Salazar v. Garland
| Decision Date | 03 January 2023 |
| Docket Number | 21-1967 |
| Citation | 56 F.4th 374 |
| Parties | José Rafael SALAZAR, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Robbin Kinmonth Blaya, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Rachel S. Ullman, THE LAW OFFICE OF RACHEL S. ULLMAN, PC, Rockville, Maryland, for Petitioner. Brian M. Boynton, Acting Assistant Attorney General, Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Before GREGORY, Chief Judge, and AGEE and DIAZ, Circuit Judges.
Petition denied by published opinion. Judge Diaz wrote the opinion, in which Chief Judge Gregory and Judge Agee joined.
José Rafael Salazar, a native and citizen of Mexico, seeks review of the denial of his petition for cancellation of removal. The Board of Immigration Appeals determined that Salazar was ineligible for cancellation of removal because he was convicted of a crime involving moral turpitude: identity theft under Virginia law, which explicitly includes "intent to defraud" as an element. Va. Code Ann. § 18.2-186.3(A)(2). On appeal, Salazar contends the statute could be—and in his case, was—applied to crimes that don't involve moral turpitude.
We conclude that subsection (A)(2) of the Virginia identity-theft statute qualifies as a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii), and that the Board didn't abuse its discretion in deciding Salazar's case in a single-member opinion. We accordingly deny the petition for review.
Salazar, a 52-year-old Mexico native, entered the United States without documentation in 1991 and has remained here since. Seeking to refinance the mortgage on his Maryland residence, Salazar obtained a loan from Wells Fargo in 2006, completing an application using a social security number that he said he "made up." Salazar v. Commonwealth , 66 Va.App. 569, 789 S.E.2d 779, 781 (2016). The number in fact belonged to Virginia resident Christian Childers, who began receiving mail addressed to Salazar about the loan.
Salazar was convicted in a bench trial of violating Va. Code Ann. § 18.2-186.3(A)(2), the state's identity-theft statute, which at the relevant time provided:
It shall be unlawful for any person, without the authorization or permission of the person or persons who are the subjects of the identifying information, with the intent to defraud, for his own use or the use of a third person, to ... [o]btain goods or services through the use of identifying information of such other person.
Va. Code Ann. § 18.2-186.3(A)(2) (amended 2007).
The Court of Appeals of Virginia affirmed Salazar's conviction in 2016. Salazar , 789 S.E.2d at 780. The court held there was sufficient evidence that Salazar "intend[ed] to defraud" Wells Fargo because he "intentionally filled out and submitted a loan application using a social security number that was not his," and "this fact alone" fulfilled the statute's intent element. Id. at 784 (emphasis in original). The court also rejected Salazar's argument that Wells Fargo hadn't relied on the social security number in deciding to issue the loan, finding that the statute had no such reliance requirement. Id. at 784–85.
Around the same time, the Department of Homeland Security initiated removal proceedings against Salazar under 8 U.S.C. § 1182(a)(6)(A)(i). Salazar conceded removability and applied for cancellation of removal. After the Virginia appellate court affirmed Salazar's conviction, the Department moved to pretermit Salazar's application because he'd been convicted of a "crime involving moral turpitude."1 Salazar opposed the motion, arguing that unwittingly providing another's social security number to obtain a loan wasn't a crime involving moral turpitude.
At a hearing before the immigration judge ("IJ"), Salazar reiterated that he "just came up" with the social security number. A.R. 286. He also testified that his sister had been kidnapped in Mexico and that he feared he and his family would also be kidnapped if they were removed there.
The IJ pretermitted Salazar's application for cancellation of removal. Citing Board precedent that fraud crimes involve moral turpitude, the IJ found that "fraud is inherent" in the offenses criminalized by Va. Code Ann. § 18.2-186.3. A.R. 99. So the IJ concluded that Salazar's identity-theft conviction qualified as a crime involving moral turpitude.
