Gomez-Ruotolo v. Garland

96 F.4th 670

Carlos Rafael GOMEZ-RUOTOLO, Petitioner v. Merrick B. GARLAND, Attorney General, Respondent.

No. 23-1238

United States Court of Appeals, Fourth Circuit

Argued: January 23, 2024

Decided: March 20, 2024

On Petition for Review of an Order of the Board of Immigration Appeals.

ARGUED: Daniel Joseph Melo, CAPITAL AREA IMMIGRANTS' RIGHTS (CAIR) COALITION, Washington, D.C., for Petitioner. Tim Ramnitz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Peter Alfredson, Taylor Joseph, CAPITAL AREA IMMIGRANTS' RIGHTS (CAIR) COALITION, Washington, D.C., for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney General, Shelley R. Goad, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before WILKINSON, QUATTLEBAUM, and RUSHING, Circuit Judges.

Petition denied by published opinion. Judge Wilkinson wrote the opinion, in which Judge Quattlebaum and Judge Rushing joined.

WILKINSON, Circuit Judge:

Carlos Gomez-Ruotolo was deported after being found removable as a noncitizen convicted of two or more crimes involving moral turpitude. After being denied relief by the Board of Immigration Appeals, Gomez-Ruotolo petitioned this court for review. He claims that the crimes for which he was convicted in state court—attempted sexual battery and electronic solicitation of a minor—are not crimes involving moral turpitude. He also contends that he should receive protection against removal under the Convention Against Torture. For the reasons that follow, we reject these contentions and deny the petition.

I.

Gomez-Ruotolo is a native citizen of Venezuela. He was brought to the United States by his parents in 2001, when he was ten years old. He and his family were admitted as lawful permanent residents and settled in Northern Virginia, where Gomez-Ruotolo attended school and resided as a young adult.

In 2009, law enforcement officers searched eighteen-year-old Gomez-Ruotolo's residence in Dumfries, Virginia pursuant to a federal search warrant. They discovered five images that depicted children as young as four years old being sexually abused. Gomez-Ruotolo was ultimately charged with "attempt[ing] to commit sexual battery on a minor child under the age of fifteen years, against the will of said minor child, by force, threat or intimidation or through the use of the child's mental incapacity or physical helplessness, in violation of Virginia Code Section 18.2-67.5(c)." J.A. 543. He pleaded guilty to this charge and acknowledged the potential adverse immigration consequences of his conviction. The Circuit Court of Prince William County, Virginia sentenced Gomez-Ruotolo to 180 days imprisonment, suspended in full on the condition that he register as a sex offender and maintain good behavior. He served no time in prison.

Less than a decade later, Gomez-Ruotolo again found himself facing child sexual abuse charges. In 2018, a now twenty-eight-year-old Gomez-Ruotolo posted on Craigslist stating he desired to "get[ ] with someone younger, as young as it gets (barely legal)." J.A. 592. An undercover detective answered the advertisement posing as a fourteen-year-old girl. Gomez-Ruotolo arranged a meeting with the supposed fourteen-year-old for the express purpose of having sex with her. When he arrived at the designated meeting place in anticipation of the sexual encounter, he was instead greeted by police officers and promptly arrested. A Virginia grand jury indicted Gomez-Ruotolo with electronic solicitation of a minor between seven and fourteen in violation of Virginia Code § 18.2-374.3(c). Gomez-Ruotolo pleaded guilty and once again acknowledged the potential adverse immigration consequences of his conviction. He was sentenced to the mandatory minimum of five years' imprisonment. A court-ordered psychological evaluation, conducted as part of his sentencing, found that he had an "above average" risk of sexual offense recidivism. J.A. 658.

In June 2022, upon completion of his prison sentence, Gomez-Ruotolo was served with a Notice to Appear for removal proceedings, which charged him with removability (1) as a noncitizen convicted of two or more crimes involving moral turpitude pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), and (2) as an aggravated felon pursuant to 8 U.S.C. §§ 1101(a)(43)(A), 1227(a)(2)(A)(iii). With the assistance of counsel, Gomez-Ruotolo denied that he was removable and sought protection from removal under the Convention Against Torture (CAT).

In August 2022, an immigration judge of the U.S. Department of Justice (DOJ) found that Gomez-Ruotolo was not removable as an aggravated felon but that he was removable as a noncitizen convicted of two or more crimes involving moral turpitude. The immigration judge also denied Gomez-Ruotolo CAT protection. He was thus ordered to be removed to Venezuela.

