De Leon-Reynoso v. Ashcroft

• Decision Date: 11 June 2002
• Docket Number: No. 01-2774.,01-2774.
• Citation: 293 F.3d 633
• Parties: Luis Erasmo DE LEON-REYNOSO, Appellant, v. John ASHCROFT, Attorney General; Doris Meissner, Commissioner of Immigration and Naturalization Service, Department of Justice; Charles Zemski, District Director Ins.
• Court: U.S. Court of Appeals — Third Circuit

293 F.3d 633

Luis Erasmo DE LEON-REYNOSO, Appellant, v. John ASHCROFT, Attorney General; Doris Meissner, Commissioner of Immigration and Naturalization Service, Department of Justice; Charles Zemski, District Director Ins.

No. 01-2774.

United States Court of Appeals, Third Circuit.

Argued: May 7, 2002.

Filed: June 11, 2002.

Martin A. Kascavage (argued), Schoener & Kascavage, Philadelphia, PA, for appellant.

Joshua E. Braunstein (argued), United States Department of Justice, Office of Immigration Litigation, Washington, DC, Thankful T. Vanderstar, Terri J. Scadron, United States Department of Justice, Office of Immigration Litigation, Washington, DC, Linda L. Bocchino, Office of United States Attorney, Philadelphia, PA, for appellees.

Before: NYGAARD, ALITO, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal raises an important constitutional question of first impression in this circuit. It pertains primarily to the scope of Congressional authority over the nation's immigration and naturalization laws. Luis Erasmo De Leon-Reynoso (De Leon) appeals the denial by the United States District Court for the Eastern District of Pennsylvania of his habeas corpus petition challenging his deportation. Because the District Court did not err in holding 8 U.S.C. § 1182(h) constitutional and finding De Leon deportable based on his conviction of a crime of moral turpitude in the Commonwealth of Pennsylvania, the District Court's denial of habeas relief will be affirmed.

I.

De Leon is a native and citizen of the Dominican Republic, and has a spouse and child who are United States citizens. He entered the United States as a lawful permanent resident (LPR) on June 18, 1992. On June 12, 1997, De Leon was convicted in the Court of Common Pleas, Northampton County, Pennsylvania, of receiving stolen property. The court sentenced him to probation for two years.

The Immigration and Nationality Act (INA), § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), provides for deportation of an alien convicted within five years after admission into the United States of a crime involving moral turpitude for which a prison sentence of one year or longer may be imposed. The Immigration Service initiated proceedings for his deportation on the ground of the conviction and De Leon appeared for a hearing before an immigration judge. The judge found him deportable. The judge also found him ineligible for adjustment of his status because he was unable to qualify for a waiver under INA § 212(h), as amended by Section 348(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1182(h), because he had not been a legal immigrant in the United States for seven years preceding the date the removal proceedings were initiated. The immigration judge also denied De Leon's request for voluntary departure, finding that he lacked the requisite good moral character.

The Board of Immigration Appeals (BIA) affirmed the immigration judge's decision and dismissed De Leon's appeal. The BIA did not address De Leon's constitutional challenge because it lacked the authority to hear it. On January 19, 2001, De Leon filed a petition for habeas corpus. The District Court denied the petition and De Leon timely appealed to this Court.¹ We exercise de novo review of the District Court's denial of habeas relief and its interpretation of statutes. Gerbier v. Holmes, 280 F.3d 297, 302 (3d Cir.2002). Likewise, we exercise de novo review over De Leon's constitutional challenge. DeSousa v. Reno, 190 F.3d 175, 180 (3d Cir. 1999).

II.

A. Crime of Moral Turpitude

De Leon was convicted of receiving stolen property less than a week under five years from the date he was admitted to the United States. The Pennsylvania statute provides that a person is guilty of theft if the person "intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen." 18 PA.CONS.STAT.ANN. § 3925(a).

Title 8 U.S.C. § 1227(a)(2)(A)(i) provides for the deportation of aliens convicted of crimes that involve moral turpitude, that are punishable by a year or more in prison, and that are committed within five years of the date of admission to the United States.

Whether an alien's crime is one involving moral turpitude is determined by the statute and record of conviction rather than the alien's specific act. See Alleyne v. INS, 879 F.2d 1177, 1185 (3d Cir.1989) ("[T]he nature of an alien's crime is determined by the statute and record of conviction, not from the specific acts surrounding the conviction."). Thus, merely examining De Leon's act to determine whether he committed a crime of moral turpitude is insufficient; we instead must look to the Pennsylvania statute.

