Vaquero-Cordero v. Holder , 498 F. App'x 760 ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 1, 2012
Elisabeth A. Shumaker
Clerk of Court
TOMAS VAQUERO-CORDERO, a/k/a
Tomas V. Cordero, a/k/a Tomas Vauera
Cxordero, a/k/a Tomas Vaguern Cordero,
Petitioner, No. 12-9504
(Petition for Review)
v.
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before GORSUCH, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES,
Circuit Judge.
Petitioner Tomas Vaquero-Cordero is a native and citizen of Mexico. He
petitions for review of the agency’s determination that his conviction for obstruction
of justice constituted a crime involving moral turpitude rendering him ineligible for
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We
GRANT the petition for review and REMAND for further proceedings.
I. Factual Background
Petitioner unlawfully entered the United States without being admitted or
paroled after inspection and authorization by an immigration officer. At the time of
his removal hearing, he had been living in the United States for about twenty years
and was married with four children.
The following facts are taken from petitioner’s plea agreement in the
obstruction-of-justice case. On March 19, 2011, petitioner was involved in a dispute
with his wife through text messages. He had just been informed that his wife had
been unfaithful and divorce was being discussed. He called his wife offensive names
and indicated he was angry and did not want to talk. He told her “that if she came
home at that moment a sad tragedy might occur.” Admin. R. at 513.
Petitioner’s wife called the police. When the police came to petitioner’s home,
he “intentionally prevent[ed] his own apprehension by applying force to his front
door to keep it closed while officers attempted to enter his home. There was no
intent to injure a police officer and no police officer was injured or put at risk of
substantial bodily injury.” Id.Petitioner was arrested. He pleaded guilty to one count of obstruction of
justice, in violation of Utah Code Ann. § 76-8-306(1)(b), and to one count of
domestic violence in the presence of a child (his son was present when he sent the
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text messages and may have seen or heard the text messages). He was sentenced to
serve ninety days in jail total for both convictions followed by thirty-six months of
court supervised probation.
After petitioner was arrested, the Department of Homeland Security initiated
removal proceedings against him. He applied for cancellation of removal, but the
Immigration Judge (“IJ”) concluded that he was ineligible for that form of relief
because his conviction for obstruction of justice constituted a crime involving moral
turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I). The Board of Immigration Appeals
(“Board” or “BIA”) affirmed the IJ’s decision. Petitioner now seeks review of the
Board’s decision.1
II. Standard of Review and Deference
The BIA interpreted the phrase “crime involving moral turpitude” used in
§ 1182(a)(2)(A)(i)(I) to include petitioner’s conviction for obstruction of justice. We
review questions of statutory interpretation de novo. See Torres de la Cruz v.
Maurer, 483 F.3d 1013, 1019 and n.5 (10th Cir. 2007), giving deference, when
appropriate, to the agency’s interpretation of ambiguous or unclear statutory terms,
Efagene v. Holder, 642 F.3d 918, 920 (10th Cir. 2011). More specifically, under the
1
The IJ also determined that petitioner’s domestic violence conviction
constituted a crime involving moral turpitude. Petitioner also appealed that
determination to the BIA, but the BIA concluded that it did not need to address that
question because its determination on the obstruction-of-justice conviction rendered
petitioner ineligible for cancellation of removal. Accordingly, that issue is not before
this court.
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Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984), we have observed that “a court gives deference to
an agency’s interpretation of a statute Congress charged it with administering if the
statute is silent or ambiguous on the question at hand and the agency’s interpretation
is not arbitrary, capricious, or manifestly contrary to the statute.” Efagene, 642 F.3d
at 920. “An agency interpretation only qualifies for deference . . . when the agency
acted in its ‘lawmaking pretense.’” Id. (quoting United States v. Mead Corp., 533
U.S. 218, 233 (2001)). “When the interpretation occurs in an adjudication, the
agency acts in a lawmaking capacity if the decision is binding precedent within the
agency.” Id.In this case, the Board’s decision was issued by a single Board member and “a
single member lacks the authority to create rules of law that bind the agency in other
cases.” Carpio v. Holder, 592 F.3d 1091, 1097 (10th Cir. 2010). This court has held,
however, that “Chevron deference may apply to a non-precedential BIA decision if it
relies on prior BIA precedent addressing the same question.” Efagene, 642 F.3d at
920. The Board’s decision in this case is not entitled to Chevron deference, however,
because it did not rely on a prior precedential decision addressing the same question.
