PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-1314 MELVIN JOSUE RODRIGUEZ CABRERA, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: May 9, 2019 Decided: July 19, 2019 Before MOTZ, AGEE and HARRIS, Circuit Judges. Petition for review granted; vacated and remanded with instructions by published opinion. Judge Agee wrote the opinion, in which Judge Motz and Judge Harris joined. ARGUED: Teresa Rubinger, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Petitioner. Victoria Marie Braga, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Erica Hashimoto, Diretor, Anjali Parekh Prakash, Supervising Attorney, Elijah Staggers, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Petitioner. Joseph H. Hunt, Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. AGEE, Circuit Judge: Melvin Josue Rodriguez Cabrera, a native and citizen of El Salvador, became a lawful permanent resident of the United States in 2014. Three years later, the Department of Homeland Security (“DHS”) initiated removal proceedings against him based on his 2017 Virginia conviction under Va. Code § 18.2-46.2 for participation in a criminal street gang. The immigration judge (“IJ”) determined that this Virginia offense did not categorically constitute a crime involving moral turpitude and thus could not be a basis for removing Cabrera. DHS appealed, and the Board of Immigration Appeals (“BIA”) issued a decision holding that a Virginia conviction for participation in a criminal street gang categorically constitutes a crime involving moral turpitude. The BIA reinstated removal proceedings against Cabrera and remanded to the IJ for a determination on the other statutory requirements for removal. After the IJ determined that those other elements were met and ordered Cabrera’s removal, he filed a petition for review directly in this Court. We conclude, first, that we have jurisdiction over Cabrera’s petition because he has exhausted his administrative remedies, and second, that the Virginia offense of participating in criminal street gang activity is not categorically a crime involving moral turpitude. We therefore grant Cabrera’s petition for review, vacate the order of removal, and remand with instructions. I. The Virginia statute prohibiting participation in a criminal street gang states, in relevant part: 2 Any person who actively participates in or is a member of a criminal street gang and who knowingly and willfully participates in any predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang shall be guilty of a Class 5 felony. Va. Code § 18.2-46.2(A). See generally Va. Code § 18.2-10(e) (authorizing punishment for a Class 5 felony of “a term of imprisonment of not less than one year nor more than 10 years”). In 2017, Cabrera pleaded guilty to a violation of this statute, for which he was sentenced to a suspended term of imprisonment of five years. Thereafter, DHS served Cabrera with a Notice to ...
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