         13-1484-ag
         Lugo v. Holder
 1 
 2                           UNITED STATES COURT OF APPEALS
 3                               FOR THE SECOND CIRCUIT
 4 
 5                                        August Term, 2014
 6 
 7                    (Argued: Dec. 19, 2014                     Decided: April 9, 2015)
 8 
 9                                      Docket No. 13-1484-ag
10 
11 
12                                        MARIA C. LUGO,
13 
14                                                 Petitioner,
15 
16                                                   – v. –
17 
18             ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL
19 
20                                             Respondent.
21 
22 
23    Before: CALABRESI, B.D. PARKER and LIVINGSTON, Circuit Judges.
24 
25           Maria C. Lugo appeals from the Board of Immigration Appeals’ March 28, 2013
26    order denying cancellation of removal, and denying relief under the Convention Against
27    Torture. Ms. Lugo argues that the Board erred in holding that her 2005 conviction for
28    misprision of felony qualified as a “crime involving moral turpitude” making her ineligible
29    for cancellation of removal. She also argues that the Board erred in denying her Convention
30    Against Torture claim. We conclude that this appeal raises two issues that are best resolved
31    in the first instance by the Board in a precedential opinion: (1) whether the Board still
32    adheres to the position that misprision of felony qualifies as a “crime involving moral
33    turpitude” notwithstanding the Ninth Circuit’s contrary holding in Robles-Urrea v. Holder,
34    678 F.3d 702 (9th Cir. 2012), and (2) if so, whether the Board’s position can be applied
35    retroactively to Ms. Lugo’s case. We do not reach Ms. Lugo’s Convention Against Torture
36    claim. We VACATE the judgment and REMAND the case for further proceedings
37    consistent with this opinion.

38                                       JOSHUA BARDAVID, New York, N.Y., for Petitioner.
39 
40                                       VICTOR M. LAWRENCE (William C. Peachey and
41                                       Mona Maria Yousif on the brief), for Stuart F. Delery,
42                                       Assistant Attorney General, Civil Division, U.S. Dep’t
43                                       of Justice, Washington, D.C., for Respondent.


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 1 
 2 
 3 

 4    CALABRESI, Circuit Judge:

 5                               I.     FACTUAL BACKGROUND

 6           Maria C. Lugo is a citizen of Venezuela who came to the United States in 1996 on a

 7    nonimmigrant B-2 visa, and remained beyond the authorized period. In 2005, Ms. Lugo

 8    was charged with concealing a felony. This charge stemmed from the actions of Ms. Lugo’s

 9    then-boyfriend, who sold heroin. On the advice of her attorney, who told her that she faced

10    up to five years of incarceration, Ms. Lugo pled guilty in the Eastern District of New York

11    to one count of misprision of a felony under 18 U.S.C. § 4. She was sentenced to time

12    served plus a fine of $100. Ms. Lugo avers that her attorney never explained to her that a

13    guilty plea could jeopardize her immigration status.

14           On January 25, 2007, the Department of Homeland Security charged Ms. Lugo as

15    removable from the United States. Ms. Lugo applied for cancellation of removal based on

16    hardship to her U.S. citizen child, and for relief under the United Nations Convention

17    Against Torture (“CAT”). In March 2011, Immigration Judge Vivienne E. Gordon-

18    Uruakpa issued an oral decision finding that Ms. Lugo was barred from cancellation of

19    removal because of her conviction for misprision of felony. The Immigration Judge held,

20    relying on the Board of Immigration Appeals’ (“Board”) decision in Matter of Robles-Urrea, 

21    24 I&N Dec. 22 (BIA 2006), that misprision of felony is a “crime involving moral

22    turpitude” (“CIMT”) which automatically stops the clock on the ten-year “continuous

23    physical presence” requirement for cancellation of removal under 8 U.S.C. § 1229b(d)(1)(B).

24    The Immigration Judge also denied Ms. Lugo’s claim for CAT relief and ordered Ms. Lugo



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 1    removed to Venezuela. Ms. Lugo appealed the decision to the Board, which affirmed the

 2    Immigration Judge’s determinations on both issues.

 3                                        II.     DISCUSSION

 4           In appeals from Board decisions, this Court reviews legal conclusions de novo, giving

 5    deference to the Board’s published, precedential interpretation of the Immigration and

 6    Nationality Act. Rosario-Mijangos v. Holder, 717 F.3d 269, 277 (2d Cir. 2013). This Court,

 7    however, grants no deference to the Board’s interpretation of federal criminal laws. Higgins

 8    v. Holder, 677 F.3d 97, 102 (2d Cir. 2012) (per curiam). The Board’s factual findings are

 9    reviewed under the substantial evidence standard, and must be supported by “reasonable,

10    substantial, and probative evidence in the record when considered as a whole.” Kone v.

