Villatoro v. Holder

• Decision Date: 06 October 2014
• Docket Number: No. 13–2601.,13–2601.
• Citation: 760 F.3d 872
• Parties: Max VILLATORO, Petitioner v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

760 F.3d 872

Max VILLATORO, Petitioner

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 13–2601.

United States Court of Appeals, Eighth Circuit.

Submitted: April 16, 2014.

Filed: July 28, 2014.

Rehearing Denied Oct. 6, 2014.

Daniel Vondra, argued, Iowa City, IA, for petitioner.

Leslie McKay, argued, Washington, DC (Melissa Katherine Lott, Washington, DC, on the brief), for respondent.

Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.

SMITH, Circuit Judge.

Max Villatoro, a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals' (BIA) decision, affirming the immigration judge's (IJ) pretermission of his application for cancellation of removal under § 240A(b) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1229b(b), because of Villatoro's prior conviction under Iowa Code § 715A.5 for tampering with records. The BIA concluded that Villatoro's prior conviction was categorically a crime involving moral turpitude (CIMT), rendering him statutorily ineligible for cancellation of removal. See8 U.S.C. §§ 1229b and 1182(a)(2)(A)(i)(I). We deny the petition for review.

I. Background

Villatoro entered the United States without inspection on March 1, 1995. On February 26, 1999, Villatoro pleaded guilty to tampering with records, in violation of Iowa Code § 715A.5. Villatoro was sentenced to 180 days in county jail, sentence suspended, and was placed under an order of supervision for the duration of his suspended sentence.

On August 7, 2006, the Department of Homeland Security (DHS) commenced removal proceedings against Villatoro, charging him with removability under § 212(a)(6)(A)(i) of the INA, 8 U.S.C. § 1182(a)(6)(A)(i), for being in the United States without admission or parole. Villatoro admitted the allegations set forth in the Notice to Appear and conceded removability.

On May 25, 2007, Villatoro submitted an application for cancellation of removal for certain nonpermanent residents under § 240A(b) of the INA, 8 U.S.C. § 1229b(b). At a hearing on June 20, 2011, the parties agreed that the issue was whether Villatoro's records-tampering conviction was a CIMT, which rendered him statutorily ineligible for cancellation of removal. Villatoro conceded that if his prior conviction constituted a CIMT, then the petty-offense exception contained in 8 U.S.C. § 1182(a)(2)(A)(i)(II) would not apply to him. Following the hearing, the parties submitted briefs on the issue, and Villatoro submitted his record of conviction.

On September 30, 2011, the IJ denied Villatoro's application for cancellation of removal, concluding that Villatoro's records-tampering conviction was categorically a CIMT because the language of Iowa Code § 715A.5 “requires both knowledge and the intent to ‘deceive ... injure ... or to conceal any wrongdoing’ by ‘falsif(ying), destroy(ing), remov(ing), or conceal(ing) any wrongdoing.’ ” The IJ noted that the conduct underlying the statute involves fraud.

Villatoro appealed to the BIA, arguing that his conviction was not categorically a CIMT because Iowa Code § 715A.5 prohibits more than fraudulent conduct. As an example, Villatoro asserted that “a person may properly be convicted under Iowa Code § 715A.5 for destroying a written record with the intent not to deceive but to injure someone when that person knows that s/he has no privilege to do so.” Villatoro maintained that the IJ erred by not applying the modified categorical approach to determine whether his crime involved moral turpitude. Applying this approach, he argued that his record of conviction shows that the state court made no determination as to his intent in committing the offense; therefore, he asserted, the IJ should have determined that his records-tampering conviction was not a CIMT.

On June 28, 2013, the BIA adopted and affirmed the IJ's decision and dismissed Villatoro's appeal. The BIA concluded that Villatoro's records-tampering conviction under Iowa Code § 715A.5 is categorically a CIMT. First, the BIA “note[d] that the Supreme Court [in Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951),] ... held that a crime in which fraud is an element is categorically a CIMT.” Second, the BIA found that “[a]ll convictions under section 715A.5 of the Code of Iowa require both ‘knowing’ that the person has no right to commit the act and ‘intent.’ ” Relying on Hernandez–Perez v. Holder, 569 F.3d 345, 348 (8th Cir.2009), the BIA noted that “[m]oral turpitude is typically found in crimes committed intentionally or knowingly.” Third, the BIA pointed out that “the ‘knowing’ acts which constitute a violation under [Iowa Code § 715A.5] are falsifying, destroying, or concealing a written record” and that “[t]he intents constituting a violation of the statute are deception, injury, or concealing wrongdoing.” (Citations omitted.) The BIA observed that courts have held that convictions for similar conduct, such as making false statements and concealing criminal activity, constitute crimes involving moral turpitude. Finally, the BIA determined that Villatoro failed to “demonstrate a ‘realistic probability, not a theoretical possibility,’ that Iowa actually applies the statute to cover non-turpitudinous conduct” because he identified no case “in which the statute has been used to successfully prosecute an offender for committing non-reprehensible acts.”

