Rojas v. U.S. Attorney Gen.

1

ITALO ANTONI FERRER ROJAS, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 22-11896

United States Court of Appeals, Eleventh Circuit

February 22, 2024

DO NOT PUBLISH

Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A099-318-250 Before GRANT, ABUDU, and ED CARNES, Circuit Judges.

PER CURIAM

Italo Ferrer Rojas (Ferrer), a native and citizen of Peru petitions for review of the Board of Immigration Appeals' decision refusing to reconsider his removal order. Ferrer has a conviction for receipt of stolen property, which the BIA determined qualifies as a crime involving moral turpitude making him ineligible for cancellation of removal. He challenges that determination.

I. Background

Ferrer entered the United States without inspection in 2000. In 2007 he was convicted of misdemeanor receipt of stolen property in violation of Va. Code Ann. § 18.2-108. That statute makes it a crime to "buy or receive from another person, or aid in concealing, any stolen goods or other thing, knowing the same to have been stolen." Va. Code Ann. § 18.2-108 (2007).

In October 2020 the Department of Homeland Security served Ferrer with a notice to appear, charging him as removable under the Immigration and Nationality Act (INA) for being a noncitizen present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). At his preliminary hearing Ferrer admitted the factual allegations against him and conceded the charge of removability. He then applied for cancellation of removal.

An immigration judge denied Ferrer's application. She ruled that Ferrer was statutorily ineligible for cancellation of removal because his 2007 conviction qualified as a "crime involving moral turpitude." The IJ noted that the Virginia statute criminalized three distinct crimes (buying, receiving, and aiding in concealing stolen goods), and after reviewing the record of conviction she determined that Ferrer had been convicted of "receipt" of stolen goods. She then concluded that under BIA precedent receipt of stolen goods is a crime involving moral turpitude when the statute of conviction requires knowledge that the goods were stolen, and the Virginia statute does.

Ferrer appealed to the BIA, raising arguments unrelated to this petition for review. The BIA dismissed Ferrer's appeal and adopted and affirmed the IJ's decision that Ferrer was ineligible for cancellation of removal because he had been convicted of a crime involving moral turpitude.

Ferrer filed a motion to reconsider, this time contending that a conviction under Va. Code. Ann. § 18.2-108 for receipt of stolen goods is not a crime involving moral turpitude because intent to permanently deprive the owner of the property is not an element of the offense.

The BIA denied Ferrer's motion to reconsider. It agreed with the IJ that Ferrer had been convicted of receipt of stolen goods. And it concluded that receipt of stolen goods under Virginia law is a crime involving moral turpitude because the statute requires knowledge that the property was stolen. The BIA explained that to constitute a crime involving moral turpitude, receipt of stolen goods need not have a separate "intent to deprive" element in addition to knowledge that the goods were stolen.

Ferrer timely petitioned this Court for review. He contends that the statute he was convicted of violating does not require an intent to permanently deprive, and for that reason the BIA wrongly concluded that his receipt of stolen goods conviction was a crime involving moral turpitude. He also contends that the statute encompasses conduct that is not inherently base, vile, or depraved, which is another reason why his conviction was not for a crime involving moral turpitude.

II. Standards of Review

We review the BIA's denial of a motion to reconsider for abuse of discretion. Chacku v. U.S. Att'y Gen., 555 F.3d 1281, 1286 (11th Cir. 2008). "The BIA abuses its discretion when it misapplies the law in reaching its decision" or does "not follow[] its own precedents without providing a reasoned explanation for doing so." Ferreira v. U.S. Att'y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013). "We review only the BIA's decision, except to the extent that it expressly adopts the IJ's opinion." Flores-Panameno v. U.S. Att'y Gen., 913 F.3d 1036, 1040 (11th Cir. 2019) (quotation marks omitted).

Though the INA strips us of jurisdiction to review "any judgment regarding the granting of relief under section . . . 1229b" of Title 8 (which covers cancellation of removal), we retain jurisdiction over "constitutional claims or questions of law." 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D). Whether a previous conviction qualifies as a crime involving moral turpitude is a legal question that we review de novo. See Lauture v. U.S. Att'y Gen., 28 F.4th 1169, 1172 (11th Cir. 2022); Pierre v U.S. Att'y Gen., 879 F.3d 1241, 124849 (11th Cir. 2018).

