Daye v. U.S. Attorney Gen.

38 F.4th 1355

Everton DAYE, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 20-14340

United States Court of Appeals, Eleventh Circuit.

Filed: July 6, 2022

John William Goodman, Attorney, Benjamin J. Osorio, Murray Osorio, PLLC, Fairfax, VA, for Petitioner.

Tim Ramnitz, Jennifer A. Singer, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC. for Respondent.

Before Grant, Luck, and Hull, Circuit Judges.

HULL, Circuit Judge:

Everton Daye, a native and citizen of Jamaica, petitions for review of the Board of Immigration Appeals's ("BIA") decision that concluded that Daye was removable based on (1) his two state convictions for felony transporting into Virginia controlled substances with the intent to distribute and (2) his third state conviction for felony conspiracy to transport marijuana into Virginia.

After review and with the benefit of oral argument, we hold that the BIA did not err in concluding that Daye was removable because his state drug trafficking convictions categorically constitute crimes involving moral turpitude ("CIMT") within the meaning of Immigration and Nationality Act ("INA") § 237(a)(2)(A)(i)-(ii), 8 U.S.C. § 1227(a)(2)(A)(i)-(ii). Further, the Supreme Court's decision in Jordan v. De George forecloses Daye's claim that the phrase "crime involving moral turpitude" in the INA is unconstitutionally vague. See 341 U.S. 223, 231-32, 71 S. Ct. 703, 708, 95 L.Ed. 886 (1951). Accordingly, we deny Daye's petition.

I. BACKGROUND

A. Daye's Virginia Convictions

On May 22, 2008, Daye was admitted to the United States on a B-2 visitor's visa. After Daye married a U.S. citizen, his status was adjusted to lawful permanent resident in September 2009.

In separate criminal cases in 2013, Daye was convicted of (1) two substantive counts of transporting one ounce or more of cocaine, or another Virginia Schedule I or II controlled substance, or five pounds of marijuana into Virginia with the intent to sell or distribute the substance, in violation of Va. Code Ann. § 18.2-248.01, and (2) one conspiracy count of transporting more than five pounds of marijuana into Virginia, in violation of Va. Code Ann. § 18.2-256 (the conspiracy statute). The underlying substantive offense for the conspiracy count is Va. Code Ann. § 18-2.248.01, the same statute in Daye's other convictions. The parties agree that Daye committed his two substantive drug offenses on March 15, 2013 and his marijuana conspiracy offense beginning on August 13, 2013.

In February 2014, the state court imposed prison terms of seven years for each of the two substantive drug offenses, to run consecutively, and another consecutive prison term of five years for the marijuana conspiracy offense. The resulting total term was 19 years, with six years to be served in prison and the balance suspended.

B. Removal Proceedings Before the IJ

In 2018, the Department of Homeland Security issued a Notice to Appear, charging Daye with removability on multiple grounds, including: (1) under INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), as an alien convicted of a CIMT committed within five years after admission for which a sentence of one year or longer may be imposed; and (2) under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien who at any time after admission was convicted of two CIMTs not arising out of a single scheme of criminal misconduct.¹

In April 2019, Daye, represented by counsel, moved to terminate removal proceedings. Daye argued that his state drug convictions did not qualify as CIMTs because Virginia's statutes penalized substances that were not federally controlled and transporting a non-federally controlled substance was akin to a regulatory offense that was not morally reprehensible. In opposition, the government argued, inter alia , that Daye's drug convictions supported removability because the BIA had long held that participation in an illicit drug trafficking crime was an offense involving moral turpitude. See In re Khourn , 21 I. & N. Dec. 1041, 1046-47 (BIA 1997).

The IJ denied Daye's motion to terminate removal proceedings based on the CIMT grounds. The IJ concluded that all three of Daye's Virginia drug convictions constituted CIMTs. The IJ determined that the prohibited substances in Va. Code Ann. § 18.2-248.01 were broader than the federal controlled substances. Further, Va. Code Ann. § 18.2-248.01 was not a divisible statute, and thus the categorical approach applied.

Applying the categorical approach, the IJ concluded an offense under Va. Code Ann. § 18.2-248.01 —which includes an intent to distribute—necessarily required a morally culpable mental state and morally reprehensible conduct. The IJ relied upon In re Khourn , in which the BIA held that cocaine distribution in violation of 21 U.S.C. § 841(a)(1) constitutes a CIMT. See 21 I. & N. Dec. at 1044 n.4, 1046-47. The IJ also cited Guevara-Solorzano v. Sessions , in which the Fourth Circuit concluded that a Tennessee conviction for unlawful possession of marijuana with intent to manufacture, deliver or sell constituted a CIMT. See 891 F.3d 125, 129, 135-36 (4th Cir. 2018).

