Serrato-Soto v. Holder

• Decision Date: 28 May 2009
• Docket Number: No. 08-4063.,08-4063.
• Citation: 570 F.3d 686
• Parties: Jose Luis SERRATO-SOTO, Petitioner, v. Eric H. HOLDER, JR., Attorney General, Respondent,
• Court: U.S. Court of Appeals — Sixth Circuit

570 F.3d 686

Jose Luis SERRATO-SOTO, Petitioner, v. Eric H. HOLDER, JR., Attorney General, Respondent,

No. 08-4063.

United States Court of Appeals, Sixth Circuit.

Submitted: April 23, 2009.

Decided and Filed: May 28, 2009.^*

ON BRIEF: Barry L. Frager, The Frager Law Firm, P.C., Memphis, Tennessee, for Petitioner. Leslie McKay, Kristin K. Edison, United States Department of Justice, Washington, D.C., for Respondent.

Before: SUHRHEINRICH, BATCHELDER and SUTTON, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

Jose Serrato-Soto, under an order of removal to Mexico, petitions for review of a final order of the Board of Immigration Appeals (BIA), which held that Serrato-Soto was ineligible for voluntary departure because he was convicted of a crime involving moral turpitude. Serrato-Soto argues that the BIA erred in concluding that his earlier conviction in Mississippi state court for fraudulent use of a social security number or identifying information to obtain goods was a crime involving moral turpitude as a matter of law. We disagree and, accordingly, DENY the petition.

I. Background

Serrato-Soto is a native and citizen of Mexico who illegally entered the United States in 1993.¹ On January 7, 2004, Serrato-Soto was convicted of fraudulent use of identification in Mississippi state court.² On January 8, 2004, the Department of Homeland Security ("DHS") lodged a Notice to Appear before the Executive Office of Immigration Review in Memphis, Tennessee, charging Serrato-Soto as removable for being present in the United States without having been admitted or paroled pursuant to § 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(A)(i).

On July 13, 2004, Serrato-Soto appeared at a preliminary hearing before an IJ. Serrato-Soto admitted the factual allegations contained in his Notice to Appear and conceded removability. Serrato-Soto also asked for an indefinite continuance to permit the adjudication of a labor certificate, which the IJ denied. Serrato-Soto further requested "pre-completion" voluntary departure in lieu of removal proceedings. See 8 U.S.C. § 1229c(a)(1) (permitting an alien to voluntarily depart the United States at the alien's own expense prior to the completion of removal proceedings). However, because Serrato-Soto chose to reserve appeal of the denial of the continuance, the IJ held that he was precluded from voluntary departure. See Matter of Cordova, 22 I. & N. Dec. 966, 969 (B.I.A.1999) (holding that pre-completion voluntary departure was available to an alien similarly situated to Serrato-Soto but that the alien must waive appeal of all issues); 8 C.F.R. § 1240.26(b)(1)(i)(D) (an alien may be granted voluntary departure only if, inter alia, he waives appeal of all issues).

Serrato-Soto appealed to the BIA. On December 2, 2005, the BIA remanded for a hearing on Serrato-Soto's possible eligibility for "post-completion" voluntary departure.

On July 12, 2006, the IJ issued an oral decision denying Serrato-Soto's application for voluntary departure on the merits and ordering him removed to Mexico, finding that Serrato-Soto's 2004 conviction in Mississippi state court for fraudulent use of a social security number was a crime involving moral turpitude, which precluded Serrato-Soto from demonstrating the requisite good moral character necessary for voluntary departure. Serrato-Soto again appealed to the BIA, this time arguing that the 2004 conviction did not involve moral turpitude. On July 31, 2008, the BIA, per curiam, adopted and affirmed the IJ's decision.

II. Analysis

A. Jurisdiction

Serrato-Soto timely filed his petition for review on August 28, 2008, within 30 days of the BIA's July 31, 2008 order. See 8 U.S.C. § 1252(b)(1). Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), this court lacks jurisdiction to review the denial of relief under 8 U.S.C. § 1229c, the statutory authority for voluntary departure. However, § 1252(a)(2)(D) restores jurisdiction to circuit courts to review constitutional claims and questions of law raised in a petition for review of a removal order. 8 U.S.C. § 1252(a)(2)(D); Patel v. Gonzales, 470 F.3d 216, 219 (6th Cir.2006). Serrato-Soto's argument presents a question of law, namely whether Serrato-Soto's conviction for fraudulent use of a social security number or identifying information, in violation of Mississippi state law, is a crime involving moral turpitude. Accordingly, this Court has jurisdiction.

