Bobadilla v. Holder

• Decision Date: 21 August 2012
• Docket Number: No. 11–1590.,11–1590.
• Citation: 679 F.3d 1052
• Parties: Orlando Manuel Godoy BOBADILLA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

679 F.3d 1052

Orlando Manuel Godoy BOBADILLA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 11–1590.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 9, 2012.

Filed: May 29, 2012.

Rehearing and Rehearing En Banc Denied Aug. 21, 2012.

John Eugene Mack, New London, MN, for Petitioner.

Wendy Benner–Leon, US DOJ Civil Division, Washington, DC, for Respondent.

Before WOLLMAN, LOKEN, and GRUENDER, Circuit Judges.

LOKEN, Circuit Judge.

The Immigration and Nationality Act (“INA”) provides that an alien lawfully in the United States may be removed (deported) if he “is convicted of two or more crimes involving moral turpitude.” 8 U.S.C. § 1227(a)(2)(A)(ii). Orlando Manuel Godoy Bobadilla, a native and citizen of Canada, entered the United States in 1997 at age 17 and became a lawful permanent resident in 1998. He was convicted in state court of giving a false name to a peace officer in violation of Minn.Stat. § 609.506, Subd. 1, and of theft in violation of Minn.Stat. § 609.52, Subd. 2. The Department of Homeland Security commenced removal proceedings; Bobadilla denied removability. The immigration judge (“IJ”) concluded that both convictions were for crimes involving moral turpitude and ordered Bobadilla removed. The Board of Immigration Appeals (“BIA”) affirmed. Bobadilla petitions for review of the BIA's decision. The only issue we will address is whether his conviction for providing a false name to a peace officer is categorically a crime involving moral turpitude, a question of law we have jurisdiction to consider. Recio–Prado v. Gonzales, 456 F.3d 819, 820–21 (8th Cir.2006). We grant Bobadilla's petition for review and remand.

I.

The administrative record includes the Minnesota Register of Actions for the giving-of-a-false-name conviction.¹ The Register reports that Bobadilla was charged in December 2001 with giving a false name to a peace officer, driving after license revocation, no proof of insurance, underage drinking and driving, speeding, and running a stop sign. In April 2002, he pleaded guilty to giving a false name and no proof of insurance; the other charges were dismissed. Without a hearing on the facts underlying Bobadilla's conviction, and without receiving any original court records, the IJ concluded that his offense was a crime involving moral turpitude (“CIMT”) because fraud was “an element of the offense.” The IJ summarily denied counsel's objection to deciding the issue in this categorical fashion:

[Counsel for Bobadilla]. Well ... in regards to the false name to a police officer, I would like to request that the modified categorical approach be used because it is a divisible law[. The offense occurred] during a traffic violation.

[IJ]. You'll have to appeal that one to the court ... if you don't think it's correct.

The BIA in affirming addressed this issue in somewhat greater detail but without expanding the administrative record:

In Matter of Silva–Trevino, [24 I. & N. Dec. 687 (A.G.2008) ], the Attorney General stated that a crime involving moral turpitude is a crime that “involves both reprehensible conduct and some form of scienter,” whether specific intent, deliberateness, willfulness, or recklessness. Id. at 706 & n. 5. [Bobadilla's] statute of conviction requires a finding that the person provided some form of false information with an intent to obstruct justice. We conclude that because the statute reflects an intentional attempt to evade responsibility, the conduct covered by the statute is inherently base, vile, and reprehensible, and thus, morally turpitudinous.

Bobadilla argues that his conviction for giving a false name to a peace officer was not categorically a CIMT and therefore the IJ and the BIA “should have looked behind [his] conviction to determine if his act was vile, reprehensible, or base.” Resolving this contention requires reviewing many of the administrative and judicial decisions that have interpreted this murky statutory standard.

II.

