitating an alien’s return” entails enabling an alien to “engage in activities which allow a lawfully removed alien to travel to the United States (such as by issuing a Boarding Letter to permit commercial air travel) and, if warranted, parole the alien into the United States upon his or her arrival at a U.S. port of entry.” U.S. Immigration and Customs Enforcement Policy Directive Number 11061.1. This “does not necessarily include funding the alien’s travel via commercial carrier to the United States or making flight arrangements for the alien.” Id. 18 Gen. of U.S., 738 F.3d 535, 543 (3d Cir. 2014) (vacating the BIA’s order and directing the

Government “to return [petitioner] to the United States”); Samirah v. Holder, 627 F.3d

652, 665 (7th Cir. 2010) (“We remand . . . for the issuance of a mandamus commanding

the Attorney General to take whatever steps are necessary to enable the plaintiff to reenter

the United States for the limited purpose of reacquiring the status . . . that he enjoyed when

he left the United States.”).

The BIA erred as a matter of law when it concluded that obstruction of justice under

Va. Code Ann. § 18.2-460(A) is a crime involving moral turpitude under the INA. We

therefore grant Ramirez’s petition for review, vacate the order of removal, and remand with

directions for the Government to facilitate Ramirez’s return to the United States for the

purpose of participating in further proceedings.

PETITION FOR REVIEW GRANTED, ORDER OF REMOVAL VACATED, AND REMANDED WITH DIRECTIONS