Etienne v. Lynch, No. 14-2013 (4th Cir. 2015)
Annotate this CasePetitioner, a native of Haiti, was ordered removed on the grounds that he is an alien who has been convicted of an aggravated felony. Because the Notice of Intent, Form I-851, expressly prompts aliens to raise only factual challenges to removal, the court held that petitioner was not required to raise his legal challenge to removal in order to meet the exhaustion requirement of INA 242(d)(1), 8 U.S.C. 1252(d)(1). Consequently, the court has jurisdiction to consider the petition for review. On the merits, the court concluded that nothing rebuts the common-law presumption when interpreting the term “conspiracy” in the INA. Accordingly, under the categorical approach, a state-law conspiracy need not require proof of an overt act to be classified as an “aggravated felony.” Therefore, the court held that DHS properly classified petitioner’s conviction and the court denied the petition for review.
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