Nuрur PATEL, Petitioner, v. Eric H. HOLDER, JR., Attorney General, Respondent.
No. 12-1349
United States Court of Appeals, First Circuit.
Feb. 1, 2013.
Final Words
Our work done, we affirm Tum‘s convictions in all respects.
Laura Halliday Hickein, Trial Attorney, United States Department of Justice, Office of Immigration Litigation, Stuart F. Delery, Acting Assistant Attorney General, Civil Division, and Russell J.E. Verby, Senior Litigation Counsel, Office of Immigration Litigation, on brief, for respondent.
Before THOMPSON, STAHL, and LIPEZ, Circuit Judges.
STAHL, Circuit Judge.
In 2003, petitioner Nupur Patel pled guilty to conspiracy-to-commit-larceny charges stemming from a scheme in which he stole from the dorm rooms of his college classmates. As a result, an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) found that Patel, at the time a lawful permanent resident, was removable from the United States because his crimes involved “moral turpitude” within the meaning of the Immigration and Nationality Act (INA). Patel now seeks our review of that determination. Because the BIA‘s ruling does not find adequate support in the record, we reverse.
I. Facts & Background
Patel is a twenty-eight-year-old native аnd citizen of India who became a lawful permanent resident of the United States in 1998. His parents and only sibling are naturalized U.S. citizens, and many other relatives are either U.S. citizens or permanent residents. After immigrating to the United States, Patel attended high school in Connecticut and then enrolled at the University of Connecticut. The incident that gave rise to this case oсcurred near the end of his freshman year.
As recounted by the state prosecutor at Patel‘s plea hearing, Patel and two acquaintances concocted a plan whereby they would knock on doors in the university‘s dorms; if the resident answered, they would say they were looking for someone else and leave. If not, they would enter the room (if the door was unlocked) and take things. They executed the plan, taking clothes, DVDs, and electronics, but residents soon noticed the missing items and called the police. University police officers found a car parked outside one of the dorms, in which they could plainly see many of the items that had been reported missing. Patel and his companions returned to the car, admitted their involvement, and were arrested.
Patel was charged with six counts of conspiracy under
In March 2010, Patel returned to the United States from a vacation abroad. Upon completion of Patel‘s reentry inspection, the Department of Homeland Security (DHS) issued a Notice to Appear charging him with removability on the ground that his convictions were for “crime[s] involving moral turpitude” (CIMTs) under
Before thе IJ, Patel disputed removability, arguing that his offenses were not CIMTs because a theft offense qualifies as such only if it involves an intent to permanently deprive the owner of her property, and the record of his conviction did not establish that intent. In the alternative, Patel sought a waiver of inadmissibility under
On appeal, the BIA agreed that Patel was removable and ineligible for a waiver. Patel рetitioned for our review, but, at the Government‘s unopposed request, we instead vacated the decision and remanded to the BIA to consider an argument related to the waiver-of-inadmissibility issue. Patel v. Holder, No. 11-1104 (1st Cir. Sept. 6, 2011) (Judgment). On remand, the BIA again dismissed Patel‘s appeal. The BIA explained that its CIMT cases do, as Patel contended, distinguish between thefts involving an intent to permanently deprive the owner of the property and those involving only an intent to do so temporarily. Because the Connecticut larceny statute covered both kinds of theft, the BIA applied the modified categorical approach, under which it “look[s] to the record of conviction to discern the nature of the respondent‘s conviction.” Based on the рrosecutor‘s description of Patel‘s crimes at the plea hearing, the BIA concluded that Patel did indeed intend a permanent deprivation of the purloined items. Thus, in the BIA‘s view, his offenses were CIMTs, and he was removable. The BIA also reiterated its conclusion that Patel was not eligible for a waiver of inadmissibility. Patel now petitions for our review of the BIA‘s decisiоn.
II. Analysis
We review de novo the BIA‘s legal conclusions, Idy v. Holder, 674 F.3d 111, 117 (1st Cir.2012), including its determination that a non-citizen‘s criminal conviction is grounds for removal, Campbell v. Holder, 698 F.3d 29, 32 (1st Cir.2012). Where the Government asserts that a lawful permanent resident returning from abroad has been convicted of a crime rendering him removable, the government must so prove by clear and convincing evidence. See In re Valenzuela-Felix, 26 I. & N. Dec. 53, 54 (BIA 2012); In re Rivens, 25 I. & N. Dec. 623, 625 (BIA 2011). We afford deference to the BIA‘s reasonable interprеtations of the INA, including its construction of the term “moral turpitude,” but not to its reading of an underlying criminal statute (as to which it has no expertise). Da Silva Neto v. Holder, 680 F.3d 25, 28 & n. 3 (1st Cir.2012). Where, as here, “the BIA has rendered a decision with its own analysis of the question at issue, our review focuses on the BIA‘s decision, not the IJ‘s.” Vasquez v. Holder, 635 F.3d 563, 565 (1st Cir.2011).
Here, the parties agree thаt the Connecticut larceny statute under which Patel was convicted is “divisible,” in that it covers both permanent and temporary takings (and thus both turpitudinous and nonturpitudinous conduct).2 Under the statute, “[a] person commits larceny when, with intent to deprive another of property or to appropriate the same ..., he wrong- fully takes, obtains or withholds such property from an owner.”
