DAVID NUNEZ-VASQUEZ, a/k/a David Nunez, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
No. 19-1841
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: July 13, 2020
PUBLISHED. Submitted: March 25, 2020. Before GREGORY, Chief Judge, FLOYD, and HARRIS, Circuit Judges. Petition for review granted, order of removal vacated, and remanded with instructions by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Floyd and Judge Harris joined.
PUBLISHED
AMERICAN IMMIGRATION COUNCIL; IMMIGRANT DEFENSE PROJECT; CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION, Amici Supporting Petitioner.
On Petition for Review of an Order of the Board of Immigration Appeals.
Petition for review granted, order of removal vacated, and remanded with instructions by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Floyd and Judge Harris joined.
Ellis C. Baggs, BAGGS LAW GROUP, PLC, Richmond, Virginia; Benjamin R. Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Joseph H. Hunt, Assistant Attorney General, Civil Division, Mary Jane Candaux, Assistant Director, Nicole J. Thomas-Dorris, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Trina Realmuto, Kristin Macleod-Ball, AMERICAN IMMIGRATION COUNCIL, Brookline, Massachusetts; Nancy Morawetz, WASHINGTON SQUARE LEGAL SERVICES, INC., New York, New York, for Amici American Immigration Council and Immigrant Defense Project. Samantha Hsieh, CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION, Washington, D.C., for Amicus Capital Area Immigrants’ Rights Coalition.
David Nunez-Vasquez seeks review of the Board of Immigration Appeals (“BIA“) finding that he was removable because he had been convicted of two crimes involving moral turpitude (“CIMT“)—a conviction for leaving an accident in violation of
I.
Nunez-Vasquez, a citizen of Mexico, entered the United States in 2002. In November 2012, Nunez-Vasquez was convicted of violating
In August 2018, while his removal proceedings were pending, Nunez-Vasquez was convicted for leaving the scene of an accident in violation of
In a single member decision, the Board of Immigration Appeals affirmed the IJ‘s decision. The BIA first concluded that his failure-to-stop conviction was a CIMT because leaving the scene of an accident with knowledge that the accident resulted in injury or damage was ““[c]ontrary to the accepted rules of morality and the duties owed between persons or to society in general.“” A.R. 5 (quoting Matter of Ortega-Lopez, 26 I. & N. Dec. 99, 100 (BIA 2013)). The BIA also concluded that his identity theft conviction was categorically a CIMT because each subsection of the statute required either “intent to defraud” or “turpitudinous conduct.” A.R. 5. Nunez-Vasquez also argued that the term “crime involving moral turpitude” was unconstitutionally vague, but the BIA determined it lacked jurisdiction to rule on the constitutionality of the Immigration Naturalization Act (“INA“). A.R. 3.
After the BIA‘s decision, DHS quickly began the process of removing Nunez-Vasquez. On August 6, 2019, Nunez-Vasquez timely petitioned this Court for review, but did not request a stay of removal. Nunez-Vasquez filed a motion for stay of removal at approximately 4:50 p.m. ET on August 13, 2019. However, the process to remove Nunez-Vasquez had already begun.
On appeal to this Court, Nunez-Vasquez argues that the BIA erred in finding that his convictions are CIMTs. Nunez-Vasquez also asks this Court to grant his motion for stay of removal or alternatively, order the Government to facilitate his return to the United States.
II.
Where, as here, the Board issued its own decision without adopting the IJ‘s opinion, the Court reviews only the BIA‘s decision. Martinez v. Holder, 740 F.3d 902, 908 (4th Cir. 2014), as revised (Jan. 27, 2014). The BIA‘s decision constitutes the final order of removal. Id.
We now turn to the merits of Nunez-Vasquez‘s argument. Nunez-Vasquez poses two questions of law: (1) whether the BIA erred in holding that his failure-to-stop
A.
In answering these questions, we first consider what deference, if any, this Court owes to the BIA. The BIA‘s legal conclusion that Nunez-Vasquez‘s convictions are categorically CIMTs involves “two interpretative questions.” Ramirez v. Sessions, 887 F.3d 693, 701 (4th Cir. 2018). First, the Court must determine “what the term ‘moral turpitude’ means in the INA.” Id. at 702. Because the term “moral turpitude” is ambiguous, under Chevron, we defer to the BIA‘s reasonable construction of the term and definition of the types of conduct it encompasses. Mohamed, 769 F.3d at 889. Second, the Court must determine whether the state statute of conviction necessarily involves the type of conduct defined to be morally turpitudinous. Ramirez, 887 F.3d at 702. We do not owe any deference on this question to the BIA. Soliman v. Gonzales, 419 F.3d 276, 281 (4th Cir. 2005) (“[W]e need not accord deference to the BIA‘s ultimate finding that [petitioner‘s] particular offense was an aggravated felony, which involves ... an interpretation of Virginia criminal law.“).
