Sasay v. Attorney Gen. U.S.
| Decision Date | 10 September 2021 |
| Docket Number | No. 20-1273,20-1273 |
| Citation | 13 F.4th 291 |
| Parties | Victor SASAY, a/k/a Victor Sesay, a/k/a Hermes Herrera-Cuba, Petitioner v. ATTORNEY GENERAL UNITED STATES of America |
| Court | U.S. Court of Appeals — Third Circuit |
Benjamin J. Osorio, Esq., Murray Osorio, 4103 Chain Bridge Road, Suite 300, Fairfax, VA 22030, Mark A. Stevens, Esq. [ARGUED], Clark Hill, 1001 Pennsylvania Avenue N.W., Suite 1300 South, Washington, DC 20004, Counsel for Petitioner
Joseph H. Hunt, Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Joseph A. O'Connell, Esq. [ARGUED], United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent
Before: SMITH, Chief Judge, McKEE, and JORDAN Circuit Judges
Victor Sasay petitions for review of the Board of Immigration Appeals’ ruling that his conviction for aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) is a crime involving moral turpitude ("CIMT"), thus making him removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii). Sasay asserts that aggravated identity theft is not a CIMT because it only criminalizes possession of another person's identity documents and does not require the use or the intent to use the documents. For the reasons that follow, we will deny the petition for review.
Victor Sasay is a native and citizen of Sierra Leone. He was admitted to the United States as a lawful permanent resident in 2007. In 2015, he was convicted of misdemeanor credit card fraud under Virginia law1 and sentenced to 175 days’ imprisonment.2 In 2018, he was convicted in South Dakota of aiding and abetting aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) and sentenced to 24 months’ imprisonment.3 That conviction is the one at the center of this dispute. It resulted from Sasay and his co-defendants purchasing credit card numbers online and using counterfeit access devices to acquire hundreds of credit and debit cards from multiple stores across the Midwest.4
A noncitizen, lawful permanent resident is removable when she or he is convicted of "two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct."5 The Department of Homeland Security concluded that both of Sasay's convictions were CIMTs and that they arose from separate criminal schemes. Accordingly, DHS initiated removal proceedings. Sasay applied for several forms of relief including asylum, withholding of removal, protection under the Convention Against Torture, and cancellation of removal.6
Applying the so-called "categorical approach," the Immigration Judge concluded that both of Sasay's convictions were disqualifying CIMTs which did not arise from a single scheme. The IJ reasoned that Sasay's conviction for aggravated identity theft in violation of § 1028A(a)(1) satisfied the definition of a CIMT because it requires one to act knowingly and it also requires one to act with fraudulent intent or deceit.7
On appeal to the Board of Immigration Appeals, Sasay conceded that his Virginia conviction constituted a CIMT and that his two convictions did not arise from a single scheme. However, he argued that his conviction for violating 18 U.S.C. § 1028A(a)(1) did not constitute a CIMT because the statute "is categorically overbroad and indivisible, as the minimum conduct required for a conviction under the statute is the mere possession of someone else's documents without lawful authority."8
The BIA affirmed the IJ's decision that Sasay had committed two qualifying CIMTs. The BIA concluded that § 1028A(a)(1) "require[d] that the possession be ‘during and in relation to any felony violation enumerated in subsection (c),’ such that there must be proof of an intent to use the identification unlawfully (and, indeed, feloniously)."9 It held that "all conduct criminalized by this statute necessarily involved dishonesty as an essential element."10 This petition for review followed. Although we reject the BIA's interpretation of § 1028A(a)(1), we will deny the petition and hold that Sasay's aggravated identify theft conviction is a CIMT. In doing so, we apply the modified categorical approach, consulting his plea agreement to ascertain which alternative element—or here, which alternative felony violation—formed the basis of his conviction. Sasay's plea agreement readily establishes that his conviction has as an element the commission of bank fraud, in violation of § 18 U.S.C. § 1344. Because bank fraud categorically qualifies as a CIMT, so too must Sasay's aggravated identity theft conviction.
