RUPERTO HERNANDEZ ZARATE v. U.S. ATTORNEY GENERAL
No. 20-11654
United States Court of Appeals For the Eleventh Circuit
02/18/2022
[PUBLISH]
Petition for Review of a Decision of the Board of Immigration Appeals
Agency No. A215-569-562
Petitioner,
Respondent.
Before JORDAN, JILL PRYOR, and TJOFLAT, Circuit Judges.
Under federal law, a conviction for a “crime involving moral turpitude” (a CIMT) can have significant immigration consequences. For example, a person convicted of a CIMT is not eligible for the discretionary relief of cancellation of removal. See
I
In 2019, Ruperto Hernandez Zarate—a citizen and national of Mexico—was convicted of violating
An immigration judge ruled that Mr. Zarate was statutorily ineligible for cancellation of removal because his conviction under
II
We “review de novo the legal question of whether a[ ] conviction qualifies as a [CIMT].” Gelin v. U.S. Att‘y Gen., 837 F.3d 1236, 1240 (11th Cir. 2016). In determining whether a conviction is a CIMT, we employ the categorical approach (if the statute of conviction is not divisible and sets out alternative means of committing a single offense) or the modified categorical approach (if the statute of conviction is divisible and creates separate offenses). See Pereida v. Wilkinson, 141 S. Ct. 754, 762-63 (2021); George v. U.S. Att‘y Gen., 953 F.3d 1300, 1303-04 (11th Cir. 2020). This means that “[w]hether a crime involves the depravity or fraud necessary to be one of moral turpitude depends on the inherent nature of the offense, as defined in the relevant statute, rather than the circumstances surrounding a defendant‘s particular conduct.” Itani v. Ashcroft, 298 F.3d 1213, 1215-16 (11th Cir. 2002). See also Keungne v. U.S. Att‘y Gen., 561 F.3d 1281, 1284 (11th Cir. 2009) (“In other words, the determination that a crime involves moral turpitude is made categorically, based on the statutory definition or nature of the crime, not the specific conduct predicating a particular conviction.“). We ask whether the “least culpable conduct necessary to sustain a conviction under the statute meets the standard of a crime involving moral turpitude.” Gelin, 837 F.3d at 1241 (internal quotation marks and citation omitted).1
III
CIMTs have been part of the immigration lexicon since the late 19th century, initially appearing in laws providing for the exclusion of certain categories of persons from the United States. See generally Jordan v. De George, 341 U.S. 223, 229 n.14 (1951). Remarkably, however, the term “moral turpitude” has never been defined by federal statute or rule, and its contours have been left to case-by-case adjudication by administrative and judicial tribunals for over a century. Because “moral turpitude” had its legal origins in defamation law as 19th-century common-law courts sought a manageable test for slander and libel per
The BIA has, understandably, described “moral turpitude” as a “nebulous concept.” In re Tran, 21 I. & N. Dec. 291, 292 (BIA 1996). That may be a kind characterization. As one commentator has put it, “[t]he term ‘moral turpitude’ is probably incapable of precise definition in a legal sense, since it basically involves moral or ethical judgments.” Annotation, What Constitutes “Crime Involving Moral Turpitude” Within Meaning of [§§] 212(a)(9) and 241(a)(4) of Immigration and Nationality Act (8 U.S.C.A. [§§] 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime[s], 23 A.L.R. Fed. 480, § 2[a] (1975 & 2021 Supp.). Some have remarked that, to the extent that definitions of the term exist, “[i]t‘s difficult to make sense of . . . [them].” Arias v. Lynch, 834 F.3d 823, 831 (7th Cir. 2016) (Posner, J., concurring in the judgment).
Nevertheless, the Supreme Court has held that the term “moral turpitude” is not unconstitutionally vague. “Whatever else” it “may mean in peripheral cases,” the Court said, case law “make[s] it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.” De George, 341 U.S. at 232.2
So what exactly does “moral turpitude” mean? We turn to that question next.
