Coelho v. Sessions

United States Court of Appeals
For the First Circuit

No. 16-2220

JOAO LOPES COELHO,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Lynch, and Kayatta,
Circuit Judges.

Todd Pomerleau, with whom Jeffrey B. Rubin and Rubin Pomerleau
P.C. were on brief, for petitioner.
Andrew N. O'Malley, with whom Lindsay M. Murphy, Trial
Attorney, Office of Immigration Litigation, Civil Division, U.S.
Department of Justice, Chad A. Readler, Acting Assistant Attorney
General, Civil Division, and Cindy S. Ferrier, Assistant Director,
were on brief, for respondent.
Emma Winger, Immigration Impact Unit, Committee for Public
Counsel Services, on brief for the Massachusetts Committee for
Public Counsel Services Immigration Impact Unit, the National
Immigration Project of the National Lawyers Guild, and the
Immigrant Defense Project, amici curiae.
July 24, 2017
 LYNCH, Circuit Judge. This appeal presents the question

of whether the Board of Immigration Appeals ("BIA") committed

reversible error when it held that the Massachusetts crime of

assault and battery with a dangerous weapon ("ABDW"), in violation

of Mass. Gen. Laws ch. 265, § 15A(b), is categorically a crime

involving moral turpitude ("CIMT") under the Immigration and

Nationality Act ("INA"), Pub. L. No. 82-414, 66 Stat. 163 (1952)

(codified as amended in scattered sections of 8 U.S.C.). The

consequence of this BIA ruling is that petitioner Joao Lopes Coelho

is not eligible for cancellation of removal. Because we remain

uncertain about the BIA's views on the relevant Massachusetts law

governing its CIMT determination, we remand for further

consideration consistent with this opinion.

I.

Coelho entered the United States without inspection in

1986. He has continued to reside here since that date and now has

a U.S. citizen son. In September 1996, Coelho pled guilty to one

count of Massachusetts ABDW against his wife. After the Department

of Homeland Security ("DHS") initiated removal proceedings against

Coelho in June 2010, he conceded his removability under 8 U.S.C.

§ 1182(a)(6)(A)(i) but submitted an application for cancellation

of removal pursuant to 8 U.S.C. § 1229b(b)(1). "Cancellation of

removal is a form of discretionary relief, the granting of which

allows a non-resident alien, otherwise removable, to remain in the

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United States." Ayeni v. Holder, 617 F.3d 67, 70 (1st Cir. 2010).

In his application, Coelho noted in particular that his removal

"would result in exceptional and extremely unusual hardship" to

his son. 8 U.S.C. § 1229b(b)(1)(D). DHS moved to pretermit

Coelho's application on the ground that his Massachusetts ABDW

conviction constituted a conviction for a CIMT and thus rendered

him ineligible for cancellation of removal. See id.

§ 1229b(b)(1)(C) (providing that an alien, to be eligible for

cancellation of removal, must not have been "convicted of an

offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)," the

first two of which refer to crimes involving moral turpitude).

After Coelho failed to timely respond to the motion to pretermit,

the immigration judge ("IJ") granted the government's motion.

Coelho filed a motion to reconsider, which the IJ denied.

Explaining the denial, the IJ concluded that Massachusetts ABDW is

categorically a CIMT because of the presence of an aggravating

element, namely the use of a dangerous weapon. The IJ further

acknowledged that Massachusetts case law defines "dangerous

weapon" to include "common objects," but noted that this definition

"should not be a determinative factor because it is the defendant's

use of the object in a dangerous manner which is the vile act."

Finally, the IJ found that "based on the statute's requirement

that a dangerous weapon be used, [she could reasonably] conclude

that there is no realistic probability that [the Massachusetts

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ABDW statute] would be applied to reach conduct that does not

involve moral turpitude."

The BIA dismissed Coelho's appeal in an opinion dated

October 31, 2013. Applying de novo review, the BIA agreed with

the IJ's conclusion that Massachusetts ABDW is categorically a

CIMT because "assault or battery which necessarily involves an

aggravating factor indicative of the perpetrator's moral depravity

is a crime involving moral turpitude" and "the knowing or attempted

use of deadly force is deemed to be an act of moral depravity."

Coelho petitioned for review of the October 31, 2013

decision. Shortly thereafter, the government -- with Coelho's

assent -- moved this court to remand the case to the BIA for

reconsideration of whether Coelho's Massachusetts ABDW conviction

is categorically a CIMT that renders him ineligible for

cancellation of removal. We granted the government's unopposed

motion and vacated the BIA's decision.