B. Standard of Review

Where, as here, "the BIA expressly adopts and affirms the IJ's decision but adds comments of its own, we directly review the decision of the IJ while also considering the additional comments made by the [BIA]." Elias v. Gonzales, 490 F.3d 444, 449 (6th Cir.2007). We generally accord Chevron deference to the BIA's reasonable construction of the INA, Ramirez-Canales v. Mukasey, 517 F.3d 904, 908 (6th Cir.2008), which requires us to uphold the BIA's construction unless it is "arbitrary, capricious, or manifestly contrary to the statute." Chevron v. Natural Res. Def. Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). No deference is given, however, to the BIA's interpretation of a state criminal statute; that issue is reviewed de novo. Knapik v. Ashcroft, 384 F.3d 84, 87-88 (3d Cir.2004).

C. Statutory Eligibility for Post-Completion Voluntary Departure

Section 240B(b)(1) of the INA, 8 U.S.C. § 1229c(b)(1), provides authority for an alien to seek post-completion voluntary departure.³ The alien may voluntarily depart at his own expense if: (1) the alien has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served; (2) the alien is, and has been, a person of good moral character for at least five years immediately preceding the application for voluntary departure; (3) the alien is not deportable under 8 U.S.C. §§ 1227(a)(2)(A)(iii) or 1227(a)(4); and (4) the alien establishes by clear and convincing evidence that the alien has the means to depart the United States and intends to do so. INA §§ 240B(b)(1)(A)-(D); 8 U.S.C. §§ 1229c(b)(1)(A)-(D).

The INA does not define "good moral character" but excludes eight categories of aliens who may not demonstrate good moral character. See INA §§ 101(f)(1)-(9); 8 U.S.C. §§ 1101(f)(1)-(9). One category includes "[a] member of one or more of the classes of persons ... described in ... [8 U.S.C. §§ 1182(a)(2)(A), (B)]." INA § 101(f)(3); 8 U.S.C. § 1101(f)(3). Section 1182(a)(2)(A)(i), in turn, includes "any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of ... a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime...." 8 U.S.C. § 1 182(a)(2)(A)(i)(I); INA § 212(a)(2)(A)(i). "Moral turpitude" is not defined in the INA.

Serrato-Soto does not dispute that his 2004 conviction occurred within the fiveyear period before his July 2006 application for voluntary departure. Therefore, we need only resolve the question of whether Serrato-Soto's 2004 conviction for fraudulent use of identification is a crime involving moral turpitude.

D. Serrato-Soto's 2004 Conviction

The BIA has held that "a criminal offense involves `moral turpitude' if the relevant statute defines the offense in such a manner that it necessarily entails conduct on the part of the offender that is inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general." Matter of Kochlani, 24 I. & N. Dec. 128, 129 (B.I.A.2007). And "crimes that have a specific intent to defraud as an element have always been found to involve moral turpitude." Id. at 130. Moreover, as the Supreme Court has explained, "fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude." Jordan v. De George, 341 U.S. 223, 229, 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.").

To determine whether Serrato-Soto's crime involves moral turpitude, this Court employs the "categorical approach," whereby we consider not whether the actual conduct constitutes a crime involving moral turpitude, but "whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude." Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005). See also Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186-87, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). Accordingly, "we look to the elements of the statutory state offense, not to the specific facts. We rely on what the convicting court must necessarily have found to support the conviction and not to other conduct in which the defendant may have engaged in connection with the offense." Wilson v. Ashcroft, 350 F.3d 377, 381-82 (3d Cir.2003) (citation and quotation omitted); see also Matter of Short, 20 I. & N. Dec. 136, 137 (B.I.A.1989) ("It is the inherent nature of the crime as defined by statute and interpreted by the courts and as limited and described by the record of conviction which determines whether the offense is one involving moral turpitude.").

Serrato-Soto was convicted under Mississippi Code § 97-19-85. That section, titled "Fraudulent use of social security number or identifying information to obtain goods," reads as follows:

(1) Any person who shall make or cause to be made any false statement or representation as to his or another person's identity, Social Security account number, credit card number, debit card number or other identifying information for the purpose of fraudulently obtaining or with the intent to obtain goods, services or any...