                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-2073


IHAR SOTNIKAU,

                 Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                 Respondent.



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


Argued:   December 8, 2016                   Decided:   January 24, 2017


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Petition for review granted; vacated and remanded by published
opinion. Judge King wrote the opinion, in which Judge Niemeyer
and Judge Agee joined.


ARGUED: Jason Matthew Zarrow, O’MELVENY & MYERS LLP, Washington,
D.C., for Petitioner.       Keith Ian McManus, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.      ON
BRIEF: Mary Patrice Brown, O’MELVENY & MYERS LLP, Washington,
D.C., for Petitioner.     Benjamin C. Mizer, Principal Deputy
Assistant   Attorney  General,   Cindy  S.   Ferrier,  Assistant
Director, Office of Immigration Litigation, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
KING, Circuit Judge:

     After       pleading    guilty      to       involuntary         manslaughter     under

Virginia    law,    Ihar     Sotnikau     —        a   native     of    Belarus    who   was

admitted to the United States as a lawful permanent resident in

2008 — was subjected to removal proceedings.                           The Department of

Homeland     Security       (the    “DHS”)         instituted          those   proceedings

because,     in    its      view,   Virginia’s               involuntary       manslaughter

offense constitutes a crime involving moral turpitude.                            Sotnikau

sought asylum, withholding of removal, and protection under the

Convention       Against    Torture      (the      “CAT”),      contesting       the   DHS’s

interpretation of Virginia’s involuntary manslaughter offense.

After various proceedings, an immigration judge (the “IJ”) and

the Board of Immigration Appeals (the “BIA”) rejected Sotnikau’s

applications, deeming him subject to removal.                           Importantly, both

the IJ and the BIA concluded that involuntary manslaughter as

defined by Virginia law is categorically a crime involving moral

turpitude.        As explained below, that ruling was erroneous, and

we therefore grant Sotnikau’s petition for review, vacate the

order of removal, and remand.



                                              I.

     In    the    early     hours   of    June         18,    2010,    Sotnikau    and   his

friend Randy Hines were drinking on a pier along the Elizabeth

River in Portsmouth, Virginia.                At some point, Hines fell down a

                                              2
series of concrete steps and into the river.                       After fruitless

efforts to locate Hines in the river’s dark waters, Sotnikau

retreated to a local homeless shelter.                     He did not otherwise

seek assistance or alert the authorities.

      At the shelter, someone overheard Sotnikau relating what

had   occurred     at   the    pier       and   that    Hines   had    died.       That

individual        promptly     relayed          Sotnikau’s      remarks      to     the

authorities.       Thereafter, the police located Sotnikau, took him

into custody, and questioned him.                 Sotnikau then related to the

police what had transpired at the pier.                   Hines’s body was found

in the Elizabeth River on June 19, 2010.                     Sotnikau was charged

with involuntary manslaughter by way of a one-count indictment

in the Circuit Court of the City of Portsmouth.                            He pleaded

guilty and was sentenced to five years in prison.

      On October 21, 2011, the DHS instituted removal proceedings

against Sotnikau, alleging removability based on his having been

convicted    in    Virginia    of     a    crime    involving      moral    turpitude

committed    within     five   years       of   being   admitted      to   the   United

States.     See 8 U.S.C. § 1227(a)(2)(A)(i)(I) (rendering removable

an alien who “is convicted of a crime involving moral turpitude

committed within five years . . . after the date of admission”).

On August 14, 2012, the IJ issued an oral decision (the “Initial

IJ Decision”), which summarily denied Sotnikau’s requests for

asylum, withholding of removal, and protection under the CAT.

                                            3
      Sotnikau appealed the Initial IJ Decision to the BIA.                                  In

its January 8, 2013 order (the “Initial BIA Order”), the BIA

observed that the IJ had failed to “set forth his reasoning as

to why he ruled that the respondent was convicted of a [crime

involving moral turpitude].”                 See Initial BIA Order 1.                  In the

absence of a reasoned opinion, the BIA found itself unable to

review the matter and, for that and other reasons, remanded to

the IJ for further proceedings.

