808 F.3d 1224 (10th Cir. 2015), 13-9601, De Leon v. Lynch

Docket Nº13-9601
Citation808 F.3d 1224
Opinion JudgeHOLMES, Circuit Judge.
Party NameCRISTIAN EDUARDO OBREGON DE LEON, Petitioner, v. LORETTA E. LYNCH, United States Attorney General, [*] Respondent
AttorneyKelli J. Stump, Stump & Associates, Oklahoma City, Oklahoma, for Petitioner. Wendy Benner-Leon, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C. (Stuart F. Delery, Assistant Attorney General, Civil Division, and Terri J. Scadron, Assistant Di...
Judge PanelBefore HOLMES, MATHESON, and McHUGH, Circuit Judges.
Case DateDecember 22, 2015
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

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808 F.3d 1224 (10th Cir. 2015)

CRISTIAN EDUARDO OBREGON DE LEON, Petitioner,

v.

LORETTA E. LYNCH, United States Attorney General, [*] Respondent

No. 13-9601

United States Court of Appeals, Tenth Circuit

December 22, 2015

Petition for Review from the Board of Immigration Appeals.

Kelli J. Stump, Stump & Associates, Oklahoma City, Oklahoma, for Petitioner.

Wendy Benner-Leon, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C. (Stuart F. Delery, Assistant Attorney General, Civil Division, and Terri J. Scadron, Assistant Director, Office of Immigration Litigation, on the brief) for Respondent.

Before HOLMES, MATHESON, and McHUGH, Circuit Judges.

OPINION

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HOLMES, Circuit Judge.

Petitioner Cristian Eduardo Obregon de Leon (" Mr. Obregon" ), a lawful permanent resident of the United States, was convicted

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under Oklahoma law of various offenses, including possession of stolen vehicles and receipt of stolen property. He was subsequently placed into removal proceedings and deemed removable for having been convicted of a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i). The Immigration Judge (" IJ" ) and the Board of Immigration Appeals (" BIA" or " the Board" ) found that he was statutorily ineligible to apply for a discretionary waiver of removal under 8 U.S.C. § 1182(h) because he had previously adjusted to lawful permanent residence status. Mr. Obregon challenges both of these determinations in his petition for review of the BIA's decision.

We affirm the Board's determination that Mr. Obregon is removable because his conviction for possession of stolen vehicles constitutes a crime involving moral turpitude. However, Mr. Obregon is statutorily eligible to apply for a discretionary waiver under § 1182(h). Thus, we deny in part and grant in part his petition for review and remand to the BIA for further proceedings consistent with this opinion.

I

Mr. Obregon is a native citizen of Guatemala who entered the United States without inspection in September 1997. On March 29, 2007, he adjusted his status to that of a lawful permanent resident (" LPR" ) under Section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997, Pub. L. No. 105-100, 111 Stat. 2160. Four years later, in 2011, Mr. Obregon was charged with, and pleaded guilty to, the following offenses in Oklahoma state court: (1) one count of operation of a chop shop; 1 (2) four counts of possession of a vehicle with altered identification numbers; 2 (3) four counts of possession of a stolen vehicle; 3 and (4) two counts of receipt of stolen property.4

In January 2013, the Department of Homeland Security (" DHS" ) filed a Notice to Appear (" NTA" ) charging that Mr. Obregon was removable for having committed a crime involving moral turpitude (" CIMT" ) under 8 U.S.C. § 1227(a)(2)(A)(i).5 At his immigration hearing, Mr. Obregon admitted the factual allegations, but denied that he was removable

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because, he claimed, the Oklahoma statutes under which he was convicted did " not require an intent to deprive" and thus did not qualify as crimes of moral turpitude. R. at 53 (Hr'g Tr., dated Mar. 18, 2013). However, the IJ found that all four of his convictions constituted crimes involving moral turpitude. With respect to eligibility for waiver relief, the IJ concluded that Mr. Obregon could not " readjust his status with a [§ 1182](h) waiver" under BIA precedent. Id. at 39 (Oral Decision of IJ, dated Apr. 22, 2013).6

Mr. Obregon then appealed to the BIA, alleging that the IJ erred because his convictions lacked the " permanent intent to deprive" element necessary to constitute crimes involving moral turpitude. Further, he claimed that he should have been allowed to apply for a § 1182(h) waiver since he did not enter the country as a lawful permanent resident, but rather " adjusted status" to that of a lawful permanent resident after entry.

In a one-judge decision, the BIA dismissed Mr. Obregon's appeal. It noted that " an offense of receiving stolen property qualifies as a CIMT where the offense includes an element of knowing that the property is stolen." Id. at 4 (BIA Decision, dated Oct. 2, 2013). It concluded that Mr. Obregon's convictions for possession of stolen vehicles and receiving stolen property met this mens rea threshold because they both required " a permanent taking of property known to be stolen." Id. Finally, the BIA affirmed the IJ's " findings concerning [Mr. Obregon's] eligibility for relief" because, under its own precedential decision in Matter of Koljenovic, 25 I. & N. Dec. 219 (BIA 2010), Mr. Obregon " d[id] not qualify for a section [1182](h) waiver." Id. This petition for review followed.

