Nunez-Vasquez v. Barr

• Citation: 965 F.3d 272
• Decision Date: 13 July 2020
• Docket Number: No. 19-1841,19-1841
• Parties: David NUNEZ-VASQUEZ, a/k/a David Nunez, Petitioner, v. William P. BARR, Attorney General, Respondent. American Immigration Council; Immigrant Defense Project ; Capital Area Immigrants’ Rights Coalition, Amici Supporting Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

965 F.3d 272

David NUNEZ-VASQUEZ, a/k/a David Nunez, Petitioner,

v. William P. BARR, Attorney General, Respondent.American Immigration Council; Immigrant Defense Project ; Capital Area Immigrants’ Rights Coalition, Amici Supporting Petitioner.

No. 19-1841

United States Court of Appeals, Fourth Circuit.

Submitted: March 25, 2020

Decided: July 13, 2020

Ellis C. Baggs, BAGGS LAW GROUP, PLC, Richmond, Virginia; Benjamin R. Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Joseph H. Hunt, Assistant Attorney General, Civil Division, Mary Jane Candaux, Assistant Director, Nicole J. Thomas-Dorris, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Trina Realmuto, Kristin Macleod-Ball, AMERICAN IMMIGRATION COUNCIL, Brookline, Massachusetts; Nancy Morawetz, WASHINGTON SQUARE LEGAL SERVICES, INC., New York, New York, for Amici American Immigration Council and Immigrant Defense Project. Samantha Hsieh, CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION, Washington, D.C., for Amicus Capital Area Immigrants’ Rights Coalition.

Before GREGORY, Chief Judge, FLOYD, and HARRIS, Circuit Judges.

Petition for review granted, order of removal vacated, and remanded with instructions by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Floyd and Judge Harris joined.

GREGORY, Chief Judge:

David Nunez-Vasquez seeks review of the Board of Immigration Appeals ("BIA") finding that he was removable because he had been convicted of two crimes involving moral turpitude ("CIMT")—a conviction for leaving an accident in violation of Va. Code Ann. § 46.2–894 and a conviction for use of false identification in violation of Va. Code Ann. § 18.2–186.3(B1). We hold that neither conviction is categorically a crime involving moral turpitude. We therefore grant Nunez-Vasquez's petition for review, vacate the BIA's order of removal, order the Government to return Nunez-Vasquez to the United States, and remand to the BIA for further proceedings.

I.

Nunez-Vasquez, a citizen of Mexico, entered the United States in 2002. In November 2012, Nunez-Vasquez was convicted of violating Va. Code Ann. § 18.2–186.3(B1), which forbids the use of identification documents or identifying information of another person to avoid summons, arrest, prosecution, or to impede a criminal investigation ("identity theft conviction"). In December 2012, Nunez-Vasquez was placed in removal proceedings and charged for being present in the United States without being admitted or paroled. Nunez-Vasquez conceded removability and applied for cancellation of removal or, alternatively, voluntary departure.

In August 2018, while his removal proceedings were pending, Nunez-Vasquez was convicted for leaving the scene of an accident in violation of Va. Code Ann. § 46.2–894 ("failure-to-stop conviction"¹ ). In January 2019, at the hearing for Nunez-Vasquez's application for cancellation of removal, the Department of Homeland Security ("DHS") moved to pretermit Nunez-Vasquez's application arguing that Nunez-Vasquez's prior convictions qualified as CIMTs, which would render him ineligible. The Immigration Judge ("IJ") determined that Nunez-Vasquez's identity theft conviction and his failure-to-stop conviction were CIMTs and denied his application for cancellation of removal. The IJ declined to address the discretionary issue with respect to voluntary departure because Nunez-Vasquez was no longer eligible given the IJ's conclusion regarding CIMTs.

In a single member decision, the Board of Immigration Appeals affirmed the IJ's decision. The BIA first concluded that his failure-to-stop conviction was a CIMT because leaving the scene of an accident with knowledge that the accident resulted in injury or damage was " ‘[c]ontrary to the accepted rules of morality and the duties owed between persons or to society in general.’ " A.R. 5 (quoting Matter of Ortega-Lopez , 26 I. & N. Dec. 99, 100 (BIA 2013) ). The BIA also concluded that his identity theft conviction was categorically a CIMT because each subsection of the statute required either "intent to defraud" or "turpitudinous conduct." A.R. 5. Nunez-Vasquez also argued that the term "crime involving moral turpitude" was unconstitutionally vague, but the BIA determined it lacked jurisdiction to rule on the constitutionality of the Immigration Naturalization Act ("INA"). A.R. 3.

After the BIA's decision, DHS quickly began the process of removing Nunez-Vasquez. On August 6, 2019, Nunez-Vasquez timely petitioned this Court for review, but did not request a stay of removal. Nunez-Vasquez filed a motion for stay of removal at approximately 4:50 p.m. ET on August 13, 2019. However, the process to remove Nunez-Vasquez had already begun.

On appeal to this Court, Nunez-Vasquez argues that the BIA erred in finding that his convictions are CIMTs. Nunez-Vasquez also asks this Court to grant his motion for stay of removal or alternatively, order the Government to facilitate his return to the United States.