If Chevron deference is not appropriate, we then consider whether the Board’s
decision is entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944). In doing so, we assess whether the Board’s decision “has the power to
persuade.” Carpio, 592 F.3d at 1098 (internal quotation marks omitted). This
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involves examining “the thoroughness evident in the BIA’s consideration, the
validity of its reasoning, and its consistency with earlier and later pronouncements.”
Damaso-Mendoza v. Holder, 653 F.3d 1245, 1248 (10th Cir. 2011).
III. The BIA’s Decision
Section 76-8-306(1)(b) provides:
(1) An actor commits obstruction of justice if the actor, with intent to
hinder, delay, or prevent the investigation, apprehension, prosecution,
conviction, or punishment of any person regarding conduct that
constitutes a criminal offense:
(b) prevents by force, intimidation, or deception, any person from
performing any act that might aid in the discovery, apprehension,
prosecution, conviction, or punishment of any person.
The agency determined that a violation of the obstruction-of-justice statute
could not categorically be considered a crime involving moral turpitude because it
was too broad. The agency next considered petitioner’s conviction under the
modified categorical approach. Under that approach, the agency considers the
specific factual circumstances underlying the conviction and may review documents
from the criminal case such as the charging documents and the plea agreement. See
Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1269 (10th Cir. 2011). After
considering petitioner’s statement in support of his guilty plea, the agency concluded
that petitioner’s conviction involved a crime of moral turpitude.
The Attorney General has interpreted “moral turpitude” as conduct that 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.” Matter of Silva-Trevino,
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24 I. & N. Dec. 687, 705 (A.G. 2008) (internal quotation marks omitted). In
addition, “[a] finding of moral turpitude under the Act requires that a perpetrator
have committed the reprehensible act with some form of scienter.” Id. at 706.
The BIA focused on petitioner’s statement that he did “intentionally prevent
his own apprehension by applying force to his front door to keep it closed while
officers attempted to enter his home.” Admin. R. at 4 (internal quotation marks
omitted). The BIA determined that “any intentional use of force to prevent
apprehension of oneself is inherently base, vile, and contrary to the accepted rules of
morality . . . and the duties owed between persons or to society in general.” Id. at
4-5. The BIA also noted that “it is contrary to the generally accepted morals of our
society that any person would perform any act that would prevent a police officer
from performing his sworn duties to protect individuals and enforce the laws of the
state they serve as an official representative.” Id. at 4. The BIA therefore found
petitioner’s conviction to be a crime involving moral turpitude concluding that
when a person, such as the respondent in the instant case, obstructs an
authorized police officer from entering his home to investigate a crime
which was committed or being committed within his home, in order to
not be apprehended by law enforcement for the commission of that
crime, he has engaged in behavior that violates the accepted rules of
morality and the duties owed to society. See Padilla v. Gonzales,
397 F.3d 1016 (7th Cir. 2005); Matter of Ruiz-Lopez, 25 I&N Dec. 551(BIA 2011).
Admin. R. at 5.
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IV. Analysis
Petitioner contends that the BIA erred in determining that his conviction for
obstruction of justice constituted a crime involving moral turpitude. He first argues
that the BIA should have analyzed his conviction using the approach it employed in
Matter of Danesh, 19 I. & N. Dec. 669 (BIA 1988), which involved a conviction for
aggravated assault on a peace officer. In Danesh, the BIA noted the distinction
between cases of simple assault of an officer, which do not involve moral turpitude,
and cases arising under the statutory language at issue in Danesh, which required that
the peace officer assaulted sustain bodily injury. See id. at 673. The BIA concluded
“that an aggravated assault against a peace officer, which results in bodily harm to
the victim and which involves knowledge by the offender that his force is directed to
an officer who is performing an official duty, constitutes a crime that involves moral
turpitude.” Id.Petitioner asserts that applying Danesh to his case would result in a finding
that his conviction did not involve moral turpitude because there was no element of
bodily harm in the charging document and the mens rea in the Utah statute is the
intent to prevent apprehension, not the intent to assault or cause bodily harm. He
argues that the BIA’s failure to follow this established precedent was arbitrary and
capricious.
