Case Information
*1 Before HOLMES , MATHESON , and McHUGH , Circuit Judges.
HOLMES , Circuit Judge.
*2
Petitioner Cristian Eduardo Obregon de Leon (“Mr. Obregon”), a lawful permanent resident of the United States, was convicted under Oklahoma law of various offenses, including possession of stolen vehicles and receipt of stolen property. He was subsequently placed into removal proceedings and deemed removable for having been convicted of a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i). The Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA” or “the Board”) found that he was statutorily ineligible to apply for a discretionary waiver of removal under 8 U.S.C. § 1182(h) because he had previously adjusted to lawful permanent residence status. Mr. Obregon challenges both of these determinations in his petition for review of the BIA’s decision.
We affirm the Board’s determination that Mr. Obregon is removable because his conviction for possession of stolen vehicles constitutes a crime involving moral turpitude. However, Mr. Obregon is statutorily eligible to apply for a discretionary waiver under § 1182(h). Thus, we deny in part and grant in part his petition for review and remand to the BIA for further proceedings consistent with this opinion.
I
Mr. Obregon is a native citizen of Guatemala who entered the United States without inspection in September 1997. On March 29, 2007, he adjusted his status to that of a lawful permanent resident (“LPR”) under Section 203 of the *3 Nicaraguan Adjustment and Central American Relief Act of 1997, Pub. L. No. 105-100, 111 Stat. 2160. Four years later, in 2011, Mr. Obregon was charged with, and pleaded guilty to, the following offenses in Oklahoma state court: (1) one count of operation of a chop shop; [1] (2) four counts of possession of a vehicle with altered identification numbers; [2] (3) four counts of possession of a stolen vehicle; and (4) two counts of receipt of stolen property. [4] *4 In January 2013, the Department of Homeland Security (“DHS”) filed a Notice to Appear (“NTA”) charging that Mr. Obregon was removable for having committed a crime involving moral turpitude (“CIMT”) under 8 U.S.C.
§ 1227(a)(2)(A)(i). [5] At his immigration hearing, Mr. Obregon admitted the factual allegations, but denied that he was removable because, he claimed, the Oklahoma statutes under which he was convicted did “not require an intent to deprive” and thus did not qualify as crimes of moral turpitude. R. at 53 (Hr’g Tr., dated Mar. 18, 2013). However, the IJ found that all four of his convictions constituted crimes involving moral turpitude. With respect to eligibility for waiver relief, the IJ concluded that Mr. Obregon could not “readjust his status with a [§ 1182](h) waiver” under BIA precedent. Id. at 39 (Oral Decision of IJ, dated Apr. 22, 2013). [6]
*5 Mr. Obregon then appealed to the BIA, alleging that the IJ erred because his convictions lacked the “permanent intent to deprive” element necessary to constitute crimes involving moral turpitude. Further, he claimed that he should have been allowed to apply for a § 1182(h) waiver since he did not enter the country as a lawful permanent resident, but rather “adjusted status” to that of a lawful permanent resident after entry.
In a one-judge decision, the BIA dismissed Mr. Obregon’s appeal. It noted that “an offense of receiving stolen property qualifies as a CIMT where the offense includes an element of knowing that the property is stolen.” Id. at 4 (BIA Decision, dated Oct. 2, 2013). It concluded that Mr. Obregon’s convictions for possession of stolen vehicles and receiving stolen property met this mens rea threshold because they both required “a permanent taking of property known to be stolen.” Id . Finally, the BIA affirmed the IJ’s “findings concerning [Mr. Obregon’s] eligibility for relief” because, under its own precedential decision in Matter of Koljenovic , 25 I. & N. Dec. 219 (BIA 2010), Mr. Obregon “d[id] not qualify for a section [1182](h) waiver.” Id. This petition for review followed.
II
Mr. Obregon’s petition presents two legal questions for our review: (1) whether any of his convictions constitutes a crime involving moral turpitude; and (2) whether 8 U.S.C. § 1182(h), which prevents the Attorney General from granting a waiver of inadmissibility to an individual “who has previously been admitted to the United States as an alien lawfully admitted for permanent residence,” applies to those who did not enter as LPRs, but instead adjusted to LPR status after entry into the United States.
