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Flores-Molina v. Sessions

United States Court of Appeals, Tenth Circuit

March 7, 2017

JEFF SESSIONS, [*] United States Attorney General, Respondent.

         Petition for Review from an Order of the Board of Immigration Appeals

          Shawn D. Meade, MyRights Immigration Law Firm, Denver, Colorado, for Petitioner.

          Rebecca Hoffberg Phillips, Attorney, Office of Immigration Litigation (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Brianne Whelan Cohen, Senior Litigation Counsel, Office of Immigration Litigation, and Laura M.L. Maroldy, Trial Attorney, with her on the briefs), United States Department of Justice, Washington, D.C., for Respondent.

          Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.

          McHUGH, Circuit Judge.

         Francisco Flores-Molina is an undocumented alien subject to removal from the United States. An immigration judge determined he is ineligible for cancellation of removal because he has been convicted of a "crime involving moral turpitude." The Board of Immigration Appeals agreed and dismissed Mr. Flores-Molina's appeal. Mr. Flores-Molina then filed a petition in this court, arguing the Board of Immigration Appeals erred in finding that his crime of conviction, Denver Municipal Code § 38-40, is a crime involving moral turpitude. We agree. Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition and remand for further proceedings.

         I. BACKGROUND

         Mr. Flores-Molina is a citizen of Mexico who came to the United States illegally and has remained here continuously since 1998. In March 2000, he pled guilty to violating Denver Municipal Code ("DMC") § 38-40, which prohibits giving false information to a city official during an investigation. In November 2011, following Mr. Flores-Molina's conviction of a Colorado driving-related offense, the federal government issued a Notice to Appear in which it charged Mr. Flores-Molina with removability as "[a]n alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General." 8 U.S.C. § 1182(a)(6)(A)(i). In the Notice to Appear, the government alleged, among other things, that Mr. Flores-Molina (1) is not a citizen or national of the United States, (2) is a citizen and national of Mexico, and (3) was not admitted or paroled in the United States after inspection by an immigration officer.

         Mr. Flores-Molina admitted to these allegations in a written response submitted to the immigration court. He also conceded that he was removable as charged. The immigration judge held a hearing on August 22, 2013, and found Mr. Flores-Molina removable based on his admissions and concession.

         At the same hearing, Mr. Flores-Molina submitted an application for cancellation of removal pursuant to 8 U.S.C. § 1229b(b), which allows the Attorney General to cancel the removal of a noncitizen when four conditions are satisfied. See 8 U.S.C. § 1229b(b)(1)(A)-(D). One of these conditions is that the applicant must not have been convicted of a "crime involving moral turpitude." See id. § 1229b(b)(1)(C); id. § 1182(a)(2)(A)(i); id. § 1227(a)(2)(A)(i). The government moved to set aside Mr. Flores-Molina's application, arguing that his DMC § 38-40 conviction is a conviction of a crime involving moral turpitude ("CIMT") and that he is therefore barred from seeking relief under § 1229b(b).[1]

         On December 10, 2013, the immigration judge held a status eligibility conference to determine whether Mr. Flores-Molina was barred from seeking cancellation of removal. After hearing arguments from both sides, the immigration judge found him statutorily barred because of his DMC § 38-40 conviction, concluding DMC § 38-40 is categorically a CIMT. Specifically, the judge found that, because DMC § 38-40 requires "knowingly and willfully giving false information during an investigation, " a violation of the ordinance involves "deceptive conduct that results in an impairment of governmental functions" and is therefore "inherently morally turpitudinous." Turning to the first step of a three-step CIMT framework set forth by the Attorney General in Matter of Silva-Trevino (Silva-Trevino I), 24 I&N Dec. 687 (A.G. 2008), the immigration judge further concluded "there is no reasonable probability in which a violation of [DMC § 38-40] could criminalize non-morally turpitudinous conduct." For these reasons, the immigration judge denied Mr. Flores-Molina's application for cancellation of removal.

         Mr. Flores-Molina timely appealed to the Board of Immigration Appeals ("BIA"), arguing the immigration judge erred in finding he had been convicted of a CIMT because DMC § 38-40 does not contain "an express or inherent intent to [de]fraud, deceive, or obstruct justice." While the appeal was pending, the Attorney General vacated Silva-Trevino I. See Matter of Silva-Trevino, 26 I&N Dec. 550, 553 (A.G. 2015).

         On February 29, 2016, the BIA dismissed Mr. Flores-Molina's appeal in a decision issued by a single Board Member. The BIA first acknowledged that the immigration judge relied in part on Silva-Trevino I and that the Attorney General had since vacated that decision. But the BIA noted that, in doing so, "the Attorney General specifically stated that he does not intend to affect the [BIA]'s determinations as to whether or not an offense entails 'reprehensible conduct committed with some degree of scienter, ' and is or is not a crime involving moral turpitude for that reason." The BIA thus concluded that the vacatur of Silva-Trevino I did not affect the immigration judge's decision because her decision was based on "well-established [BIA] precedent decisions relating to whether these types of offenses involve the necessary reprehensible conduct and degree of scienter to constitute crimes involving moral turpitude."