Irrespective the deference owed to each of these interpretative questions, non-precedential opinions by the BIA do not carry the force of law and, thus, are ineligible for Chevron deference. Ramirez, 887 F.3d at 702; Martinez v. Holder, 740 F.3d 902, 909-10 (4th Cir. 2014). Precedential BIA opinions must be issued by a three-member panel.
However, when single-member, nonprecedential BIA opinions rely on a precedential BIA opinion, we determine whether the precedential opinion is apposite and warrants deference. Sijapati v. Boente, 848 F.3d 210, 215 (4th Cir. 2017); Larios-Reyes v. Lynch, 843 F.3d 146, 155 (4th Cir. 2016); Ramirez, 887 F.3d at 702. Thus, we must first consider the precedential BIA decisions on which the BIA opinion in this case relied and “whether and to what extent [they] impact[] our review of [Nunez-Vasquez‘s] case.” Amos v. Lynch, 790 F.3d 512, 519 (4th Cir. 2015).
As to Nunez-Vasquez‘s failure-to-stop conviction, the BIA referenced Matter of Ortega-Lopez to conclude that “[a] driver who leaves the scene of an accident in which he is involved and does so with knowledge that the accident resulted in injury or damage is acting ‘contrary to the accepted rules of morality and the duties owed between persons or to society in general.‘” A.R. 5 (quoting Matter of Ortega-Lopez). The BIA opinion in this case does not rely on the reasoning of Matter of Ortega-Lopez, but rather just quotes the part that defines moral turpitude. We defer to the BIA‘s reasonable construction of the definition of moral turpitude but since the BIA opinion here only relies on a precedential decision for the definition of moral turpitude, and not the reasoning, Matter of Ortega-Lopez is not eligible for Chevron review.
As to Nunez-Vasquez‘s identity theft conviction, the BIA relied on its precedential decisions in Matter of Zaragoza-Vaquero, 26 I. & N. Dec. 814, 816 (BIA 2016), Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA 2006), and Matter of Flores, 17 I. & N. Dec. 225, 228-230 (BIA 1980). Thus, we must determine whether
To begin, Matter of Zaragoza-Vaquero is easily distinguishable because the federal statute at issue in that case dealt with criminal copyright infringement, an issue unrelated to Nunez-Vasquez‘s identity theft conviction.2 26 I. & N. Dec. 814 (BIA 2016). Thus, it would be unreasonable for the BIA to rely on Matter of Zaragoza-Vaquero to conclude that the identity theft conviction is a CIMT. Similarly, Matter of Flores and Matter of Jurado-Delgado are distinguishable because they deal with convictions for fraudulently and deliberately obstructing the government or a government entity. Ramirez, 887 F.3d at 703 (“Thus, the Matter of Jurado-Delgado line of precedent merely determined that conduct involving ‘deceit, graft, trickery, or dishonest means’ is morally turpitudinous.“). In contrast, Nunez-Vasquez‘s identity theft conviction does not require an intent to deceive or obstruct the government. Our sister circuits are in accord that obstructing the government or a governmental function involves moral turpitude. See e.g., Omagah v. Ashcroft, 288 F.3d 254, 262 (5th Cir. 2002) (“[A]lmost all other courts have held that intentionally deceiving the government involves moral turpitude.“).3
In Matter of Flores, the BIA determined that a conviction for falsifying immigration papers under
Similarly, in Matter of Jurado-Delgado, the BIA determined that “a conviction for making false statements to a government official ‘with intent to mislead a public servant in performing his official function’ involved moral turpitude.” 25 I. & N. Dec. at 33-35. The “perpetrator must make misleading statements with an intention to disrupt the performance of a public servant‘s official duties.” Id. at 35. In rejecting petitioner‘s argument that the misleading statements were not made under oath, the BIA reasoned that an “intent to mislead [] is the controlling factor.” Id. at 35.
