Campbell v. Holder

United States Court of Appeals
For the First Circuit

No. 11-2398

FITZROY DELGADO CAMPBELL,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF BOARD OF IMMIGRATION APPEALS

Before

Boudin, Selya and Dyk,*

Circuit Judges.

Glenn T. Terk for petitioner.
Sabatino F. Leo, Office of Immigration Litigation, Civil
Division, Department of Justice, with whom Stuart F. Delery, Acting
Assistant Attorney General, Civil Division, and Anthony P.
Nicastro, Senior Litigation Counsel, were on brief for respondent.

October 19, 2012

*
Of the Federal Circuit, sitting by designation.
 BOUDIN, Circuit Judge. Fitzroy Delgado Campbell seeks

review of a Board of Immigration Appeals ("BIA") decision ordering

his removal. Campbell, a lawful permanent resident of the United

States, was arrested in June 2006 and charged under Connecticut law

with two counts of sexual assault in the fourth degree as well as

two counts of risk of injury to a minor. In a plea bargain, both

sexual assault charges and one of the two risk-of-injury counts

were dismissed, and Campbell entered a plea of nolo contendere to

one count of risk of injury to a minor under section 53-21(a)(1) of

the Connecticut General Statutes.

That statute (the emphasis is ours) reads as follows:

Any person who . . . wilfully or unlawfully
causes or permits any child under the age of
sixteen years to be placed in such a situation
that the life or limb of such child is
endangered, the health of such child is likely
to be injured or the morals of such child are
likely to be impaired, or does any act likely
to impair the health or morals of any such
child . . . shall be guilty of a class C
felony . . . .

Conn. Gen. Stat. Ann. § 53-21(a)(1) (West 2006).

The maximum sentence for a violation of section 53-

21(a)(1) is ten years imprisonment plus a $500 fine. Act of May

30, 1995, Conn. Pub. Act. No. 95-142, § 1, 1995 Conn. Legis. Serv.

P.A. 95-142 (West). Following the plea agreement and as

contemplated, the judge sentenced Capmbell to five years in prison

with the sentence fully suspended, and five years of probation.

Among the conditions of the probation, the judge ordered Campbell

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to undergo sex offender evaluation and treatment, to have no

contact with the child whom he was charged with endangering, and to

have no unsupervised contact with any minor children under sixteen.

On November 2, 2010, the Department of Homeland Security

("DHS") began removal proceedings under the Immigration and

Nationality Act ("INA") § 240, 8 U.S.C. § 1229a (2006). The notice

asserted that Campbell was removable on three separate grounds:

-that Campbell had been "convicted of a crime
of domestic violence, a crime of stalking, or
a crime of child abuse, child neglect, or
child abandonment," INA § 237(a)(2)(E)(i), 8
U.S.C. § 1227(a)(2)(E)(i);

-that Campbell had been convicted of a "crime
of violence," as defined by INA §
101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F); and

-that Campbell had been convicted under a "law
relating to murder, rape, or sexual abuse of a
minor," INA § 101(a)(43)(A), 8 U.S.C. §
1101(a)(43)(A).

The latter two offense categories--"crime of violence"

and "murder, rape, or sexual abuse of a minor"--qualify as

aggravated felonies under the INA, and a permanent resident who is

convicted of an aggravated felony is not only subject to removal

but ineligible for cancellation of removal. INA § 240A(b)(1)(C),

8 U.S.C. § 1229b(b)(1)(C); Emile v. INS, 244 F.3d 183, 184-85 (1st

Cir. 2001). By contrast, "[a]liens who have committed child abuse

[as opposed to sexual abuse of a minor] are not considered

aggravated felons and are eligible for cancellation of removal" at

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the discretion of the Attorney General. Guerrero-Perez v. INS, 242

F.3d 727, 728 (7th Cir. 2001).

Campbell, represented by counsel, appeared before an

immigration judge ("IJ") in Boston on May 26, 2011. In an oral

decision, the IJ ruled that Campbell was removable on all three of

the grounds asserted by DHS--child abuse, crime of violence, and

sexual abuse of a minor--and that as an aggravated felon, Campbell

was ineligible for cancellation of removal. In so concluding, the

IJ relied on the facts asserted by the prosecution in the February

2007 plea colloquy as well as "the record as a whole."

Campbell sought review by the BIA, which affirmed the

IJ's ruling on October 31, 2011. The BIA addressed only the

government's argument that Campbell had been convicted of sexual

abuse of a minor; it did not address the government's arguments

with respect to the child-abuse and crime-of-violence grounds for

removal. Campbell then petitioned this court for review. INA §

242(b)(1), 8 U.S.C. § 1252(b)(1). Although Campbell was removed to

Jamaica after this court denied a motion for a stay, his appeal

remains viable. Nken v. Holder, 556 U.S. 418, 424 (2009).

