Tantchev v. Garland

46 F.4th 431

Nikolay Stoyano TANTCHEV, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 21-4067

United States Court of Appeals, Sixth Circuit.

Argued: July 27, 2022

Decided and Filed: August 19, 2022

ARGUED: Maria Baldini-Potermin, MARIA BALDINI-POTERMIN & ASSOCIATES, P.C., Chicago, Illinois, for Petitioner. Christina R. Zeidan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Maria Baldini-Potermin, MARIA BALDINI-POTERMIN & ASSOCIATES, P.C., Chicago, Illinois, for Petitioner. Christina R. Zeidan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: GUY, MOORE, and CLAY, Circuit Judges.

CLAY, Circuit Judge.

Nikolay Stoyanov Tantchev petitions for review of a decision of the Board of Immigration Appeals ("BIA") ordering him removed from the United States for having been convicted of an aggravated felony under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(G). For reasons set forth below, we DENY the petition for review.

I. BACKGROUND

A. Factual Background

Petitioner Nikolay Stoyanov Tantchev is a native and citizen of Bulgaria. He entered the United States on May 1, 1999, with a business visa. He received lawful permanent resident status on April 23, 2012. For many years, Tantchev ran a trucking business out of a warehouse in Chicago. United States v. Tantchev , 916 F.3d 645, 648 (7th Cir. 2019). In 2008, Tantchev and one of his employees started operating a side business coordinating the export of shipping containers from Chicago to Mongolia for individual customers. See id. Tantchev would have large shipping containers delivered to his warehouse. Id. His customers would then come to his warehouse and load the shipping containers themselves. Id. at 649. Tantchev never looked inside the containers. Id. He would fill out customs paperwork describing the contents of the containers using information provided by the customers. Id. In 2011, Customs and Border Protection learned that several of these shipping containers held stolen cars. Id. In 2016, a federal grand jury in the Northern District of Illinois indicted Tantchev on several counts related to this activity. Id. at 650. Relevant to this appeal, Tantchev was charged with exporting stolen vehicles under 18 U.S.C. § 553. Id. at 650, 652. The case went to trial, and the jury convicted Tantchev on all charges. Id. at 650.

At trial, the district court instructed the jury on the elements of a § 553 crime stating that they must find, beyond a reasonable doubt, that:

1. The defendant attempted to export the motor vehicle ...;

2. The motor vehicle was stolen; and

3. When the defendant attempted to export the stolen motor vehicle, the defendant knew that it was stolen.

(Jury Instr., A.R. #161.) To define knowledge, the district court gave what is known as an "ostrich" instruction, referencing situations where the defendant is willfully blind to material facts. Tantchev , 916 F.3d at 652. The judge instructed the jury that knowledge includes "a strong suspicion that the vehicle in the containers [Tantchev] was exporting ... were stolen and that he deliberately avoided the truth." (Jury Instr., A.R. #179.)

The jury convicted Tantchev under § 553, and the district court sentenced him to 40 months of imprisonment. Tantchev , 916 F.3d at 648. The Seventh Circuit affirmed his conviction on appeal after finding that the district court did not err in giving the ostrich instruction. Id. at 652–54. Tantchev served out this sentence in full.

B. Procedural Background

After Tantchev was released from prison, the Department of Homeland Security ("DHS") detained him and placed him in removal proceedings pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). DHS ordered his removal on the grounds that his conviction under 18 U.S.C. § 553 was an aggravated felony as defined in the INA, 8 U.S.C. § 1101(a)(43)(G). Tantchev denied the removability charge and argued that his § 553 conviction was not an aggravated felony. In a decision issued on June 14, 2021, an immigration judge ("IJ") concluded that exporting stolen vehicles in violation of § 553 is an aggravated felony under the INA. The IJ therefore sustained the charge of removability and ordered Tantchev deported to Bulgaria. Tantchev appealed to the BIA. In an unpublished order issued by a single Board member, the BIA affirmed the IJ's order and upheld the removal order.

Tantchev timely filed a petition for review with this Court. He also filed an emergency motion with the Court seeking to stay his deportation pending his appeal. Another panel of this Court denied that motion on January 5, 2022, and DHS deported Tantchev to Bulgaria on January 6, 2022.¹

II. DISCUSSION

A. Standard of Review

"This court has jurisdiction to review a final order of removal from the BIA pursuant to 8 U.S.C. § 1252." Marikasi v. Lynch , 840 F.3d 281, 286 (6th Cir. 2016). "Where the BIA reviews the immigration judge's decision and issues a separate opinion, rather than summarily affirming the immigration judge's decision, we review the BIA's decision as the final agency determination." Khalili v. Holder , 557 F.3d 429, 435 (6th Cir. 2009). But "to the extent that the BIA adopted the immigration judge's reasoning, this court also reviews the immigration judge's decision." Sanchez-Robles v. Lynch , 808 F.3d 688, 692 (6th Cir. 2015) (citing Khalili , 557 F.3d at 435 ).

