Neto v. Holder

• Decision Date: 10 May 2012
• Docket Number: No. 11–1847.,11–1847.
• Citation: 680 F.3d 25
• Parties: Joao Palmeira DA SILVA NETO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

680 F.3d 25

Joao Palmeira DA SILVA NETO, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 11–1847.

United States Court of Appeals, First Circuit.

Heard March 6, 2012.

Decided May 10, 2012.

Ilana Etkin Greenstein, Kaplan, Friedman & Associates, with whom Harvey Kaplan and Jeremiah Friedman were on brief for petitioner.

Dara S. Smith, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, with whom Tony West, Assistant Attorney General, Civil Division, and David V. Bernal, Assistant Director, Office of Immigration Litigation, were on brief for respondent.

Before BOUDIN, Circuit Judge,

SOUTER, Associate Justice,^* and STAHL, Circuit Judge.

STAHL, Circuit Judge.

This appeal presents the discrete question of whether malicious destruction of property under Massachusetts law qualifies as a crime involving moral turpitude (CIMT). We conclude that it does and therefore deny the petition for review.

I. Facts & Background

Joao Palmeira Da Silva Neto (Palmeira) is a native and citizen of Brazil. He entered the United States without inspection in 1994 with his wife, Maria, who is also a Brazilian citizen. Together, the Palmeiras had two children, who are both United States citizens. Eventually, the Palmeiras separated. On January 1, 2006, Maria invited Palmeira to a New Year's party at her house. Despite the fact that Maria had a restraining order against him, Palmeira attended the party. He got drunk at the party and, after initially leaving, quickly returned to Maria's house, wishing to speak with her. When his wife would not open the door, Palmeira kicked it open; once inside the home, he broke some glass ¹ and apparently threw some furniture. Police officers were dispatched to Maria's house for a report of a disturbance, and Palmeira was arrested at the scene.

Palmeira admitted to sufficient facts to support a finding of malicious destruction of property under Mass. Gen. Laws ch. 266, § 127, with the (unfortunately incorrect) understanding that doing so would not cause him immigration problems. He was sentenced to eleven months of probation and an anger management program, both of which he completed. On January 26, 2007, the district court in Brockton, Massachusetts dismissed all charges against Palmeira.² Nonetheless, the Department of Homeland Security (DHS) took Palmeira into federal custody and instituted removal proceedings against him.

Before the Immigration Court in Boston, Palmeira applied for cancellation of removal, which “is a form of discretionary relief, the granting of which allows a non-resident alien, otherwise removable, to remain in the United States.” Ayeni v. Holder, 617 F.3d 67, 70 (1st Cir.2010); see also8 U.S.C. § 1229b(b). The Immigration Judge (IJ) denied Palmeira's application, finding that he had not established that his removal would cause “exceptional and extremely unusual hardship” to his United States citizen children. 8 U.S.C. § 1229b(b)(1)(D). Palmeira appealed to the Board of Immigration Appeals (BIA), which granted the appeal and remanded the case to the IJ for consideration of additional evidence that Palmeira had provided regarding his wife's mental health and her ability to care for their children in his absence. The BIA also directed the IJ to make a finding as to whether Palmeira could qualify as “a person of good moral character” for purposes of cancellation of removal, given his conviction for malicious destruction of property. Id. § 1229b(b)(1)(B); see also id. §§ 1101(f)(3), 1182(a)(2)(A)(i)(I).

On remand, the IJ focused on whether Palmeira's conviction for malicious destruction of property prevented him from qualifying as a person of good moral character, finding that question to be outcome-determinative. She concluded that malicious destruction of property under Massachusetts law is a CIMT and that Palmeira was therefore statutorily barred from establishing eligibility for cancellation of removal. Palmeira appealed to the BIA, which issued an opinion agreeing with the IJ's conclusion but offering its own reasoning. Palmeira then filed a timely petition for review with this court, challenging the BIA's determination that malicious destruction of property under Mass. Gen. Laws ch. 266, § 127 qualifies as a CIMT.

II. Discussion

Though we lack jurisdiction to review the agency's discretionary or factual determinations regarding an individual's application for cancellation of removal, see8 U.S.C. § 1252(a)(2)(B); Hasan v. Holder, 673 F.3d 26, 32 (1st Cir.2012), we retain jurisdiction to review “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D). The parties agree that Palmeira's petition for review raises a question of law that falls within our jurisdiction.