Petitioner further argues that the BIA’s justification for not applying Danesh is
flawed. The BIA reasoned that Danesh did not represent a comparable situation
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because the Utah obstruction-of-justice statute “contains absolutely no elements
necessitating an assault” and “does not include a specific requirement that a police,
or peace officer, be involved when this crime is committed.” Admin. R. at 5 n.2.
The government responds that the BIA was not required to analyze petitioner’s
conviction under the Danesh precedent involving assault. We agree with the
government that the Danesh case is not factually on all fours with the instant case
and thus not controlling. However, there are no cases directly on point and we do not
find the BIA’s reasons for distinguishing Danesh to be persuasive. As petitioner
asserts “the BIA failed to explain why the absence of certain elements prevented the
application of Danesh even though these very elements were then presumed to exist
and used to justify the finding of moral turpitude in [his] case.” Pet’r Br. at 21. For
example, the BIA emphasized that petitioner was obstructing “an authorized police
officer,” Admin. R. at 5, from entering his home to investigate a crime and that he
intentionally used “force” to prevent his apprehension, id. at 4.
Danesh arguably represents persuasive authority for determining whether there
was a crime involving moral turpitude in this case. Danesh involved an assault
against a police officer who was performing his official duty and petitioner’s case
involved the use of force to prevent a police officer from performing his official duty.
Under Danesh, more would be needed for a finding of moral turpitude than was
present in petitioner’s case where the plea agreement specifically states that “[t]here
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was no intent to injure a police officer and no police officer was injured or put at risk
of substantial bodily injury.” Id. at 513.
The BIA’s decision in this case could also lead to inconsistent results for
aliens. In the Matter of Garcia-Lopez, 2007 WL 4699842 (BIA 2007) (unpublished),
the Board analogized the crime of interfering with a law enforcement officer to
simple assault. The Board considered Danesh and concluded that the petitioner’s
conviction for resisting arrest did not involve a crime of moral turpitude because
there was no essential element of bodily injury. Moreover, the conviction documents
showed that the petitioner “intentionally resisted arrest,” but “they [did] not establish
that he intentionally attempted to assault and cause bodily injury to a police officer.”
Id. The Board therefore found that the crime did not involve moral turpitude. We do
not see much difference in petitioner’s circumstances here–trying to avoid
apprehension by using force to hold his door closed with no intent to cause injury to
the police officer—from the circumstances in Garcia-Lopez, where the alien
intentionally resisted arrest with no intent to cause injury to the police officer.
Petitioner next argues that, even if the BIA was not required to apply Danesh,
the cases the BIA cited concerning moral turpitude are distinguishable and do not
support its holding. After announcing its holding, the BIA included the following
citation: “See Padilla v. Gonzales, 397 F.3d 1016 (7th Cir. 2005); Matter of
Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011).” Admin. R. at 5. The BIA did not
include a reference to a specific page in either of these cited decisions, there was no
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parenthetical explanation for its reliance on these decisions, and there was no express
analysis of these decisions. The BIA has failed therefore to offer persuasive
reasoning as to why these cases support its holding.
As petitioner explains, Padilla involved a conviction for obstruction of justice
for knowingly furnishing false information “with intent to prevent the apprehension
or obstruct the prosecution or defense of any person.” 397 F.3d at 1019 (internal
quotation marks omitted). The BIA concluded that the crime was one involving
moral turpitude, relying in part on long-standing authority that “a crime involving
dishonesty or false statement is considered to be one involving moral turpitude.” Id.
at 1020 (internal quotation marks omitted). Here, petitioner’s offense did not involve
any element of dishonesty or making a false statement. Petitioner argues that this
distinction makes Padilla inapplicable to his case and further argues that “it is telling
that the BIA did not . . . elaborate on how Padilla applies in [his] case.” Pet’r Br. at
24.