We hold that Mr. Obregon’s conviction for possession of stolen vehicles, in violation of Okla. Stat. tit. 47, § 4–103, is categorically a crime involving moral turpitude. However, under our court’s decision in Medina-Rosales v. Holder , 778 F.3d 1140 (10th Cir. 2015), and the BIA’s decision in Matter of J-H-J- , 26 I. & N. Dec. 563 (BIA 2015), the § 1182(h) bar only applies to aliens who lawfully enter the United States as LPRs, and not those, like Mr. Obregon, who adjust to that immigration status after entering the country.
A
The question of whether a criminal conviction constitutes a crime involving
moral turpitude is a question of law, which we review de novo.
Rodriguez-
Heredia v. Holder
,
The phrase “crime involving moral turpitude” is not defined in the INA;
instead, its contours have been shaped through interpretation and application by
the Attorney General, the Board, and federal courts. It is “perhaps the
quintessential example of an ambiguous phrase.”
Marmolejo-Campos v. Holder
,
“[C]orrupt scienter is the touchstone of moral turpitude.” Michel , 206 F.3d at 263. Here, the parties disagree over what the requisite scienter is for the receipt or possession of stolen goods to qualify as a crime involving moral turpitude. Mr. Obregon argues that there must be intent to permanently deprive, while the government claims that knowledge that the goods are stolen is sufficient.
BIA precedent on this question strongly suggests that receiving or possessing stolen goods, with knowledge that the goods are stolen, implicates moral turpitude. See, e.g. , Matter of Salvail , 17 I. & N. Dec. 19, 20 (BIA 1979) *9 (“Conviction under [a] statute [criminalizing possession of stolen goods] is a conviction for a crime involving moral turpitude, as it specifically requires knowledge of the stolen nature of the goods.”); Matter of Patel , 15 I. & N. Dec. 212, 213 (BIA 1975) (“The California statute involved here requires knowledge that the goods were stolen; therefore, it involves moral turpitude.”), overruled on other grounds by Matter of Castro , 19 I. & N. Dec. 692 (BIA 1988); Matter of Z----- , 7 I. & N. Dec. 253, 255–56 (BIA 1956) (holding that the crime under Connecticut law of “receiv[ing] and conceal[ing] any stolen goods or articles, knowing them to be stolen” involves moral turpitude). Indeed, on at least one occasion, the Board has found that a statute punishing “negligent receipt of [stolen] property” was not a crime involving moral turpitude because it punished more than the knowing receipt of stolen goods. Matter of K----- , 2 I. & N. Dec. 90, 91 (BIA 1944).
Although our court has not addressed this issue, many of our sister circuits
have also reached the conclusion that the knowing receipt or possession of stolen
goods constitutes a crime involving moral turpitude.
See, e.g.
,
Hashish v.
Gonzales
,
Mr. Obregon points out that the Ninth Circuit has diverged from this pattern, and instead has held that a conviction for receipt of stolen property can only constitute a crime of moral turpitude if the statute requires proof of intent to permanently deprive the original owner. See Castillo-Cruz v. Holder , 581 F.3d 1154 (9th Cir. 2009). With due respect, we are not persuaded by the Ninth Circuit’s analysis.
The
Castillo-Cruz
court drew support for an intent-to-deprive element from
a distinct line of BIA precedent holding that “a conviction for
theft
is considered
to involve moral turpitude only when a permanent taking is intended.”
Matter of
Grazley
, 14 I. & N. Dec. 330, 333 (BIA 1973) (emphasis added);
see Castillo-
Cruz
,
As even the Ninth Circuit has acknowledged, the most relevant
precedents—i.e., those involving convictions for the receipt or possession of
stolen goods—require only knowledge that the goods were stolen.
See Castillo-
Cruz
,
Thus, the weight of apposite caselaw from the BIA and our sister circuits supports the view that knowing the goods to be stolen, alone, is sufficient to render an offense a crime of moral turpitude.
We turn now to the question of whether knowledge is the required
mens rea
for the specific statutes under which Mr. Obregon was convicted. Because the
one-judge BIA decision issued in Mr. Obregon’s case only addressed his
convictions for possession of stolen vehicles and receipt of stolen property, the
scope of our inquiry ordinarily would be confined to these two offenses.
