Patel v. Holder , 707 F.3d 77 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1349
NUPUR PATEL,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Thompson, Stahl, and Lipez,
Circuit Judges.
Justin Conlon on brief for petitioner.
Laura Halliday Hickein, Trial Attorney, United States
Department of Justice, Office of Immigration Litigation, Stuart F.
Delery, Acting Assistant Attorney General, Civil Division, and
Russell J.E. Verby, Senior Litigation Counsel, Office of
Immigration Litigation, on brief for respondent.
February 1, 2013
STAHL, Circuit Judge. In 2003, petitioner Nupur Patel
pled guilty to conspiracy-to-commit-larceny charges stemming from
a scheme in which he stole from the dorm rooms of his college
classmates. As a result, an Immigration Judge (IJ) and the Board
of Immigration Appeals (BIA) found that Patel, at the time a lawful
permanent resident, was removable from the United States because
his crimes involved "moral turpitude" within the meaning of the
Immigration and Nationality Act (INA). Patel now seeks our review
of that determination. Because the BIA's ruling does not find
adequate support in the record, we reverse.
I. Facts & Background
Patel is a twenty-eight-year-old native and citizen of
India who became a lawful permanent resident of the United States
in 1998. His parents and only sibling are naturalized U.S.
citizens, and many other relatives are either U.S. citizens or
permanent residents. After immigrating to the United States, Patel
attended high school in Connecticut and then enrolled at the
University of Connecticut. The incident that gave rise to this
case occurred near the end of his freshman year.
As recounted by the state prosecutor at Patel's plea
hearing, Patel and two acquaintances concocted a plan whereby they
would knock on doors in the university's dorms; if the resident
answered, they would say they were looking for someone else and
leave. If not, they would enter the room (if the door was
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unlocked) and take things. They executed the plan, taking clothes,
DVDs, and electronics, but residents soon noticed the missing items
and called the police. University police officers found a car
parked outside one of the dorms, in which they could plainly see
many of the items that had been reported missing. Patel and his
companions returned to the car, admitted their involvement, and
were arrested.
Patel was charged with six counts of conspiracy under
Conn. Gen. Stat. § 53a-48: three to commit misdemeanor larceny in
the fourth degree, id. § 53a-125, and three to commit misdemeanor
criminal trespass, id. § 53a-108. He pled guilty, receiving a
suspended sentence totaling four-and-a-half years and three years
of probation. Patel was also expelled from the University of
Connecticut, but continued his education elsewhere, eventually
earning a bachelor's and a master's degree. He successfully
completed the probation period and has had no other run-ins with
the law.
In March 2010, Patel returned to the United States from
a vacation abroad. Upon completion of Patel's reentry inspection,
the Department of Homeland Security (DHS) issued a Notice to Appear
charging him with removability on the ground that his convictions
were for "crime[s] involving moral turpitude" (CIMTs) under
8 U.S.C. § 1182(a)(2)(A)(i)(I), and placed him in custody.
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Before the IJ, Patel disputed removability, arguing that
his offenses were not CIMTs because a theft offense qualifies as
such only if it involves an intent to permanently deprive the owner
of her property, and the record of his conviction did not establish
that intent. In the alternative, Patel sought a waiver of
inadmissibility under 8 U.S.C. § 1182(h). The IJ found Patel
removable, explaining that, under her reading of the plea
transcript, it was "clear that [Patel] intended to convert these
items for his own . . . benefit and permanently deprive" the owners
of their use. The IJ also found Patel ineligible for a waiver of
inadmissibility because his crimes qualified as aggravated felony
theft offenses under 8 U.S.C. § 1101(a)(43)(G).
On appeal, the BIA agreed that Patel was removable and
ineligible for a waiver. Patel petitioned for our review, but, at
the Government's unopposed request, we instead vacated the decision
and remanded to the BIA to consider an argument related to the
waiver-of-inadmissibility issue. Patel v. Holder, No. 11-1104 (1st
Cir. Sept. 6, 2011) (Judgment). On remand, the BIA again dismissed
Patel's appeal. The BIA explained that its CIMT cases do, as Patel
contended, distinguish between thefts involving an intent to
permanently deprive the owner of the property and those involving
only an intent to do so temporarily. Because the Connecticut
larceny statute covered both kinds of theft, the BIA applied the
modified categorical approach, under which it "look[s] to the
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record of conviction to discern the nature of the respondent's
conviction." Based on the prosecutor's description of Patel's
crimes at the plea hearing, the BIA concluded that Patel did indeed
intend a permanent deprivation of the purloined items. Thus, in
the BIA's view, his offenses were CIMTs, and he was removable. The
BIA also reiterated its conclusion that Patel was not eligible for
a waiver of inadmissibility. Patel now petitions for our review of
the BIA's decision.