By contrast,
Because the BIA‘s decision in the case before us is not afforded precedential weight, we determine the amount of deference owed to the BIA‘s opinion using the principles of deference outlined in Skidmore v. Swift & Co., 323 U.S. 134 (1994). Amos, 790 F.3d at 521. The degree of deference “given to a BIA decision ‘hinges on the thoroughness evident in the BIA‘s consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it the power to persuade.‘” Ramirez, 887 F.3d at 703 (alteration in original) (describing Skidmore deference). Here, the BIA does not provide any analysis as to either conviction before it summarily states that both convictions are CIMTs. As to the failure-to-stop conviction, it purports to outline Virginia law and incorrectly states that Virginia law requires knowledge that the accident resulted in injury or damage, when Virginia law does not require such knowledge. Clarke v. Galdamez, 789 S.E.2d 106, 111 (Va. 2016) (noting that the failure-to-stop statute requires that the “defendant knew or should have known that property was damaged by the accident“). As to the identity theft conviction, the BIA simply recites the elements of the statute but does not provide any analysis as to why the statute was categorically a CIMT.
Accordingly, the BIA decision lacks the “power to persuade” and also is not entitled Skidmore deference.
We defer to the BIA‘s reasonable interpretation of the term “crime involving moral turpitude.” However, we do not defer to the BIA‘s determination that a conviction under a state statute is a CIMT. And because the non-precedential BIA opinion in this case is not persuasive, we afford it no deference.
B.
Under this framework, we must now determine whether Nunez-Vasquez‘s failure-to-stop conviction fits within the INA‘s definition of a CIMT. Ramirez, 887 F.3d at 703. When making this determination, we apply the categorical approach, which looks to the elements of the crime rather than the particular conduct underlying the conviction. Cabrera v. Barr, 930 F.3d 627, 636 (4th Cir. 2019); see also Descamps v. United States, 570 U.S. 254, 261 (2013).4 A violation of
Ramirez, 887 F.3d at 704; see also Larios-Reyes, 843 F.3d at 152 (noting that the minimum conduct must have a “realistic probability, not a theoretical possibility” of being prosecuted). In other words, “[i]f all permutations of the conduct proscribed by the elements of the offense involve moral turpitude, then the offense categorically qualifies as” as one involving moral turpitude. Martinez v. Sessions, 892 F.3d 655, 658 (4th Cir. 2018); Sotnikau, 846 F.3d at 735 (noting that if the elements of the crime at issue “can include behavior that does not involve moral turpitude, the crime is not categorically one involving moral turpitude“).
The BIA defines “moral turpitude” as behavior “that shocks the public conscience as being inherently base, vile, or depraved.” Ramirez, 887 F.3d at 704 (citing Matter of Tobar-Lobo, 24 I. & N. Dec. 143, 144 (BIA 2007)). It is conduct that is “[c]ontrary to the accepted rules of morality and the duties owed between persons or to society in general.” Matter of Tobar-Lobo, 24 I. & N. at 143. A CIMT requires “two essential elements: a culpable mental state and reprehensible conduct.” Sotnikau, 846 F.3d at 736 (citing In re Ortega-Lopez, 26 I. & N. Dec. 99, 100 (BIA 2013)). To have the culpable mental state, the crime must have, as an element, an “intent to achieve an immoral result or willful disregard of an inherent and substantial risk that an immoral act will occur.” Ramirez, 887 F.3d at 704 (citing In re Perez-Contreras, 20 I. & N. Dec. 615, 619 (BIA 1992)). To meet the reprehensible conduct element, the crime “must involve conduct that not only violates a statute but also independently violates a moral norm.” Id.; see Mohamed, 769 F.3d at 888 (“[T]he phrase ‘involving moral turpitude’ ... refers to more than simply the wrong inherent in violating the statute. Otherwise the requirement ... would be superfluous.“).
The Supreme Court of Virginia has stated that to convict a defendant of a violation of
(1) that the defendant was the driver of a vehicle that he knew was involved in an accident; and (2) that the accident caused property damage or bodily injury; and (3) that the defendant knew or should have known that the property was damaged by the accident; and (4) that the defendant failed to do any of the following: (a) stop immediately, (b) render reasonably necessary assistance, or (c) report his identification information to law enforcement or the other person involved in the accident.
Clarke v. Galdamez, 789 S.E.2d at 109-110 (emphasis in original).
Here, the failure-to-stop conviction requires no culpable mental state or reprehensible conduct. As to the culpable mental state,
That a defendant “should have known that the property was damaged by the accident” suggests that a conviction under this statute would be possible because of a defendant‘s criminal negligence. See Conrad v. Commonwealth, 521 S.E.2d 321, 326 (Va. Ct. App. 1999) (explaining that criminal negligence for an involuntary manslaughter conviction exists when the “offender either knew or should have known the probable results of his acts“). Thus, it appears that criminal negligence is sufficient to obtain a conviction under the statute. See Sotnikau, 846 F.3d 731 (4th Cir. 2017) (holding that criminal manslaughter was not a CIMT because a conviction could be predicated on criminal negligence). Accordingly,
Not only does Nunez-Vasquez‘s failure-to-stop conviction lack the required culpable mental state, there is no morally reprehensible conduct. The Supreme Court of Virginia has made it clear that it is possible for a defendant to be guilty of violating
C.