Because the larceny statute reaches both рermanent and temporary takings, the parties concur that we should apply the modified categorical approach, under which “we may look to the record of conviction-the indictment, plea, verdict, and sentence,” Idy, 674 F.3d at 118, to determine which prong of the statute Patel pled guilty to violating. In doing so, we must bear in mind that “the facts underlying the convictiоn are relevant, if at all, only to
Here, the only part of the record of conviction that potentially illuminates this issue is the plea colloquy. At the plea hearing, the state prosecutor described Patel‘s offenses this way:
He had some friends visiting him.... In their words they were bored and they were loоking for something to do and they came up with a plan where they would go through the dorm[s and] knock on fellow dorm residents’ doors. If somebody answered the door, they would say they were looking for a certain individual, close the door and then leave. If nobody answered, they would then open that door, if it was unlocked, go inside and find things that they could take and steal for their own benefit.
They did this throughout the many dorms on the ... campus.
As described by the prosecutor, the items taken included a digital camera, a cellular phone, video game consoles, DVDs, clothing, and a laptop. The presiding judge asked Patel whether the prosecutor‘s recitation of the facts was accurate, and Patel answered affirmatively, without adding anything to the prosecutor‘s descriрtion.4
The parties cross swords over the significance of the particular words the prosecutor chose to describe Patel‘s scheme: “they would ... go inside and find things that they could take and steal for their own benefit” (emphasis added). Patel emphasizes the prosecutor‘s use of the phrase “for their own benefit,” which, he points out, mirrors the language of subsection
Consequently, we turn to the prosecutor‘s description of “the nature [of] and circumstances surrounding [Patel‘s] theft offense[s].” In re Jurado-Delgado, 24 I. & N. Dec. at 33. The BIA concluded, and the Government argues, that the volume and character of the items taken (mostly expensive eleсtronics), and the fact that a security cable on the laptop was broken, showed Patel‘s intent to cause a permanent deprivation. Patel rejoins that the BIA‘s conclusion was based on inferences that are beyond its power to draw when applying the modified categorical approach. In support of this argument, he points to the Sеcond Circuit‘s decision in Wala v. Mukasey, 511 F.3d 102 (2d Cir.2007).
In Wala, the petitioner pled guilty to two counts of third-degree burglary under Connecticut law as a result of his entry into, and theft from, the house of a woman he was working for; with two accomplices, he took two rings, other jewelry, a credit card, and two watches. Id. at 103. Because the Connecticut burglary statute criminalizes unlawful entry with the intent to commit a crime, and the intended crime in question was larceny, the Wala court was called upon to answer essentially the same question presented here: whether the record of conviction established that the petitioner had been convicted under one of the permanent-deprivation prongs of the larceny statute. See id. at 107.
Writing for the court, then-Judge Sotomayor answered that question in the negative. She explained:
In his plea colloquy, ... Wala “actually admitted” to facts establishing that he was convicted of a burglary with the intent to commit a larceny. Wala did not admit, however, to taking these items with the intent to appropriate them permanently. Wala, moreover, was not charged with committing a permanent taking; the charging document does not specifically name the intended crime associated with his burglary conviction.... However improbable, Wala could have been taking the jewelry with the intent to loan it to his girlfriend for one “night on the town” and then return it. Or, he could have been taking the credit cards with the intent to use them for a one-time identification purpose. The pоint is that either would have been sufficient to sustain Wala‘s guilty plea and conviction....
Id. at 109 (citation omitted). The Wala court‘s bottom-line conclusion was that, “although it may have been reasonable for the BIA to infer that Wala intended permanently to keep the items he admitted taking, the modified categorical approach does not permit the BIA to draw inferences of this kind.” Id.; accord Akinsade v. Holder, 678 F.3d 138, 146 (2d Cir.2012);
Wala‘s holding was based on the broader principle that “the BIA cannot adjudicate the facts in a criminal case to determine whether, standing alone, they suggest that the petitioner committed a removable offense.” Wala, 511 F.3d at 109 (citing Sui v. INS, 250 F.3d 105, 119 (2d Cir.2001)). Our cases likewise emphasize that, “as a general rule, ‘the BIA may not adjudicate guilt’ and ‘must base removal orders on convictions, not on conduct alone.‘” Campbell, 698 F.3d at 32 (quoting Conteh, 461 F.3d at 56). And we agree with the Wala court‘s application of this principle. As in Wala, there may be some reason to think that Patel intended to cause a permanent deprivation, but the facts revealed by the plea colloquy are not sufficient to “identify which crime“-subsection
This result may seem strange, but that is a not-uncommon side effect of the modified categorical approach. “Sometimes th[is approach] hurts the alien.... Other times, as in this case, the alien ... comes out ahead. This is hardly the most jarring example.” Campbell, 698 F.3d at 36.
III. Conclusion
For the foregoing reasons, Patel‘s petition for review is granted, the BIA‘s order dismissing Patel‘s appeal is vacated, and the matter is remanded to the BIA for further proceedings consistent with this decision.