Where, as here, “the BIA has rendered a decision with its own analysis of the question at issue, our review focuses on the BIA's decision, not the IJ's.” Vásquez v. Holder, 635 F.3d 563, 565 (1st Cir.2011). We review the BIA's legal conclusions de novo, but we afford Chevron deference to the BIA's interpretation of the Immigration and Nationality Act (INA), including its determination that a particular crime qualifies as one of moral turpitude, unless that interpretation is “arbitrary, capricious, or clearly contrary to law.” ³Idy v. Holder, 674 F.3d 111, 117 (1st Cir.2012); see also Maghsoudi v. INS, 181 F.3d 8, 14 (1st Cir.1999).

We begin with an overview of the meaning and import of the phrase “crime involving moral turpitude.” In order to establish eligibility for cancellation of removal, an applicant must, among other things, have “been a person of good moral character” during the ten years immediately preceding his application. ⁴8 U.S.C. § 1229b(b)(1)(B). The applicant cannot demonstrate good moral character if he was convicted ⁵ of a CIMT during that ten-year period. See id. §§ 1101(f)(3), 1182(a)(2)(A)(i)(I).

The term “moral turpitude” first appeared in a federal immigration statute in 1891. Cabral v. INS, 15 F.3d 193, 194 (1st Cir.1994). Congress has never defined the phrase, but we have found that “[t]he legislative history leaves no doubt ... that Congress left the term ‘crime involving moral turpitude’ to future administrative and judicial interpretation.” Id. at 195. We have adopted the BIA's definition of a CIMT as “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,” or, in other words, “an act which is per se morally reprehensible and intrinsically wrong” and is “accompanied by a vicious motive or a corrupt mind.” Maghsoudi, 181 F.3d at 14 (citation and internal quotation marks omitted); see also, e.g., Matter of Silva–Trevino, 24 I. & N. Dec. 687, 706 (A.G.2008) (“A finding of moral turpitude under the [INA] requires that a perpetrator have committed the reprehensible act with some form of scienter.”).

The relatively amorphous nature of the moral turpitude definition has led to “a patchwork of different approaches” to the CIMT analysis among the circuit courts. Silva–Trevino, 24 I. & N. Dec. at 688. In Silva–Trevino, the Attorney General (AG) responded to that patchwork by attempting “to establish a uniform framework for ensuring that the [INA's] moral turpitude provisions are fairly and accurately applied.” Id. Under the first step of the AG's three-part framework, the adjudicator must determine whether the crime at issue categorically involves moral turpitude by examining “whether there is a ‘realistic probability, not a theoretical possibility,’ ” that the criminal statute “would be applied to reach conduct that does not involve moral turpitude.” Id. at 690 (quoting Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). If that “categorical” approach does not resolve the issue, the adjudicator must then apply a “modified categorical” approach, by examining the record of conviction to determine whether it “evidences a crime that in fact involved moral turpitude.” Id. If the modified categorical approach is not conclusive, under Silva–Trevino, an adjudicator should proceed to a third step, which involves examining “evidence beyond the formal record of conviction.” ⁶Id.

Our approach to the CIMT analysis has been generally consistent with the first two steps of the Silva–Trevino framework, though we have not specifically applied the “realistic probability” test.⁷ We have begun by looking “to the inherent nature of the crime of conviction, as defined in the criminal statute,” to determine whether it fits the CIMT definition. Idy, 674 F.3d at 118 (citation and internal quotation marks omitted). If it does, we have said that “our inquiry may end there.” Id. If, however, “the face of the statute is insufficient for us to make a moral-turpitude determination (e.g., if the statute containsboth crimes that involve moral turpitude and crimes that do not) then we may look to the record of conviction—the indictment, plea, verdict, and sentence.” Id.

The criminal statute at issue here reads as follows:

Whoever destroys or injures the personal property, dwelling house or building of another in any manner or by any means not particularly described or mentioned in this chapter shall, if such destruction or injury is wilful and malicious, be punished by imprisonment in the state prison for not more than ten years or by a fine of three thousand dollars or three times the value of the property so destroyed or injured, whichever is greater and imprisonment in jail for not more than two and one-half years; or if such destruction or injury is wanton, shall be punished by a fine of fifteen hundred dollars or three times the value of the property so destroyed or injured, whichever is greater, or by imprisonment for not more than two and one-half years; if the value of the property so destroyed or injured is not alleged to exceed two hundred and fifty...