We have jurisdiction to review the BIA's final removal order pursuant to 8 U.S.C. § 1252(a). There are statutory exceptions to our jurisdiction to review final removal orders of people convicted of a CIMT under § 1252(a)(2)(C). However, they do not apply here because Sasay raises a question of law under the § 1252(a)(2)(D) exception to (a)(2)(C).
When "the BIA issues a written decision on the merits, we review its decision and not the decision of the IJ."11 We defer to the BIA's definition of moral turpitude and whether a crime can be categorized as a CIMT, as long as its determination is reasonable and "based on a permissible interpretation of the immigration statute."12 However, unpublished, non-precedential, BIA decisions issued by a single member panel are not entitled to such deference.13 Our review of the BIA's interpretation of criminal statutes is de novo .14
"A noncitizen is removable from the United States if he has been ‘convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.’ "15 Sasay concedes that his conviction under Virginia law qualifies but argues that his conviction under 18 U.S.C. § 1028A(a)(1) does not.
The Supreme Court has instructed that we must apply the so-called "categorical approach" to determine if a given crime is a CIMT. That approach requires that we ignore a petitioner's actual conduct and instead "focus[ ] on the legal question of what a conviction necessarily establishe[s]."16 This approach is, the Court has said, "[r]ooted in Congress’ specification of conviction, not conduct, as the trigger for immigration consequences, [and] is [therefore] suited to the realities of the [immigration] system."17
To apply the categorical approach, we first review "elements of the statute forming the basis of the defendant's conviction,"18 in order "to ascertain the least culpable conduct hypothetically necessary to sustain a conviction under the statute."19 We then consider whether that conduct "fall[s] within the scope of the ‘crime involving moral turpitude’ offense."20 Sometimes, however, "[t]he simple fact of conviction may not provide enough information to determine whether" a defendant's conviction is a CIMT.21 Specifically, when a statute is divisible, meaning it "sets out one or more elements of the offense in the alternative,"22 that statute effectively creates several different crimes.23 And if some but not all of the divisible statute's alternative crimes qualify as a CIMT, then "a court must determine which crime formed the basis of the defendant's conviction" using the modified categorical approach.24
Under the modified approach, we may "consult a limited class of documents ... to determine which alternative formed the basis of the defendant's ... conviction."25 "[We] can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the generic" definition of the removable offense.26 When properly applied, this modified categorical approach "acts not as an exception, but instead a tool."27
The modified approach clearly applies to § 1028A because it incorporates several felonies enumerated in subsection (c).28 Those felonies represent alternative elements for an aggravated identity theft conviction because a jury could not convict a defendant under § 1028A(a)(1) without finding each element of the underlying felony violation and unanimously agreeing on that violation as the predicate felony for an aggravated identify theft conviction.29 Accordingly, § 1028A is divisible and we must use the modified categorical approach.
This approach permits us to consult Sasay's plea agreement to ascertain which alternative element of a crime he committed. It is clear from that agreement that this plea includes admission to conduct constituting the predicate felony of bank fraud—an undeniable CIMT and a crime specifically enumerated in § 1028A(c)(5).30 That, by itself is sufficient to support the BIA's ruling that Sasay's 1028A(a)(1) conviction constituted a CIMT because it requires fraudulent intent. The Supreme Court's pronouncement more than half a century ago that "[f]raud is the touchstone by which this case should be judged"31 ends our inquiry. Although the Court was there addressing a different statute, it was nevertheless interpreting the phrase "crime involving moral turpitude." The Court there held: "[t]he phrase ‘crime involving moral turpitude’ has without exception been constructed to embrace fraudulent conduct."32
As noted earlier, Sasay claims his conviction does not amount to a CIMT because under the broad reach of § 1028A(a)(1), he could be convicted of "mere possession of someone else's identity document without lawful authority."33 According to him, a statute that criminalizes mere unauthorized possession of documents cannot be morally turpitudinous. The argument lacks even superficial appeal.
The statute does not criminalize mere possession of certain items. His argument to the contrary ignores that the more exacting statutory language requires that such unauthorized possession be "during and in relation to any felony" enumerated in subsection (c) of the statute. That...
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