         The BIA then determined there was no basis for disturbing the immigration judge's decision on the merits. In its brief substantive discussion, the agency explained that it has "consistently found that an offense that involves impairing or obstructing a function of the Government by deceit, graft, trickery, or dishonest means is a crime involving moral turpitude." Rejecting Mr. Flores-Molina's argument that DMC § 38-40 lacks a sufficient intent element, the BIA stated that it has held "intent may be implied where, as here, the statute of conviction does not explicitly include intent as an element but where such intent is implicit in the nature of the offense." The BIA found that "knowingly and willfully" providing false information satisfies the requisite intent and thus concluded DMC § 38-40 is categorically a CIMT. Mr. Flores-Molina appeals.


         The sole issue in this appeal is whether the BIA properly concluded DMC § 38-40 is a "crime involving moral turpitude" within the meaning of the Immigration and Nationality Act ("INA"). If it is a CIMT, Mr. Flores-Molina's conviction precludes him from seeking cancellation of removal. See 8 U.S.C. § 1229b(b)(1); Garcia v. Holder, 584 F.3d 1288, 1289 (10th Cir. 2009) ("An alien convicted of a CIMT is . . . not eligible for cancellation of removal . . . ."). If it is not, he may be able to seek cancellation, depending on whether he can satisfy the other statutory prerequisites on remand. See 8 U.S.C. § 1229b(b)(1).[2]

         We begin our discussion by addressing the applicable scope and standard of review, as well as the general legal principles relevant to this case. We then turn to the parties' arguments concerning DMC § 38-40 and consider whether the ordinance is categorically a CIMT. For the reasons set forth below, we conclude it is not.

         A. Scope and Standard of Review

         "Our scope of review directly correlates to the form of the BIA decision." Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir. 2012) (citation omitted). Here, because a single member of the BIA decided Mr. Flores-Molina's appeal and issued a brief opinion pursuant to 8 C.F.R. § 1003.1(e)(5), we review the BIA's decision as the agency's final order of removal. See Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006); see also Morones-Quinones v. Holder, 591 F.App'x 660, 661-62 (10th Cir. 2014) (unpublished). Although we usually lack jurisdiction to review BIA orders concerning cancellation under § 1229b, see 8 U.S.C. § 1252(a)(2)(B)(i), we have jurisdiction to review questions of law decided in those orders, id. § 1252(a)(2)(D); Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir. 2011).

         Whether a cancellation-of-removal applicant's crime of conviction constitutes a CIMT is a question of law, and we review the BIA's legal conclusions de novo. Rodriguez-Heredia, 639 F.3d at 1267. We do not defer to the BIA's interpretation of the substance of the state or local offense at issue, as that task has not been specifically delegated to the BIA and does not fall within its special expertise. See Efagene v. Holder, 642 F.3d 918, 921 (10th Cir. 2011). However, because determining whether a given offense is a CIMT for purposes of the INA requires interpreting that statutory phrase, we may owe deference to the BIA's decision under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

         "Under Chevron, we defer to an agency's interpretation of a statute that it is responsible to implement if (1) the statute is ambiguous or silent as to the issue at hand and (2) the agency's interpretation is neither arbitrary, capricious, nor manifestly contrary to the statute." Carpio v. Holder, 592 F.3d 1091, 1096 (10th Cir. 2010) (alteration and internal quotation marks omitted). Because the BIA is charged with administering the INA, Rangel-Perez v. Lynch, 816 F.3d 591, 597 (10th Cir. 2016), "the BIA's interpretations of ambiguous provisions in the [INA] are entitled to [Chevron] deference" when otherwise warranted, see Rivera-Barrientos, 666 F.3d at 645. The INA does not define "crime involving moral turpitude, " and we have characterized it as "perhaps the quintessential example of an ambiguous phrase." De Leon v. Lynch, 808 F.3d 1224, 1228 (10th Cir. 2015) (quoting Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) (en banc)). Thus, if we conclude de novo that the BIA has properly construed the underlying offense at issue, we will defer to the BIA's interpretation of the statutory term CIMT as embracing the offense, as long as that interpretation is reasonable. See Efagene, 642 F.3d at 921; Marmolejo-Campos, 558 F.3d at 911.

         But not every BIA decision interpreting the INA qualifies for deference. Efagene, 642 F.3d at 920. "[T]his court need only defer to the BIA's interpretation of the INA when the BIA acts in its lawmaking capacity and, in the case of the BIA's adjudications, that means only when the BIA's decision is binding precedent within the agency." Rangel-Perez, 816 F.3d at 597. A decision made by a single board member, like the decision here, is not precedential within the agency and therefore ordinarily is not entitled to deference. See Efagene, 642 F.3d at 920. Nonetheless, Chevron deference may extend to such a decision if it is based on a prior precedential BIA decision "addressing the same question." Rangel-Perez, 816 F.3d at 597 (citation omitted). Here, for reasons described below, we conclude that to the extent the government argues for Chevron deference, the BIA's decision is not entitled to it because the cases on which the BIA relied do not address offenses sufficiently comparable to DMC § 38-40.