Where the government asserts that a non-citizen has been

convicted of a crime rendering him removable, the government must

so prove by "clear and convincing evidence." Conteh v. Gonzales,

461 F.3d 45, 52 (1st Cir. 2006), cert. denied, 551 U.S. 1148

(2007); see also INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A).

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Whether the offense for which the non-citizen was convicted

constitutes a ground for removal--or, in dispute here, an

"aggravated felony" precluding cancellation of removal--is a legal

issue subject to de novo review by this court. Ramirez v. Mukasey,

520 F.3d 47, 48 (1st Cir. 2008); Conteh, 461 F.3d at 52.

The fourth degree sexual assault charges against

Campbell, Conn. Gen. Stat. § 53a-73a (West 2006), were dismissed,

so our concern is solely with the endangerment offense limned in

section 53-21(a)(1) to which Campbell pled nolo contendere. Both

language and precedent confirm that that statute can be violated by

conduct wholly different than sexual assault. The plain language

of section 53-21(a)(1) would suggest that any serious willful

endangerment of a child's life, limb, health or morals is criminal

under the statute, and Connecticut case law confirms this reading.1

One unfamiliar with federal precedent might assume that

the next question would be whether Campbell's actual conduct

pertaining to the offense comprised "sexual abuse" as that term is

used in the INA; but a quite different set of questions are posed

by governing case law both for the removal provisions and for

analogous provisions which may enhance sentences in the federal

1
See, e.g., State v. Na'im B., 952 A.2d 755 (Conn. 2008)
(delay in seeking medical attention for burns suffered by four-
month-old child); State v. Gewily, 911 A.2d 293 (Conn. 2006)
(conviction of father affirmed where father abruptly took three-
year-old to Egypt, thus depriving him of contact with his mother in
Connecticut and putting his mental health at risk).

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criminal context based on prior specified convictions--in

particular the Armed Career Criminal Act ("ACCA"), 18 U.S.C. §

924(e), and the career offender guideline, U.S.S.G. § 4B1.2.

When a state or federal statute of conviction encompasses

some conduct that would qualify as a predicate offense under the

ACCA or career offender guideline and some conduct that would not,

governing Supreme Court precedent--as this and most other circuits

understand it---requires that we answer two questions:

(1) whether the statute of conviction
(although it encompasses other conduct as
well) is divisible so as to create subordinate
offenses, at least one of which has elements
that make all violations match or fall within
a category of predicate offenses triggering an
increased penalty; and

(2) if so, whether specified limited sources
of information (e.g., the indictment or plea
colloquy) show that the defendant was
convicted under the subordinate offense that
corresponds to, or falls within, the ACCA's or
Sentencing Guidelines' definition.

Taylor v. United States, 495 U.S. 575 (1990), and Shepard

v. United States, 544 U.S. 13 (2005), established this methodology

in the criminal context based in part on statutory language,

arguably similar in the federal criminal context and in the

immigration statute,2 as well as on "practical difficulties and

2
Compare, e.g., 18 U.S.C. § 924(e)(1) (sentence enhancement
for firearms violations if offender "has three previous
convictions . . . for a violent felony"), with INA §
237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who
is convicted of an aggravated felony at any time after admission is
deportable.").

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potential unfairness" that would arise from determining underlying

conduct. Taylor, 495 U.S. at 600-02. The second step in the

Taylor-Shepard framework is sometimes called "the modified

categorical approach," although that phrase has sometimes been used

for other purposes. Conteh, 461 F.3d at 55.

The Taylor-Shepard approach is widely taken to mean that

the court should look to the crime of conviction, that is, the

elements of the statute or common law offense. Moreover, under

Taylor-Shepard, the facts underlying the conviction are relevant,

if at all, only to identify which crime is the crime of conviction

where (as is often true with divisible statutes) it is unclear

which subsumed offense the defendant pled to or was found to have

violated. To this limited extent, Shepard can be seen as modifying

Taylor's emphasis on convictions as opposed to underlying facts.

In its 2010 decision in Johnson v. United States, 130 S.

Ct. 1265, seeking to determine whether a defendant's conviction for

simple battery under Florida law was a "violent felony" for

purposes of the ACCA, the Supreme Court explained:

When the law under which the defendant has
been convicted contains statutory phrases that
cover several different generic crimes, some
of which require violent force and some of
which do not, the "'modified categorical
approach'" that we have approved permits a
court to determine which statutory phrase was
the basis for the conviction by consulting the
trial record--including charging documents,
plea agreements, transcripts of plea
colloquies, findings of fact and conclusions

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 of law from a bench trial, and jury
instructions and verdict forms.