III. Discussion

The Attorney General has discretion to cancel the removal of a noncitizen who establishes that: (1) he has been continuously physically present in the United States for at least ten years; (2) he has been a "person of good moral character" while present in the United States; (3) he has not been convicted of certain specified criminal offenses; and (4) his "removal would result in exceptional and extremely unusual hardship" to a spouse, parent, or child who is a U.S. citizen or lawful permanent resident. 8 U.S.C. § 1229b(b)(1); see id. § 1229a(c)(4)(A). Under the third requirement, one type of crime that bars cancellation of removal is a "crime involving moral turpitude" for which the maximum possible sentence is at least one year. Id. § 1227(a)(2)(A)(i); see id. § 1229b(b)(1)(C). As the noncitizen petitioning for relief from a removal order, Ferrer bears the burden of proving that he was not convicted of a crime involving moral turpitude. See Pereida v. Wilkinson, 592 U.S. 224, 231-33 (2021).

The term "moral turpitude" has never been defined by federal statute or rule, but the BIA has held that the term generally 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." Zarate v. U.S. Att'y Gen., 26 F.4th 1196, 1199-1200 (11th Cir. 2022) (quoting Matter of Silva-Trevino, 26 I. &N. Dec. 826, 833 (BIA 2016)).^[1] We have recognized that BIA precedent requires "two essential elements" to classify a crime as one involving moral turpitude: "reprehensible conduct and a culpable mental state." Id. at 1200-01 (quoting Matter of Silva-Trevino, 26 I. &N. Dec. at 834).

We defer to the BIA's precedential opinions defining moral turpitude and applying that definition. Id. at 1201; see also Choizilme v. U.S. Att'y Gen., 886 F.3d 1016, 1022 (11th Cir. 2018) ("Where the BIA has interpreted an ambiguous provision of the INA in a published, precedential decision, we defer to the BIA's interpretation under Chevron[, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)], as long as it reflects a permissible construction of the statute.").

To determine whether a crime involves moral turpitude we follow one of two approaches, depending on the structure of the statute in question. If the statute of conviction is not divisible, meaning that it lists alternative means of committing a single offense, we use the categorical approach. See Lauture, 28 F.4th at 1172. If the statute of conviction is divisible and criminalizes separate offenses, we use the modified categorial approach. See id. at 1172-73.

The BIA applied the modified categorical approach to determine that Ferrer was convicted of receiving stolen goods and not of buying or aiding in concealing them. Ferrer does not challenge that determination. So we assume for purposes of Ferrer's petition that we apply the modified categorical approach and do not address the divisibility of Va. Code Ann. § 18.2-108. See Daye v. U.S. Att'y Gen., 38 F.4th 1355, 1361 (11th Cir. 2022).

Under the modified categorical approach, we look to the elements of Ferrer's actual crime of conviction (receiving stolen goods) and consider whether those elements categorically match the generic definition of the offense. See George v. U.S. Att'y Gen., 953 F.3d 1300, 1304 (11th Cir. 2020); Zarate, 26 F.4th at 1199; see, e.g., Lauture, 28 F.4th at 1173-76; cf. Mathis v. United States, 579 U.S. 500, 504 (2016); Descamps v. United States, 570 U.S. 254, 257 (2013). To obtain a receipt of stolen goods conviction under Va. Code Ann. § 18.2-108, the Commonwealth must prove the following elements: (1) that the property was previously stolen by another; (2) that the property was received by the defendant; (3) that at the time the defendant received the property he knew it had been stolen; and (4) that the defendant acted with dishonest intent. Whitehead v. Commonwealth, 684 S.E.2d 577, 580 (Va. 2009).

Here, the BIA concluded that a conviction for receipt of stolen goods in violation of Va. Code Ann. § 18.2-108 involves moral turpitude because it includes knowledge the property was stolen, and BIA precedent requires only that knowledge, not intent to permanently deprive. We agree with the BIA that its precedent does not, as a rule, require for moral turpitude purposes that a receipt of stolen goods conviction include the intent to permanently deprive. But the BIA's analysis was incomplete because it failed to address whether Ferrer's conviction involved both a culpable mental state (knowledge that the goods were stolen) and reprehensible conduct (inherent baseness, vileness, or depravity). See Zarate, 26 F.4th at 1200-01, 1203.

A.

Before the BIA came to recognize "reprehensible conduct and a culpable mental state" as...