13 F.4th 291
3rd Cir.2021Background
- Victor Sasay, a lawful permanent resident, was convicted in 2018 of aiding and abetting aggravated identity theft under 18 U.S.C. § 1028A(a)(1) and sentenced to 24 months; he earlier had a 2015 Virginia misdemeanor credit-card fraud conviction.
- DHS treated both convictions as crimes involving moral turpitude (CIMTs) and initiated removal under 8 U.S.C. § 1227(a)(2)(A)(ii) (two or more CIMTs not arising from a single scheme).
- The § 1028A conviction arose from a scheme where Sasay and co-defendants purchased card numbers and used counterfeit access devices to obtain hundreds of cards; Sasay pled guilty and his plea agreement admitted conduct supporting bank fraud as the predicate offense.
- Sasay argued § 1028A(a)(1) is overbroad/indivisible and could criminalize mere possession of another’s identity document without intent to use, so it is not categorically a CIMT.
- The BIA and Immigration Judge held the § 1028A conviction was a CIMT because possession must be "during and in relation to" a predicate felony, necessarily involving fraudulent intent; the Third Circuit applied the modified categorical approach and denied review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conviction under 18 U.S.C. § 1028A(a)(1) is a CIMT | Sasay: § 1028A is overbroad and can punish mere possession of identity documents without intent to use or fraud, so not a CIMT | Gov: § 1028A requires possession/use "during and in relation to" an enumerated felony, which entails dishonest/fraudulent conduct | Court: § 1028A conviction here is a CIMT because predicate was bank fraud, which categorically involves fraud/moral turpitude |
| Whether § 1028A is divisible so the modified categorical approach applies | Sasay: statute is indivisible; court must consider the statute’s minimum conduct (mere possession) | Gov: statute is divisible because it incorporates alternative predicate felonies in § 1028A(c) | Court: § 1028A is divisible; use modified categorical approach to identify the predicate offense from plea documents |
| Whether Sasay’s plea shows a predicate crime that is a CIMT | Sasay: challenges categorical reach; emphasizes possibility of non-fraudulent possession | Gov: plea agreement and colloquy show the predicate was bank fraud (18 U.S.C. § 1344) | Court: plea admissions establish bank fraud as the predicate, and bank fraud is categorically a CIMT; therefore § 1028A conviction is a CIMT |
| Whether BIA’s interpretation of § 1028A merits deference | Sasay: BIA erred in treating § 1028A as necessarily requiring fraud | Gov: BIA reasonably interpreted the statute to require relation to a felony and fraudulent intent | Court: rejects BIA’s specific interpretive rationale but affirms removal outcome based on modified categorical approach and plea showing bank fraud |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (modified categorical approach / divisibility analysis)
- Mellouli v. Lynch, 575 U.S. 798 (categorical approach focuses on the conviction’s legal elements rather than underlying conduct)
- Jordan v. De George, 341 U.S. 223 (fraudulent conduct generally qualifies as a crime involving moral turpitude)
- Richardson v. United States, 526 U.S. 813 (defining a "violation" and the jury’s role in identifying predicate offenses)
- United States v. Gibbs, 656 F.3d 180 (applying divisibility and the modified categorical approach)