11    Holder, 596 F.3d 141, 146 (2d Cir. 2010).

12           This case raises a series of questions we believe are best addressed in the first instance

13    by the Board in a precedential opinion.

14       A. Whether Misprision of Felony is a Crime Involving Moral Turpitude

15       The initial question is whether, in view of an existing circuit split, the Board will

16    interpret misprision of felony under 18 U.S.C. § 4 as a CIMT. Originally, in Matter of Sloan,

17    12 I&N Dec. 840, 848 (A.G. 1968; BIA 1966), the Board held that misprision of felony was

18    not a CIMT. The Eleventh Circuit then adopted the contrary rule in Itani v. Ashcroft, 298

19    F.3d 1213, 1216 (11th Cir. 2002), holding that misprision of felony is a categorical CIMT.

20    The Board switched to the Eleventh Circuit’s view in Matter of Robles-Urrea, but the Board’s

21    decision in that case was reversed by the Ninth Circuit. Robles-Urrea v. Holder, 678 F.3d 702,

22    711 (9th Cir. 2012) (holding that misprision of felony is not a CIMT). We are thus left to

23    wonder whether, going forward, the Board wishes to adopt the Ninth Circuit’s rule or the



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 1    Eleventh Circuit’s. We believe it is desirable for the Board to clarify this matter in a

 2    published opinion. Cf. Ortiz-Franco v. Holder, No. 13-3610, slip op. at 4-5 (2d Cir. Apr. 1,

 3    2015) (Lohier, J., concurring) (noting an analogous circuit split, and stating “[t]his is not a

 4    sustainable way to administer uniform justice in the area of immigration”).

 5       B. Whether a Rule that Misprision of Felony is a CIMT May be Retroactively

 6           Applied

 7           Should the Board decide to adhere, in circuits other than the Ninth, to the rule that

 8    misprision of felony is a CIMT, the question then becomes whether application of such a

 9    rule in this case is impermissibly retroactive. In the decision under review, the Board took

10    the wrong approach to this question. See Special App’x at 3. It is irrelevant whether the

11    statute terminating an alien’s “continuous physical presence” upon commission of a CIMT

12    was enacted before Lugo’s misprision of felony conviction, because the Board decision that

13    classified that offense as a CIMT was handed down only after her guilty plea. Whether an

14    agency decision may permissibly be applied retroactively is determined by looking at five

15    factors: (1) whether the case is one of first impression, (2) whether the new rule presents an

16    abrupt departure from well-established practice or merely attempts to fill a void in an

17    unsettled area of law, (3) the extent to which the party against whom the new rule is applied

18    relied on the former rule, (4) the degree of the burden which a retroactive order places on a

19    party, and (5) the statutory interest in applying a new rule despite the reliance of a party on

20    the old standard. N.L.R.B. v. Oakes Mach. Corp., 897 F.2d 84, 90 (2d Cir. 1990); accord, e.g.,

21    Velasquez-Garcia v. Holder, 760 F.3d 571, 581 (7th Cir. 2014); Miguel-Miguel v. Gonzales, 500

22    F.3d 941, 951 (9th Cir. 2007).

23           We believe that factors one and four are not seriously at issue in the case before us.



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 1    They clearly favor Ms. Lugo. The case is not one of first impression, and the degree of the

 2    burden is massive (removal from the United States, with life-changing consequences for Ms.

 3    Lugo and her children).

 4           Factors two, three, and five, however, raise issues that are best addressed in the first

 5    instance by the Board. We therefore remand the case for consideration of these three factors.

 6    We do so because we believe that the Board should have the opportunity to act first, and

 7    because we would benefit from the Board’s precedential opinion. Cf., e.g., NLRB v. Coca-Cola

 8    Bottling Co., 55 F.3d 74, 78 (2d Cir. 1995) (indicating that retroactivity is a question for the

 9    agency in the first instance where the agency announces a new rule while an appeal of an

10    order previously decided under the old rule is pending (citing NLRB v. Food Store Emps.’

11    Union, 417 U.S. 1, 10 n.10 (1974))).

12           As to factor two, we would like the Board to address whether its holding in Matter of

13    Robles-Urrea was a departure from prior law. We note that the Board issued an unpublished

14    opinion in 2004, prior to Ms. Lugo’s guilty plea, holding that misprision of felony was a

15    categorical CIMT. Matter of Aoun, 2004 WL 2952182 (BIA Nov. 10, 2004). This opinion,

16    however, contained explicit language establishing that it was not precedential. Id. at *1.