II. Analysis
We review de novo the BIA's legal conclusions, Idy v.
Holder, 674 F.3d 111, 117 (1st Cir. 2012), including its
determination that a non-citizen's criminal conviction is grounds
for removal, Campbell v. Holder, 698 F.3d 29, 32 (1st Cir. 2012).
Where the Government asserts that a lawful permanent resident
returning from abroad has been convicted of a crime rendering him
removable, the government must so prove by clear and convincing
evidence. See In re Valenzuela-Felix, 26 I. & N. Dec. 53, 54 (BIA
2012); In re Rivens, 25 I. & N. Dec. 623, 625 (BIA 2011). We
afford deference to the BIA's reasonable interpretations of the
INA, including its construction of the term "moral turpitude," but
not to its reading of an underlying criminal statute (as to which
it has no expertise). Da Silva Neto v. Holder, 680 F.3d 25, 28 &
n.3 (1st Cir. 2012). Where, as here, "the BIA has rendered a
decision with its own analysis of the question at issue, our review
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focuses on the BIA's decision, not the IJ's." Vásquez v. Holder,
635 F.3d 563, 565 (1st Cir. 2011).
The term "moral turpitude" has a long history in federal
immigration law, but Congress has never defined it. See Da Silva
Neto, 680 F.3d at 28. Accordingly, we "have adopted the BIA's
definition of 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.'" Id. at 29 (quoting Maghsoudi v. INS, 181
F.3d 8, 14 (1st Cir. 1999)); see also In re Silva-Trevino, 24
I. & N. Dec. 687, 689 n.1 (A.G. 2008) (a CIMT "must involve both
reprehensible conduct and some degree of scienter"). It is common
ground among the parties that theft offenses can meet this
definition, and that not all theft offenses do so. As noted above,
the BIA generally distinguishes between turpitudinous thefts and
their less depraved counterparts by asking whether the defendant
intended to permanently deprive the owner of the purloined
property. See In re Grazley, 14 I. & N. Dec. 330, 333 (BIA 1973).1
1
Pointing to language in another BIA opinion, see In re
Jurado-Delgado, 24 I. & N. Dec. 29, 33 (BIA 2006), the Government
suggests that "[w]hether the distinction between temporary and
permanent takings is a necessary one in the CIMT context remains an
open question." In this case, however, the BIA treated the
permanent-or-temporary-intent question as dispositive, and our
review is limited to the reasoning articulated below. Mihaylov v.
Ashcroft, 379 F.3d 15, 21 (1st Cir. 2004); see Wala v. Mukasey, 511
F.3d 102, 106 (2d Cir. 2007) (bypassing this issue where the BIA
"treated the [permanent intent] inquiry as determinative").
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Here, the parties agree that the Connecticut larceny
statute under which Patel was convicted is "divisible," in that it
covers both permanent and temporary takings (and thus both
turpitudinous and non-turpitudinous conduct).2 Under the statute,
"[a] person commits larceny when, with intent to deprive another of
property or to appropriate the same . . . , he wrongfully takes,
obtains or withholds such property from an owner." Conn. Gen.
Stat. § 53a-119. In turn, "to appropriate" has two meanings: "(A)
to exercise control over it . . . [so] as to acquire the major
portion of its economic value or benefit"; or "(B) to dispose of
the property for the benefit of oneself or a third person." Id.
§ 53a-118(a)(4). The latter form of appropriation requires that
the defendant have acted without the intent to cause a permanent
deprivation, Connecticut v. Wieler, 660 A.2d 740, 742 (Conn. 1995),
whereas the other prongs of the statute require a permanent intent,
see Conn. Gen. Stat. §§ 53a-118(a)(4)(A), 53a-119. Therefore, the
question is whether Patel was convicted under subsection 53a-
118(a)(4)(B) (in which case his crimes were not CIMTs) or one of
the other provisions of the larceny statute, see id. §§ 53a-
118(a)(4)(A), 53a-119 (in which case they were).
2
Although Patel pled guilty to conspiracy to commit
larceny rather than larceny itself, the parties agree that larceny
is the crime that matters for CIMT purposes. See 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) (rendering inadmissible an alien convicted of
"a crime involving moral turpitude" or "conspiracy to commit such
a crime"); cf. Conteh v. Gonzales, 461 F.3d 45, 57 (1st Cir. 2006).
For convenience, we refer to Patel's crimes as larcenies.
