Wala v. Mukasey

• Decision Date: 12 December 2007
• Docket Number: Docket No. 06-0238-ag.
• Citation: 511 F.3d 102
• Parties: Marcin WALA, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

511 F.3d 102

Marcin WALA, Petitioner, v. Michael B. MUKASEY,^* Attorney General, Respondent.

Docket No. 06-0238-ag.

United States Court of Appeals, Second Circuit.

Argued: May 4, 2007.

Decided: December 12, 2007.

Justin Conlon (Michael Boyle, on the brief), North Haven, CT, for petitioner.

Sandra S. Glover, Assistant United States Attorney, (William J. Nardini, on the brief), for Kevin J. O'Connor, United States Attorney for the District of Connecticut, New Haven, CT, for respondent.

Before: CALABRESI, POOLER and SOTOMAYOR, Circuit Judges.

Judge CALABRESI concurs in a separate opinion.

SOTOMAYOR, Circuit Judge:

Marcin Wala ("Wala") petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming the decision of Immigration Judge ("IJ") Michael Straus ordering him removed on the grounds that his conviction for third-degree burglary, in violation of Connecticut General Statutes section 53a-103 (the "burglary statute"), was a crime involving moral turpitude ("CIMT") within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I). In re Marcin Wala, No. A44 514 700 (B.I.A. Dec. 27, 2005), aff'g No. A44 514 700 (Immig.Ct.Hartford, Conn. Aug. 4, 2004). We hold that although the IJ and BIA properly concluded that Wala pled to a burglary with the intent to commit larceny, it was improper for the BIA to have inferred from the plea colloquy that Wala intended a larceny offense involving a permanent, rather than a temporary, taking of property for the purpose of determining whether Wala committed a CIMT. We VACATE the BIA's removal order and REMAND for further proceedings consistent with this opinion.

BACKGROUND

I. The Criminal Conviction

Wala, a citizen of Poland, was admitted to the United States in 1994 as a lawful permanent resident. On August 7, 2002, Wala pled guilty in the Superior Court of Fairfield, Connecticut to two counts of burglary in the third degree, in violation of Conn. Gen.Stat. section 53a-103, and one count of failure to appear in the first degree, in violation of section 53a-172.¹ Wala was also charged with two counts of larceny and one count of credit card theft arising from the same incident, but the prosecutor entered a nolle prosequi for those charges. During Wala's plea colloquy, the prosecutor recited the following factual basis for the plea:

On July 8, 2001 someone reported to the Greenwich Police Department that while that person was away on vacation from June 30, 2001 to July 7, 2001 people entered her home and stole cash and jewelry, as well as a credit card. Police investigated and the owner had workers at her house. This defendant was one of the two workers. The Police spoke to the defendant's co-worker and the defendant admitted that on two occasions they went into the victim's house and took items from the victim's house. The first time they took two rings. The second time they took official jewelry and the next time a first union credit card and two watches. The co-defendant said that this defendant, the co-defendant, and a third person committed those crimes.

The state judge then questioned Wala about the voluntariness of his plea and his satisfaction with his lawyer's advice. The judge also informed Wala of the rights he would forfeit as a result of his admission of guilt. The following exchange occurred:

THE COURT: ... The State's Attorney related certain facts, which he alleged occurred. Is that what you did? Is that what you are guilty of?

MR. WALA: Yes sir.

THE COURT: Pleading guilty because you are guilty?

MR. WALA: Yes sir.

The judge further advised Wala of the possible immigration consequences of his plea and, pursuant to the terms of the plea agreement, imposed concurrent suspended sentences of five years of imprisonment and three years of probation for all counts of the conviction.

II. Immigration Proceedings

Wala was served with a Notice to Appear ("NTA") on July 7, 2003. The NTA alleged, inter alia, that Wala applied for admission as a returning lawful permanent resident at Newark Airport on June 13, 2003, and that he had previously been convicted of two counts of third-degree burglary under Connecticut law. The NTA charged Wala with removability under 8 U.S.C. § 1182(a)(2)(A)(i)(I), which authorizes the removal of "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."