The term "moral turpitude" defies a precise definition. 6 CHARLES GORDON, ET AL IMMIGRATION LAW AND PROCEDURE § 71.05(1)(d)(i). Black's Law Dictionary notes an "honesty" component in its definition of moral turpitude, which includes: "[c]onduct that is contrary to justice, honesty, or morality." BLACK'S LAW DICTIONARY 1026 (7th ed. 1999); see also 37 Op. Att'y Gen. 293, 294 (1933) ("A good and comprehensive statement concerning `moral turpitude' [is] .... anything done contrary to justice, honesty, principle, or good morals."); In re Serna, 20 I. & N. Dec. 579, 582, 1992 WL 301779 (BIA1992) (citing Attorney General's definition with approval).

Courts have held that knowingly receiving stolen property is a crime of moral turpitude. See, e.g., Michel v. INS, 206 F.3d 253, 262-63 (2d Cir.2000) (applying Chevron deference in concluding BIA reasonably determined knowing possession of stolen property is crime of moral turpitude); United States v. Castro, 26 F.3d 557, 558 n. 1 (5th Cir.1994) (noting conviction for knowingly receiving stolen property is crime of moral turpitude); see also 6 CHARLES GORDON, ET AL., IMMIGRATION LAW AND PROCEDURE § 71.05(1)(d)(iii). Indeed, De Leon conceded at oral argument that a person who knowingly receives stolen property has committed a crime of moral turpitude.

De Leon argues, however, that the Pennsylvania statute not only criminalizes knowing possession of stolen property, but that it also includes an objective component that criminalizes possession of stolen property if one should have known it was stolen. De Leon therefore claims that his crime was not one of moral turpitude and leans heavily on In re K___, 2 I. & N. Dec. 90, 1944 WL 5167 (BIA1944), as support for his position.

In re K involved a German statute providing criminal liability for, inter alia, any person concealing the purchase of goods "which he knows or must assume on the basis of the given conditions ... have been acquired by means of any criminal act." Id. at 91. The BIA, focusing on the language "or must assume," determined that a "conviction may be founded upon the negligent receipt of property by a person acting in good faith," and that such a crime was not one of moral turpitude. Id. De Leon asserts that the Pennsylvania statute, which not only criminalizes knowing possession of stolen property, but also possession of stolen property when one "believ[es] that it has probably been stolen," is analogous to the German statute.

De Leon is incorrect; the Pennsylvania statute is purely subjective and lacks the objective component found in the German statute. The language in the Pennsylvania statute referring to a belief that the property probably has been stolen speaks to the specific defendant's belief and not the hypothetical reasonable person. The German statute, on the other hand, criminalized possession of stolen property if one "must assume on the basis of the given conditions" that the property was stolen. "Must assume" is objective; it does not require that the defendant assume theft of the property, but merely that he should assume it so. The objective component of the German statute is why the BIA held it not to be a crime of moral turpitude. The Pennsylvania statute is, in contrast, subjective, and thus In re K is not apposite.

De Leon also argues that the Pennsylvania statute has been interpreted by the Pennsylvania courts as having an objective element. First, he cites Commonwealth v. Matthews, 429 Pa.Super. 291, 632 A.2d 570, 573 n. 2 (1993), for support. Matthews noted that it is permissible to infer guilty knowledge by the unexplained possession of stolen property. Id. However, and contrary to De Leon's assertion, Matthews did not hold that there is an objective component to the statute. Inferring guilty knowledge does not mean that a reasonable person would have had such knowledge, but rather that the jury could infer from the circumstances that the defendant actually had such knowledge. As Judge Alito observed at oral argument in this case, "subjective intent is generally inferred from objective facts." The second case De Leon cites, Commonwealth v. Williams, 468 Pa. 357, 362 A.2d 244, 248-49 (1976), stands for the same proposition as Matthews. Neither case injected an objective element into the Pennsylvania statute.

At a minimum, De Leon was convicted of possessing stolen property that the believed probably was stolen, a crime that is barely removed from possessing stolen property with knowledge that it is stolen. Both crimes speak with equal force to the honesty of a person. If knowingly possessing stolen goods is a crime of moral turpitude, it follows that possessing stolen goods that one believes probably are stolen is such a crime, too. It cannot reasonably be argued that a person willing to possess goods believing they were probably stolen exhibits less moral turpitude than a person who actually knows such goods are stolen. Accordingly, the District Court did not err in holding that De Leon committed a crime of moral turpitude subjecting him to deportation pursuant to 8 U.S.C. § 1227(a)(2)(A)(i).

B. Equal Protection

Deportable aliens who are married to...