Id. at 1273 (quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009))

(citation omitted).

Johnson makes clear that while a criminal statute may be

divisible into several generic crimes--by explicit subdivisions,

"or" conjunctions, or definitive glosses--one of those subordinate

offenses must express or equate to the critical concept (in

Johnson, "violent force"); otherwise a conviction under the statute

is irrelevant and sources like the plea colloquy ought not be

consulted. United States v. Beardsley, 691 F.3d 252, 263, 270 (2d

Cir. 2012); United States v. Del Carmen Gomez,690 F.3d 194, 198-99

(4th Cir. 2012).

Although the BIA has said that the Taylor-Shepard

approach "need not be applied with the same rigor in the

immigration context as in the criminal arena," In re Lanferman, 25

I. & N. Dec. 721, 727-28 (B.I.A. 2012), the Supreme Court's

decision in Nijhawan v. Holder, 557 U.S. 29 (2009), requires the

Taylor-Shepard analysis in INA cases--save where the matching INA

offense is phrased so as to require a fact-specific determination

rather than identification of a generic crime.3 Further, certain

3
Nijhawan reasoned that some subparagraphs of the "aggravated
felony" definition in INA § 101(a)(43) invite inquiry into "the
specific circumstances surrounding an offender's commission of a
[certain crime] on a specific occasion," 557 U.S. at 40, e.g., a
provision covering offenses that "involve[] fraud or deceit in
which the loss to the . . . victims exceeds $10,000," INA §

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offenses listed in INA § 101(a)(43) "must refer to generic crimes"

and one such offense is "sexual abuse of a minor." Nijhawan, 557

U.S. at 37; accord Sanchez-Avalos v. Holder, No. 07-74437, __ F.3d

__, 2012 U.S. App. LEXIS 18570, at *6 n.1, 2012 WL 3799665, at *2

n.1 (9th Cir. Sept. 4, 2012).

More recently the Supreme Court again stressed that

(fact-specific provisions aside), the categorical approach operates

similarly in the INA context as in the criminal context. In

Kawashima v. Holder, 132 S. Ct. 1166 (2012), the Court said: "To

determine whether the Kawashimas' offenses 'involv[e] fraud or

deceit' within the meaning of [the INA aggravated felony statute],

we employ a categorical approach by looking to the statute defining

the crime of conviction, rather than to the specific facts

underlying the crime." Id. at 1172.

Taylor-Shepard's focus on the statute rather than the

conduct disturbs some courts;4 and, until recently, the Supreme

Court's guidance as to INA cases was not crystal clear. Thus in

101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) (emphasis added).
But where the INA's aggravated felony listing refers to a "generic
crime"--e.g., "murder"--the Taylor-Shepard inquiry is required.
Nijhawan, 557 U.S. at 34, 37; accord Carachuri-Rosendo v. Holder,
130 S. Ct. 2577, 2586 n.11 (2010).
4
See United States v. Aguila-Montes de Oca, 655 F.3d 915, 928-
38 (9th Cir. 2011) (en banc) (declining to limit resort to record
facts to cases where the statute is divisible); see also United
States v. Woods, 576 F.3d 400, 413-18 (7th Cir. 2009) (en banc)
(Easterbrook, C.J., with whom Posner and Tinder, J.J., join,
dissenting) (decided prior to Johnson).

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Conteh, decided three years before Nijhawan, this court held that

facts showing the amount of loss could be used to determine whether

a non-citizen had been convicted of an offense involving "fraud or

deceit in which the loss to the . . . victims exceeds $10,000" (an

aggravated felony), even though the non-citizen was convicted under

a statute with no loss element. Conteh, 461 F.3d at 52-57; cf. INA

§ 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

But we also said in Conteh that "[w]e need go no further"

to resolve that case, Conteh, 461 F.3d at 65, and we emphasized

that as a general rule, "the BIA may not adjudicate guilt" and

"must base removal orders on convictions, not on conduct alone."

Conteh, 461 F.3d at 56. The Supreme Court in Nijhawan endorsed

Conteh's exception as to INA provisions phrased in fact-specific

terms such as the amount-of-loss clause in INA § 101(a)(43)(M)(i),

but it set a limit by continuing to exclude fact-specific inquiries

for generically phrased provisions that were not divisible into

subordinate offenses.

