Submitted: July 26, 2016
for Review of an Order of the Board of Immigration Appeals
SMITH, ARNOLD, and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
Meng Xiong petitions for review of an order of the Board of
Immigration Appeals concluding that he is ineligible for
cancellation of removal under 8 U.S.C. § 1229(b),
because he had sustained a prior conviction for an aggravated
felony. 8 U.S.C. § 1227(a)(2)(A)(iii). "Aggravated
felony" is defined in 8 U.S.C. § 1101(a)(43). The
Board upheld a determination of an immigration judge that
Xiong's prior conviction for second-degree burglary under
Minn. Stat. § 609.582, subd. 2(a)(1) is an aggravated
felony, because it is a "crime of violence" within
the meaning of § 1101(a)(43)(F).
1101(a)(43)(F) incorporates the definition of "crime of
violence" in 18 U.S.C. § 16. That definition
encompasses an offense "that, by its nature, involves a
substantial risk that physical force against the person or
property of another may be used in the course of committing
the offense." 18 U.S.C. § 16(b). The Board
concluded that Xiong's Minnesota burglary conviction
qualified as a crime of violence under § 16(b) and
declined to consider Xiong's contention that the
definition is unconstitutionally vague. A.R. 4. According to
the Board, "it is well settled we do not address the
constitutionality of the laws we administer."
filed in this court a petition for review and an opening
brief in which his lead argument challenges the
constitutionality of 18 U.S.C. § 16(b). He contends that
two circuits have declared the provision unconstitutionally
vague in light of the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
concerning 18 U.S.C. § 924(e)(2)(B)(ii). See United
States v. Vivas-Ceja, 808 F.3d 719, 722-23 (7th Cir.
2015); Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th
Cir. 2015); see also Shuti v. Lynch, No. 15-3835,
2016 WL 3632539, at *5-8 (6th Cir. July 7, 2016). He urges
this court to follow suit. But see United States v.
Gonzalez-Longoria, No. 15-40041, 2016 WL 4169127, at
*4-5 (5th Cir. Aug. 5, 2016); cf. United States v.
Prickett, No. 15-3486, 2016 WL 4010515, at *1 (8th Cir.
July 27, 2016).
filing a responsive brief, the government moved to remand the
case to the Board for further proceedings. To evaluate the
motion, it is necessary to review briefly the course of
proceedings before the agency.
front of the immigration judge, the government argued that
Xiong was ineligible for cancellation of removal as an
aggravated felon on two independent grounds: a prior
conviction for a "crime of violence" under §
1101(a)(43)(F) and a prior conviction for
"burglary" under § 1101 (a)(43)(G). The
immigration judge ruled that second-degree burglary in
Minnesota is a crime of violence under § 1101(a)(43)(F)
and said that the court "need not reach the issue of
whether the burglary conviction is also an aggravated felony
under INA § 101(a)(43)(G), " i.e., 8
U.S.C. § 1101(a)(43)(G). A.R. 78 n.2.
appealed the Board. In its response brief to the Board, the
government argued that the immigration judge correctly ruled
that Xiong's burglary conviction was a crime of violence
under § 1101(a)(43)(F). Alternatively, the government
maintained that Xiong's burglary conviction also
constituted a "burglary" under §
1101(a)(43)(G). A.R. 18-19. The Board upheld the immigration
judge's decision on "crime of violence" under
§ 1101(a)(43)(F) and did not address
"burglary" under §1101(a)(43)(G).
motion to remand, the government argues that the Board should
consider whether a second-degree burglary in Minnesota
constitutes a generic "burglary" within the meaning
of § 1101(a)(43)(G). We conclude that the suggestion of
a remand is well taken.
fundamental and longstanding principle of judicial restraint
requires that courts avoid reaching constitutional questions
in advance of the necessity of deciding them." Lyng
v. Nw. Indian Cemetery Protective Ass 'n, 485 U.S.
439, 445 (1988). "This rule must bind not only the
courts, but also the administrative agencies which they
review, for if it did not, such agencies, 'by
unnecessarily deciding constitutional issues, would compel
the courts to resolve such issues as well.'"
Gutierrez v. INS, 745 F.2d 548, 550 (9th Cir. 1984)
(Kennedy, J.) (quoting Tung Chi Jen v. INS, 566 F.2d
1095, 1096 (9th Cir. 1977)).
appeal comes to us, Xiong argues that we must consider the
constitutionality of the definition of "crime of
violence" in 8 U.S.C. § 1101(a)(43)(F) and 18
U.S.C. § 16(b). Although the government argued before
the immigration judge and the Board that Xiong's burglary
conviction also qualified as an aggravated felony under
§ 1101(a)(43)(G), we may not consider whether to affirm
the denial of relief on that ground, because the Board did
not decide the issue. See SEC v. Chenery Corp., 318
U.S. 80, 94 (1943). Rather than allowing the Board's
treatment of the case to force a decision on a constitutional
question that might be unnecessary, we conclude that a remand
is warranted for the Board to consider in the first instance
whether Xiong's burglary conviction is an aggravated
felony under § 1101 (a)(43)(G). See Gutierrez,
745 F.2d at 550. We express no view on the merits of the
issue, but the Board should decide it one way or the other.
Xiong may then file a renewed petition for review.
these reasons, the government's motion to remand is
granted, and the case is remanded to the Board of Immigration
Appeals for ...