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Fourth Circuit Standard on Crime of Moral Terpitude and Applicability of Chevron Deference

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The Fourth Circuit sets its standards: what is a crime of moral turpitude, when does the Chevron deference apply, what constitutes exhaustion of remedies and when is exhaustion of remedies accomplished?

 

In Ramirez v. Sessions, a Fourth Circuit Case decided April 17, 2018, the Fourth Circuit discussed exhaustion of remedies, crimes involving moral turpitude and the applicability of Chevron deference.

The Fourth Circuit adopted the definition of crimes involving moral turpitude as stated by the BIA in Mohamed v. Holder, 769 F.3d 885 (4th Cir. 2014): behavior “that shocks the public conscience as being inherently base, vile, or depraved.” The Fourth Circuit has also independently defined crime of moral turpitude as “morally culpable mental state and morally reprehensible conduct” Sotnikau v. Lynch, 846 F.3d 731, 736 (4th Cir. 2017) (citing In re Ortega-Lopez, 26 I. & N. Dec. 99, 100 (BIA 2013)).

Chevron deference dates back to the 1984 US Supreme Court decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. The US Supreme Court held that agencies must be given deference for their reasonable policy-making decisions: “an agency’s interpretation of the statute(s) that it administers is entitled to deferential review if the agency exercises delegated authority to “make rules carrying the force of law.” The Fourth Circuit made an important distinction of the Chevron ruling. It distinguished precedential decisions, or decisions which carry the force of law and are issued by a three-member panel from non-precedential decisions issued by a one-member panel of the Board of Immigration Appeals. In Ramirez, the Fourth Circuit did not defer to the BIA’s where it interpreted the Virginia statute which it does not administer and more generally, because the decision was issued by one-member and thus lacks the force of law “as a non-precedential decision and is not controlled by BIA precedent”.  In Ramirez, the Fourth Circuit set the standard for Chevron deference regarding BIA decisions: deference will be shown to precedential decisions issued by a three-member panel, controlled by BIA precedent, and when the decision interprets the immigration laws which it administers.

A statutory requirement for Circuit Court appeal requires the alien to exhaust all administrative remedies available to the alien as of right. This means that the alien must raise all possible and legally viable claims in an administrative proceeding so that they can be revisited upon appeal. 8 U.S.C. § 1252(d)(1). If the alien does not raise a claim during the first proceeding, it will be barred from raising that claim upon appeal. The Fourth Circuit clarified that the claim does not have to be raised perfectly, but so long as it is raised in some manner, the issue will be preserved for appeal.

In practicality, this means that all claims raised before an Immigration Judge in Immigration Court, are reviewable by the Board of Immigration Appeals and if all the claims are raised again before the Board of Immigration Appeals, then all claims are reviewable by the governing Circuit Court. However, if an alien raises claims A, B and C before the IJ and then Claims B and C before the Board of Immigration Appeals, the alien cannot raise A, B and C before the Circuit Court. Here, claim A was not raised before the Board of Immigration Appeals and so, it cannot be reviewed by the Circuit Court on appeal. The Fourth Circuit drew a fine line however, exhaustion of remedies does not mean that upon appeal, counsel cannot develop, supplement and argue in support of a claim differently. The point of exhaustion of remedies is not to limit counsel’s research in support of a claim but instead to limit counsel’s ability to raise new claims that have not been previously reviewed.

The Fourth Circuit came out swinging in Ramirez. Not only did it critically review the BIA’s decision in Ramirez, it reminded the BIA that not all of its decisions will be shown deference. To exhaust remedies, the Fourth Circuit made valid points. At each level of litigation, be it initial or appellate, all claims must be raised so they are preserved for appeal. The Fourth Circuit showed their focus on following procedure and precedent.

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