Because of the vagaries of statute drafting, the Taylor-

Shepard methodology has proved far more difficult to apply than the

Supreme Court may have anticipated.5 But the Supreme Court has

5
Our task is not necessarily any easier when the non-citizen's
statute of conviction was a federal criminal statute. See, e.g.,
Kawashima, 132 S. Ct. 1166 (convictions under federal statute for
willfully making a false tax return); Nijhawan, 557 U.S. 29
(convictions under federal mail fraud, wire fraud, bank fraud and
money laundering statutes); Conteh, 461 F.3d 45 (convictions under
federal conspiracy statute based on bank fraud and security

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shown no inclination to alter it in the criminal context, Johnson,

130 S. Ct. at 1273-74, or, with the modest exception adopted in

Nijhawan, for immigration cases. Every solution to the riddle of

determining the "crime of conviction" in cases of broadly-defined

offenses poses problems, and at least the most recent Supreme Court

decisions may have furnished stability to the terms of the inquiry.

On this understanding, we turn to the Connecticut

statute. If section 53-21(a)(1) were read as prescribing a single

"offense," the offense so described would (as already noted)

include conduct having nothing to do with sexual abuse and thus

would not disqualify Campbell from cancellation of removal.

Alternatively, section 53-21(a)(1) could fairly be read as

divisible, by virtue of the "or" clauses, in which event the two

most pertinent offenses would be endangering "the health" of a

child and endangering a child's "morals."

Yet, a child's health could be endangered in other ways

than sexual abuse--for example, letting a child play with a loaded

gun6--and a child's "morals" could likewise be impaired through

nonsexual conduct: Imagine Fagin indoctrinating Oliver Twist into

a life of crime. So each of the arguably relevant separate

counterfeiting).

6
See, e.g., State v. Solters, No. CR94-159216, 1995 Conn.
Super. LEXIS 2287 (Conn. Super. Ct. Aug. 8, 1995) (conviction under
section 53-21 where defendant allowed children ages nine and ten to
play with loaded guns).

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offenses fails to define crimes that categorically correspond to or

require sexual abuse for their commission. It is hard to see how

the statute could be further divided except by making determinative

actual conduct rather than the crime of conviction.

This might be a different case had the Connecticut courts

by construction limited the morals clause solely to serious sexual

abuse--surely impossible for the health clause--and decisions of

the state's highest court might hint at such a reading, cf. State

v. Schriver, 542 A.2d 686 (Conn. 1988); State v. Robert H., 866

A.2d 1255 (Conn. 2005). But the government has not so argued and

anyway that would over-read those cases. Cf. Bourguignon v.

Warden-Cheshire, No. CV020469954S, 2005 Conn. Super. LEXIS 1626, at

*12-14 (Conn. Super. Ct. June 22, 2005) (indicating that conduct

that does not involve a sexual act, such as giving alcohol to a

child, may qualify as impairment of health or morals).

Taylor-Shepard often entails a gap between the "offense"

and the actual conduct, and generally makes the former decisive.

Sometimes this hurts the alien or criminal defendant--for example,

a conviction under a state burglary statute can qualify as a

categorical "violent felony" under the ACCA even though the

defendant's actual conduct may have involved a "break-in of an

unoccupied structure located far off the beaten path" where no

violence could or did occur. See, e.g., James v. United States,

550 U.S. 192, 207-08 (2007). Other times, as in this case, the

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alien or defendant comes out ahead. This is hardly the most

jarring example.7

While the criminal information in Campbell's case

identified no specific conduct, the prosecutor in describing the

charges she would try to prove identified two sexual touchings, and

the trial court required sex offender evaluation and treatment

(although not sex offender registration). But the court assured

Campbell twice that he was admitting to no conduct whatsoever and

the judge himself made no findings as to the underlying conduct.

In any event, the facts in the record of conviction do not alter

the outcome here.

Our decision today settles only that Campbell cannot be

held to have pled to an offense that falls within the sexual abuse

rubric under the INA. The Board did not rule on whether Campbell

would be removable on the alternative grounds of child abuse (which

would leave him eligible for cancellation of removal) or on the

grounds that he was convicted of a "crime of violence" (which would

render him ineligible for cancellation), and since the Board did

not reach these issues, neither do we. See INS v. Ventura, 537

U.S. 12, 17 (2002).

7
Cf. Beardsley, 691 F.3d at 256-58 (where defendant admitted
that he touched his daughter's genitals inappropriately, but pled
guilty to reduced charge of child endangerment under New York
statute, conviction did not qualify as predicate offense for
federal sentence-enhancement purposes because New York statute "is
merely broad, not divisible").

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 The Board's ruling is reversed insofar as it holds that

Campbell is removable on the grounds that he was convicted of

aggravated felony sexual abuse and that he is therefore ineligible

for cancellation of removal; its order dismissing his appeal is

vacated and the matter is remanded to the Board for further

proceedings consistent with this decision.

It is so ordered.

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