A
According to the BIA, “moral turpitude” refers to “conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. To involve moral turpitude, a crime requires two essential elements: reprehensible
Our cases similarly explain that moral turpitude involves “an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” Smith v. U.S. Att‘y Gen., 983 F.3d 1206, 1210 (11th Cir. 2020) (quoting Keungne, 561 F.3d at 1284). This is basically the definition first used by federal courts—including the former Fifth Circuit—in immigration cases addressing moral turpitude in the early 20th century. See, e.g., Coykendall v. Skrmetta, 22 F.2d 120, 120-21 (5th Cir. 1927); Ex parte Machida, 277 F. 239, 241 (W.D. Wash. 1921); United States v. Uhl, 203 F. 152, 154 (S.D.N.Y. 1913), aff‘d, 210 F. 860 (2d Cir. 1914). Accord 1 John Bouvier, Bouvier‘s Law Dictionary and Concise Encyclopedia 846 (1914) (explaining that moral turpitude, “as ground of exclusion of an alien, means an act of baseness, vileness or depravity in the private and social duties which one owes to society, and as applied to offenses includes only such crimes as manifest personal depravity or baseness“); 5 Judicial and Statutory Definitions of Words and Phrases 4581 (West 1904) (defining moral turpitude as “anything done contrary to justice, honesty, principle, or good morals“).3
Consistent with the two elements identified by the BIA—reprehensible conduct and a culpable mental state—we agree with the Fourth Circuit that “by using the phrase ‘involving moral turpitude’ to define a qualifying crime, Congress meant to refer to more than simply the wrong inherent in violating [a] statute. Otherwise, the requirement that moral turpitude be involved would be superfluous. It follows, therefore, that a crime involving moral turpitude must involve conduct that not only violates a statute but also independently violates a moral norm.” Mohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014). Indeed, that is the view we expressed in our early immigration cases addressing the concept of moral turpitude. See Skrmetta, 22 F.2d at 121 (“From the fact that those acts have by statute been made punishable as crimes it does not follow that they are inherently immoral, or involve moral turpitude, within the meaning of the provision in question.“); Guarneri v. Kessler, 98 F.2d 580, 581 (5th Cir. 1938) (“All federal offenses are statutory but that does not fix their inherent nature.“).
Our survey of the legal landscape indicates that fraud offenses are—rightly or wrongly—categorically deemed to involve moral turpitude. As noted, the Supreme Court in De George rejected a vagueness challenge to the phrase “involving moral turpitude” by explaining that “crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.” De George, 341 U.S. at 232. Given that pronouncement, it would be inappropriate for us (regardless of our own views) to now declare that fraud offenses are not always CIMTs.
Nevertheless, as explained below, this treatment of fraud offenses does not help the government here. That is because under the categorical approach the crime Mr. Zarate committed does not include fraud as an element or ingredient.
B
Applying the categorical approach, we look to the elements of
Fraud requires that a misrepresentation be made to obtain a benefit from someone or cause a detriment to someone. See generally Restatement (Second) of Torts § 531 (A.L.I. 1977) (“One who makes a fraudulent misrepresentation is subject
In Mr. Zarate‘s case, the BIA concluded that a violation of
C
We start our discussion with the BIA‘s treatment of offenses which require deception or misrepresentation but not fraud. The relevant decisions are Matter of M—, 1 I. & N. Dec. 619 (BIA 1943), Matter of R—, 5 I. & N. Dec. 29 (BIA 1952), Matter of B—M—, 6 I. & N. Dec. 806 (BIA 1955), Matter of B—, 7 I. & N. Dec. 342 (BIA 1956), Matter of Espinosa, 10 I. & N. Dec. 98 (BIA 1962), Matter of Marchena, 12 I. & N. Dec. 355 (BIA 1967), Matter of Flores, 17 I. & N. Dec. 225 (BIA 1980), and In re Jurado-Delgado, 24 I. & N. Dec. 29 (BIA 2006). Each one remains good law today, and we discuss them in detail.