In January 2004, Wala submitted a written motion to terminate his removal proceedings on the ground that his convictions did not qualify as CIMTs. In a decision dated August 4, 2004, the IJ denied Wala's motion and ordered him removed on the basis of his burglary convictions. The IJ held that the burglary statute is divisible because it criminalizes offenses that may or may not be considered CIMTs. On the basis of this divisibility finding, the IJ consulted Wala's record of conviction to determine the underlying crime Wala intended to commit when he entered the victim's house, and concluded that Wala intended to commit larceny, which the IJ found to be a CIMT. Having found Wala removable on this basis, the IJ declined to reach the question of whether Wala's conviction for failure to appear in state court independently qualified as a removable offense.

Wala timely appealed the IJ's decision to the BIA, which affirmed the IJ's decision, stating:

Based upon our review of the record, we find that the factual findings of the Immigration Judge are not clearly erroneous and we adopt and affirm the thorough and well-reasoned decision of the Immigration Judge. Matter of Burbano, 20 I & N Dec. 872, 874 (BIA 1994) (noting that adoption or affirmance of a decision of an Immigration Judge, in whole or in part, is "simply a statement that the Board's conclusions upon review of the record coincide with those which the Immigration Judge articulated in his or her decision"); see generally 8 C.F.R. § 1003.1(d)(3)(i) (stating that the Board shall review factual determinations, including credibility findings, "only to determine whether the findings of the Immigration Judge are clearly erroneous"). In particular, we concur in the Immigration Judge's finding [that] the underlying crime of larceny involved in the burglary conviction is a crime involving moral turpitude. The plea transcript is adequate to show that such offense involved a permanent taking of property.

Wala timely petitioned this Court for review of the BIA's decision.

DISCUSSION

Wala was deemed removable for having been convicted of a CIMT based on his guilty plea to two counts of burglary in the third degree, in violation of Conn. Gen. Stat. section 53a-103, which provides in pertinent part: "A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein." Wala contends that he was not convicted of a CIMT because he was not charged with, and he did not otherwise admit to, an intent permanently to deprive the victim of her property. He further argues that the BIA erred insofar as it inferred from his plea colloquy transcript that he intended a permanent taking. We agree and hold that the crime Wala pled to does not constitute a CIMT.

I. Jurisdiction and Standard of Review

Ordinarily, this Court lacks jurisdiction to review orders of removal based on an alien's conviction for certain offenses, including CIMTs. See 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, to consider "questions of law," 8 U.S.C. § 1252(a)(2)(D), including whether an alien's conviction qualifies as a removable offense under the immigration laws. See Mizrahi v. Gonzales, 492 F.3d 156, 157-58 (2d Cir.2007); Blake v. Gonzales, 481 F.3d 152, 155-56 (2d Cir.2007).

Where, as here, the BIA adopts the IJ's reasoning and offers additional commentary, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We accord Chevron deference to the BIA's construction of ambiguous statutory terms in immigration law, such as "moral turpitude." See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Michel v. INS, 206 F.3d 253, 262-65 (2d Cir.2000) (deferring to the BIA's rule that crimes for which knowledge is an element are generally CIMTs). "However, as we recognized in Michel, 206 F.3d at 262, the BIA has no expertise in construing ... state criminal statutes, and so we review de novo the BIA's finding that a petitioner's crime of conviction contains those elements which have been properly found to constitute a CIMT." Gill v. INS, 420 F.3d 82, 89 (2d Cir.2005). Thus, in this case, we defer to the BIA's view that larceny involving a permanent taking amounts to a CIMT, but we review de novo whether Wala's conviction for third-degree burglary under Connecticut law falls within this category.

II. Wala's Alleged CIMT

With these principles in mind, we turn to whether Wala's conviction for burglary in the third degree was a CIMT such that he was removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I).

A. Definition of a CIMT

An alien is removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I) if he has been "convicted of, or ... admits having committed, or ... admits committing acts which constitute the essential elements of ... a crime involving moral turpitude." Traditionally, the BIA has defined a CIMT as "conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general." Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir.2006) (internal quotation marks omitted); see also In re M-, 2 I. & N. Dec. 721, 723 (B.I.A.1946). The BIA has held that burglary offenses "may or may not involve moral turpitude, the determinative factor being whether the crime intended to be committed at the time of entry or prior to the breaking out involves...