Professional Documents
Culture Documents
No. 14-2013
EDDY ETIENNE,
Eddy Etienn,
a/k/a
Hailadingle,
Zellew
Tesfegna,
a/k/a
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
---------------------------------CAPITAL
AREA
IMMIGRANTS
RIGHTS
COALITION;
IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD,
NATIONAL
Argued:
Decided:
ordered
petitioner
grounds
that
is
aggravated
he
an
felony.
Eddy
alien
See
who
Etiennes
has
removal,
been
U.S.C.
on
convicted
the
of
an
1227(a)(2)(A)(iii),
1228(b).
For
the
reasons
that
follow,
we
conclude
that
we
have
review.
I.
Etienne entered the United States from his native country
of Haiti in 1984, initially residing here as an undocumented
immigrant.
Temporary
Protected
Status
(TPS),
lawful
immigration
to Haiti.
for
TPS,
year.
also
When
his
Etienne
application
sought
for
another
renewal
renewal
the
of
following
his
TPS
in
thereafter,
against
DHS
Etienne
initiated
by
serving
expedited
him
with
removal
Notice
of
The
Notice
of
Intent,
part
of
DHS
Form
I-851,
also
removed
informed
Etienne
that
he
would
be
pursuant
to
against
him
by
filling
out
his
support
of
A.R.1
at
2.
checked
removal
[his]
two
and
boxes
that
rebuttal
Etienne
did
the
response
and
not,
of
indicating
he
section
was
that
attaching
request
however,
for
he
wished
to
documents
in
further
actually
review.
attach
any
March
deportable
Final
20,
under
2014,
the
Administrative
Haiti.
INA,
after
the
Removal
concluding
deciding
Order
for
that
DHS
Etienne
officer
Etiennes
was
issued
removal
a
to
proceedings
reached
administrative
closure.
II.
In his petition for review, Etienne argues for the first
time that his 1996 conviction for conspiracy under Maryland law
does not constitute an aggravated felony under the INA, and
that
DHS
therefore
erred
in
finding
him
removable.
Before
F.3d 192, 196 (4th Cir. 2014); Kporlor v. Holder, 597 F.3d 222,
225 (4th Cir. 2010).
A.
We
first
consider
whether
we
have
jurisdiction
over
fails
claim.
to
exhaust
his
administrative
remedies
as
to
that
2008).
Here,
Etienne
argues
that
DHSs
expedited
removal
Thus, Etienne
the
classification
of
his
1996
Maryland
conspiracy
of
his
or
her
removal--and
6
thus
whether
we
have
the
legal
basis
of
his
removal.
The
INAs
1227(a)(2)(A)(iii).
with
removability
Generally,
for
having
been
when
an
alien
convicted
of
is
an
not
been
permanent
residence,
process,
without
1228(b).
presides
lawfully
the
admitted
INA
hearing
to
the
United
authorizes
an
before
IJ.
an
States
expedited
See
for
removal
U.S.C.
over
this
expedited
removal
process.
See
C.F.R.
238.1(a).
Under the relevant regulations, DHS initiates an expedited
removal by serving an alien with Form I-851, Notice of Intent
to Issue a Final Administrative Deportation Order.
238.1(b)(1).
out
in
the
allegations
See id.
regulations:
of
fact
and
It
must
notify
conclusions
of
the
law
alien
of
underlying
the
DHSs
inform
the
alien
of
DHSs
intent
to
issue
Final
alien, among other things, that he or she may rebut the charges
within 10 calendar days of service.
Id.
Etiennes
completed
Form
I-851
shows
the
range
of
possible
responses:
A.R.1 at 2.
If the alien chooses to respond, the first choice the alien
must make is between two mutually exclusive boxes centered on
the response form.
he
or
she
[w]ithholding
[w]ish[es]
of
to
[c]ontest
[r]emoval.
Id.
The
and/or
to
[r]equest
second
indicates
the
Id.
If the alien checks the first box, there are two additional
check-box
options
that
clarify
whether
the
alien
wishes
to
checkbox
logically
are
four
more
complete
the
statement.
Id.
checkboxes,
Indented beneath
only
Those
three
three
of
which
options
each
Id.
The form does not offer a specific checkbox for an alien who
wishes to raise a legal challenge to his or her removal.
If
deciding
the
alien
DHS
responds
officer
must
and
contests
determine
removability,
whether
the
the
aliens
8 C.F.R. 238.1(d)(2)(i).
deciding
proceeding,
genuine
Service
including
issue
of
officer
the
finds
aliens
material
fact
that
timely
Id.
If, however,
the
record
rebuttal,
regarding
the
If so,
raises
of
a
preliminary
full
removal
proceedings
238.1(d)(2)(ii)(A).
If
before
the
an
additional
IJ.
evidence
Id.
cures
any
officer
must
then
238.1(d)(2)(ii)(B).
is
not
amenable
terminate
the
to
issue
final
Removal
Order.
Id.
expedited
removal,
proceedings
the
.
officer
and
shall,
shall
where
appropriate.
