TOMAS MENDEZ, Pеtitioner, v. WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.
No. 18-801
United States Court of Appeals For the Second Circuit
August Term 2018 (Argued February 14, 2019; Decided May 27, 2020)
Appeal from the Board of Immigration Appeals No. A056-560-110, Pauley, Board Member, Presiding.
Before: PARKER, CHIN, and SULLIVAN, Circuit Judges.
Tomas Mendez, a lawful permanent resident, was denied reentry to the country upon his return from a trip abroad. The Department of Homeland Security charged him as inadmissible for having been previously convicted of misprision of a felony in violation of
Judge Sullivan dissents in a separate opinion.
GERARD J. CEDRONE, Goodwin Procter LLP, Bostоn, MA (William M. Jay, Goodwin Procter LLP, Washington, DC, on the brief), for Petitioner.
LINDSAY B. GLAUNER (Joseph H. Hunt & Linda S. Wernery, on the brief), for William P. Barr, U.S. Attorney General, Washington, DC, for Respondent.
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
The Ninth Circuit rejected the BIA‘s conclusion. The court held that because
Mendez moved to terminate removal proceedings and for cancellation of removal, arguing that misprision is not a CIMT. Relying on the BIA‘s dеcision in Robles-Urrea, the IJ found Mendez removable as charged. The IJ also pretermitted Mendez‘s application for cancellation of removal, concluding that because his 2010 misprision conviction constituted a CIMT, it stopped the clock for calculating length of residency and prevented him from establishing the required seven years of continuous residency. In February 2018, the BIA issued a precedential decision in this case. Matter of Mendez, 27 I. & N. Dec. at 219. It reaffirmed its holding that misprision is a CIMT and declined to follow the Ninth Circuit‘s rejection of its reasoning in Robles-Urrea.
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
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 indispensable 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
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
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 officers, 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 onе can seriously argue that this individual did not violate
As the case law demonstrates, there exists a realistic probability, not just a theoretical one, that this conduct could be prosecuted under
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
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).
Moreover, the BIA‘s decision that misprision categorically involves depraved conduct leads to unsound results under its own precedent because it treats misprision more severely than the more serious offense of accessory after the fact. In Matter of Rivens, 25 I. & N. Dec. 623, 627 (BIA 2011), the BIA concluded that assisting an individual to escape in violation of
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
The short—and conclusive—response is that nothing in the statute speaks to the specific purpose for which the concealment must be undertaken. The statute does not mention “intent” or “defraud.” The BIA concedes all of this.
Unable to show that
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
We, of course, readily concede that some individuals who violate
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 BIA itself has recognized that where there are ambiguities as to whether an offense involves a CIMT, “any doubts in deciding such questions must be resolved in the alien‘s favor.” Matter of Serna, 20 I. & N. Dec. 579, 586 (BIA 1992).
With these considerations in mind, the Government‘s position in this case becomes even more tenuous. It suggests, without pointing to any persuаsive evidence in the language, structure, legislative history, or motivating policies of
To be sure, establishing a CIMT rooted in fraud does not require the Government to prove every element of common law
In Rodriguez v. Gonzales, we held that making a false statement in the application and use of a passport in violation of
The BIA has similarly held, on multiple occasions, that something more than mere deceit or an intent to conceal is necessary. In Matter of Serna, the BIA held that the possession of forged immigration documents in violation of
III
The Government argues that we should afford Chevron deference to the BIA‘s conclusion that
IV
For the foregoing reasons, we hold that misprision is not categorically a CIMT. In
CONCLUSION
For the reasons set forth, we GRANT the petition and VACATE the decision of the BIA.
RICHARD J. SULLIVAN, Circuit Judge, dissenting:
Tomas Mendez was convictеd 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 intentional conduct. See, e.g., Matter of Ortega-Lopez, 27 I. & N. Dec. 382, 387 (B.I.A. 2018) (holding that because a statute “indisputably involve[d] intentional conduct,” it met the culpable mental state requirement to qualify as a CIMT); Matter of Ruiz-Lopez, 25 I. & N. Dec. 551, 553 (B.I.A. 2011) (“Where knowing or intentional conduct is an element of a morally reprehensible offense, we have found moral turpitude to be present.“). As for the latter, the BIA has declared that conduct is reprehensible if it is “inherently bаse, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Matter of Silva-Trevino, 26 I. & N. Dec. 826, 833 (B.I.A. 2016).
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 (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 turpitude.”
turpitude.” Matter of Mendez, 27 I. & N. Dec. at 221; see also Matter of Sloan, 12 I. & N. Dec. 840, 854 (A.G. 1968) (concluding that “the active and knowing interference with the enforcement of the lаws of the United
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
II.
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 to the element of intent, misprision of a felony under
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 certain text messages – “had nothing to do with his desire to destroy evidence” of the felоny. Id. at *5. The Ninth Circuit reached a similar conclusion in King, where it reversed a conviction for misprision of a felony because the government failed to establish that the defendant‘s purpose was “to conceal the crime.” 402 F.2d at 696–97.
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 theoretical probability, that” an individual could take an affirmative step to conceal a felony without intent and still “be prosecuted under
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