56 F.4th 374
4th Cir.2023Background:
- José Rafael Salazar, a Mexican national who entered the U.S. in 1991, applied for a mortgage refinance in 2006 using a social security number he testified he "made up." Mail for that SSN went to another Virginia resident.
- Salazar was convicted in a Virginia bench trial under Va. Code § 18.2-186.3(A)(2) (identity theft requiring an "intent to defraud"). The Virginia Court of Appeals affirmed, finding his use of the SSN satisfied the intent element.
- DHS initiated removal proceedings; Salazar conceded removability and sought cancellation of removal. The Government moved to pretermit his application as barred by a conviction for a crime involving moral turpitude (CIMT).
- The Immigration Judge pretermitted the cancellation application, finding the conviction involved fraud and thus moral turpitude; the Board affirmed in a single-member unpublished opinion, concluding subsection (A)(2) is divisible and categorically a CIMT because it requires intent to defraud.
- Salazar petitioned for review in the Fourth Circuit, arguing (1) (A)(2) can be applied to non-turpitudinous conduct and (2) the Board abused its streamlining rules by not referring the case to a three-member panel.
- The Fourth Circuit denied the petition, holding (A)(2) categorically constitutes a crime involving moral turpitude and that the Board reasonably assigned the case to a single member.
Issues:
| Issue | Salazar's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Va. Code § 18.2-186.3(A)(2) is categorically a crime involving moral turpitude (CIMT) | (Salazar) The statute can be applied to mere deception; Virginia courts treated "intent to defraud" as closer to intent to deceive, so not all conduct is morally turpitudinous | (Govt) Subsection (A)(2) explicitly requires "intent to defraud," and fraud offenses are CIMTs; the statute is divisible and Salazar was convicted under the fraudful subsection | The court held (A)(2) is categorically a CIMT because it requires intent to defraud and Virginia's interpretation aligns with that meaning |
| Whether the Board abused its discretion by deciding the case via a single-member opinion rather than referring it to a three-member panel | (Salazar) The case raises a complex/novel legal issue triggering referral under 8 C.F.R. §1003.1(e)(6) | (Govt) The issue is not novel or recurring and is addressed by Board precedent; single-member disposition was proper | The court held the Board did not abuse its discretion; streamlining was reasonable given precedent and the issue's narrowness |
Key Cases Cited
- Nunez-Vasquez v. Barr, 965 F.3d 272 (4th Cir. 2020) (distinguishes different subsections of the Virginia identity-theft statute and analyzes CIMT scope)
- Mathis v. United States, 579 U.S. 500 (2016) (divisible-statute framework for comparing statutory elements)
- Descamps v. United States, 570 U.S. 254 (2013) (categorical approach limits inquiry to statutory elements)
- Martinez v. Sessions, 892 F.3d 655 (4th Cir. 2018) (applying categorical approach to CIMT questions)
- Castillo v. Holder, 776 F.3d 262 (4th Cir. 2015) (state appellate interpretations constrain federal analysis of state-law elements)
- Ramirez v. Sessions, 887 F.3d 693 (4th Cir. 2018) (describing Board’s definition of CIMT: culpable mental state plus morally reprehensible conduct)
- Jordan v. De George, 341 U.S. 223 (1951) (fraud offenses have long been treated as involving moral turpitude)
- Salazar v. Commonwealth, 789 S.E.2d 779 (Va. Ct. App. 2016) (state appellate decision interpreting "intent to defraud" in Salazar's conviction)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (realistic-probability test for state statute application in categorical analysis)
- Quinteros-Mendoza v. Holder, 556 F.3d 159 (4th Cir. 2009) (Fourth Circuit review of Board streamlining decisions is permissible)
- Kporlor v. Holder, 597 F.3d 222 (4th Cir. 2010) (fraud as ingredient of moral turpitude)