Because Daye committed the two substantive drug offenses within five years after his May 22, 2008 admission, and those offenses carried a sentence of one year or longer, the IJ found that Daye was removable under INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i). Because those two substantive drug offenses and Daye's drug conspiracy offense all occurred after his 2008 admission and did not arise out of a single scheme of criminal misconduct, the IJ found that Daye was removable also under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(i).

The government's motion for reconsideration argued that the IJ erred in concluding that Va. Code Ann. § 18.2-248.01 was not divisible as to the particular substance transported. Denying the motion, the IJ concluded that the particular substance transported was not an element of the offense under Virginia law given that it was not required to be found by the jury and there were no sentencing differences corresponding with the type of substance. Daye was ordered removed to Jamaica.

C. Appeal to the BIA

On appeal to the BIA, Daye contended his Virginia offenses were not categorically CIMTs. The government did not cross-appeal to the BIA the IJ's divisibility ruling, but it did "maintain[ ]" in a motion for summary affirmance that Va. Code Ann. § 18.2-248.01 was divisible and the modified categorical approach should apply.

The BIA affirmed the IJ's decision that Daye was removable on CIMT grounds under both INA § 237(a)(2)(A)(i) and (ii), 8 U.S.C. § 1227(a)(2)(A)(i) and (ii). Stressing that it had long held that "participation in illicit drug trafficking is a CIMT," the BIA agreed with the IJ that a violation of Va. Code Ann. § 18.2-248.01 was categorically a CIMT. The BIA did not address or disturb the IJ's divisibility ruling.

II. DISCUSSION

A. Crime Involving Moral Turpitude under the INA

An alien is removable if he or she has been convicted of a felony CIMT within five years after admission or has been convicted of two or more CIMTs not arising out of a single scheme at any time after admission. INA § 237(a)(2)(A)(i)-(ii), 8 U.S.C. § 1227(a)(2)(A)(i)-(ii).² The phrase "moral turpitude" is not defined in the INA.

This Court has ruled that moral turpitude means 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." Cano v. U.S. Att'y Gen. , 709 F.3d 1052, 1053 (11th Cir. 2013) (quotation marks omitted). Similarly, the BIA has defined "moral turpitude" to mean "conduct that is inherently base, vile, or depraved" and has said that "[t]o involve moral turpitude, a crime requires two essential elements: reprehensible conduct and a culpable mental state." In re Silva-Trevino , 26 I. & N. Dec. 826, 833-34 (BIA 2016) (quotation marks omitted); see Zarate v. U.S. Att'y Gen. , 26 F.4th 1196, 1200-01 (11th Cir. 2022) (describing this Court's definition of moral turpitude as similar to the BIA's definition). This Court has given Chevron³ deference to the BIA's definition of moral turpitude and "its application of that definition in precedential opinions." See Zarate , 26 F.4th at 1201, 1207.

"Consistent with the two elements identified by the BIA," this Court has concluded that "a crime involving moral turpitude must involve conduct that not only violates a statute but also independently violates a moral norm." Id. at 1201 (quotation marks omitted). We have identified two classes of crimes involving moral turpitude: (1) fraud offenses, which based on Supreme Court precedent are "categorically deemed to involve moral turpitude"; and (2) "non-fraud offenses" that "must also satisfy the ‘inherently base, vile, or depraved’ requirement to constitute CIMTs." Id. at 1201-02 (citing De George , 341 U.S. at 232, 71 S. Ct. at 708 ). "[I]t 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)." Id. at 1207-08 (concluding the BIA erred "by collapsing the two requirements of moral turpitude into one"). That said, "one can inform the other." Id.

The BIA has long held that drug trafficking offenses constitute CIMTs. For instance, in In re Khourn , the BIA concluded that distribution of cocaine, in violation of 21 U.S.C. § 841(a), is a CIMT. 21 I. & N. Dec. at 1041. In Khourn , the BIA reasoned that § 841(a), unlike "a statute that was regulatory," is a criminal statute that "clearly requires a mental state of knowledge or intent." Id. at 1045-46. Additionally, "an evil intent"—i.e., moral reprehensibility—is "inherent in the crime of distribution of a controlled substance" under § 841(a). Id. at 1047 ; see also In re Acosta , 27 I. & N. Dec. 420, 422-24 (BIA 2018) (concluding attempted...