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ETIENNE v. LYNCH, NO. 14-2013

Decided: December 30, 2015

The Fourth Circuit denied Petitioner Eddy Etienne’s (“Etienne”) petition for review.

In 1984, Etienne entered the United States as an illegal immigrant. In 1986, Etienne pleaded guilty to conspiracy to violate the controlled dangerous substances law of Maryland. After his release from prison, Etienne continued to live in the United States illegally. After the Haiti earthquake in 2006, Etienne applied for Temporary Protected Status (“TPS”) and his request was accepted. However, in 2014, the Department of Homeland Security (“DHS”) denied his application for renewal. DHS initiated expedited removal proceedings against Etienne and charged him with being deportable under the Immigration and Nationality Act (“INA”) for being an alien convicted of an “aggravated felony.” DHS claimed that Etienne’s 1996 Maryland conspiracy conviction was an aggravated felony.  On March 20, 2014, DHS issued a Final Administrative Removal Order for Etienne’s removal to Haiti. As a result, Etienne filed his petition for review to the Fourth Circuit.

On appeal, Etienne argued that his 1996 Maryland conspiracy conviction did not constitute an “aggravated felony” under the INA, and therefore, the DHS erred in finding him deportable. The Court, however, had to first address whether Etienne’s failure to raise this argument in the administrative proceedings deprived the Court of jurisdiction. The Court agreed with Fifth Circuit case law and found that, in expedited removal proceedings, an alien has no opportunity to challenge the legal basis of his removal. As a result, the Court determined that it had jurisdiction over Etienne’s case.

Second, the Court addressed whether Etienne’s conspiracy conviction was an “aggravated felony” under the INA. The parties agreed that a categorical approach had to be applied to determine whether a state-law crime qualified as an “aggravated felony.” The parties, however, disagreed as to whether, under a categorical approach, “the term ‘conspiracy’ in 8 U.S.C. § 1101(a)(43)(U) is defined as it was at common law or by the prevailing contemporary meaning of the term, which requires proof of an overt act.” Etienne argued that because Maryland’s conspiracy crime did not require proof of an overt act, that his conviction did not qualify as an “aggravated felony.” The Court disagreed, however, and noted that there was no evidence that Congress intended not to incorporate the common-law definition of “conspiracy” when it included that term in the INA. As such, the Court held that a state-law conspiracy conviction does not require an overt act as an element for the conviction to qualify under the INA as an “aggravated felony.” Therefore, the Court found that DHS properly classified Etienne’s conviction.

Accordingly, the Court denied Etienne’s petition for review.

Full Opinion

Meredith Weisler