      At the conclusion of the remand proceedings, by his March

26,   2013    decision       (the      “Remand     IJ    Decision”),       the    IJ    again

concluded that Sotnikau had been convicted of a crime involving

moral    turpitude,          i.e.,      Virginia’s        involuntary       manslaughter

offense.           After      outlining       Virginia        law     on        involuntary

manslaughter, the IJ discussed the BIA’s 1994 decision in In re

Franklin,     20    I.   &    N.    Dec.    867    (BIA     1994).     There,          the   IJ

explained,         the     BIA      had     concluded        that     an        involuntary

manslaughter offense in Missouri constituted a crime involving

moral    turpitude           because        “the        Missouri     statute       defined

involuntary     manslaughter           as   ‘recklessly      causing       the    death      of

another person.’”            See Remand IJ Decision 3.               According to the

Remand   IJ    Decision,         the   mental      state    required       to    support     a

conviction for involuntary manslaughter under Virginia law is

identical to the mental state at issue in the Franklin decision,

rendering          Virginia’s          involuntary           manslaughter          offense

                                              4
categorically a crime involving moral turpitude.                         See id.      The

IJ also determined that Sotnikau is ineligible for withholding

of removal because the crime for which he was convicted was

“particularly         serious.”       See        id.    (citing    Immigration        and

Nationality         Act   § 241(b)(3)(B),          8    U.S.C.     § 1231(b)(3)(B)).

Thereafter, Sotnikau moved for reconsideration of the Remand IJ

Decision, but the IJ denied that motion.

       Again,       Sotnikau   appealed     to    the    BIA.      By   its   order    of

August 14, 2015 (the “Final BIA Order”), the BIA affirmed the

Remand IJ Decision.            Like the Remand IJ Decision, the Final BIA

Order — which is the subject of the pending petition for review

— ruled that the Franklin decision controls the outcome of this

matter:         “[W]e     conclude    that        the    offense    of    involuntary

manslaughter in Virginia contains all of the requisite elements

outlined in [Franklin] to make the offense categorically qualify

as a crime involving moral turpitude.”                   See Final BIA Order 3-4.

The BIA therein also approved of the IJ’s determination that

Sotnikau had been convicted of a particularly serious crime,

making both withholding of removal and asylum unavailable to

him.       As   a    result,   the   BIA    dismissed      Sotnikau’s      appeal     and

ordered his removal. 1


       1
       As the Final BIA Order explained, the IJ had theretofore,
on September 19, 2013, deferred removal of Sotnikau, having
granted his application for relief under the CAT. See Final BIA
(Continued)
                                            5
       Sotnikau has timely petitioned this Court for review of the

Final BIA Order.         Our jurisdiction in this matter is provided by

8 U.S.C. § 1252.



                                            II.

       The       dispositive        issue   in        this       proceeding     is   whether

Sotnikau is subject to removal because involuntary manslaughter

under      Virginia     law    is    categorically           a    crime    involving   moral

turpitude. 2       Whether a crime is one involving moral turpitude, as

that term is used in 8 U.S.C. § 1227(a)(2)(A)(i), “is a question

of law that we review de novo.”                  See Mohamed v. Holder, 769 F.3d

885,       888   (4th   Cir.    2014).           To    resolve          that   question,   we

“consider only the statutory elements, not the facts underlying

the particular violation of the statute.”                         Id.




Order 1 n.1 (“Neither party has appealed the [IJ’s] decision to
grant deferral of removal [under the CAT], and therefore, that
application is not before us.”).    The CAT application is not
otherwise considered in the Remand IJ Order or the Final BIA
Order.
       2By his petition for review, Sotnikau also seeks to
litigate a second issue, contending that he is entitled to
asylum or withholding of removal because both the IJ and the BIA
erroneously   determined   that  his   involuntary  manslaughter
conviction constituted a particularly serious crime. We do not
address that issue, however, because we conclude that Sotnikau
is not subject to removal.