On April 10, 2015, the BIA issued a second opinion, once

again holding that Massachusetts ABDW is categorically a CIMT.

The BIA applied its then-existing framework, as laid out in Matter

of Silva-Trevino, for determining whether an offense involves

moral turpitude. See 24 I. & N. Dec. 687, 704 (A.G. 2008), vacated

by 26 I. & N. Dec. 550 (A.G. 2015), and overruled by 26 I. & N.

Dec. 826 (B.I.A. 2016). Under this approach, the first step was

"to examine the statute of conviction under the categorical

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approach and determine whether there was a 'realistic probability'

that the statute would be applied to conduct not involving moral

turpitude." Id. If the categorical approach proved inconclusive,

the adjudicator proceeded "to look to the record of conviction

under the modified categorical approach," and, if the modified

categorical approach also proved inconclusive, "to consider any

relevant evidence outside the record of conviction to resolve the

moral turpitude question." Id.

Applying that framework, the BIA found under the first

step that Massachusetts ABDW is categorically a CIMT. The BIA

acknowledged that the "presence of an 'aggravating factor'" --

here, the use of a dangerous weapon -- "is not always dispositive

as to whether an offense involves moral turpitude," but it noted

that Massachusetts ABDW involves not only an aggravating factor

but also the requisite mental state for an offense to be deemed

morally turpitudinous. Specifically, when ABDW is intentionally

committed, "the statute requires . . . the intentional application

of force by use of a dangerous weapon." Alternatively, when ABDW

is recklessly committed, the statute requires "the intentional

commission of a reckless or wanton act with a dangerous weapon,

defined as more than gross negligence, resulting in physical or

bodily injury that interferes with the victim's health or comfort."

Accordingly, "[b]ecause the statute includes the intent to use a

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dangerous weapon and/or a resultant injury," the BIA concluded

that Massachusetts ABDW is categorically a CIMT.

Coelho once again petitioned this court to review the

BIA's April 10, 2015 decision. We temporarily held the petition

in abeyance while Coelho moved the BIA to reconsider its decision.

The BIA denied that motion in a brief opinion dated September 2,

2015. On April 5, 2016, with the government moving for another

remand with Coelho's assent, we remanded the case a second time

for the BIA to consider whether Coelho's argument that

Massachusetts ABDW is not categorically a CIMT "because a

conviction for the reckless commission of [ABDW] does not require

a defendant to be aware of, and consciously disregard, the risk

imposed by his conduct" had been properly raised before the BIA

such that it had been exhausted and could be reviewed by us. We

accordingly vacated the BIA's April 10, 2015 decision.

In the BIA's fourth and final opinion, dated September

7, 2016, the agency once again dismissed Coelho's appeal. The BIA

stated that whether or not Coelho had raised this argument before

the agency, the agency had previously addressed both the

intentional and reckless prongs of Massachusetts ABDW and had

already found that even reckless ABDW is categorically a CIMT.

The BIA restated its prior finding that "when committed recklessly,

the statute requires an intentional act with a dangerous weapon

resulting in physical or bodily injury." Further, the BIA observed

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that Massachusetts defines "recklessness" as "knowingly or

intentionally disregarding an unreasonable risk that involves a

high degree of probability that death or serious bodily harm will

result" (alterations omitted) (citing Commonwealth v. Welansky, 55

N.E.2d 902, 910 (Mass. 1944)). Critically, the BIA noted in a

parenthetical -- but without elaboration -- that under

Massachusetts law, "[k]nowing facts that would cause a reasonable

man to know the danger is equivalent to knowing the danger"

(quoting Welansky, 55 N.E.2d at 910). In light of this case law,

the BIA "affirm[ed] [its] prior decision finding that a recklessly

or wantonly committed offense under the [Massachusetts ABDW]

statute is sufficient to render it a categorical [CIMT]."

This petition for review followed. After the BIA had

issued its last decision in this case and Coelho had filed his

petition, the BIA issued a decision in Matter of Wu, 27 I. & N.

Dec. 8 (B.I.A. 2017), the potential relevance of which we discuss

below.

II.

