Mendez v. Mukasey

• Decision Date: 06 November 2008
• Docket Number: Docket No. 07-1114-ag.
• Citation: 547 F.3d 345
• Parties: Tamara MENDEZ, Petitioner, v. Michael B. MUKASEY, Attorney General,<SMALL><SUP>*</SUP></SMALL> Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

547 F.3d 345

Tamara MENDEZ, Petitioner, v. Michael B. MUKASEY, Attorney General,^* Defendant-Appellant.

Docket No. 07-1114-ag.

United States Court of Appeals, Second Circuit.

Argued: September 3, 2008.

Decided: November 6, 2008.

Justin Conlon, Law Offices of Michael Boyle, North Haven, CT, for Petitioner.

Alex Goring (Jeffrey S. Bucholtz, Michelle Gorden Latour, Joseph A. O'Connell, of counsel), Office of Immigration

Litigation, United States Department of Justice, Washington, DC, for Respondent.

Before: SACK and KATZMANN, Circuit Judges, and RAKOFF, District Judge.^**

KATZMANN, Circuit Judge:

On review of an order of the Board of Immigration Appeals (BIA) dismissing petitioner's appeal, we are called on to determine whether first degree larceny in the form of "defrauding a public community," in violation of Connecticut General Statutes §§ 53a-122(a)(4) and 53a-119(6), is a crime involving moral turpitude for the purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(I). We hold that it is and deny the petition for review.

BACKGROUND

The petitioner, Tamara Mendez, a native and citizen of the Dominican Republic, became a lawful permanent resident of the United States in 1990. On February 17, 2000, Mendez was convicted after pleading guilty to larceny in the first degree in violation of Connecticut General Statutes § 53a-122. She received a five-year suspended sentence and five years of probation and she was ordered to pay $7000 in restitution. Her plea colloquy reflects that she pled guilty to the subsection of Connecticut's larceny statute that prohibits "defrauding a public community." See Conn. Gen.Stat. §§ 53a-122(a)(4), 53a-119(6).

Mendez was placed in removal proceedings in February 2005 after reentering the country from a trip abroad. The notice to appear alleged that she was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien convicted of a "crime involving moral turpitude." Mendez moved to terminate the removal proceedings, arguing that defrauding a public community was not a crime involving moral turpitude because it did not require proof of intent to obtain government benefits to which she was not entitled. The immigration judge, however, denied the motion and ordered her removed.

Mendez appealed to the BIA. The BIA dismissed her appeal, finding that Connecticut's first degree larceny statute does, indeed, require proof of "intent to deprive another of property" and therefore is a crime involving moral turpitude. In re Mendez, No. A29-039-030, 2007 WL 1125781 (B.I.A. Feb. 21, 2007). This petition followed.

DISCUSSION

Simply put, our task is to address Mendez' argument that first degree larceny in Connecticut, in the form of "defrauding a public community," is not a crime involving moral turpitude because (1) it does not require proof of materiality, and (2) it does not require proof of intent.

A. Standard of Review

Where, as here, "the BIA issues an opinion, the opinion becomes the basis for judicial review of the decision of which the alien is complaining." Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (internal quotation marks omitted). We afford Chevron deference to the BIA's interpretation of the undefined statutory term "moral turpitude," but we owe no deference to the BIA's construction of state criminal statutes. Gill v. INS, 420 F.3d 82, 89 (2d Cir.2005). Accordingly, we review de novo the BIA's determination that a particular state crime falls within the definition of moral turpitude. Id.

B. Definition of a Crime Involving Moral Turpitude

The BIA has defined moral turpitude generally to 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." Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir.2006) (per curiam) (internal quotation marks omitted); see In re Fualaau, 21 I. & N. Dec. 475, 477 (B.I.A.1996). Whether a crime is one involving moral turpitude depends on "the offender's evil intent or corruption of the mind." In re Serna, 20 I. & N. Dec. 579, 581 (B.I.A.1992).