See
Uanreroro v. Gonzales
,
“To determine if a particular conviction under state law meets the
definition of an offense for which a noncitizen may be removed under the INA,
the elements of the state-law offense are . . . analyzed using the categorical
approach . . . .”
Efagene
,
In the immigration context, as in diversity cases, we follow the decisions of
the state’s highest court in order to determine the minimum conduct proscribed
by the relevant criminal statute; where that court has
not
interpreted the
*14
provision, however, we must predict how it would rule on the issue.
See Castillo
v. Holder
,
Felony possession of a stolen vehicle, under Oklahoma law, requires proof
of the following elements: “(1) a person not entitled to the possession of a
vehicle; (2) who receives, possesses, conceals, sells or disposes of it; (3)
knowing
it to be stolen or converted under circumstances constituting a crime.”
F.D.H. v.
State
,
To be sure, we recognize that, contrary to the overwhelming weight of
Oklahoma authority, in one instance, the Oklahoma Court of Criminal Appeals
(“OCCA”) has held that “[i]t is sufficient to prove that the accused had reasonable
cause to believe” the vehicle was stolen in order to convict under § 4–103.
Anderson v. State
,
*17
In order to avoid this result, Mr. Obregon claims that mere knowledge
cannot be a sufficiently “vile or depraved” mental state because an individual
could be prosecuted under § 4–103 if he received a stolen car, knowing it to be
stolen, but with the noble intent of returning it to its rightful owner. Yet his
“application of legal imagination to [§ 4–103’s] language” will not persuade us
without “a realistic probability . . . that [Oklahoma] would apply [the] statute” in
such a manner.
Gonzales v. Duenas-Alvarez
,
Thus, Mr. Obregon’s conviction for possession of a stolen vehicle under Okla. Stat. tit. 47, § 4–103, is categorically a crime of moral turpitude, and we need not go further in order to affirm the BIA’s conclusion that he is removable.
B
Mr. Obregon next claims that even if he is removable, he should nevertheless have been afforded the opportunity to apply for a waiver under 8 *18 U.S.C. § 1182(h). Under controlling precedent from our court and the BIA’s recent decision in Matter of J-H-J- , he is correct.
Section 1182(h) authorizes the Attorney General, in her discretion, to allow certain convicted aliens to remain in the United States, but prohibits her from granting such a waiver to “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” unless certain narrow conditions are met. 8 U.S.C. § 1182(h). Mr. Obregon claims that the statute precludes waivers only for aliens who entered the United States as lawful permanent residents, and does not apply to aliens like him who adjust their status to that of lawful permanent residents after entering the country. The government, in its briefing and at oral argument, countered that the language of § 1182(h) is ambiguous, and as such, we should defer to the agency’s decisions in Matter of Koljenovic , 25 I. & N. Dec. 219 (BIA 2010), and Matter of Rodriguez , 25 I. & N. Dec. 784 (BIA 2012), which construed “admitted” in § 1182(h) to include those who have adjusted their status after entry. [10]
The government has now withdrawn its argument in light of two decisions
announced subsequent to the parties’ briefing and oral argument in this case.
*19
First, in
Medina-Rosales
, we held that “only persons who obtained LPR status
before or when they entered the United States are barred from seeking a waiver
under § 1182(h).”
Second, in Matter of J-H-J- , the BIA withdrew its opinions in Koljenovic and Rodriguez , and “accede[d] to the clear majority view” taken by nine circuits, including our own—namely, that the plain language of § 1182(h) “precludes aliens from establishing eligibility for relief only if they lawfully *21 entered the United States as permanent residents” and not if they adjusted to lawful permanent residence status. 26 I. & N. Dec. at 564.
These two decisions clearly foreclose the position that Mr. Obregon is ineligible for relief under § 1182(h), and the government has prudently withdrawn this argument. Thus, bound by our controlling decision in Medina-Rosales —and bolstered by consistent holdings from the vast majority of our sister circuits and the BIA’s most recent interpretation of § 1182(h) in Matter of J-H-J- —we conclude that Mr. Obregon, as an alien who adjusted to LPR status after entry into the United States, should have been afforded the opportunity to apply for a discretionary waiver under 8 U.S.C. § 1182(h).
