Mendez v. BarrMendez v. Barr
Judge Sullivan dissents in a separate opinion.
Tomas Mendez was admitted to the United States in 2004 as a lawful permanent resident. In 2010, he was convicted of misprision of a felony in violation of
In 2016, upon returning from a trip abroad, the Department of Homeland Security charged him, based on his misprision conviction, as inadmissible under
The BIA defines a CIMT as crime that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and duties owed between persons or to society in general.” Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006).1 For decades, the BIA never considered misprision a CIMT. Matter of Sloan, 12 I. & N. Dec. 840, 842 (BIA 1966) (holding misprision does not constitute a CIMT).
However, in 2002, the Eleventh Circuit held in Itani v. Ashcroft that a conviction under § 4 is categorically a CIMT “because it necessarily involves an affirmative act of concealment or participation in a felony, behavior that runs contrary to accepted societal duties and involves dishonest or fraudulent
The Ninth Circuit rejected the BIA’s conclusion. The court held that because § 4 required only knowledge of the felony and did not require an intent to defraud, or conceal, or to obstruct justice, the statute encompassed conduct that was not inherently base or vile. Robles-Urrea v. Holder, 678 F.3d 702, 710-12 (9th Cir. 2012). The Ninth Circuit reasoned that “[n]othing in the statute prohibiting misprision of a felony references the specific purpose for which the concealment must be undertaken,” let alone a purpose sufficient to qualify misprision as a categorical CIMT. Id. at 710.
Mendez petitions for review. We have jurisdiction under
DISCUSSION
The dispositive issue is whether misprision is a CIMT. Because the BIA has no particular expertise in construing federal criminal statutes (as opposed to the INA), we owe no deference to its construction of § 4. United States v. Apel, 571 U.S. 359, 369 (2014); Mendez v. Mukasey 547 F.3d 345, 346 (2d Cir. 2008). Accordingly, we review de novo the BIA’s conclusion that Mendez’s conviction under § 4 is a conviction for a CIMT. Rodriguez, 451 F.3d at 63.
I
In Rodriguez, we held that to be a CIMT a statute must encompass “conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Id. In other words, the act must be “per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” Id.
To determine whether a conviction is for a CIMT, the BIA and the courts employ a “‘categorical approach,’ focusing on the intrinsic nature of the offense.” Gill v. I.N.S, 420 F.3d 82, 89 (2d Cir. 2005). Under this approach, “we look only to the minimum criminal conduct necessary to satisfy the essential elements of the crime.” Mukasey, 547 F.3d at 348. To qualify, the crime “must by definition, and in all instances, contain each of those elements that constitute a CIMT.” Gill, 420 F.3d at 89.
The federal misprision statute provides:
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
The categorical approach has not been satisfied in this case. The courts, as well as the BIA itself, have repeatedly made clear that the indisрensable component of a CIMT is “evil intent,” which means a specific mental purpose that is “inherently base, vile, or depraved.” Mukasey, 547 F.3d at 347.
Nothing in § 4—either expressly or by reasonable inference—speaks to intent. The absence of an intent requirement from § 4 contrasts sharply with perjury and obstruction of justice—which contain intent requirements and which are CIMTs. A person commits perjury when, “having taken an oath before a competent tribunal, officer, or person, . . . that he will testify, declare, depose, or certify truly, . . . willfully and contrary to such oath states or subscribes any
The BIA’s own decisions, which it has inexplicitly disavowed, prove this point. In Matter of Sloan, the BIA held that the “intent with which misprision is committed” is not “a factor” under § 4. 12 I. & N. Dec. at 842. In Matter of Espinoza-Gonzales, the BIA held that misprision “lacks the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice.” 22 I & N Dec. 892, 896 (BIA 1999). Indeed, in this case, the BIA acknowledged that § 4 “does not explicitly require that the act of concеalment be intentional.” Matter of Mendez, 27 I. & N. Dec. at 223. These concessions by the BIA are telling: they mean that the BIA itself is of the view that a defendant can be convicted under § 4 even if the defendant had no evil intent. Following the BIA’s lead, we conclude that convictions for violating § 4
Consider an individual living in a housing project that is plagued by violent drug-dealing gangs and drug-related crimes. That individual witnesses a shooting involving the gangs and knows the individuals involved who happen to be his neighbors in the projects. When that individual is approached by law enforcement оfficers, he falsely denies knowledge of those involved in the shooting. He does so because he fears that the shooters or other gang members will retaliate against him and his family. No one can seriously argue that this individual did not violate § 4 and no one can seriously argue that what he did was “inherently base, vile, or depraved.”
