Mendez v. Barr

• Decision Date: 27 May 2020
• Docket Number: No. 18-801,August Term 2018,18-801
• Citation: 960 F.3d 80
• Parties: Tomas MENDEZ, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

960 F.3d 80

Tomas MENDEZ, Petitioner,

v.William P. BARR, United States Attorney General, Respondent.

No. 18-801

August Term 2018

United States Court of Appeals, Second Circuit.

Argued February 14, 2019

Decided May 27, 2020

Gerard J. Cedrone, Goodwin Procter LLP, Boston, MA (William M. Jay, Goodwin Procter LLP, Washington, DC, on the brief), for Petitioner.

Lindsay B. Glauner (Joseph H. Hunt & Linda S. Wernery, on the brief), for William P. Barr, U.S. Attorney General, Washington, DC, for Respondent.

Before: PARKER, CHIN, and SULLIVAN, Circuit Judges.

BARRINGTON D. PARKER, Circuit Judge:

Tomas Mendez was admitted to the United States in 2004 as a lawful permanent resident. In 2010, he was convicted of misprision of a felony in violation of 18 U.S.C. § 4. That section makes it a crime for one with knowledge of the commission of a federal felony to conceal it and not promptly report it to the appropriate authorities. 18 U.S.C § 4.

In 2016, upon returning from a trip abroad, the Department of Homeland Security charged him, based on his misprision conviction, as inadmissible under § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, because he was a noncitizen convicted of a crime involving moral turpitude ("CIMT"). The immigration judge sustained the charge, and the Board of Immigration Appeals ("BIA") affirmed. The BIA concluded that the violation of § 4 meant that he had committed a CIMT. Matter of Mendez , 27 I. & N. Dec. 219, 225 (BIA 2018).

The BIA defines a CIMT as crime that is "inherently base, vile, or depraved, and contrary to the accepted rules of morality and duties owed between persons or to society in general."

Rodriguez v. Gonzales , 451 F.3d 60, 63 (2d Cir. 2006).¹ For decades, the BIA never considered misprision a CIMT. Matter of Sloan , 12 I. & N. Dec. 840, 842 (BIA 1966) (holding misprision does not constitute a CIMT).

However, in 2002, the Eleventh Circuit held in Itani v. Ashcroft that a conviction under § 4 is categorically a CIMT "because it necessarily involves an affirmative act of concealment or participation in a felony, behavior that runs contrary to accepted societal duties and involves dishonest or fraudulent activity." 298 F.3d 1213, 1216 (11th Cir. 2002).² Following the Eleventh Circuit's lead, the BIA did an about face and determined in a case arising in the Ninth Circuit that misprision was a CIMT. In re Robles-Urrea , 24 I. & N. Dec. 22, 25 (BIA 2006).

The Ninth Circuit rejected the BIA's conclusion. The court held that because § 4 required only knowledge of the felony and did not require an intent to defraud, or conceal, or to obstruct justice, the statute encompassed conduct that was not inherently base or vile. Robles-Urrea v. Holder , 678 F.3d 702, 710-12 (9th Cir. 2012). The Ninth Circuit reasoned that "[n]othing in the statute prohibiting misprision of a felony references the specific purpose for which the concealment must be undertaken," let alone a purpose sufficient to qualify misprision as a categorical CIMT. Id. at 710.

Mendez moved to terminate removal proceedings and for cancellation of removal, arguing that misprision is not a CIMT. Relying on the BIA's decision in Robles-Urrea , the IJ found Mendez removable as charged. The IJ also pretermitted Mendez's application for cancellation of removal, concluding that because his 2010 misprision conviction constituted a CIMT, it stopped the clock for calculating length of residency and prevented him from establishing the required seven years of continuous residency. In February 2018, the BIA issued a precedential decision in this case. Matter of Mendez , 27 I. & N. Dec. at 219. It reaffirmed its holding that misprision is a CIMT and declined to follow the Ninth Circuit's rejection of its reasoning in Robles-Urrea .

Mendez petitions for review. We have jurisdiction under 8 U.S.C. § 1252 (a)(2)(D). Mendez argues that a conviction for misprision is not a CIMT because it does not categorically involve conduct that is inherently base, vile, or depraved. He also argues that, contrary to the BIA's contention, its decision is not entitled to Chevron deference. We agree on both points.