"[W]hether [a petitioner's] conviction renders him removable under 8 U.S.C. § 1227(a)(2)(A)(iii) is a non-discretionary, purely legal question" that this Court reviews de novo . Patel v. Ashcroft , 401 F.3d 400, 407 (6th Cir. 2005) (citing Leocal v. Ashcroft , 543 U.S. 1, 6–7, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) ). "Where appropriate, however, the courts must defer to reasonable BIA interpretations of the statutes they are charged with implementing," i.e. , the INA. Id. (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ). "However, the BIA's ultimate conclusion that a particular ... conviction amounts to an aggravated felony conviction within the meaning of § 1227(a)(2)(A)(iii) is reviewed de novo because such a conclusion depends upon interpreting state statutes and federal statutes unrelated to immigration." Id. (citing Chery v. Ashcroft , 347 F.3d 404, 407 (2d Cir. 2003) ).

B. Analysis

Under the INA, an immigrant may be removed from the United States if he is convicted of an "aggravated felony." 8 U.S.C. § 1227(a)(2)(A)(iii). The INA defines aggravated felony to include "a theft offense (including receipt of stolen property) ... for which the term of imprisonment [is] at least one year." Id. § 1101(a)(43)(G).

To determine whether a petitioner's conviction is an aggravated felony warranting removal, courts "look[ ] to the statute ... of conviction, rather than to the specific facts underlying the crime." Esquivel-Quintana v. Sessions , ––– U.S. ––––, 137 S. Ct. 1562, 1568, 198 L.Ed.2d 22 (2017) (quoting Kawashima v. Holder , 565 U.S. 478, 483, 132 S.Ct. 1166, 182 L.Ed.2d 1 (2012) ). This process of comparing statutes is known as the "categorical approach," and it involves three related inquiries. Keeley v. Whitaker , 910 F.3d 878, 881 (6th Cir. 2018) (citing Esquivel-Quintana , 137 S. Ct. at 1567–68 ). First, the Court must "identify the minimum conduct required for a conviction" under the criminal statute, 18 U.S.C. § 553(a)(1). Id. (citing Esquivel-Quintana , 137 S. Ct. at 1568 ). Second, the Court must identify the elements of a generic receipt of stolen property crime as that term is used in the INA. See id. Finally, the Court must "determine if the minimum conduct criminalized by the [predicate] statute ‘categorically fits’ within the generic crime." Id. at 881–82 (quoting Esquivel-Quintana , 137 S. Ct. at 1568 ). Accordingly, a conviction for exporting stolen vehicles qualifies as an aggravated felony only "if the least of the acts criminalized by [ 18 U.S.C. § 553(a)(1) ] falls within the generic [INA] definition" of a receipt of stolen property crime.² Esquivel-Quintana , 137 S. Ct. at 1568.

Tantchev's only argument on appeal is that the minimum conduct required for conviction under 18 U.S.C. § 553(a)(1) involves a less culpable mens rea than a receipt of stolen property crime under the INA. If that is true, then convictions under § 553(a)(1) would not be aggravated felonies warranting removal under the INA. See Keeley , 910 F.3d at 881. Tantchev admits that, taken at face value, the mens rea elements seem to require the same state of mind. A defendant is criminally culpable under § 553(a)(1) if he exports a vehicle "knowing the [vehicle] to have been stolen." In comparison, a receipt of stolen property crime under the INA requires a mens rea of "knowledge or belief" that the property was stolen. Matter of Deang , 27 I. & N. Dec. 57, 63 (B.I.A. 2017). Still, Tantchev argues that knowledge in § 553(a)(1) is broader than in the INA. To fully grasp the parties’ arguments, it is necessary to understand how the BIA has interpreted the mens rea element of the INA's receipt of stolen property crime in comparison to how federal courts have interpreted the mens rea element of a § 553 offense.

The INA does not define "receipt of stolen property." See 8 U.S.C. § 1101(a)(43)(G). The leading BIA case defining the mens rea for a receipt of stolen property crime is Matter of Deang , 27 I. & N. Dec. 57 (B.I.A. 2017). The issue in that case was whether a conviction for receipt of a stolen vehicle under a South Dakota statute was an aggravated felony under the INA. Id. at 58. The South Dakota law imposed criminal liability "for the possession of any motor vehicle which [a person] knows, or has reason to believe , has been stolen." Id. (emphasis added). The BIA concluded that the mens rea of "reason to believe" was a less culpable state of mind than the INA required. Id. at 63. Therefore, the South Dakota crime was not a categorical match with the INA's ...