As the case law demonstrates, there exists a realistic probability, not just a theoretical one, that this conduct could be prosecuted under § 4. See, e.g., United States v. Davis, 491 F. App’x 143, 145 (11th Cir. 2012) (noting defendant’s guilty plea to misprision of felony for “failing to disclose knowledge of illegal drug activity to authorities”); United States v. Barker, 78 F. App’x 767, 769 (2d Cir. 2003) (noting defendant’s guilty plea “to concealing drug transactions”); United States v. Blount, 940 F. Supp. 720, 732 (E.D. Pa. 1996), aff’d sub nom. United States v. Riddick, 100 F.3d 949 (3d Cir. 1996) (“Even citizens without law enforcement
Take as another example, a parent who has reason to believe their son or daughter is using drugs and distributing them to friends. The parent discovers the drugs in the teenager’s room and flushes them down the toilet. It is clear that the parent violated § 4. But no one could seriously contend that the parents conduct was corrupt or vile or transgressed accepted rules of morality. These examples are not fringe possibilities or constructions of legal imagination—they are common occurrences. United States v. Hill, 890 F.3d 51, 57 n.9 (2d Cir. 2018).
The BIA’s decision that misprision categorically constitutes a CIMT is also unmoored from its own precedent. The BIA and courts have consistently declared offenses that involve appreciably higher levels of moral culpability to be insufficiently grave to qualify as CIMTs. See, e.g., Soto-Rodriguez v. Holder, 607 F. App’x 648 (9th Cir. 2015) (witness tampering); Tejwani v. Attorney General of the United States, 349 F. App’x 719 (3d Cir. 2009) (money laundering); Partyka v. Attorney General of the United States, 417 F.3d 408 (3d Cir. 2005) (aggravated assault on a police officer); In re Sejas, 24 I. & N. Dec. 236, 239 (BIA 2007) (assault against a family member); Robles-Urrea, 678 F.3d at 708 (noting that assault with a deadly weapon has been found not to involve moral turpitude).
II
The Government draws on Jordan v. De George, 341 U.S. 223 (1951). There the Court stated “that a crime in which fraud is an ingredient involves moral turpitude.” Id. at 227. From this authority, the Government argues that the necessary intent to defraud can be implied from the requirement in § 4 that the
Unable to show that § 4 has an intent requirement, the Dissent nonetheless concludes that misprision qualifies as a CIMT because it involves “dishonest and deceitful behavior.” Dissent аt 13. However, almost all crimes involve—by their very nature—some dishonest and deceitful behavior, which explains why our past cases, as explained below (pages 16-17), require more to hold that a crime categorically constitutes a CIMT. See, e.g., Rodriguez, 451 F.3d at 64; Mendez, 547 F.3d at 347; Ahmed v. Holder, 324 F. App’x 82, 84 (2d Cir. 2009). If we were to accept the Dissent’s construction, it would eviscerate the distinction in the law between generic criminal conduct and crimes involving moral turpitude, thus turning almost all crimes into CIMTs. The Ninth Circuit reached the same conclusion in Robles-Urrea. There it rejected an argument by the government (and picked up on by the Dissent) that “misprision of a felony is base, vile, and
Moreover, when “Congress uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.” Cruz-Miguel v. Holder, 650 F.3d 189, 199 (2d Cir. 2011) (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004)); see also Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir. 2013). Congress has explicitly required an intent to defraud in other parts of the federal criminal code but did not do so for misprision.3
Moreover, the Government’s argument that an “implicit” mens rea requirement can be read into the statute proves too much. It is a concession that the statute is ambiguous. That ambiguity means that the Government’s approach fails under the rule of lenity: “When a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute, we resolve doubts in favor of the defendant rather than imputing to Congress an undeclared will to criminalize conduct.” United States v. Valle, 807 F.3d 508, 523 (2d Cir. 2015). “The rule of lenity ensures that criminal statutes will provide fair warning of what constitutes criminal conduct, minimizes the risk of selective or arbitrary enforcement, and strikes the appropriate balance between the legislature and the court in defining criminal liability.” Id.; see also Ali v. Reno, 22 F.3d 442, 446 (2d Cir. 1994) (“Lingering ambiguities in a statute concerning the forfeiture of residence in this country should be resolved in favor of the alien.”). Indeed, the
With these considerations in mind, the Government’s position in this case becomes evеn more tenuous. It suggests, without pointing to any persuasive evidence in the language, structure, legislative history, or motivating policies of § 4, that individuals who fail to inform law enforcement officers of a felony for reasons such as the ones we have mentioned have nonetheless committed a crime that is inherently vile and immoral. That is not a reasonable reading of § 4 and it is highly unlikely—indeed inconceivable—that is what Congress intended.