Gomez-Ruotolo appealed this decision to the Board of Immigration Appeals (BIA) in September 2022. He argued that attempted sexual battery was not a crime involving moral turpitude as the minimum conduct to sustain a conviction was insufficiently reprehensible. And he claimed that the electronic solicitation statute lacked the requisite culpable mens rea to be a crime involving moral turpitude. Gomez-Ruotolo also challenged the immigration judge's denial of CAT protection, asserting that he was likely to be tortured by the Maduro regime in Venezuela due to his lifelong ties to the United States.

In February 2023, the BIA affirmed the immigration judge in all respects and dismissed Gomez-Ruotolo's appeal. It explained that Virginia's attempted sexual battery offense is a crime involving moral turpitude as it is "defined in all instances" as "sufficiently reprehensible conduct that is contrary to the accepted rules of morality." J.A. 5. The BIA reasoned that Virginia's offense of electronic solicitation of a minor between seven and fourteen is likewise a crime involving moral turpitude because "statutes that limit convictions to defendants who knew or had reason to believe that their intentional sexual acts were directed at children—such as th[is] statute—categorically involve moral turpitude." J.A. 6 (citing Matter of Silva-Trevino, 26 I. & N. Dec. 826, 834 (BIA 2016)). The BIA also found Gomez-Ruotolo was not eligible for deferral of removal under CAT because he did not show that he would probably be tortured in Venezuela. It adopted the immigration judge's findings that Gomez-Ruotolo had never been threatened, harmed, or tortured by anyone in Venezuela since his departure more than twenty years ago, that he was not an outspoken critic of the Venezuelan government, and that no one was waiting to harm him upon his return. Having exhausted his administrative remedies, Gomez-Ruotolo was deported to Venezuela. He petitioned this court for review.

II.

Gomez-Ruotolo's primary contention on appeal is that the Virginia state offenses for which he was convicted are not crimes involving moral turpitude. The Immigration and Nationality Act (INA) provides that "[a]ny alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct . . . is deportable." 8 U.S.C. § 1227(a)(2)(A)(ii). So, if either of the two crimes for which Gomez-Ruotolo was convicted is not a crime involving moral turpitude, he is not deportable under this provision of the INA.

A.

Whether a criminal offense constitutes a crime involving moral turpitude is a question of law that we review de novo. Salazar v. Garland, 56 F.4th 374, 377 (4th Cir. 2023). This inquiry requires us to answer two questions. See id. First, what is the definition of moral turpitude under the INA? Second, does the criminal offense at issue fit within this definition?

On the definition of moral turpitude, we naturally reference BIA decisions. We do so because the agency has been delegated a regulatory and adjudicative role in this whole area, and its experience in the field often renders its decisions persuasive.

However, we need not defer to the BIA's determination of whether a state statute categorically involves conduct that is morally turpitudinous, because such a question is outside the BIA's authority and expertise. Id. at 377. Instead, we start with the text of the Virginia statutes at issue and consider "Virginia case law interpreting the[ir] provisions." Cabrera v. Barr, 930 F.3d 627, 639 n.7 (4th Cir. 2019); see also Salazar, 56 F.4th at 377 (finding that a state appellate court's interpretation of the statute at issue "constrains our analysis of the elements of state law"). The extent to which we credit the BIA's assessment of whether these state crimes involve moral turpitude "hinges on the thoroughness evident in the BIA's consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade." Ramirez v. Sessions, 887 F.3d 693, 703 (4th Cir. 2018) (internal quotations and alterations omitted).

B.

Our circuit has, with all due respect for the BIA, developed a sound definition of moral turpitude. A crime involving moral turpitude is one involving "behavior that shocks the public conscience as being inherently base, vile, or depraved." Id. at 704 (internal quotations omitted). Such a crime "requires two essential elements: a culpable mental state and reprehensible conduct." Solis-Flores v. Garland, 82 F.4th 264, 267 (4th Cir. 2023). For a crime "to meet the mens rea requirement" of culpability, "the crime must have, as an element, an intent to achieve an immoral result or willful disregard of an inherent and substantial risk that an immoral act will occur." Ramirez, 887 F.3d at 704; see also Granados v. Garland, 17 F.4th 475, 481 (4th Cir. 2021). To meet the actus reus requirement of reprehensible conduct, the crime "must involve conduct that not only violates a statute but also independently...