Two different standards of review are involved. "We

review the BIA's legal conclusions de novo, but we afford Chevron

deference to the BIA's interpretation of the [INA], including its

determination that a particular crime qualifies as one of moral

turpitude, unless that interpretation is 'arbitrary, capricious,

or clearly contrary to law.'" Da Silva Neto v. Holder, 680 F.3d

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25, 28 (1st Cir. 2012) (quoting Idy v. Holder, 674 F.3d 111, 117

(1st Cir. 2012)). Under these standards of review, we give

deference to the BIA's "construction of the term 'moral

turpitude,'" but we do not give deference to "its reading of an

underlying criminal statute (as to which it has no expertise)."

Patel v. Holder, 707 F.3d 77, 79 (1st Cir. 2013).

Although the INA does not define "crime involving moral

turpitude," this circuit has adopted the BIA's definition of that

term as "conduct that shocks the public conscience as being

inherently base, vile, or depraved, and contrary to the accepted

rules of morality and the duties owed between persons or to society

in general." Maghsoudi v. INS, 181 F.3d 8, 14 (1st Cir. 1999)

(quoting Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996)); see

also Da Silva Neto, 680 F.3d at 29 (defining CIMT alternatively as

"'an act which is per se morally reprehensible and intrinsically

wrong' and is 'accompanied by a vicious motive or a corrupt mind'"

(quoting Maghsoudi, 181 F.3d at 14)).

This circuit's approach to the CIMT analysis "has been

generally consistent with the first two steps of the . . .

framework" applied by the BIA in its April 10, 2015 decision. Da

Silva Neto, 680 F.3d at 29. Specifically, "[w]e have begun by

looking 'to the inherent nature of the crime of conviction, as

defined in the criminal statute,' to determine whether it fits the

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CIMT definition. If it does, we have said that 'our inquiry may

end there.'" Id. (quoting Idy, 674 F.3d at 118).1

The criminal statute at issue in this case establishes

certain imprisonment terms and fine amounts for "[w]hoever commits

an assault and battery upon another by means of a dangerous

weapon." Mass. Gen. Laws ch. 265, § 15A(b). Massachusetts common

law, which supplies the substantive definition of ABDW, see United

States v. Tavares, 843 F.3d 1, 12 (1st Cir. 2016), recognizes "two

separate aspects" to the crime of ABDW, Commonwealth v. Burno, 487

N.E.2d 1366, 1368 (Mass. 1986). The intentional theory of ABDW

punishes "the intentional and unjustified use of force upon the

person of another, however slight." Id. at 1368–69 (citation

omitted). Meanwhile, the reckless theory punishes "the

intentional commission of a wanton or reckless act (something more

than gross negligence) causing physical or bodily injury to

another." Id. at 1369.

The Massachusetts definition of "recklessness" departs

from the definition employed by the Model Penal Code ("MPC") and

a majority of states in that a defendant in Massachusetts need not

have been subjectively aware of the risk posed by his conduct in

1 Under this categorical approach, neither we nor the BIA
can consider Coelho's actual conduct, but rather only the "'least
of th[e] acts' criminalized." Moncrieffe v. Holder, 133 S. Ct.
1678, 1684 (2013) (alteration in original) (quoting Johnson v.
United States, 559 U.S. 133, 137 (2010)).

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order to have acted recklessly. Cf. Model Penal Code § 2.02(2)(c).

That is, the "classic formulation of recklessness" requires an

"actual awareness and a conscious disregard for a 'substantial and

unjustifiable risk'" on the defendant's part. Idy, 674 F.3d at

119 (citing N.H. Rev. Stat. Ann. §§ 626:2, 631:3). In

Massachusetts, by contrast, the SJC has said that "even if a

particular defendant is so stupid or so heedless that in fact he

did not realize the grave danger [posed by his conduct], he cannot

escape the imputation of wanton or reckless conduct in his

dangerous act or omission, if an ordinary normal man under the

same circumstances would have realized the gravity of the danger."

Welansky, 55 N.E.2d at 910 (alterations omitted). Indeed, in

Massachusetts, "[k]nowing facts that would cause a reasonable man

to know the danger is equivalent to knowing the danger." Id.

Much of the briefing and oral argument before us has

focused on this aspect of the Massachusetts formulation of

recklessness. Specifically, Coelho argues that the BIA

mischaracterized Massachusetts law by failing to take adequate

account of the state's departure from the "classic" MPC formulation

of recklessness. Accordingly, Coelho says, we must remand so that

the BIA can consider in the first instance whether, even under the

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correct articulation of Massachusetts law, the crime of reckless

ABDW is categorically a CIMT.2

There are some difficulties with Coelho's argument

because the BIA did expressly include in its discussion the crucial

quote from Welansky that "[k]nowing facts that would cause a

reasonable man to know the danger is equivalent to knowing the

danger." 55 N.E.2d at 910. Nonetheless, the BIA did so merely in

a parenthetical without any explanation of how this aspect of

Massachusetts law figures into its CIMT determination. Further,

the BIA did not include the "so stupid or so heedless" clause from

Welansky.