According
to
the
government,
this
evidence,
removal,
leaving
but
the
alien
potentially
not
amenable
amenable
to
to
removal
expedited
under
full
same
issue,
the
Fifth
Circuit
held
that
Considering
the
relevant
Id. at 187.
Id.
Thus,
12
more consistent with Form I-851, the form DHS must provide to
aliens in expedited proceedings for aliens to respond to the
charge of removability.
First, the language of the expedited removal regulations,
read in context with the INA and associated regulations, seems
to
indicate
removability
that
may
only
be
factual
raised
in
challenges
expedited
to
removal
an
aliens
proceedings.
after
an
alien
responds
to
the
Notice
of
Intent
8 C.F.R.
See id.
An IJ, however,
8 U.S.C. 1229a(c)(3)(A).
Second, Form I-851 offers no obvious opportunity to raise a
legal challenge.
means using all steps that the agency holds out, and doing so
properly.
Woodford
v.
Ngo,
548
U.S.
81,
90
(2006)
(first
several
checkboxes
for
any
specific
legal
an
alien
to
Form I-851
lodge
factual
challenges,
legal
challenge
in
DHSs
expedited
removal
procedures
offer
an
alien
the
our
holding.
Nothing
in
our
opinion
prevents
DHS
from
their
present
right
form
to
does
raise
not.
legal
The
issues
in
opportunity
manner
to
raise
that
a
the
legal
steps
that
the
agency
holds
out
and
therefore
an
Woodford v. Ngo,
U.S.C.
1252(d)(1).
We
therefore
have
jurisdiction
to
B.
Having
determined
that
we
have
jurisdiction
to
consider
trafficking
in
controlled
substance,
U.S.C.
id.
1101(a)(43)(U).
The parties agree that the categorical approach applies to
determining
whether
state-law
whether,
under
the
crime
qualifies
as
an
categorical
approach,
the
term
Etienne argues
require
proof
of
an
overt
act,
his
conviction
does
not
INA.
We
therefore
hold
that
state-law
conspiracy
Id. at 1684.
Under
elements
the
of
categorical
the
statute
approach,
of
conviction
we
consider
only
the
rather
than
the
Omargharib v. Holder,
the state offense has the same elements as the generic INA
crime,
then
felony.
broadly
the
Id.
.
prior
If,
aggravated felony.
omitted).
offense
Courts
listed
in
conviction
however,
the
the
prior
constitutes
an
state
offense
conviction
cannot
aggravated
sweeps
count
more
as
an
first
INA
determine
and
then
the
meaning
compare
that
of
the
generic
our
statutory
analysis
begins
construction
with
that,
the
absent
settled
contrary
principle
of
indications,
conspiracy
required
only
proof
of
the
act
At
of
Following the
enhancement
924(e),
of
even
the
Armed
though
the
Career
state
Criminal
law
omitted
Act,
some
Noting that
of
term
is
obsolete
or
inconsistent
with
the
Namely, the
the
practical
implications
of
following
the
common-law
Criminal
Law
8.13(g),
p.476
(1986)).
Where
burglary is concerned, [o]nly a few states retain the commonlaw definition, or something closely resembling it, while most
states
have
done
away
with
one
or
more
of
the
arcane
the
Court
noted
that
many
states
do
Id.
not
For
require
Others
Id.
Id.
is
common-law
significant
definition
states alternatives.
common-law
Id.
served
to
for
was
our
purposes
more
that
restrictive
in
than
Taylor,
the
the
various
burglary
liability,
following
The Court
reasoned
the
generally
recognized
that,
because
as
burglaries
few
of
would
fall
crimes
within
now
the
common-law
statutes]
purposes.
Id.
20
at
594.
Thus,
finding
no
specific
indication
common-law
meaning
that
of
Congress
that
meant
term,
to
the
incorporate
Court
the
interpreted
law.
There
are
only
two
prevalent
definitions
of
codes.
One-third
of
the
states
retain
the
common-law
conspiracy
requirement.
conspiracy
have
added
single
element:
the
overt
act
liability,
it
is
not
the
case
that
the
states
See
id. at 593.
Further,
those
states
that
have
added
the
overt
act
To
the
contrary,
imposing
21
an
overt
act
See id.
requirement
would render the term conspiracy null and void in all of the
states that have retained the common-law definition.
Moreover,
desire
to
have
the
INA
apply
broadly
is
law
requirement.
if
Congress
This
also
reading
contemplated
would
mean
an
that
overt
Congress
act
never
the
common-law
presumption
in
this
case
and
cannot
3.
Having determined that the INA incorporates the common-law
definition of conspiracy, we must compare it to the state-law
crime
of
conspiracy
conviction.
to
Etiennes
violate
State of Maryland.
the
prior
controlled
A.R.1 at 17.
conviction
substances
was
for
of
the
law
Townes v. State, 548 A.2d 832, 834 (Md. Ct. App. 1988).
See id.
not
require
proof
of
an
overt
act.
Any
state-law
sum,
we
conclude
that
nothing
rebuts
the
common-law
under
need
not
the
categorical
require
proof
approach,
of
an
state-law
act
to
be
overt
III.
For the foregoing reasons, Etiennes petition for review is
DENIED.
24