Since 1891, the immigration laws have directed the exclusion of persons convicted of “crimes involving moral turpitude.” Jordan v. De George, 341 U.S. 223, 229 n. 14, 71 S.Ct. 703, 95 L.Ed. 886 (1951). But Congress has never defined the term; rather, it “left the phrase to future administrative and judicial interpretation.” Franklin v. INS, 72 F.3d 571, 572 (8th Cir.1995) (quotation omitted), cert. denied,519 U.S. 834, 117 S.Ct. 105, 136 L.Ed.2d 59 (1996). Without question, the term is ambiguous. In Jordan, for example, the Supreme Court upheld the deportation of an alien convicted of conspiring to defraud the United States of tax revenues, concluding “that fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude.” 341 U.S. at 229, 71 S.Ct. 703. But Justices Jackson, Black, and Frankfurter, dissenting, would have ruled that “the phrase ‘crime involving moral turpitude’ ... has no sufficiently definite meaning to be a constitutional standard for deportation.” Id. at 232, 71 S.Ct. 703. The Supreme Court has not again considered what offenses are included within the term CIMT, leaving those issues to the immigration authorities and the circuit courts.

The INA expressly grants the Attorney General authority to determine “questions of law” arising under the statute. 8 U.S.C. § 1103(a)(1). Thus, “[i]t is clear that principles of Chevron deference ² are applicable to this statutory scheme.” I.N.S v. Aguirre–Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). In reviewing the BIA's decision that Bobadilla was convicted of a CIMT, “we give deference to the agency's interpretation of the ambiguous statutory phrase, and we uphold its construction as long as it is reasonable.” Chanmouny v. Ashcroft, 376 F.3d 810, 811 (8th Cir.2004).

In Chanmouny, before addressing the specific crime at issue, we restated the BIA's general definition of a CIMT:

Moral turpitude refers generally to conduct which 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. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong or malum in se.... Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or corrupt mind.

Id. at 811–12, quoting In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999). In addition, “[a] finding of moral turpitude ... requires ... some form of scienter.” Silva–Trevino, 24 I. & N. Dec. at 706. This basic definition has generated little if any disagreement by reviewing circuit courts. We next restated the BIA's “categorical” approach for examining whether a criminal conviction meets this general definition:

If the statute defines a crime in which moral turpitude necessarily inheres ... our analysis ends. However, if the statute contains some offenses which involve moral turpitude and others which do not, it is to be treated as a “divisible” statute, and we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense of which the respondent was convicted.

Chanmouny, 376 F.3d at 812, quoting Ajami, 22 I. & N. Dec. at 950. This categoricalapproach is consistent with Supreme Court decisions determining whether a prior conviction was a violent felony under the Armed Career Criminal Act (ACCA). 18 U.S.C. § 924(e)(2)(B). See Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). So it is not surprising that reviewing circuit courts have found the categorical approach a reasonable method for determining the CIMT issue, as our court did in Chanmouny and in other cases such as Recio–Prado, 456 F.3d at 821,Solano–Chicas v. Gonzales, 440 F.3d 1050, 1055–56 (8th Cir.2006), and Hernandez–Perez v. Holder, 569 F.3d 345, 348 (8th Cir.2009) (“we look to the statutory language of the crime, not the underlying facts”).

The circuit courts' application of the categorical approach to particular crimes, however, was far from uniform, as the circuits varied in how they determined whether a particular criminal statute was sufficiently “categorical,” and in the extent to which they deferred to the BIA's analysis of state criminal statutes. After tolerating circuit court inconsistencies for many years, the Attorney General personally reviewed a BIA decision in 2008 in order to “establish a uniform framework for ensuring that the Act's moral turpitude provisions are fairly and accurately applied.” Silva–Trevino, 24 I. & N. Dec. at 688. The absence of an authoritative administrative methodology for resolving moral turpitude inquiries has resulted in a “patchwork [that] is problematic,” the Attorney General explained, because national uniformity is of paramount importance, yet “under the existing arrangement ... [a]n alien who resides in one circuit might be eligible for adjustment of status even though he committed the same crime as an alien who lives in a different circuit and is ineligible for such relief.” Id. at 694–95. Because “moral turpitude” is not an element of any criminal offense, the Attorney General concluded that rigid categorical review of a statute's elements was “poorly designed to distinguish crimes that involve moral turpitude from those that do not.” Id. at 695. Categorically excluding a crime based on the hypothetical minimum conduct that could result in conviction “is likely to result in under-inclusive application of the Act's moral turpitude provisions,” whereas categorically including a crime “if moral turpitude inheres in the ‘usual’ or ‘common’ case is likely to be over-inclusive.” Id.

For these reasons, the Attorney General adopted a new method for determining the CIMT issue, retaining the...