The government responds that regardless of the BIA's

sparse discussion of Massachusetts law on recklessness, the

agency's subsequent decision in Matter of Wu allows us to uphold

the outcome in this case. See 27 I. & N. Dec. 8. There, the BIA

concluded that the crime of assault with a deadly weapon or force

likely to produce great bodily injury, in violation of section

245(a)(1) of the California Penal Code ("CPC"), categorically

constitutes a CIMT. Id. at 8–9, 14. As the government emphasizes,

a conviction under section 245(a)(1) of the CPC, like a conviction

2 We have recently held, in a different statutory context,
that Massachusetts reckless ABDW is not categorically a "violent
felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e)(2)(B). See United States v. Windley, No. 16-1949, slip
op. at 6 (1st Cir. July 21, 2017) (per curiam).

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for Massachusetts reckless ABDW, "requires knowledge of the

relevant facts but does not require subjective appreciation of the

ordinary consequences of those facts." Id. at 10; see also id. at

12 (noting that an element of section 245(a)(1) is the fact that

"when the defendant acted, he or she . . . was aware of facts that

would lead a reasonable person to realize that his or her act by

its nature would directly and probably result in the application

of force to someone" but that the defendant need not have

"subjectively perceive[d] the risk posed by his or her conduct").

While the mens rea requirements of CPC section 245(a)(1)

and Massachusetts reckless ABDW do share that commonality, the

government leaves unaddressed other aspects of Matter of Wu that

complicate matters. For one, the government does not comment on

the extent to which the BIA's holding in Matter of Wu relies on

the Ninth Circuit's reading of the mental state required for a

conviction under section 245(a)(1). See id. at 13–14, 14 nn.8–9

(discussing United States v. Grajeda, 581 F.3d 1186 (9th Cir.

2009)). Nor does the government address the BIA's caveat that it

"would reach a different conclusion if faced with a statute, such

as one criminalizing driving under the influence . . . , that does

not require knowledge that the conduct is itself dangerous or of

the facts that make the proscribed conduct dangerous." Id. at 14–

15 n.10; accord United States v. Hart, 674 F.3d 33, 43 n.8 (1st

Cir. 2012) (noting that "[i]n Massachusetts, conduct that

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underlies a conviction for operating under the influence . . . and

causing serious bodily injury may also be charged as ABDW" and

collecting cases). As the government has not fully briefed these

issues, Matter of Wu does not alleviate our uncertainty about the

BIA's views on Massachusetts law on recklessness. Simply put, we

are left with too many questions about the BIA's thinking on the

mental state required for a Massachusetts reckless ABDW conviction

and cannot proceed with reviewing the BIA's CIMT determination

before those questions are resolved.3

Accordingly, we remand so that the BIA can consider the

following three issues: First, what is the effect, if any, of

Matter of Wu on the outcome that Massachusetts ABDW is

categorically a CIMT? Second, how does Welansky's prescription

-- that a defendant "so stupid or so heedless that . . . he did

not realize" the risk posed by his conduct can nonetheless be

deemed to have acted recklessly, so long as "an ordinary normal

man under the same circumstances would have realized" the risk --

impact the BIA's analysis of the moral depravity of Massachusetts

3 We acknowledge how much Coelho's removal proceedings
have been prolonged. After all, his ABDW conviction occurred more
than two decades ago, removal proceedings were instituted seven
years ago, the IJ ruled against him five years ago, and proceedings
in this court started almost four years ago. Much of that delay,
however, was occasioned by the government, which sought two remands
to the BIA prior to the instant petition.

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reckless ABDW? 55 N.E.2d at 910 (alterations omitted). Finally,

was Coelho convicted of intentional or reckless ABDW?4

III.

We vacate the BIA's September 7, 2016 opinion, the effect

of which was to render Coelho ineligible for cancellation of

removal, and remand for further proceedings consistent with our

opinion.

4 We include this final question because the BIA's answer
may obviate the need for us to address whether Massachusetts
reckless ABDW is categorically a CIMT once this case returns to
us.

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