To be sure, establishing a CIMT rooted in fraud does not require the Government to prove every element of common law fraud. Mukasey, 547 F.3d at 347. However, mere intent to conceal (or an equivalent mens rea) is not, on its own, sufficient because an individual may have a variety of non-culpable motivations for withholding information about a felony. To account for these circumstances, we have afforded different treatment to statutes that contained a mens rea element (which was indicative of a CIMT) and those that did not contain such an element. For example, we have generally held, that deceit must be paired with an intent to wrongfully extract some benefit or to cause a detriment for the
In Rodriguez v. Gonzalez, we held that making a false statement in the application and use of a passport in violation of
III
The Government argues that we should afford Chevron deference to the BIA’s conclusion that § 4 constitutes a CIMT. We disagree. While we give Chevron deference “to the BIA’s published, precedеntial interpretations of the Immigration and Nationality Act,” we owe no deference to its interpretation of a
IV
For the foregoing reasons, we hold that misprision is not categorically a CIMT. In so holding, we align ourselves with the Ninth Circuit. See Robles-Urrea, 678 F.3d at 710-11. The Government has failed to show that misprision rises to the level of base, vile, conscience-shocking conduct traditionally attributed to the gravest and most inherently evil offenses. Moreover, nothing in the misprision statute suggests that the crime has, as an element, the fraudulent intent necessary for misprision to constitute a CIMT. See, e.g., Ahmed, 324 F. App’x at 84; Rodriguez, 451 F.3d at 64.
CONCLUSION
For the reasоns set forth, we GRANT the petition and VACATE the decision of the BIA.
Tomas Mendez was convicted of misprision of a felony in violation of
I.
“We afford Chevron deference to the BIA’s construction of undefined statutory terms such as ‘moral turpitude’ because of the BIA’s expertise applying and construing the immigration laws.” Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006). As the BIA recently explained in Matter of Mendez, 27 I. & N. Dec. 219, 221 (B.I.A. 2018), a crime involving moral turpitude has two essential elements: (1) “a culpable mental state” and (2) “reprehensible conduct.” With respect to the former, BIA precedent has long made clear that moral turpitude inheres in
As we noted in Rodriguez, crimes “‘impairing or obstructing an important function of a department of the government . . . by deceit . . . or dishonest means’ involve moral turpitude.” 451 F.3d at 63 (brackets omitted) (quoting Matter of Flores, 17 I. & N. Dec. 225, 229 (B.I.A. 1980)). Put differently, “an intent to deceive, coupled with some impairment of government functioning, whether intended or not, satisfies the mental culpability requirement for a CIMT.” Parris v. Whitaker, 758 F. App’x 135, 138 (2d Cir. 2018). Indeed, the BIA and courts across the country have recognized that “concealment offenses are crimes involving moral
Because, under Chevron, we must defer to the BIA‘s interpretation of what constitutes a CIMT so long as it is reasonable, and because this Court has repeatedly recognized the reasonableness of the BIA‘s definition in this regard, see Rodriguez, 451 F.3d at 63 (“We find this interpretation [to be] reasonable . . . .“); Michel v. INS, 206 F.3d 253, 262–63 (2d Cir. 2000), we are compelled to apply the BIA‘s definition of a CIMT to
Of course, the fact that we must defer to the BIA‘s reasonable interpretation of a CIMT does not end the inquiry. As we have noted previously, “the BIA has no expertise in construing . . . criminal statutes, and so we review de novo the BIA‘s finding that a petitioner‘s crime of conviction contains those elements which have been properly found to constitute a CIMT.” Gill v. INS, 420 F.3d 82, 89 (2d Cir. 2005) (emphases omitted).