II.

Where, as here, the Board issued its own decision without adopting the IJ's opinion, the Court reviews only the BIA's decision. Martinez v. Holder , 740 F.3d 902, 908 (4th Cir. 2014), as revised (Jan. 27, 2014). The BIA's decision constitutes the final order of removal. Id.

We now turn to the merits of Nunez-Vasquez's argument. Nunez-Vasquez poses two questions of law: (1) whether the BIA erred in holding that his failure-to-stop conviction categorically qualifies as a CIMT; and (2) whether the BIA erred in holding that his identity theft conviction categorically qualifies as a CIMT. We review each inquiry de novo. See Sotnikau v. Lynch , 846 F.3d 731, 735 (4th Cir. 2017) (citing Mohamed v. Holder , 769 F.3d 885, 888 (4th Cir. 2014) ).

A.

In answering these questions, we first consider what deference, if any, this Court owes to the BIA. The BIA's legal conclusion that Nunez-Vasquez's convictions are categorically CIMTs involves "two interpretative questions." Ramirez v. Sessions , 887 F.3d 693, 701 (4th Cir. 2018). First, the Court must determine "what the term ‘moral turpitude’ means in the INA." Id. at 702. Because the term "moral turpitude" is ambiguous, under Chevron , we defer to the BIA's reasonable construction of the term and definition of the types of conduct it encompasses. Mohamed , 769 F.3d at 889. Second, the Court must determine whether the state statute of conviction necessarily involves the type of conduct defined to be morally turpitudinous. Ramirez , 887 F.3d at 702. We do not owe any deference on this question to the BIA. Soliman v. Gonzales , 419 F.3d 276, 281 (4th Cir. 2005) ("[W]e need not accord deference to the BIA's ultimate finding that [petitioner's] particular offense was an aggravated felony, which involves ... an interpretation of Virginia criminal law.").

Irrespective the deference owed to each of these interpretative questions, nonprecedential opinions by the BIA do not carry the force of law and, thus, are ineligible for Chevron deference. Ramirez , 887 F.3d at 702 ; Martinez v. Holder , 740 F.3d 902, 909–10 (4th Cir. 2014). Precedential BIA opinions must be issued by a three-member panel. 8 C.F.R. § 1003.1(g). Here, the BIA's decision was issued by one member and thus, does not carry the force of law.

However, when single-member, nonprecedential BIA opinions rely on a precedential BIA opinion, we determine whether the precedential opinion is apposite and warrants deference. Sijapati v. Boente , 848 F.3d 210, 215 (4th Cir. 2017) ; Larios-Reyes v. Lynch , 843 F.3d 146, 155 (4th Cir. 2016) ; Ramirez , 887 F.3d at 702. Thus, we must first consider the precedential BIA decisions on which the BIA opinion in this case relied and "whether and to what extent [they] impact[ ] our review of [Nunez-Vasquez's] case." Amos v. Lynch , 790 F.3d 512, 519 (4th Cir. 2015).

As to Nunez-Vasquez's failure-to-stop conviction, the BIA referenced Matter of Ortega-Lopez to conclude that "[a] driver who leaves the scene of an accident in which he is involved and does so with knowledge that the accident resulted in injury or damage is acting ‘contrary to the accepted rules of morality and the duties owed between persons or to society in general.’ " A.R. 5 (quoting Matter of Ortega-Lopez ). The BIA opinion in this case does not rely on the reasoning of Matter of Ortega-Lopez , but rather just quotes the part that defines moral turpitude. We defer to the BIA's reasonable construction of the definition of moral turpitude but since the BIA opinion here only relies on a precedential decision for the definition of moral turpitude, and not the reasoning, Matter of Ortega-Lopez is not eligible for Chevron review.

As to Nunez-Vasquez's identity theft conviction, the BIA relied on its precedential decisions in Matter of Zaragoza-Vaquero , 26 I. & N. Dec. 814, 816 (BIA 2016), Matter of Jurado-Delgado , 24 I. & N. Dec. 29 (BIA 2006), and Matter of Flores , 17 I. & N. Dec. 225, 228-230 (BIA 1980). Thus, we must determine whether these opinions are entitled Chevron deference.

To begin, Matter of Zaragoza-Vaquero is easily distinguishable because the federal statute at issue in that case dealt with criminal copyright infringement, an issue unrelated to Nunez-Vasquez's identity theft conviction.² 26 I. & N. Dec. 814 (BIA 2016). Thus, it would be unreasonable for the BIA to rely on Matter of Zaragoza-Vaquero to conclude that the identity theft conviction is a CIMT. Similarly, Matter of Flores and Matter of Jurado-Delgado are distinguishable because they deal with convictions for fraudulently and deliberately obstructing the government or a government entity. Ramirez , 887 F.3d at 703 ("Thus, the Matter of Jurado-Delgado line of precedent merely determined that conduct involving ‘deceit, graft, trickery, or dishonest means’ is morally turpitudinous."). In contrast, Nunez-Vasquez's identity theft conviction does not require an intent to deceive or obstruct the government....