During Salazar's appeal, we decided Nunez-Vasquez v. Barr , 965 F.3d 272 (4th Cir. 2020), holding that convictions under a different subsection of the identity-theft statute were not categorically crimes involving moral turpitude. Id. at 287. In that case, the noncitizen was convicted under subsection (B1) of the Virginia statute, which provides that "[i]t shall be unlawful for any person to use identification documents or identifying information of another person, whether that person is dead, or alive, or of a false or fictitious person, to avoid summons, arrest, prosecution, or to impede a criminal investigation." Va. Code Ann. § 18.2-186.3(B1). We noted that this subsection might apply to a defendant who misidentifies himself to a store manager investigating a shoplifting incident, for example, or a defendant who used the identifying information of a fictitious person without the intent to "cause loss to anyone"—neither of which involved moral turpitude. Nunez-Vasquez , 965 F.3d at 284-85.
In Salazar's case, however, the Board affirmed the IJ's decision in an unpublished opinion written by a single member. Accounting for our decision in Nunez-Vasquez , the Board first found that § 18.2-186.3 was divisible, with each subsection setting out alternate elements of the offense. A.R. 5. The Board then took a "peek at the record documents" to conclude that Salazar was convicted of violating subsection (A)(2), so Nunez-Vasquez didn't control his case. Id. (citing Mathis v. United States , 579 U.S. 500, 518, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) ).
Because subsection (A)(2) "explicitly requires ‘intent to defraud’ and involves reprehensible behavior," the Board held, it was a crime involving moral turpitude. Id. And given the statute's clear reference to "intent to defraud," the Board wasn't persuaded by Salazar's argument that his conviction was "more akin to deception than fraud." Id.
This petition followed.
When, as here, the Board affirms an IJ's decision without adopting its reasoning, we confine our review to the opinion of the Board. Cucalon v. Barr , 958 F.3d 245, 249 (4th Cir. 2020). And we review the Board's legal determinations de novo. Nunez-Vasquez , 965 F.3d at 279.
On appeal, Salazar argues that Va. Code Ann. § 18.2-186.3(A)(2) criminalizes some conduct that isn't morally turpitudinous, or (in the alternative) that the Board violated its own regulations by not referring his case to a three-member panel. We disagree.
We first consider whether the Board erred in concluding that Salazar's identity-theft conviction was categorically a crime involving moral turpitude. Resolving this issue requires us to answer "two interpretive questions." Nunez-Vasquez , 965 F.3d at 279. First, we determine what "moral turpitude" means in the Immigration and Nationality Act, deferring under Chevron2 to the agency's reasonable construction of the term. Id. Second, we determine whether the Virginia statute necessarily involves morally turpitudinous conduct. Id. We don't defer to the Board on this question.
We apply the categorical approach to determine whether a state offense qualifies as a crime involving moral turpitude, looking to the elements of the offense rather than the noncitizen's particular conduct. Martinez v. Sessions , 892 F.3d 655, 658 (4th Cir. 2018). An offense qualifies as a crime involving moral turpitude "only if the statute's elements are the same as, or narrower than, those of the generic offense." Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). If a state's appellate courts have interpreted the statute, "that interpretation constrains our analysis of the elements of state law." Castillo v. Holder , 776 F.3d 262, 268 (4th Cir. 2015) ; see also id. at 268 n.3 ().
We tweak the categorical approach slightly in cases involving "divisible" statutes. A divisible statute sets out "multiple, alternative elements" of a crime, effectively creating several different crimes. Mathis , 579 U.S. at 513 n.4, 136 S.Ct. 2243. Faced with a divisible statute, we may review a limited universe of documents besides the statute to determine which of the statutory offenses undergirded the conviction. Descamps , 570 U.S. at 265, 133 S.Ct. 2276. But we're still required to examine only the elements of that offense, not the facts of the noncitizen's conviction, to determine whether the offense is a crime involving moral turpitude. See id. at 263, 133 S.Ct. 2276.
Salazar's conviction arises under a previous version of the Virginia identity-theft statute, Va. Code Ann. § 18.2-186.3, which consolidated several different offenses. A defendant may violate this statute by, for example, obtaining identification documents in another person's name, accessing identifying information while impersonating a law-enforcement officer, or using documents of a "false or fictitious person" to avoid summons, arrest, or prosecution. Va. Code Ann. § 18.2-186.3(A)(3), (A)(4), (B1).
We're satisfied that § 18.2-186.3 is a divisible statute and that Salazar was convicted under subsection (A)(2). Salazar doesn't dispute either point. We're thus tasked with determining whether all the conduct prohibited by subsection...
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