As early as 1943, the BIA found that crimes involving a false representation to the government could constitute CIMTs, even if they lacked an explicit element of fraud, provided that the representation was inherently fraudulent. In Matter of M—, the BIA considered whether knowingly and deliberately making a false statement as to citizenship in a Selective Service questionnaire for the purpose of evading military service was a CIMT. See 1 I. & N. Dec. at 619. The BIA found that it was because such a statement was “akin to fraud, i.e., an endeavor to alter rights by deception.” Id. at 621. In 1952, the BIA affirmed this decision in Matter of R—, reiterating the inherently fraudulent nature of the offense and finding strong support from the Supreme Court‘s then-new decision in De George. See 5 I. & N. Dec. at 38.
In Matter of B—M—, decided in 1955, the BIA addressed whether a violation of
Seven years later, in Matter of Espinosa, the BIA again addressed whether a conviction for violation of
Matter of Marchena, decided by the BIA in 1967, reaffirmed the decision in Matter of B—M—. At issue in Matter of Marchena was a conviction under the second clause of
Less than a year after Matter of B—M— was decided, in Matter of B—, the BIA addressed a conviction under
In Matter of Acosta, 14 I. & N. Dec. 338 (BIA 1973), a 1973 decision, the BIA similarly held that a conviction under
In 1980, the BIA held in Matter of Flores that a conviction under
In 2013, the BIA applied Matter of Flores in In re Jurado-Delgado to find that a Pennsylvania statute which criminalized making a false statement with “intent to mislead a public servant in performing his official function,”
These BIA decisions teach that making a false statement or engaging in general deception is not necessarily the same thing as fraud. See Matter of Correa-Garces, 20 I. & N. Dec. 451, 454 (BIA 1992) (“Crimes involving fraud are considered to be crimes involving moral turpitude,” while “[c]onvictions for making false statements have been found to involve moral turpitude.“). As a result, a violation of
We recognize that the Fifth and Eighth Circuits have held that a violation of
2010). But we find these decisions unpersuasive for various reasons.
First, both we and the Fifth Circuit failed to consider the numerous BIA decisions
Second, the Eighth Circuit based its holding that a violation of
Third, the BIA‘s two-pronged moral turpitude standard requires not just a culpable mental state, but also conduct that is reprehensible, i.e., inherently base, vile, or depraved. See Silva-Trevino, 26 I. & N. Dec. at 833-34. We give deference to the BIA‘s definition of moral turpitude, see Negusie, 555 U.S. at 516-17, and it is inappropriate to conflate the BIA‘s two requirements in non-fraud scenarios so that one (a culpable mental state) automatically satisfies the other (moral reprehensibility). Our cases have for the most part treated mental state and reprehensibility as separate concepts, though recognizing that one can inform the other. See, e.g., Smith, 983 F.3d at 1211 (“The question before us is whether the level of intent needed to commit the crime of vehicular homicide in Florida is ‘sufficiently base, vile, or depraved’ to constitute a crime involving moral turpitude.“). Moreover, an agency is generally required to “follow its own procedure” when the “rights of individuals are affected.” Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir. Unit A Sept. 9, 1981) (binding under Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)). In fact, we have found that “[t]he BIA can . . . abuse its discretion by not following its own precedents without providing a reasoned explanation
Fourth, our earliest immigration cases did not use mens rea as an independent and sufficient basis for a finding of moral turpitude, and instead separately analyzed whether the statute of conviction was for an offense that was “inherently base, vile, or depraved, [and] contrary to accepted rules of morality.” See Skrmetta, 22 F.2d at 120-21 (holding that making or possessing wine for one‘s own use was not a CIMT). In fact, we ruled that illegal re-entry after deportation and failure to register for the draft—offenses which involved some deception and deliberate and intentional conduct against the United States—were not CIMTs. See Rodriguez v. Campbell, 8 F.2d 983, 984 (5th Cir. 1925) (“The appellant did not, within the meaning of the statute, commit a crime involving moral turpitude by re-entering or attempting to re-enter the United States from Mexico after she had been deported, and without having been duly admitted and inspected.“); Pollard v. United States, 261 F. 336, 337-38 (5th Cir. 1919) (holding in a criminal case that violation of the Selective Service Act “was not [an offense] involving moral turpitude“).