                                             6
                                           III.

       The order of removal with respect to Sotnikau is predicated

on 8 U.S.C. § 1227(a)(2)(A)(i), pursuant to which an alien is

subject to removal if he “is convicted of a crime involving

moral turpitude committed within five years . . . after the date

of admission” and “for which a sentence of one year or longer

may    be   imposed.”        It   is     readily      apparent       that    the   temporal

aspect of that statutory provision is satisfied in this matter:

Sotnikau was admitted to the United States as a lawful permanent

resident in April 2008 and committed the relevant crime in June

2010.       The same is true for the sentence component of that

provision: involuntary manslaughter carries a penalty of “not

less    than   one    year   nor    more       than    10    years.”        See    Va.    Code

§ 18.2-10(e)      (specifying           permissible         punishment       for   Class    5

felony); see also Va. Code § 18.2-36 (“Involuntary manslaughter

is punishable as a Class 5 felony.”).

       Sotnikau      contends      in    his       petition    for    review       that    his

involuntary     manslaughter        offense         under     Virginia      law    does    not

constitute a crime involving moral turpitude.                               The Remand IJ

Decision and the Final BIA Order ruled otherwise, concluding

that Virginia’s involuntary manslaughter offense constitutes a

crime involving moral turpitude.                     They reached that conclusion

on the basis of the BIA’s decision in In re Franklin, 20 I. & N.

Dec. 867 (BIA 1994), reasoning that “involuntary manslaughter in

                                               7
Virginia      has     the       same         essential         elements          as     involuntary

manslaughter        in     Missouri,          an    offense         that     the       [BIA]      found

qualifies as a crime involving moral turpitude.”                                      See Final BIA

Order 3; see also Remand IJ Decision 3.

       We   are     thus      called        upon   to    decide       whether         the   Virginia

involuntary         manslaughter             offense          is     one     involving            moral

turpitude.        In so doing, we are obliged to utilize a categorical

approach.      See Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir.

2012).      That is, we look at the elements of the crime at issue

and determine whether those elements solely encompass behavior

that   involves       moral       turpitude.              If       they    do,     the      crime    is

categorically        one      involving        moral       turpitude.              But      if    those

elements      can    include          behavior         that    does        not     involve        moral

turpitude, the crime is not categorically one involving moral

turpitude.

       In    order       to    properly        interpret            Virginia’s          involuntary

manslaughter offense, we must first understand the meaning of

“moral      turpitude.”           A    crime       involving         moral       turpitude        “must

involve      conduct       that       not    only       violates      a     statute         but   also

independently violates a moral norm.”                               See Mohamed v. Holder,

769 F.3d 885, 888 (4th Cir. 2014); see also id. (“[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

                                                   8
(4th    Cir.      2001))).            That     is       to    say,       “[t]o       involve         moral

turpitude, a crime requires two essential elements:                                        a culpable

mental state and reprehensible conduct.”                                In re Ortega-Lopez, 26

I. & N. Dec. 99, 100 (BIA 2013).                          Accordingly, “[w]here knowing

or intentional conduct is an element of an offense,” the BIA has

“found     moral       turpitude          to   be       present.”          See       In    re    Perez-

Contreras,        20     I.    &     N.    Dec.      615,         618    (BIA    1992).              Those

circumstances           include           criminally          reckless           conduct,            which

“reflect[s] a willingness to disregard the risks inherent in the

conduct.”        Id.     Criminally negligent conduct, on the other hand,

is   not    included          because      “there        [is]      no    intent       required        for

conviction, nor any conscious disregard of a substantial and

unjustifiable risk.”                Id. at 619.

       With      the    foregoing         principles          in    mind,       we    turn       to    the

elements of the crime of involuntary manslaughter in Virginia.