Because we find that Nunez-Vasquez‘s failure-to-stop conviction is not a CIMT, we now turn to whether his identity theft conviction is a CIMT.
1.
Here, the BIA assumed that the identity statute was divisible by subsection and then concluded that the entire statute categorically involved moral turpitude. A.R. 5 (“Subsection A explicitly requires ‘intent to defraud’ and subsections B and B1 also require turpitudinous conduct.“). Although the BIA determined that all of
The least culpable conduct criminalized by
Further,
We are further persuaded by the Ninth Circuit‘s decision in Ibarra-Hernandez v. Holder, 770 F.3d 1280, 1282 (9th Cir. 2014), where the court found that the violation of an identity theft statute through the use of “fictitious person‘s name—say, Mickey Mouse—and a non-existent Social Security number solely for the purpose of getting a job, and not with the intent to cause loss to anyone” was not a CIMT. The fact that a person could commit a violation through the use of a fictitious person‘s name and a fake Social Security number was important in the Ninth Circuit‘s analysis. Similarly, because
The Government relies on Flores-Molina v. Sessions, 850 F.3d 1150, 1160-64 (10th Cir. 2017), where the Tenth Circuit laid out a framework to determine whether an offense was a CIMT. In Flores-Molina, the Tenth Circuit explained that the “BIA has identified three categories of deceit-related offenses that qualify as CIMTs: (1) offenses containing an explicit fraudulent intent element; (2) offenses containing an inherent fraudulent intent element; and (3) offenses containing a specific intent element.” Id. at 1160. The Government uses this framework to argue that the Virginia statute at issue falls within the third category of CIMTs, crimes that “involve deception and a specific intent to harm or obtain a benefit at the government‘s or another person‘s expense.”8 Id. at 1164. We are unconvinced.
Even if we deferred to the Tenth Circuit‘s reasoning, the Government‘s argument fails. Indeed, Flores-Molina supports our conclusion. Interestingly, in Flores-Molina, the Tenth Circuit used the framework relied on by the Government to determine that giving false information to a police officer or a city official acting in their official capacity was categorically not a CIMT. Id. at 1167-69. The Tenth Circuit explained that the specific intent required must be “specific intent to harm or obtain a benefit at the government‘s or another person‘s expense.” Flores-Molina, 850 F.3d at 1164 (citing Matter of Jurado-Delgado). The Government has not explained and we cannot see how the intent “to avoid summons, arrest, prosecution, or to impede a criminal investigation” is “specific
Because a conviction under
III.
Finally, Nunez-Vasquez asks this Court to order the Government to facilitate his return after granting his petition for review.9 As we explained in Ramirez:
Under an Immigration and Customs Enforcement (ICE) policy directive, “[a]bsent extraordinary circumstances, if an alien who prevails before the U.S. Supreme Court or a U.S. court of appeals was removed while his or her [petition for review] was pending, ICE will facilitate the alien‘s return to the United States if either the court‘s decision restores the alien to lawful permanent resident (LPR) status, or the alien‘s presence is necessary for continued administrative removal proceedings.” Among other circumstances, an alien‘s presence is necessary when a court orders his or her presence and restores him to the status he had before removal.
887 F.3d at 706; see also U.S. Immigration and Customs Enforcement Policy Directive Number 11061.1, Facilitating the Return to the United States of Certain Lawfully Removed Aliens (Feb. 24, 2012).10
Upon the filing of an initial motion for stay of removal or deportation in an immigration case, the clerk will enter an administrative order staying removal for a period of 14 days to allow time for responsive filings and to preserve the court‘s ability to make a considered decision on the motion. The stay may be vacated or extended by order of the court.
Thus, a petitioner who files a stay motion will not be able to be removed from the United States for a period of 14 days after the filing of such motion.
Here, we are ordering Nunez-Vasquez‘s return because his presence is “necessary to effectuate judicial relief” and he was removed from the United States before this Court could rule on his motion to stay. Ramirez, 887 F.3d at 706. Thus, we direct the Government to facilitate Nunez-Vasquez‘s return for the purpose of participating in further proceedings in accordance with Directive 11061.1.
For the reasons stated above, we conclude that Nunez-Vasquez‘s failure-to-stop conviction under
PETITION FOR REVIEW GRANTED, ORDER OF REMOVAL VACATED, AND REMANDED WITH DIRECTIONS