To determine whether a conviction constitutes a CIMT, this Court applies a categorical analysis. Acevedo v. Barr, 943 F.3d 619, 622 (2d Cir. 2019). Under this approach, the Court examines whether “‘the minimum conduct criminalized by the statute’ would support classification of a crime as a CIMT.” Efstathiadis v. Holder, 752 F.3d 591, 595 (2d Cir. 2014) (quoting Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)). If the crime “by definition, and in all instances, contain[s] each of those elements that constitute a CIMT,” then the crime is categorically a CIMT. Gill, 420 F.3d at 89. Having reviewed the language and structure of
As the Fifth Circuit unanimously held in Patel v. Mukasey, 526 F.3d 800 (5th Cir. 2008), and unanimously reaffirmed in Villegas-Sarabia,
A recent decision from a district court in this Circuit nicely illustrates the centrality of intent in any misprision of felony charge. In United States v. Potik, No. 17-cr-232 (AKH), 2017 WL 4315011, at *1 (S.D.N.Y. Sept. 26, 2017), the defendant was charged with committing misprision of a felony by “having knowledge of the actual commission of a felony . . . [and] knowingly . . . conceal[ing] the same.” The defendant pleaded guilty to this offense, and Judge Hellerstein considered whether there was a factual basis for the plea, specifically, for the fourth element of misprision of a felony, which he described as “intentional concealment.” Id. at *3. Judge Hellerstein ultimately refused to accept the defendant‘s guilty plea because he concluded that the defendant‘s intent for the affirmative act of concealment – deleting сertain text messages – “had nothing to do with his desire to destroy evidence” of the felony. Id. at *5. The Ninth Circuit reached a similar
The majority attempts to sidestep this authority by relying on two prior decisions of the BIA for the proposition that the “intent with which misprision is committed . . . is [not] a factor” under
The majority also turns to a grab bag of district court cases from around the country purportedly demonstrating that “there exists a realistic, not just a
Because I find the reasoning of the Fifth and Eleventh Circuits to be persuasive on this point, I agree with the BIA that misprision of a felony under
As for the second element of a CIMT – reprehensible conduct – the majority attempts to downplay the seriousness of a
The majority‘s other hypothetical, involving a parent who flushes his child‘s felony-level drug stash down the toilet, fares no better. Once again, the majority аnnounces that even if the parent violated
To my mind, it is hard to disagree with the BIA‘s conclusion that “the affirmative act of concealment in the misprision context involves dishonest and deceitful behavior, which runs contrary to accepted societal duties and is [thus] morally turpitudinous conduct.” Matter of Mendez, 27 I. & N. Dec. at 222. As the Supreme Court itself has recognized, “[c]oncealment of crime has been condemned throughout our history,” and even in modern times, “gross indifference to the duty to report known criminal behavior remains a badge of irresponsible citizenship.” Roberts v. United States, 445 U.S. 552, 557 (1980). I therefore agree with the Eleventh Circuit that “misprision of a felony is a crime of moral turpitude because it necessarily involves an affirmative act of concealment or participation in a felony, behavior that runs contrary to accepted societal duties and involves dishonest or fraudulent aсtivity.” Itani, 298 F.3d at 1216.
III.
For the foregoing reasons, I would join the Fifth and Eleventh Circuits in holding that misprision of a felony in violation of