Under      the     Code       of      Virginia,          involuntary            manslaughter           is

punishable as a felony.                    See Va. Code § 18.2-36.                        The Supreme

Court of Virginia has defined involuntary manslaughter as “the

accidental killing of a person, contrary to the intention of the

parties,       during         the     prosecution            of     an    unlawful,          but      not

felonious,        act,    or        during     the      improper         performance            of    some

lawful act.”           See Gooden v. Commonwealth, 311 S.E.2d 780, 784

(Va. 1984).            In Virginia, a defendant can be convicted of an



                                                    9
involuntary        manslaughter         offense         upon     a    showing     of    criminal

negligence, which occurs

       when acts of a wanton or willful character, committed
       or omitted, show a reckless or indifferent disregard
       of   the   rights   of  others,   under   circumstances
       reasonably calculated to produce injury, or which make
       it not improbable that injury will be occasioned, and
       the offender knows, or is charged with the knowledge
       of, the probable results of his [or her] acts.

See    Noakes      v.    Commonwealth,            699   S.E.2d       284,   288    (Va.      2010)

(alteration        in    original)       (emphasis        added)       (internal       quotation

marks omitted).               In simpler terms, an involuntary manslaughter

conviction in Virginia requires that “the offender either knew

or should have known the probable results of his acts.”                                        See

Conrad v. Commonwealth, 521 S.E.2d 321, 326 (Va. Ct. App. 1999

(en banc)).

       An involuntary manslaughter conviction can be secured in

Virginia         without       proving        a     conscious         disregard        of    risks

attendant to the offender’s conduct; such a conviction can be

predicated on proof that the offender failed to appreciate or be

aware of the risks emanating from his conduct.                              See Noakes, 699

S.E.2d      at    289.         Pursuant       to    the    BIA’s       decision     in      Perez-

Contreras,        that    removes       the       Virginia      involuntary       manslaughter

offense      from       the    realm     of       those   crimes       that     categorically

involve moral turpitude.

       In its Perez-Contreras decision in 1992, the BIA decided

that   an    assault          offense   in        the   State    of    Washington        did   not

                                                   10
constitute a crime involving moral turpitude.                                    That was because

a conviction of the assault offense could be based on a showing

of   criminal         negligence,          which       “exists       when        the    perpetrator

‘fails to be aware of a substantial risk that a wrongful act may

occur     and    his    failure       to    be     aware       of    such        substantial      risk

constitutes a gross deviation from the standard of care that a

reasonable       man    would       exercise        in    the       same    situation.’”           See

Perez-Contreras, 20 I. & N. at 618 (quoting Wash. Rev. Code

§ 9A.08.010(1)(d)).              The BIA explained that, “[s]ince there was

no intent required for conviction, nor any conscious disregard

of   a    substantial         and     unjustifiable             risk,       we    find     no   moral

turpitude inherent in the statute.”                        Id. at 619.

         Virginia’s         involuntary            manslaughter             offense        is      not

materially       different       from       the     Washington           offense.          Like    the

assault     offense         underlying        the      Perez-Contreras             decision,       the

crime at issue here can be predicated on the offender’s failure

to be aware of the risks attendant to his actions.                                       See Perez-

Contreras,       20    I.    &   N.    Dec.      at      618    (observing          that   criminal

negligence exists when “the perpetrator ‘fails to be aware of a

substantial risk’” (quoting Wash. Rev. Code § 9A.08.010(1)(d)));

see also Conrad, 521 S.E.2d at 326 (recognizing that criminal

negligence        arises      when     the    offender          “should          have    known     the

probable        results     of   his       acts”).         As       in     the    Perez-Contreras

decision, Sotnikau’s involuntary manslaughter offense could have

                                                  11
been    proven       under    Virginia      law       without    a    showing       that    he

consciously          disregarded       any        particularly            serious     risks.

Accordingly, Virginia’s involuntary manslaughter offense is not

categorically a crime involving moral turpitude.