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Because the larceny statute reaches both permanent and
temporary takings, the parties concur that we should apply the
modified categorical approach, under which "we may look to the
record of conviction -- the indictment, plea, verdict, and
sentence," Idy, 674 F.3d at 118, to determine which prong of the
statute Patel pled guilty to violating. In doing so, we must bear
in mind that "the facts underlying the conviction are relevant, if
at all, only to identify which crime is the crime of conviction
where . . . it is unclear which subsumed offense the defendant pled
to." Campbell, 698 F.3d at 33. For example, in Campbell, we
applied this methodology to hold that the Government had not shown
that the petitioner committed an aggravated felony under the INA,
where the smallest applicable subdivision of the statute he pled
guilty to violating covered both aggravated and non-aggravated
crimes (in that case, both sexual abuse and other types of offenses
against children). See 698 F.3d at 33, 35.3
Here, the only part of the record of conviction that
potentially illuminates this issue is the plea colloquy. At the
3
The modified categorical approach roughly aligns with the
middle phase of the three-step CIMT framework prescribed by the
Attorney General in Silva–Trevino, 24 I. & N. Dec. 687. Because
the parties agree that the modified categorical approach governs
here, we need not address the other two Silva–Trevino steps, see Da
Silva Neto, 680 F.3d at 29 nn.6-7, nor otherwise wade into the
debate about whether this approach is out of place in the CIMT
context, compare Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir.
2012), with id. at 491-92 (Shedd, J., dissenting).
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plea hearing, the state prosecutor described Patel's offenses this
way:
He had some friends visiting him . . . . In
their words they were bored and they were
looking for something to do and they came up
with a plan where they would go through the
dorm[s and] knock on fellow dorm residents'
doors. If somebody answered the door, they
would say they were looking for a certain
individual, close the door and then leave. If
nobody answered, they would then open that
door, if it was unlocked, go inside and find
things that they could take and steal for
their own benefit. They did this throughout
the many dorms on the . . . campus.
As described by the prosecutor, the items taken included a digital
camera, a cellular phone, video game consoles, DVDs, clothing, and
a laptop. The presiding judge asked Patel whether the prosecutor's
recitation of the facts was accurate, and Patel answered
affirmatively, without adding anything to the prosecutor's
description.4
The parties cross swords over the significance of the
particular words the prosecutor chose to describe Patel's scheme:
"they would . . . go inside and find things that they could take
and steal for their own benefit" (emphasis added). Patel
emphasizes the prosecutor's use of the phrase "for their own
benefit," which, he points out, mirrors the language of subsection
53a-118(a)(4)(B), the temporary-intent prong of the larceny
4
The Government is thus incorrect to assert, repeatedly,
that Patel "chose to use the term 'steal' during his plea
colloquy." He never used that word himself.
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statute. See Conn. Gen. Stat. § 53a-118(a)(4)(B) ("[T]o dispose of
the property for the benefit of oneself . . . ."). For its part,
the Government focuses on the word "steal," asserting, with some
support, that "steal" naturally suggests a permanent intent. E.g.,
Morissette v. United States, 342 U.S. 246, 271 (1952) (defining
"steal" to mean "to take away from one in lawful possession without
right with the intention to keep wrongfully" (citation and internal
quotation mark omitted)); Black's Law Dictionary (9th ed. 2009)
(similar).5
We think both parties' careful parsing of the
prosecutor's language puts more weight on a few isolated words than
they can bear. There is no indication that the prosecutor chose
his words with the goal of indicating anything about Patel's
intent, or with a specific statutory subsection in mind. Indeed,
precisely because Patel could be guilty of larceny regardless of
whether his intent was temporary or permanent, there was no reason
for the prosecutor to consider that issue. Cf. Connecticut v.
Spillane, 770 A.2d 898, 907 (Conn. 2001). As far as the record
reveals, he was simply explaining, in conversational language, what
5
Patel says that we cannot consider the Government's
argument regarding the word "steal" because the BIA did not rely on
this rationale below, making the Government's present position an
impermissible "post-hoc rationalization." Patel is right that our
review is limited to the reasoning articulated by the agency,
Mihaylov, 379 F.3d at 21, but we think the BIA may have considered
this language, which does appear in its opinion. Regardless, the
Government's argument does not carry the day.
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Patel and his fellow miscreants did; this description can only tell
us so much about what was in Patel's own mind during the crime.
Both parties' interpretations of the prosecutor's language are
tenable, but we do not believe his choice of words does much to
illuminate the issue before us.
Consequently, we turn to the prosecutor's description of
"the nature [of] and circumstances surrounding [Patel's] theft
offense[s]." In Re Jurado-Delgado, 24 I. & N. Dec. 29, 33 (BIA
2006). The BIA concluded, and the Government argues, that the
volume and character of the items taken (mostly expensive
electronics), and the fact that a security cable on the laptop was
broken, showed Patel's intent to cause a permanent deprivation.
Patel rejoins that the BIA's conclusion was based on inferences
that are beyond its power to draw when applying the modified
categorical approach. In support of this argument, he points to
the Second Circuit's decision in Wala v. Mukasey, 511 F.3d 102 (2d
Cir. 2007).
