By Kim Langona
In Hernandez v. Whitaker, the Sixth Circuit concluded that the Michigan felonious assault statute is indivisible. 914 F.3d 430, 435 (6th Cir. 2019). Furthermore, a conviction under this criminal statute, Mich. Comp. Laws § 750.82, is not a crime involving moral turpitude (CIMT) for purposes of removal. Id.
Petitioner Julio Edgardo Molina Hernandez was born in El Salvador and entered the United States in 2012 without authorization. Id. at 432. He eventually received permanent resident status as a Special Immigrant Juvenile. Id. In 2016, Immigration and Customs Enforcement (ICE) initiated removal proceedings against Mr. Molina for an assault conviction under MCL § 750.88 which was eventually vacated. Id. However, Mr. Molina then pled guilty to a different offense, “felonious assault under MCL § 750.82.” Id. ICE maintained its position that he was removable, arguing that felonious assault is also a deportable CIMT under INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i). Id.
The Immigration Judge (IJ) ordered Mr. Molina removed, denying both his motion to terminate the removal proceedings and all requested forms of relief. Id. at 433. According to the Sixth Circuit, the IJ determined that Mr. Molina’s conviction for a “particularly serious crime” made him ineligible for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Id. The Board of Immigration Appeals (BIA or the Board) denied his appeal and sustained the CIMT removal charge. Id. Mr. Molina petitioned the Sixth Circuit to review the Board’s decision finding him removable for a felonious conviction under MCL § 750.82 and denying him all forms of requested relief. Id. at 432.
The Sixth Circuit began by considering the degree of deference it must give when interpreting a statute administered by a federal agency. Id. at 433. The court concluded that review of the BIA’s interpretation of the CIMT basis of removal was governed by the standard set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Id. According to the Sixth Circuit, the Chevron standard requires that a court give effect to Congress’ intent without regard for other interpretations if Congress has “‘directly spoken to the precise question at issue’ in the text of the statute . . . .” Id. (quoting Chevron, 467 U.S. at 842-43). Following traditional principles of statutory interpretation, the court stated that if the statute is ambiguous, the relevant question is whether the agency’s interpretation is “‘based on a permissible construction of the statute.’” Id. (quoting Chevron, 467 U.S. at 843).
With Chevron in mind, the Sixth Circuit stated that it previously held that the term “crime involving moral turpitude” is ambiguous, but that the BIA’s interpretation was reasonable and thus entitled to deference. Id. (citing Ruiz-Lopez v. Holder, 682 F.3d 513, 516 (6th Cir. 2012)). In this case, however, the court ultimately concluded that the BIA’s interpretation of the CIMT provision was not entitled to deference because it came from “an unpublished, single-member decision that lacks precedential value.” Id. (citing Lockhart v. Napolitano, 753 F.3d 251, 262 (6th Cir. 2009)). Citing supporting precedent, the court concluded that it must review de novo the BIA’s interpretation of the term “CIMT” with regard to state criminal statutes. Id.
Turning to the substance of the Michigan felonious assault statute at issue in this case, MCL § 750.82, the Sixth Circuit explained that the BIA held that any conviction under this statute is categorically a CIMT “because the ‘dangerous weapon’ element elevated the crime from simple assault to CIMT status.” Id. at 434. Again, the court concluded that this position conflicted with Sixth Circuit precedent. Id. (citing Hanna v. Holder, 740 F.3d 379 (6th Cir. 2014)). In doing so, it rejected that BIA’s argument that Hanna “only suggested that MCL § 750.82 was not a CIMT, without affirmatively so holding . . . .” Id. (emphasis added). The court interpreted the Hanna holding, explaining that the same Michigan statute at issue was categorized as divisible because it encompassed both CIMT and non-CIMT offenses. Id. (citing Hanna, 740 F.3d at 392). To support its interpretation, the court noted that Hanna distinguished between “‘intent to injure’” and the lesser “‘intent to place the victim in apprehension of an immediate battery.’” Id. (quoting Hanna, 740 F.3d at 392). The court stated that, according to Hanna, a factual situation involving the latter level of intent would not qualify as a CIMT. Id.
Importantly, the court stated that both parties in the present case agreed that MCL § 750.82 is indivisible based on recent Supreme Court decisions. Id. at 435 (citing United States v. Harris, 853 F.3d 318, 320 (6th Cir. 2017) (treating MCL § 750.82 as indivisible)). These cases establish that when an offense does not list multiple elements in the alternative, it is indivisible and triggers the categorical approach to determine what the offense entails. See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016); Descamps v. United States, 133 S. Ct. 2276, 2284 (2013). Yet, the Sixth Circuit noted that “whether the statute is divisible or not is irrelevant.” Hernandez, 914 F.3d at 435. The court explained that an indivisible statute means that no conviction under it would qualify as a CIMT given that Hanna explicitly held that the statute included non-CIMT conduct. Id. In other words, the Hanna court’s error in categorizing the statute as divisible instead of indivisible had no effect on its analysis that the statute did, in fact, encompass non-CIMT conduct. Id.
In sum, the court interpreted Hanna to hold that Michigan’s felonious assault statute is not categorically a CIMT because it includes non-CIMT offenses. Id. Further, the court held that the statute is indivisible based on recent Supreme Court decisions. Id. Taken together, the Sixth Circuit concluded that a conviction under MCL § 750.82 is not a CIMT and that Mr. Molina was not removable. Id.
Kim Langona is a second-year law student at the University of Denver Sturm College of Law. Upon graduating in May 2020, she aspires to work in immigration law to advance migrants’ rights in her home state of Colorado.