       Notwithstanding the views expressed by the IJ and the BIA

in the underlying proceedings, the BIA’s Franklin decision does

not    compel    a    conclusion       to    the      contrary.           There,    the    BIA

recognized      that    Missouri       defined        involuntary         manslaughter      as

“[r]ecklessly        caus[ing]      the     death      of   another        person.”        See

Franklin, 20 I. & N. Dec. at 870 (first alteration in original)

(quoting Mo. Rev. Stat. § 562.016(4)).                      The BIA further observed

in    Franklin   that        Missouri’s      definition         of   “recklessness”         is

“essentially         identical”       to    the       definitions         of   recklessness

construed in its other cases — “a conscious disregard for a

substantial      and         unjustifiable         risk,     where         the     disregard

constitutes a gross deviation from the standard of care which a

reasonable person would employ.”                   Id. (citing In re Wojtkow, 18

I. & N. Dec. 111 (BIA 1981); In re Medina, 15 I. & N. Dec. 611

(BIA   1976)).         The    BIA   therefore         reasoned       in    Franklin    that,

“because the statute under which the respondent was convicted

requires     that      she    acted    with       a    ‘conscious         disregard   of    a

substantial and unjustifiable risk,’ the conclusion necessarily

follows that she has been convicted of a crime involving moral



                                             12
turpitude.”        Id. (quoting Perez-Contreras, 20 I. & N. Dec. at

619).

     As     we    have      already       explained,          a     defendant      need     not

consciously       disregard        a    risk     to    be     convicted      of    Virginia’s

involuntary manslaughter offense.                     See, e.g., Conrad, 521 S.E.2d

at 326.     Because the definition of involuntary manslaughter in

Virginia is materially distinguishable from the definition of

involuntary manslaughter in Missouri, the Franklin decision does

not control the outcome of this matter.                             The IJ and the BIA

failed    to     recognize         material          differences       between      the    two

definitions       of      involuntary           manslaughter,          leading      them     to

incorrectly      conclude      that      the     Franklin         decision    controls      the

outcome   here.          Nor      did    the     Franklin      decision      jettison       the

principles       applied     in    the    Perez-Contreras            decision.        To    the

contrary, the Franklin decision reaffirmed those principles but

distinguished       the     Missouri          crime    then    under      review    from    the

Washington       offense     that       was    at     issue    in   the    Perez-Contreras

decision.      See Franklin, 20 I. & N. Dec. at 870.

     Crimes involving criminal negligence — like the Virginia

involuntary manslaughter offense — are generally excluded from

the category of crimes that involve moral turpitude.                               See, e.g.,

Rodriguez-Castro v. Gonzales, 427 F.3d 316, 323 (5th Cir. 2005)

(collecting       decisions        and    recognizing          that     “negligence-based

crimes    usually      do      not      amount        to    [crimes       involving       moral

                                                13
turpitude]”).       There is simply no reason for us to depart from

that practice here.             Instead, we will adhere to the applicable

rule   recognized        by    the    BIA    in    the    Perez-Contreras         decision:

“Since   there     was    no    intent       required      for   conviction,       nor     any

conscious disregard of a substantial and unjustifiable risk, we

find no moral turpitude inherent in the statute.”                                See Perez-

Contreras, 20 I. & N. Dec. at 619.                       Put succinctly, involuntary

manslaughter       under        Virginia          law     does     not     categorically

constitute     a    crime        involving          moral     turpitude          because     a

conviction       thereof        can     be        predicated       on     mere     criminal

negligence.        We are therefore satisfied that Sotnikau is not

subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(i).



                                             IV.

       Pursuant    to     the    foregoing,          we    grant    the    petition        for

review, vacate the Final BIA Order, and remand for such other

and further proceedings as may be appropriate.



                                                        PETITION FOR REVIEW GRANTED;
                                                                VACATED AND REMANDED




                                              14