DISCUSSION

The dispositive issue is whether misprision is a CIMT. Because the BIA has no particular expertise in construing federal criminal statutes (as opposed to the INA), we owe no deference to its construction of § 4. United States v. Apel , 571 U.S. 359, 369, 134 S.Ct. 1144, 186 L.Ed.2d 75 (2014) ; Mendez v. Mukasey 547 F.3d 345, 346 (2d Cir. 2008). Accordingly, we review de novo the BIA's conclusion that Mendez's conviction under § 4 is a conviction for a CIMT. Rodriguez , 451 F.3d at 63.

I

In Rodriguez , we held that to be a CIMT a statute must encompass "conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general." Id . In other words, the act must be "per se morally reprehensible and intrinsically wrong or malum in se , so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude." Id.

To determine whether a conviction is for a CIMT, the BIA and the courts employ a " ‘categorical approach,’ focusing on the intrinsic nature of the offense." Gill v. I.N.S , 420 F.3d 82, 89 (2d Cir. 2005). Under this approach, "we look only to the minimum criminal conduct necessary to satisfy the essential elements of the crime." Mukasey , 547 F.3d at 348. To qualify, the crime "must by definition, and in all instances, contain each of those elements that constitute a CIMT." Gill , 420 F.3d at 89.

The federal misprision statute provides:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

18 U.S.C. § 4. To convict under § 4, the Government must prove that (1) the principal committed and completed the alleged felony, (2) the defendant had full knowledge of that fact, (3) the defendant failed to notify the authorities, and (4) the defendant took steps to conceal the crime. United States v. Cefalu , 85 F.3d 964, 969 (2d Cir. 1996).

The categorical approach has not been satisfied in this case. The courts, as well as the BIA itself, have repeatedly made clear that the indispensable component of a CIMT is "evil intent," which means a specific mental purpose that is "inherently base, vile, or depraved." Mukasey , 547 F.3d at 347.

Nothing in § 4—either expressly or by reasonable inference—speaks to intent. The absence of an intent requirement from § 4 contrasts sharply with perjury and obstruction of justice—which contain intent requirements and which are CIMTs. A person commits perjury when, "having taken an oath before a competent tribunal, officer, or person, ... that he will testify, declare, depose, or certify truly, ... willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true." 18 U.S.C. § 1621(1) (emphasis added). A person commits obstruction of justice, whenever he "willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator." 18 U.S.C. § 1510(a) (emphasis added). § 4, by contrast, does not speak to any specific mental purpose.

The BIA's own decisions, which it has inexplicitly disavowed, prove this point. In Matter of Sloan , the BIA held that the "intent with which misprision is committed" is not "a factor" under § 4. 12 I. & N. Dec. at 842. In Matter of Espinoza-Gonzales , the BIA held that misprision "lacks the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice." 22 I & N Dec. 889, 896 (BIA 1999). Indeed, in this case, the BIA acknowledged that § 4 "does not explicitly require that the act of concealment be intentional." Matter of Mendez , 27 I. & N. Dec. at 223. These concessions by the BIA are telling: they mean that the BIA itself is of the view that a defendant can be convicted under § 4 even if the defendant had no evil intent. Following the BIA's lead, we conclude that convictions for violating § 4 are not entitled to categorical treatment because they can occur in the absence of conduct that is "inherently base, vile, or depraved."

Consider an individual living in a housing project that is plagued by violent drug-dealing gangs and drug-related crimes. That individual witnesses a shooting involving the gangs and knows the individuals involved who happen to be his neighbors in the projects. When that individual is approached by law enforcement officers, he falsely denies knowledge of those involved in the shooting. He does so because he fears that the shooters or other gang members will retaliate against him and his family. No one can seriously argue that this individual did not violate § 4 and no one can seriously argue that what he did was "inherently base, vile, or depraved."

As the case law demonstrates, there exists a realistic probability, not just a theoretical one, that this conduct could be prosecuted under § 4. See, e.g. , United States v. Davis , 491 F. App'x 143, 145 (11th Cir. 2012) (noting defendant's guilty plea to misprision of felony for "failing to disclose knowledge of illegal drug activity to authorities"); United States v. Barker , 78 F. App'x 767, 769 (2d Cir. 2003) (noting defendant's guilty plea "to concealing drug transactions"); United States v. Blount , 940 F. Supp. 720, 732 (E.D. Pa. 1996), aff'd sub nom. United States v. Riddick , 100 F.3d 949 (3d Cir. 1996) ("Even citizens without law enforcement duties are guilty of a misprision of a felony when they witness a drug...