Language in some of our more recent cases may be read to suggest that a culpable mental state in a crime involving dishonesty is always enough to constitute moral turpitude regardless of moral reprehensibility. See, e.g., Walker, 783 F.3d at 1229 (“Generally, a crime involving dishonesty or false statement is considered to be one involving moral turpitude.“); Itani, 298 F.3d at 1215 (same). But such broad language is cabined by the word “generally,” which does not mean “always” but rather “as a rule” or “usually.” See The American Heritage Dictionary of the English Language 732 (4th ed. 2009). Moreover, the cases with such language involved offenses with fraud as an element or ingredient. Walker concerned the uttering of a forged instrument (requiring the intent to injure or defraud another to obtain a monetary benefit), and Itani concerned the misprision of a felony (requiring knowledge of a crime and an active role in concealment for the benefit of another). See Linnartz, Lies, 11 Charleston L. Rev. at 691 (“A genuinely evil motivation, such as the intent to defraud or to pervert the course of justice, seems to capture the idea of ‘moral turpitude,’ without punishing those whose intentions are benign or whose falsehoods [are] relatively harmless.“). Finally, such language—if taken literally to mean that non-fraudulent deceit always involves moral turpitude—would be inconsistent with the BIA‘s decisions in Matter of B—M—, Matter of B—, Matter of Espinosa, and Matter of Marchena, as well as with our earliest cases addressing moral turpitude. And where there is an intra-circuit conflict, we follow our earliest precedents. See Walker v. Mortham, 158 F.3d 1177, 1188 (11th Cir. 1998).
Our holding today does not foreclose the possibility that a conviction for a violation of
We remand to the BIA for that purpose.
IV
We grant Mr. Zarate‘s petition, vacate the BIA‘s decision, and remand for further proceedings.
PETITION GRANTED.
TJOFLAT, Circuit Judge, Concurring:
I agree with the Court‘s reasoning. I write separately to highlight why and how
I.
When the Department of Homeland Security charges an individual as being removable under the
As Judge Jordan has so ably explained, a crime involving moral turpitude falls into one of two buckets. That crime is either inherently base, vile, or depraved, or that crime is one involving fraud. See Itani v. Ashcroft, 298 F.3d 1213, 1215-16 (11th Cir. 2002). Judge Jordan‘s opinion highlights that fraud is more than just dishonesty. Common-law fraud means that an individual is being dishonest for the further purpose of gaining something of value or causing a detriment to someone else. See Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S. Ct. 511, 512 (1924). And such purpose must be an element of the statute at issue in order for a crime to involve moral turpitude on fraud grounds. See Itani, 298 F.3d at 1215-16.
To determine whether a statute involves moral turpitude, we apply the categorical approach.1 This means that we look at the elements of the crime of conviction, not the facts of the case, to determine whether the
I will give an example. Suppose that common-law arson is a crime involving moral turpitude.2 And let us say that an individual seeking cancellation of removal has previously been convicted of a state statute for arson that contained only the essential elements of arson: the willful and malicious burning of a dwelling house of another. Wharton‘s Criminal Law § 345 (C. Torcia 14th ed. 1980). We can easily line up that state statute with our previous determination that common-law arson is a crime involving moral turpitude to find that the individual in the example committed a crime involving moral turpitude without us ever looking at what the individual did. We don‘t know if he burned the Jones’ house or the Smiths’ house or whether he used fireworks or a match to start the fire. But he was convicted under the state arson statute, which is an indivisible statute that has one set of elements and defines one crime. The least culpable conduct under the statute is still common-law arson and is therefore morally turpitudinous. So, the individual seeking cancellation of removal is pretermitted from doing so because he has been convicted of a crime involving moral turpitude. That is how indivisible statutes work under the categorical approach.
