Rene Montes Mayorga v. Attorney General United States, 757 F.3d 126

Background

Rene Montes Mayorga, a Salvadoran national who entered without inspection in 1988, pled guilty in 2010 to unlicensed dealing in firearms under 18 U.S.C. §§ 922(a)(1)(A) and (a)(2) and served seven months in prison.
DHS served a Notice to Appear charging removability for unlawful presence and for conviction of a crime involving moral turpitude (CIMT); IJ found both grounds proven and denied cancellation of removal, voluntary departure, asylum, withholding, and CAT relief.
IJ concluded the § 922 licensing offense was malum in se and therefore categorically a CIMT; BIA affirmed without extended analysis and adopted the IJ’s conclusion as to CIMT for purposes of cancellation eligibility.
Mayorga conceded removability for unlawful presence and that his incarceration precluded good moral character; he appealed the CIMT determination to the Third Circuit.
Key legal questions: (1) whether Mayorga has a justiciable injury from the CIMT finding (lifetime inadmissibility vs. a ten-year bar from the unlawful-presence ground), (2) whether the § 922 licensing offense is categorically a CIMT under the categorical approach, and (3) whether remand to the BIA is required.

Issues

Issue	Mayorga's Argument	Government's Argument	Held
Justiciability / standing to challenge CIMT finding	CIMT finding causes concrete, continuing injury: lifetime bar to reentry distinct from 10-year bar; decision redressable by court	Any decision would be advisory because Mayorga is already removable and subject to a 10-year bar; possible waivers and visa processes make harm speculative	Court: Justiciable — collateral consequences (lifetime inadmissibility) are concrete and redressable; may decide the CIMT issue
Whether conviction under 18 U.S.C. §§ 922(a)(1)(A) & (a)(2) is categorically a CIMT	The offense is inherently wrongful (malum in se) and exposes public harm (unlicensed firearms dealing) — thus a CIMT	The offense is a regulatory/licensing offense and may be committed non-turpitudinously (e.g., inadvertent lapse); categorical approach controls	Court: Not a categorical CIMT; regulatory nature allows conviction for non-turpitudinous conduct, so IJ/BIA erred
Application of the categorical approach (and modified categorical)	If statute divisible or record shows turpitudinous subtype, CIMT could apply	Government did not supply conviction record; statutes not obviously divisible	Court: Categorical approach applied; no record or divisible statute to sustain CIMT finding
Remand to the BIA	Mayorga sought direct review; court should decide legal question now	Government urged remand because BIA’s treatment was cursory	Court: No remand; BIA adopted IJ reasoning and issue is legal; court resolves the question on the merits

Key Cases Cited

Spencer v. Kemna, 523 U.S. 1 (1998) (collateral consequences can sustain a live controversy when they cause concrete, continuing injury)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury in fact, causation, and redressability)
Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) (standing requires injury traceable to defendant and redressable)
Totimeh v. Attorney General, 666 F.3d 109 (3d Cir. 2012) (definition and analysis of moral turpitude; nature of act, not statutory label, controls)
Jean-Louis v. Attorney General, 582 F.3d 462 (3d Cir. 2009) (application of categorical approach to determine CIMT)
Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008) (licensing of firearms dealers is a regulatory choice; § 922 licensing offenses not clearly turpitudinous)
Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) (collateral consequences of criminal classifications can be relevant to justiciability in immigration context)
Xie v. Ashcroft, 359 F.3d 239 (3d Cir. 2004) (appellate review attributable to adoption of IJ reasoning by the BIA)
Duhaney v. Attorney General, 621 F.3d 340 (3d Cir. 2010) (res judicata and collateral estoppel principles can apply to agency decisions)