III
Although Mr. Obregon is removable for having committed a crime involving moral turpitude—namely, knowing possession of a stolen vehicle—the BIA erred in finding that he was statutorily ineligible to apply for a waiver under § 1182(h). Thus, we DENY in part and GRANT in part Mr. Obregon’s petition for review and REMAND the matter to the Board for further proceedings consistent with this opinion.
Notes
[*] In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Loretta E. Lynch is substituted for Eric H. Holder, Jr., as the respondent in this action.
[1] Okla. Stat. tit. 47, § 1503(A) provides, in relevant part: Any person who knowingly and with intent that a violation of this section be committed: 1. Owns, operates, or conducts a chop shop; [. . .] upon conviction, is guilty of a felony . . . .
[2] Okla. Stat. tit. 47, § 4–107(a) provides, in relevant part: Any person . . . who shall destroy, remove, cover, alter or deface, or cause to be destroyed, removed, covered, altered or defaced, the engine number or other distinguishing number of any vehicle in this state . . . shall be deemed guilty of a felony . . . .
[3] Okla. Stat. tit. 47, § 4–103 provides, in relevant part: A person not entitled to the possession of a vehicle . . . who receives, possesses, conceals, sells, or disposes of it, knowing the vehicle . . . to be stolen or converted under circumstances constituting a crime, shall be guilty of a felony.
[4] Okla. Stat. tit. 21, § 1713(A) provides, in relevant part: Every person who buys or receives, in any manner, upon any (continued...)
[4] (...continued) consideration, any personal property of any value whatsoever that has been stolen . . . knowing or having reasonable cause to believe the same to have been stolen . . . or who conceals, withholds, or aids in concealing or withholding such property from the owner, shall be guilty of a felony . . . .
[5] 8 U.S.C. § 1227(a)(2)(A)(i) renders removable any alien “convicted of a crime involving moral turpitude committed within five years . . . after the date of admission,” and for which “a sentence of one year or longer may be imposed.”
[6] 8 U.S.C. § 1182(h) authorizes the Attorney General, in her discretion, to waive the applicability of certain grounds of inadmissibility, including crimes involving moral turpitude. However, the Attorney General may not grant a waiver “in the case of an alien who has previously been admitted to (continued...)
[6] (...continued) the United States as an alien lawfully admitted for permanent residence if,” as relevant here, “the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of [removal] proceedings.”
[7] While 8 U.S.C. § 1252(a)(2)(C) generally divests courts of
jurisdiction over cases involving aliens convicted of crimes involving moral
turpitude, and § 1252(a)(2)(B)(i) bars judicial review of denials of certain forms
of discretionary relief, we may nevertheless consider constitutional claims and
questions of law under § 1252(a)(2)(D). Because Mr. Obregon’s claims turn on
purely legal determinations, we retain jurisdiction.
See Rodriguez-Heredia v.
Holder
,
[8] The Oklahoma Court of Criminal Appeals (“OCCA”) is “Oklahoma’s
court of last resort for criminal cases.”
Pierce v. Gilchrist
,
[9] Even were we inclined to consider such an argument on the merits,
we would initially observe that a later decision from the same court (i.e., the
OCCA)—that is,
F.D.H.
—only lists, as a
mens rea
element,
knowledge
of the
vehicle’s stolen nature, and does not suggest that “a reasonable cause to believe”
would suffice.
See
[9] (...continued)
reach the merits of an
Anderson
-based argument, we would not take
Anderson
, “a
single, possibly aberrant state case[,] and elevat[e] it to state law.”
Nunez v.
Holder
,
[10] The IJ and the BIA considered themselves bound by Koljenovic and Rodriguez in the absence of Tenth Circuit precedent to the contrary.
[11] Specifically, on May 12, 2015, the government sent us a letter, pursuant to Federal Rule of Appellate Procedure 28(j), notifying us of the BIA’s decision in J-H-J- , and informing us that it was withdrawing its argument (continued...)
[11] (...continued) regarding the interpretation of § 1182(h).
[12] We circumspectly observe that in
Medina-Rosales
, we did not adopt
a per se rule that “admission” only means “lawful entry” wherever it is used in
the immigration statute. Instead, our analysis was driven by the need to give
effect to both “admitted” and “lawfully admitted . . . for permanent residence,” as
used side by side in § 1182(h).
See Medina-Rosales
,
[13]
Medina-Rosales
,