But what about when the statute of conviction is divisible, meaning that some of the conduct encompassed in the statute is morally turpitudinous while other conduct encompassed in the statute is not? When working with divisible statutes, we must be careful to differentiate between divisibility with respect to alternative means of committing a crime listed in a statute and divisibility with respect to alternative elements listed in a statute. When alternative means are listed, we still use the categorical approach, just like we did above. But, when alternative elements are listed, we use the modified categorical approach. In explaining how the modified categorical approach works, I want to lay out the difference between alternative elements and alternative means and why different approaches are used between the two for determining whether the conduct at issue is morally turpitudinous.
An element is something the prosecution has to prove in order to sustain a conviction. A means is a way in which that crime can be committed, and it is not legally significant. So, back to our arson example. Arson is still a crime involving moral turpitude. But now, let us say that the state statute for arson does not include only the traditional elements of arson. It now reads that arson is the willful and malicious or reckless burning of a dwelling house of another by using flint, a match, explosives, friction, or any other method. And let us say the state‘s supreme court has told us that the prosecution has to prove which mental state the defendant possessed to get a conviction. Now, we have
In other words, the prosecution would not have to prove that an arsonist used steel wool instead of flint to commit arson under that state statute. As long as the prosecution can prove that the individual willfully or recklessly burned somebody else‘s house, the prosecutor has got a conviction, and the prosecutor will not have any more of a case if he can show that the defendant used steel wool instead of the flint. That‘s the essential difference between an element and a means: elements dictate what prosecutors must prove; means do not. And the core of the categorical and modified categorical approach is that we want to figure out what the defendant was actually convicted of—what the prosecutor had to prove to gain a conviction. The modified categorical approach is simply a method of figuring that out. See Johnson v. United States, 559 U.S. 133, 144, 130 S. Ct. 1265, 1273 (2010) (explaining that the modified categorical approach “permits a court to determine which statutory phrase was the basis for the conviction by consulting the trial record“).
With that background, I now turn to the application of the modified categorical method. So, in the state statute where arson can be committed willfully or recklessly, we have a divisible statute with alternative elements, and so we must use the modified categorical approach. Here, we use a limited set of documents, often called the Shepard documents,3 in the record to determine whether the defendant‘s conduct was prosecuted as reckless or instead as willful. If the documents reveal that the conduct of which the defendant was convicted was reckless, the defendant will not have been convicted of a crime involving moral turpitude. If, however, the defendant was convicted of willfully burning someone else‘s house, he will have committed common-law arson, which we have determined is a crime involving moral turpitude. That is the modified categorical approach.
We do not use that same approach, however, for determining which of the alternative means of starting the fire was used. That is because to do so would tell us nothing about whether the defendant had committed a morally turpitudinous act. Arson does not require a specific method. So, determining from the charging documents which method was actually used would not move the ball forward in determining whether the conviction was for a crime involving moral turpitude. We would use the categorical approach as it applied to the means of commission, meaning that we would look solely at the text of the statute itself to determine whether the least culpable conduct would be morally turpitudinous, without reference to the defendant‘s actual conduct.
II.
Now, it gets more tricky when the line between means and elements is fuzzy. See Simpson v. U.S. Att‘y Gen., 7 F.4th 1046, 1055 (11th Cir. 2021) (“[I]t may sometimes be said that one man‘s means is another man‘s elements.“). Let me give another example. Suppose that common-law burglary (and only common-law burglary) is a crime involving moral turpitude. Common-law
If it is five different crimes, we apply the modified categorical approach. If it is one crime with five different means, we apply the categorical approach. Under the modified categorical approach, some types of burglary covered under the state statute would match with common-law burglary and thus be crimes involving moral turpitude, while others would not. So, violating the statute would sometimes be a crime involving moral turpitude, and sometimes it would not. Under the categorical approach, the least culpable conduct under the statute would be less than common-law burglary—for instance, breaking into a car rather than a structure. And that means violating the state statute would never be a crime involving moral turpitude. So, you see, that is why it matters whether we apply the categorical or the modified categorical approach to a statute. Applying the categorical approach will on the whole lead to fewer findings of individuals having committed crimes involving moral turpitude.
