Summary
The Ninth Circuit denied Vitaliy Chmukh's petition for review of a Board of Immigration Appeals decision denying his applications for asylum, withholding of removal, and Convention Against Torture protection. The court held that Chmukh's state conviction for possession of a stolen vehicle categorically matched the generic federal definition of an aggravated felony and constituted a particularly serious crime, making him statutorily ineligible for discretionary relief. The opinion also addresses exhaustion requirements and includes concurring and dissenting opinions regarding the standards for reviewing BIA summary affirmances.
Topics
Practice areas
Questions Presented
- Whether Chmukh's Washington conviction for possession of a stolen vehicle is categorically a theft offense and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(G).
- Whether the agency properly determined that the conviction was a particularly serious crime barring withholding of removal.
- Whether the criminal-alien jurisdictional bar precluded review of Chmukh's claims and whether the court retained jurisdiction over alleged legal errors.
- Whether Chmukh exhausted his claims before the agency.
- Whether Chmukh waived his CAT claim by failing to address it in his opening brief.
Holdings
- A conviction under RCW § 9A.56.068 categorically qualifies as an aggravated felony theft offense under 8 U.S.C. § 1101(a)(43)(G).
- The agency did not commit reversible legal error in determining that Chmukh's aggravated-felony conviction was a particularly serious crime barring withholding of removal.
- The aggravated-felony jurisdictional bar applied, but the court retained jurisdiction to review legal-error claims concerning the agency's application of the correct legal standard and its own precedent.
- Chmukh waived his CAT claim by failing to address it in his opening brief.
Key quotations
“Applying our analysis from Flores leads us to conclude that the Washington statute criminalizing possession of a stolen vehicle is also a categorical match with the generic federal offense.” (124 F.4th at 678)
“When those considerations are addressed—as they were here—omitting a specific discussion of “danger” or “danger to the community” is not error when evaluating whether a petitioner committed a particularly serious crime.” (124 F.4th at 681)
Factual background
Chmukh, a Ukrainian citizen who entered the United States as a refugee, pleaded guilty in Washington to possession of a stolen vehicle after using a stolen vehicle with a friend to steal packages from porches. He also pleaded guilty in a separate case to possession of heroin. He received concurrent sentences of 43 months for the stolen-vehicle conviction and 24 months for the drug conviction, ultimately serving 38 months. In removal proceedings, he sought asylum, withholding of removal, and CAT protection based on claimed fear of persecution and torture in Ukraine.
Procedural history
The Department of Homeland Security charged Chmukh with removability based on convictions for possession of a stolen vehicle and possession of heroin. The immigration judge found him removable, determined that the stolen-vehicle conviction was an aggravated felony and a particularly serious crime, and denied asylum, withholding of removal, and CAT protection. The BIA affirmed, and the Ninth Circuit denied the petition for review.