II

Mr. Obregon's petition presents two legal questions7 for our review: (1) whether any of his convictions constitutes a crime involving moral turpitude; and (2) whether 8 U.S.C. § 1182(h), which prevents the Attorney General from granting a waiver of inadmissibility to an individual " who has previously been admitted to the United States as an alien lawfully admitted for permanent residence," applies to those who did not enter as LPRs, but instead adjusted to LPR status after entry into the United States.

We hold that Mr. Obregon's conviction for possession of stolen vehicles, in violation of Okla. Stat. tit. 47, § 4-103, is categorically a crime involving moral turpitude. However, under our court's decision in Medina-Rosales v. Holder, 778 F.3d 1140

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(10th Cir. 2015), and the BIA's decision in Matter of J-H-J-, 26 I. & N. Dec. 563 (BIA 2015), the § 1182(h) bar only applies to aliens who lawfully enter the United States as LPRs, and not those, like Mr. Obregon, who adjust to that immigration status after entering the country.

A

The question of whether a criminal conviction constitutes a crime involving moral turpitude is a question of law, which we review de novo. Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir. 2011). We " owe[] no deference to [the BIA's] interpretation of the substance of the state-law offense at issue." Efagene v. Holder, 642 F.3d 918, 921 (10th Cir. 2011). However, if a provision of the Immigration and Nationality Act (" INA" ) " is arguably subject to differing interpretations, we will defer to the BIA's interpretation provided it is reasonable." Tapia-Garcia v. INS, 237 F.3d 1216, 1220-21 (10th Cir. 2001); see also Rodas-Orellana v. Holder, 780 F.3d 982, 990 (10th Cir. 2015) (" '[W]e review the BIA's legal decisions de novo,' but we defer to the BIA's interpretation of ambiguous provisions of the INA, and must accept the BIA's interpretation if it is reasonable." (alteration in original) (quoting Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir. 2012))).

The phrase " crime involving moral turpitude" is not defined in the INA; instead, its contours have been shaped through interpretation and application by the Attorney General, the Board, and federal courts. It is " perhaps the quintessential example of an ambiguous phrase." Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) (en banc); see also Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000) (" [N]othing in the statute or its legislative history informs our understanding of the term 'moral turpitude[]' . . . ." ). We have defined the concept only very generally as " reach[ing] conduct that is inherently wrong, or malum in se, rather than conduct deemed wrong only because of a statutory proscription, malum prohibitum." Efagene, 642 F.3d at 921; see also Wittgenstein v. INS, 124 F.3d 1244, 1246 (10th Cir. 1997) (" Moral turpitude refers 'to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality . . . .'" (quoting Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA 1980))). In light of the nebulousness of " moral turpitude," we defer to the BIA's interpretation of the term, as long as it reflects a " reasonable policy choice for the agency to make." Efagene, 642 F.3d at 921 (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 845, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); accord Rodas-Orellana, 780 F.3d at 990.

1

" [C]orrupt scienter is the touchstone of moral turpitude." Michel, 206 F.3d at 263. Here, the parties disagree over what the requisite scienter is for the receipt or possession of stolen goods to qualify as a crime involving moral turpitude. Mr. Obregon argues that there must be intent to permanently deprive, while the government claims that knowledge that the goods are stolen is sufficient.

BIA precedent on this question strongly suggests that receiving or possessing stolen goods, with knowledge that the goods are stolen, implicates moral turpitude. See, e.g., Matter of Salvail, 17 I. & N. Dec. 19, 20 (BIA 1979) (" Conviction under [a] statute [criminalizing possession of stolen goods] is a conviction for a crime involving moral turpitude, as it specifically requires knowledge of the stolen nature of the goods." ); Matter of Patel, 15 I. & N. Dec. 212, 213 (BIA 1975) (" The California statute involved here requires knowledge that the goods were stolen; therefore, it involves

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moral turpitude." ), overruled on other grounds by Matter of Castro, 19 I. & N. Dec. 692 (BIA 1988); Matter of Z__-, 7 I. & N. Dec. 253, 255-56 (BIA 1956) (holding that the crime under Connecticut law of " receiv[ing] and conceal[ing] any stolen goods or articles, knowing them to be stolen" involves moral turpitude). Indeed, on at least one occasion, the Board has found that a statute punishing " negligent receipt of [stolen] property" was not a crime involving moral turpitude because it punished more than the knowing receipt of stolen goods. Matter of K__-, 2 I. & N. Dec. 90, 91 (BIA 1944).

Although our court has not addressed this issue, many of our sister circuits have also reached the conclusion that...

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