17    Significantly, the Board subsequently stated in Matter of Robles-Urrea, a precedential opinion,

18    that the prior rule had remained valid until 2006. See Matter of Robles-Urrea, 24 I&N Dec. at

19    25 (“We therefore conclude that Matter of Sloan . . . remained binding authority on the

20    question whether a violation of 18 U.S.C. § 4 is a crime involving moral turpitude.”).

21    Accordingly, we ask the Board to address whether defendants should be treated as warned

22    by opinions marked as non-precedential in the face of published Board precedent to the

23    contrary.



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 1           As to the third factor, we invite the Board to consider whether a defendant should

 2    automatically be assumed to have relied on existing rules limiting deportation at the time

 3    she pled guilty to a crime where that guilty plea, because of a change in rules, subsequently

 4    becomes a basis for deporting her. See I.N.S. v. St. Cyr, 533 U.S. 289, 322 (2001) (holding

 5    that a statute attaching new immigration consequences to a guilty plea did not apply

 6    retroactively in part because “[t]here can be little doubt that, as a general matter, alien

 7    defendants considering whether to enter into a plea agreement are acutely aware of the

 8    immigration consequences of their convictions.”).

 9           Additionally, as to both factors two and three, we invite the Board, should it find

10    that these factors do not automatically favor the petitioner in a case such as this, to consider

11    (A) whether Ms. Lugo in fact had notice that her guilty plea could lead to deportation, (B)

12    whether she relied on the prior rule that it could not, and (C) whether such reliance was

13    reasonable. Answering these questions may require additional factfinding. See 8 C.F.R. §

14    1003.1(d)(3)(iv) (“If further factfinding is needed in a particular case, the Board may remand

15    the proceeding to the immigration judge . . . .”).

16           More generally, as to factors two and three, we point the Board to recent analysis

17    from the Supreme Court that raises constitutional concerns with the retroactive use of

18    deportation as a collateral consequence to a guilty plea. In Padilla v. Kentucky, the Court

19    determined that a defendant’s counsel must inform their client whether a plea bargain

20    carries a risk of deportation, and that failure to do so gives rise to a Sixth Amendment claim

21    for ineffective assistance of counsel. 559 U.S. 356, 374 (2010). The Court further noted that

22    deportation is a “particularly severe penalty,” and is also, “because of its close connection to

23    the criminal process, uniquely difficult to classify as either a direct or a collateral




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 1    consequence.” Id. at 365-66; see also St. Cyr, 533 U.S. at 323 (“Now that prosecutors have

 2    received the benefit of these plea agreements, agreements that were likely facilitated by the

 3    aliens’ belief in their continued eligibility for . . . relief, it would surely be contrary to

 4    familiar considerations of fair notice, reasonable reliance, and settled expectations to . . .

 5    deprive them of any possibility of such relief.”) (internal citations and quotations omitted).

 6           In this respect, we note that we have held that the Supreme Court’s language in these

 7    cases was insufficient to overturn our prior holdings that retroactive deportation does not

 8    violate the Ex Post Facto Clause. See Morris v. Holder, 676 F.3d 309, 316-17 (2d Cir. 2012).

 9    Nevertheless, the gravitational pull of these constitutional norms – the rights of fair notice

10    and effective assistance of counsel – may provide a reason not to apply, retroactively, new

11    agency rules that establish deportation as a consequence of certain crimes. On the other

12    hand, there may well be reasons, that the Board is best suited to proffer, why those cases

13    should have little effect in this context.

14           Finally, as to factor five, we invite the Board to consider the extent of the statutory

15    interest in applying its ruling in Robles-Urrea retroactively to Ms. Lugo’s conviction and thus

16    rendering her ineligible for cancellation of removal. See, e.g., WPIX, Inc. v. NLRB, 870 F.2d

17    858, 867 (2d Cir. 1989) (finding that factor five favored the agency where retroactive

18    application would help avoid “tremendous instability in labor relations”); Ewing v. NLRB,

19    861 F.2d 353, 362 (2d Cir. 1988) (suggesting that factor five favors the agency if the new rule

20    “stems from” the relevant statute’s “central concerns”).

21           We value and look forward to receiving the Board’s considered precedential opinion

22    on however many of these questions it needs, or wishes, to address in deciding this case.

23 




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1       C. Ms. Lugo’s Convention Against Torture Claim

2           Because we vacate the Board’s holding with respect to Ms. Lugo’s claim for

3    cancellation of removal, we do not reach her CAT claim.

4                                        III.    CONCLUSION

5           We VACATE the Board’s decision and REMAND the case for further proceedings

6    consistent with this opinion. In the interests of judicial economy, any further appeals in this

7    case by either party will return to this panel.




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