In the case of the broader state burglary statute, the Supreme Court, over a bitter dissent, said that the different ways of breaking in were means rather than elements because the state supreme court had defined the listed items as different methods rather than different elements. See Mathis v. United States, 136 S. Ct. at 2250. The Court gave us a few rules of thumb to use to determine whether statutory alternatives are means or elements: 1) see how the state supreme court has defined the elements; 2) see if different statutory alternatives carry different penalties because different penalties means the listed items are different elements; 3) look at the statute itself to see if the statute identifies what a prosecutor must charge as elements; and 4) when all else fails, look at the record of conviction solely to see whether the listed items are elements. See id. at 2256. Although Mathis was dealing with a state burglary statute, we apply the same logic and rules of thumb to previous convictions under federal statutes, with the exception that under the first rule of thumb we now look to how the Supreme Court and our Circuit have defined the elements, instead of a state supreme court‘s interpretation. Cf. Nijhawan v. Holder, 557 U.S. 29, 129 S. Ct. 2294 (2009) (interpreting a federal statute for purposes of the categorical approach); Itani, 298 F.3d at 1216 (looking at how the federal courts had defined the statute to determine whether the felony was a crime of moral turpitude).
III.
Now to the present case. The applicant in this case was previously convicted of
(a) IN GENERAL Whoever—
(7) for the purpose of causing an increase in any payment authorized under this subchapter (or any other program financed in whole or in part from Federal funds), or for the purpose of causing a payment under this subchapter (or any such other program) to be made when no payment is authorized thereunder, or for the purpose of obtaining (for himself or any other person) any payment or any other benefit to which he (or such other person) is not entitled, or for the purpose of obtaining anything of value from any person, or for any other purpose—
(B) with intent to deceive, falsely represents a number to be the social security account number assigned by the Commissioner of Social Security to him or to another person, when in fact such number is not the social security account number assigned by the Commissioner of Social Security to him or to such other person.
The method we use is important because of how we have defined crimes involving moral turpitude. As Judge Jordan rightly explains and clarifies, crimes involving moral turpitude are either fraud offenses or crimes that are inherently base, vile, or depraved. And, as Judge Jordan again rightly explains, the wrinkle in this statute is the “for any other purpose” language at the end of subsection (7), which suggests that somebody could violate the statute without obtaining a benefit and therefore without committing fraud in the traditional sense.6 So, if we determine the statute is divisible and we use the modified categorical approach, we figure out which of the purposes the individual used the false social security number for, and then we determine whether that specific offense is a crime involving moral turpitude. If, however, we decide that the statute is indivisible and we apply the categorical approach, then a violation of
The parties and the Court‘s opinion have assumed that the categorical approach applies. I think they are right based on our precedent, but I want to explain why. If we were trying to determine whether the statutory alternatives were elements or means on our own in this case, I think it
Under the categorical approach, we look at the least culpable conduct under the statute to determine whether the conduct meets the standard for a crime involving moral turpitude. For the reasons explained above, using a false social security number “for any other purpose” does not meet the standard for fraud. So, we know that conviction under the statute is not for a crime involving moral turpitude on fraud grounds. Remand to the BIA is appropriate so that the BIA can determine whether, in the first instance,
Because the contours of moral turpitude are hazy at best, remand is appropriate for the BIA to map
Notes
In our view, Justice Jackson got it right. And several of our colleagues in other circuits agree. See Islas-Veloz v. Whitaker, 914 F.3d 1249, 1261 (9th Cir. 2019) (Fletcher, J., concurring) (“Now, almost seventy years after De George, ‘moral turpitude’ is as undefined and undefinable as ever . . . It is time to recognize another failed enterprise.“) (citation omitted); Arias, 834 F.3d at 835 (Posner, J., concurring in the judgment) (“Alas, a great dissent by a great Justice has been forgotten.“). But we are of course bound by the majority opinion in De George.
For ease of discussion, let us assume that only common-law arson (and in my later example, only common-law burglary) and not other variations of arson (or burglary) count as crimes involving moral turpitude. I transposed these examples from the ACCA context. Later, it will become apparent that this stipulation is necessary to avoid an inquiry into the inherent baseness, vileness, or depravity of each state statute throughout this discussion.