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February 23, 2017
  Sotnikau v. Lynch -- Fourth Circuit
Involuntary Manslaughter under Virginia Law Is Not a Crime Involving Moral Turpitude

Areas of Law: Criminal Law, Immigration Law

Issue Presented: Whether involuntary manslaughter under Virginia law is categorically a crime involving moral turpitude for the purposes of removal proceedings.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that involuntary manslaughter under Virginia law is not categorically a crime involving moral turpitude, because a defendant can be convicted of the offense upon a showing of criminal negligence. Therefore, the Fourth Circuit concluded that the defendant was not subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)(I). The Fourth Circuit vacated the Board of Immigration Appeals' order of removal and remanded for further proceedings.

Extended Summary: Ihar Sotnikau ("Sotnikau") is a native of Belarus who was admitted to the United States as a lawful permanent resident in 2008. On 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 into the river and his body was found the next day. Sotnikau was charged with involuntary manslaughter in the Circuit Court of the City of Portsmouth, Virginia. He pleaded guilty and was sentenced to five years in prison.

In October 2011, the Department of Homeland Security (the "DHS") instituted removal proceedings against Sotnikau under 8 U.S.C. § 1227(a)(2)(A)(i)(I). Under the statute, a removable alien is one who "is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission." The DHS alleged that Sotnikau was convicted of a crime involving moral turpitude, i.e. involuntary manslaughter, committed within five years of being admitted to the United States. Sotnikau contested the DHS's interpretation of Virginia's involuntary manslaughter offense.

In March 2013, the Immigration Judge (the "IJ") concluded that Sotnikau had been convicted of a crime involving moral turpitude, citing the Board of Immigration Appeals' (the "BIA") 1994 decision in In re Franklin, 20 I. & N. Dec. 867 (BIA 1994). In that case, the BIA held 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.'" The IJ found that, because the mental state required to support a conviction for involuntary manslaughter under Virginia law is identical to the mental state that was at issue in the In re Franklin decision, Virginia's involuntary manslaughter offense is categorically a crime involving moral turpitude. Sotnikau appealed the IJ's decision to the BIA, which affirmed the decision and ordered Sotnikau's removal. Stonikau petitioned the Fourth Circuit for review.

The Fourth Circuit granted relief. In examining whether Virginia's involuntary manslaughter offense is a crime involving moral turpitude, the Fourth Circuit used the categorical approach outlined in Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir. 2012): The court looks at the elements of the crime at issue and determines 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.

The Fourth Circuit started by discussing the definition of "moral turpitude." Citing the BIA decision In re Perez-Contreras, 20 I. & N. Dec. 615, 618 (BIA 1992), the Fourth Circuit found that moral turpitude is present "[w]here knowing or intentional conduct is an element of an offense." Those circumstances include criminally reckless conduct, which "reflect[s] a willingness to disregard the risks inherent in the conduct." Criminally negligent conduct, however, is not included because "there [is] no intent required for conviction, nor any conscious disregard of a substantial and unjustifiable risk."

In analyzing the elements of Virginia's involuntary manslaughter offense, the Fourth Circuit found that the offense 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)). Thus, the court held that an involuntary manslaughter conviction can be secured in Virginia upon a showing of criminal negligence, without proving a conscious disregard of risks attendant to the offender's conduct. Therefore, the Fourth Circuit concluded that Virginia's involuntary manslaughter offense is not categorically a crime involving moral turpitude.

In response to the IJ's reliance on the In re Franklin decision, the Fourth Circuit held that decision did not control the outcome of this case because the definition of involuntary manslaughter in Virginia is "materially distinguishable" from the definition of involuntary manslaughter in Missouri. The court noted that while Missouri's involuntary manslaughter requires a "conscious disregard of a substantial and unjustifiable risk," Virginia's involuntary manslaughter does not.

To read the full opinion, click here.

Panel: Judges Niemeyer, King, and Agee

Argument Date: 12/08/2016

Date of Issued Opinion: 01/24/2017

Docket Number: No. 15-2073

Decided: Petition for review granted; vacated and remanded by published opinion

Case Alert Author: Ziyi He, Univ. of Maryland Carey School of Law

Counsel: 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.

Author of Opinion: Circuit Judge King

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/23/2017 03:23 PM     4th Circuit  

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