In Wala, the petitioner pled guilty to two counts of
third-degree burglary under Connecticut law as a result of his
entry into, and theft from, the house of a woman he was working
for; with two accomplices, he took two rings, other jewelry, a
credit card, and two watches. Id. at 103. Because the Connecticut
burglary statute criminalizes unlawful entry with the intent to
commit a crime, and the intended crime in question was larceny, the
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Wala court was called upon to answer essentially the same question
presented here: whether the record of conviction established that
the petitioner had been convicted under one of the permanent-
deprivation prongs of the larceny statute. See id. at 107.
Writing for the court, then-Judge Sotomayor answered that
question in the negative. She explained:
In his plea colloquy, . . . Wala "actually
admitted" to facts establishing that he was
convicted of a burglary with the intent to
commit a larceny. Wala did not admit,
however, to taking these items with the intent
to appropriate them permanently. Wala,
moreover, was not charged with committing a
permanent taking; the charging document does
not specifically name the intended crime
associated with his burglary conviction
. . . . However improbable, Wala could have
been taking the jewelry with the intent to
loan it to his girlfriend for one "night on
the town" and then return it. Or, he could
have been taking the credit cards with the
intent to use them for a one-time
identification purpose. The point is that
either would have been sufficient to sustain
Wala's guilty plea and conviction . . . .
Id. at 109 (citation omitted). The Wala court's bottom-line
conclusion was that, "although it may have been reasonable for the
BIA to infer that Wala intended permanently to keep the items he
admitted taking, the modified categorical approach does not permit
the BIA to draw inferences of this kind." Id.; accord Akinsade v.
Holder, 678 F.3d 138, 146 (2d Cir. 2012); cf. Renteria-Morales v.
Mukasey, 551 F.3d 1076, 1085 (9th Cir. 2008) (inferences drawn from
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the record of conviction must be "necessary," not merely
"reasonable").
Wala's holding was based on the broader principle that
"the BIA cannot adjudicate the facts in a criminal case to
determine whether, standing alone, they suggest that the petitioner
committed a removable offense." 511 F.3d at 109 (citing Sui v.
INS, 250 F.3d 105, 119 (2d Cir. 2001)). Our cases likewise
emphasize that, "as a general rule, 'the BIA may not adjudicate
guilt' and 'must base removal orders on convictions, not on conduct
alone.'" Campbell, 698 F.3d at 32 (quoting Conteh, 461 F.3d at
56). And we agree with the Wala court's application of this
principle. As in Wala, there may be some reason to think that
Patel intended to cause a permanent deprivation, but the facts
revealed by the plea colloquy are not sufficient to "identify which
crime" -- subsection 53a-118(a)(4)(B), or another prong of the
larceny statute -- "is the crime of conviction." Campbell, 698
F.3d at 33 (emphasis omitted). It is true that, as the Government
points out, Wala's plea colloquy used the word "took" whereas
Patel's used the word "steal," but, for the reasons given above, we
do not see this as a dispositive distinction (and there is no
indication that the Wala court considered the use of "took" to be
decisive). And we do not think it any more "improbable" that Patel
was engaged in a foolish collegiate prank than that Wala took "the
jewelry with the intent to loan it to his girlfriend." Wala, 511
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F.3d at 109.6 Ultimately, although the inferences drawn by the BIA
here are not unreasonable, they impermissibly bridge the "gap
between the 'offense' and the actual conduct" involved, Campbell,
698 F.3d at 35, because "there is no statement in [Patel]'s plea
colloquy admitting an intent to commit a permanent taking," Wala,
511 F.3d at 110; see Akinsade, 678 F.3d at 144 ("[T]he BIA may only
consider facts to which a defendant actually and necessarily
pleaded in order to establish the elements of the offense . . . ."
(citation and internal quotation mark omitted)). Consequently, we
hold that the BIA erred in finding Patel removable, and need not
decide whether he would be eligible for a waiver.
This result may seem strange, but that is a not-uncommon
side effect of the modified categorical approach. "Sometimes th[is
approach] hurts the alien . . . . Other times, as in this case,
the alien . . . comes out ahead. This is hardly the most jarring
example." Campbell, 698 F.3d at 36.
III. Conclusion
For the foregoing reasons, Patel's petition for review is
granted, the BIA's order dismissing Patel's appeal is vacated, and
the matter is remanded to the BIA for further proceedings
consistent with this decision.
6
We do not agree with the BIA that the fact that an item
was damaged necessarily places this escapade beyond the realm of
the prank. Cf. Rodriguez-Herrera v. INS, 52 F.3d 238, 240 (9th
Cir. 1995) (conviction under property-damage law that reached
"pranksters with poor judgment" was not categorically a CIMT).
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