"[C]rimes in which fraud was an ingredient have always been regarded as involving moral turpitude." Jordan v. De George, 341 U.S. 223, 232, 71 S.Ct. 703, 95 L.Ed. 886 (1951); see also Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir.2002) ("In the wake of Jordan, the courts of appeals have interpreted `moral turpitude' as including a wide variety of crimes that involve some fraud or deceit."); United States ex rel. Berlandi v. Reimer, 113 F.2d 429, 431 (2d Cir.1940) ("An intent to steal or defraud . . . has repeatedly been held to render an offense one which involves moral turpitude."). And generally, where intent is not an element of a crime, that crime is not one involving moral turpitude. See, e.g., In re Serna, 20 I. & N. Dec. at 586 (possession of forged immigration documents is not a crime involving moral turpitude because the statute requires only knowledge that they were forged, not any intent to use them unlawfully); In re Balao, 20 I. & N. Dec. 440, 443-44 (B.I.A. 1992) (knowingly passing bad checks is not a crime involving moral turpitude where there is no need to prove an intent to defraud); In re Di Filippo, 10 I. & N. Dec. 76, 77-78 (B.I.A.1962) (making false statements to an unemployment agency is not a crime involving moral turpitude where there is no need to prove an intent to mislead).

An offense may involve moral turpitude even if it does not contain every element of common law fraud. See, e.g., Rodriguez, 451 F.3d at 64 (noting that materiality may not be an element of a violation of 18 U.S.C. § 1542 and concluding that "[a]lthough section 1542 may not contain every element of common law fraud, it certainly involves deceit and an intent to impair the efficiency and lawful functioning of the government. This alone is sufficient to categorize a crime as a [crime involving moral turpitude]."); In re Jurado-Delgado, 24 I. & N. Dec. 29, 34-35 (B.I.A.2006) (concluding that the offense of making unsworn falsifications to authorities is a crime involving moral turpitude even though the offense did not require falsification be material). Nonetheless, Mendez argues that an offense involving false statements to the government "is not a crime involving moral turpitude if the underlying statute does not require . . . the false information [to] be material to the applicant's eligibility for the benefits sought." This argument is premised on a misreading of the BIA's decision in Matter of Di Filippo and is unpersuasive. In Di Filippo, the BIA summarized the special inquiry officer's conclusion "that moral turpitude was not involved because the section [at issue] does not require a false statement to be material," but it did not adopt this rationale. See 10 I. & N. Dec. at 77. Instead, the BIA concluded that the offense at issue did not involve moral turpitude because the statute did not require "proof that the false statement was made for the purpose of obtaining benefits." Id. at 78. The statute in Di Filippo did not constitute a crime involving moral turpitude because it lacked an intent element, not because it lacked a materiality element.

In determining whether a crime is a crime involving moral turpitude, we apply either a "categorical" or a "modified categorical" approach. Under the categorical approach, we look only to the minimum criminal conduct necessary to satisfy the essential elements of the crime, not the particular circumstances of the defendant's conduct. See Gill, 420 F.3d at 89-90. "When the criminal statute at issue encompasses some classes of criminal acts that fall within the federal definition of aggravated felony and some classes that do not fall within the definition, the statute is considered `divisible.'" Abimbola v. Ashcroft, 378 F.3d 173, 177 (2d Cir.2004) (citing Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001)). If a statute is divisible a court, proceeding under the modified categorical approach, may refer to the "record of conviction" to determine "whether a petitioner's conviction was under the branch of the statute that proscribes removable offenses. The record of conviction includes, inter alia, the charging document, a plea agreement, a verdict or judgment of conviction, a record of the sentence, or a plea colloquy transcript." Wala v. Mukasey, 511 F.3d 102, 107-08 (2d Cir.2007) (citation and internal quotation marks omitted).

In this case, Mendez's record of conviction makes clear that she was convicted of first degree larceny by "defrauding a public community." Mendez concedes this fact. Thus, we may assume for purposes of this case that the statute is divisible and proceed to evaluate whether Mendez's record of conviction, by evidencing a conviction for larceny by defrauding a public community, necessarily admits facts establishing the elements of a crime involving moral turpitude.

B. Relevant Connecticut Statutes

Mendez argues that first degree larceny in Connecticut, in the form of "defrauding a public community," is not a crime involving moral turpitude because the state need not prove an intent to defraud in order to obtain a conviction under that particular subsection of the larceny statute. We find this argument unpersuasive.

Connecticut General Statutes § 53a-122(a) provides in relevant part: "A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and: . . . (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars." Pursuant to § 53a-119, "[a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." The statute then provides a non-exhaustive list of examples of larceny, including the subsection at issue here:

(6) Defrauding of public community. A person...