         Where Chevron deference is not appropriate, we consider whether the BIA's decision has "the power to persuade" and is therefore entitled to Skidmore deference. Carpio, 592 F.3d at 1098 (discussing Skidmore v. Swift & Co., 323 U.S. 134 (1944)). In making this determination, we consider "the degree of the [BIA]'s care[;] its consistency, formality, and relative expertness[;] and . . . the persuasiveness of [its] position." United States v. Mead Corp., 533 U.S. 218, 228 (2001) (footnotes omitted); see also Carpio, 592 F.3d at 1098 ("We examine 'the thoroughness evident in the BIA's consideration, the validity of its reasoning, and its consistency with earlier and later pronouncements.'" (alterations omitted) (quoting Skidmore, 323 U.S. at 140)). We also decline to extend Skidmore deference in this case because the BIA's decision lacks "the power to persuade."

         B. Legal Principles

         The process by which we determine whether a noncitizen's offense of conviction constitutes a CIMT is called the "categorical approach." Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir. 2011). "The categorical approach . . . requires ignoring a petitioner's actual conduct and examining only the minimum conduct needed for a conviction under the relevant state [or local] law." Ibarra v. Holder, 736 F.3d 903, 907 (10th Cir. 2013). Thus, to determine whether a state or local offense is "categorically" a CIMT, we compare the statutory definition of that offense with the generic definition of CIMT and consider whether the minimum conduct that would satisfy the former would necessarily also satisfy the latter. See Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013); Rodriguez-Heredia, 639 F.3d at 1267; see also Perez v. Lynch, 630 F.App'x 870, 872 (10th Cir. 2015) (unpublished) (applying the categorical approach to determine whether a different provision of the Denver Municipal Code was a CIMT). "If every conviction under a given state statute [or city ordinance] involves moral turpitude, then the . . . conviction is categorically a CIMT." Veloz-Luvevano v. Lynch, 799 F.3d 1308, 1313 (10th Cir. 2015) (alterations and citation omitted); see also Moncrieffe, 133 S.Ct. at 1684 ("[A] state offense is a categorical match with a generic federal offense only if a conviction of the state offense necessarily involved facts equating to the generic federal offense." (alterations and internal quotation marks omitted)).[3]

         As noted above, the INA does not provide a generic definition of "crime involving moral turpitude." Rather, "its contours have been shaped through interpretation and application by the Attorney General, the [BIA], and federal courts." De Leon v. Lynch, 808 F.3d 1224, 1228 (10th Cir. 2015). Generally speaking, "[m]oral turpitude refers 'to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality.'" Wittgenstein v. INS, 124 F.3d 1244, 1246 (10th Cir. 1997) (quoting Matter of Flores, 17 I&N Dec. 225, 227 (B.I.A. 1980)). "Moral turpitude reaches conduct that is inherently wrong, or malum in se, rather than conduct deemed wrong only because of a statutory proscription, malum prohibitum." Efagene v. Holder, 642 F.3d 918, 921 (10th Cir. 2011). "[F]or an offense to involve moral turpitude, it must require a reprehensible or despicable act" and "necessarily involve[] an evil intent or maliciousness in carrying out th[at] reprehensible act." Id. at 921-22. Or, in the formulation referenced by the BIA here, an offense qualifies as a CIMT if it entails both "reprehensible conduct and some form of scienter." See Matter of Silva-Trevino, 26 I&N Dec. 550, 553 n.3 (A.G. 2015) (citation omitted).

         Alongside these "very general[]" translations, see De Leon, 808 F.3d at 1228, the BIA and courts have espoused what might be characterized as subsidiary definitions and rules applicable to narrower classes of conduct. One well-established rule, for instance, is that "[c]rimes in which fraud is an ingredient are regarded as involving moral turpitude." Veloz-Luvevano, 799 F.3d at 1313 (alterations and citation omitted); see also Arias v. Lynch, 834 F.3d 823, 827 (7th Cir. 2016) ("Despite the confusion about how to determine what moral turpitude is, there is a consensus that fraud is close to the core of moral turpitude."). In several decisions, the BIA has found an offense implicitly fraudulent- and thus, a CIMT-where it involved "impair[ing] or obstruct[ing] an important function of a department of the government by defeating its efficiency or destroying the value of its lawful operations by deceit, graft, trickery, or dishonest means." E.g., Matter of Flores, 17 I&N Dec. at 229.

         C. Application

         Here, the BIA relied on this latter interpretation in deeming DMC § 38-40 a CIMT. Section 38-40 provides:

It shall be unlawful for any person knowingly and willfully to give false information to an officer or employee of the city when such officer or employee is acting in their official capacity, concerning the identity of any person participating in, connected with, or responsible for, or concerning the manner of the commission of, any act, when, as ...

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