II. Discussion

Villatoro argues that Iowa Code § 715A.5 is not categorically a CIMT because it does not necessarily imply fraud. According to Villatoro, “ § 715A.5 does not include certain elements essential to a finding of fraud in Iowa.” Specifically, he asserts that, unlike Iowa's fraud statutes, § 715A.5 contains “no language that speaks to the intent to deprive another of a property right or legal entitlement.” And, for the first time on appeal, he asserts that convictions under § 715A.5 exist for nonturpitudinous conduct. Finally, Villatoro contends that, under the modified categorical approach, “no combination of conduct under Iowa Code § 715A.5 reaches the intent to gain a benefit through fraudulent acts.” As a result, he asks this court to grant his petition for review and remand to the BIA with instructions to grant his application for cancellation of removal.

“The Attorney General may cancel removal of ... an alien who is inadmissible or deportable from the United States if the alien ... has not been convicted of an offense under section 1182(a)(2) ... of this title....” 8 U.S.C. § 1229b(b)(1)(C). In turn, § 1182(a)(2)(A)(i)(I) includes “a crime involving moral turpitude.”

“Since 1891, the immigration laws have directed the exclusion of persons convicted of ‘crimes involving moral turpitude.’ ” Bobadilla v. Holder, 679 F.3d 1052, 1054 (8th Cir.2012) (quoting Jordan v. De George, 341 U.S. 223, 229 n. 14, 71 S.Ct. 703, 95 L.Ed. 886 (1951)). Congress, however, “has never defined the term; rather, it left the phrase to future administrative and judicial interpretation.” Id. (quotation and citation omitted). “Without question, the term is ambiguous.” Id. As a result, “[i]n reviewing the BIA's decision that [Villatoro] was convicted of a CIMT, we give [ Chevron ] ¹ deference to the agency's interpretation of the ambiguous statutory phrase, and we uphold its construction as long as it is reasonable.” Id. (quotation and citation omitted). The BIA defines a CIMT as follows:

Moral turpitude refers generally to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong or malum in se.... Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or corrupt mind.

Id. (quotation and citations omitted). Additionally, the Attorney General has directed that a CIMT “ ‘requires ... some form of scienter.’ ” Id. (alteration in original) (quoting Matter of Silva–Trevino, 24 I. & N. Dec. 687 (A.G.2008)).

In Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir.2004), we set forth

the BIA's “categorical” approach for examining whether a criminal conviction meets this general definition:

If the statute defines a crime in which moral turpitude necessarily inheres ... our analysis ends. However, if the statute contains some offenses which involve moral turpitude and others which do not, it is to be treated as a “divisible” statute, and we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense of which the respondent was convicted.

Chanmouny, 376 F.3d at 812, quoting [In re ] Ajami, 22 I. & N. Dec. [949,] 950 [ (BIA 1999) ]. This categorical approach is consistent with Supreme Court decisions determining whether a prior conviction was a violent felony under the Armed Career Criminal Act (ACCA). 18 U.S.C. § 924(e)(2)(B). See Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

Id. at 1054–55.

Because circuit courts “varied in how they determined whether a particular criminal statute was sufficiently ‘categorical,’ and in the extent to which they deferred to the BIA's analysis of state criminal statutes,” the Attorney General “ ‘establish[ed] a uniform framework for ensuring that the Act's moral turpitude provisions are fairly and accurately applied.’ ” Id. at 1055 (quoting Silva–Trevino, 24 I. & N. Dec. at 688). The Silva–Trevino framework “retain[s] the basic categorical approach but” sets forth a three-step process for determining whether a conviction is a CIMT. Id.²

At issue in the present case is step one of that procedural framework—the categorical approach.³ Under this approach, “the inquiry is terminated if the statute at issue categorically either requires or excludes conduct involving moral turpitude.”...