Divided Fourth Circuit panel knocks out “moral turpitude” framework for immigration decisions at Chevron step one

A divided panel of the Fourth Circuit held today in Prudencio v. Holder that the framework used by federal immigration judges to decide whether an individual has previously been convicted of a crime of moral turpitude is unauthorized because in conflict with the relevant provisions of the Immigration and Nationality Act. Judge Keenan wrote the opinion, in which Chief Judge Traxler joined. Judge Shedd penned a vigorous dissent.

The decision defies easy summary, but the dispute is an important one. Here is how Judge Shedd’s dissent begins:

The categorical approach adopted by the majority is a doctrine created by the judicial branch to address issues of concern to the judicial branch—protection of Sixth Amendment rights and efficient use of judicial resources. Although an agency may choose to adopt some version of this approach, there is no  requirement to expand this difficult, almost unworkable, limiting analysis to an agency, especially in the immigration context, and I would not do so.

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Fourth Circuit joins Fifth Circuit interpretation of sexual abuse enhancement and affirms use of modified categorical approach to conclude that South Carolina conviction for assault and battery of a high and aggravated nature qualifies for enhancement

Judge Keenan wrote a for a unanimous panel (consisting also of Judges King and Davis) today in the published opinion in United States v. Spence. The opinion begins:

In this appeal, we consider whether Troy Spence’s sentence for possession of child pornography, a violation of 18 U.S.C. § 2252A(a)(5)(B), was properly enhanced as provided in 18 U.S.C. § 2252A(b)(2) based on his prior conviction under South Carolina common law for assault and battery of a high and aggravated nature (ABHAN). The sentencing enhancement at issue applies when a defendant has a prior conviction under certain federal statutes or a prior conviction under a state law “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor” (the sexual abuse enhancement). 18 U.S.C. § 2252A(b)(2).

The district court, employing the modified categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602 (1990) and Shepard v. United States, 544 U.S. 13, 20 (2005), relied on the indictment charging the ABHAN offense to conclude that the ABHAN conviction qualified as a predicate offense under the sexual abuse enhancement. Spence argues on appeal that the district court erred in applying the modified categorical approach, and that the court should have limited its consideration of the prior conviction to a categorical analysis only. We disagree with Spence’s argument, and affirm the district court’s judgment.

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