The offense in Ruiz-Lopez involved attempting to elude a pursuing police
officer and required three elements: (1) a uniformed police officer gives the driver of
a motor vehicle a sign to stop; (2) the driver willfully fails or refuses to stop; and
(3) “while attempting to elude a pursuing police vehicle, the driver must drive his
vehicle in a manner indicating a wanton or willful disregard for the lives or property
of others.” 25 I. &. N Dec. at 551. The Board noted that the Washington state courts
considered this to be a “‘resisting arrest’ statute, which, in punishing conduct that
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indicates a wanton or willful disregard for the life and property of others, punishes
unreasonable conduct in resisting law enforcement activities.” Id. (internal quotation
marks omitted). The BIA concluded that the offense was a crime involving moral
turpitude because “when a person deliberately flouts lawful authority and recklessly
endangers the officer, other drivers, passengers, pedestrians, or property, he or she is
engaged in seriously wrongful behavior that violates the accepted rules of morality
and the duties owed to society.” Id. (emphasis added) (internal quotation marks
omitted).
Petitioner argues that the offense in Ruiz-Lopez is distinguishable from his
offense because the statute in Ruiz-Lopez requires a “wanton or willful disregard for
the lives or property of others.” In contrast, the obstruction-of-justice statute in
petitioner’s case requires no wanton or willful endangerment of people or property
and petitioner’s plea agreement specifically states that there was no intent to injure a
police officer and no police officer was injured or placed at risk of injury. Petitioner
asserts that the BIA’s reliance on Ruiz-Lopez does not justify its holding that his
obstruction-of-justice conviction involves moral turpitude when his conviction lacks
the additional or aggravated scienter requirements in Ruiz-Lopez.
Petitioner’s discussion of the BIA’s cited authority raises significant questions
about the persuasiveness of the BIA’s reasoning and the justification for its decision.
The cases appear to support petitioner’s argument that an aggravating factor is
required for a crime to involve moral turpitude (i.e., the false statement in Padilla or
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the reckless endangerment in Ruiz-Lopez) and the BIA has not persuasively explained
why those cases apply on the facts in petitioner’s case.
Tellingly, the government does not respond to or address petitioner’s argument
that these cases are distinguishable and do not support the BIA’s holding. Instead,
the government’s response brief skips this section of petitioner’s argument
altogether. In response to his argument that the Board’s decision was arbitrary and
capricious and departed from its prior precedents without explanation, the
government makes the following minimal reference to the Board’s reliance on this
precedent: “The Board explained why it distinguished Matter of Danesh and applied
the proper precedents instead. A.R. 4-5 (citing Matter of Silva-Trevino, 24 I. & N.
Dec. at 690; Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA [1999]); Matter of
Ruiz-Lopez, 25 I. & N. Dec. 551 (BIA 2011).” Aplee. Br. at 22. The government’s
brief never mentions Padilla.
The BIA’s analysis is truncated and offers no explanation for the authority that
it relied upon in determining that petitioner’s conviction is for a crime involving
moral turpitude. The BIA declined to rely on Danesh, but its reasons for rejecting
that case are not persuasive. Moreover, petitioner specifically challenges the BIA’s
reliance on Padilla and Ruiz-Lopez and the government offers no rebuttal to
petitioner’s argument. Because the BIA’s decision does not demonstrate thorough
consideration of petitioner’s case, offer sufficient support for its reasoning, and is
inconsistent with its earlier pronouncements on crimes involving moral turpitude, the
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BIA’s decision is not persuasive and is not entitled to Skidmore deference.
See Damaso-Mendoza, 653 F.3d at 1248.
Under non-deferential de novo review, we conclude that the BIA erred in
determining that petitioner’s crime involved moral turpitude. As we noted
previously, the Attorney General has interpreted “moral turpitude” as conduct that 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.” Matter of Silva-Trevino,
24 I. & N. Dec. at 705 (internal quotation marks omitted). Petitioner’s conduct
involved “applying force to his front door to keep it closed while officers attempted
to enter his home.” Admin. R. at 513. We disagree with the BIA’s conclusion that
this conduct is “inherently base [and] vile.” Id. at 4.
The government tries to bolster the BIA’s characterization of petitioner’s
conduct as reprehensible by asserting that “his conduct involved the use of force as
police officers were attempting to lawfully enter his residence, a time of particular
peril for law enforcement” and then cites to two Fourth Amendment warrantless
search cases. Aplee. Br. at 18 (emphasis added). This is a post-hoc rationalization
by the government, as it was not part of the BIA’s decision. Moreover, the record of
conviction directly contradicts the government’s contention that police officers were
put in danger by petitioner’s conduct as the plea agreement states “[t]here was no
intent to injure a police officer and no police officer was injured or put at risk of
substantial bodily injury.” Admin. R. at 513 (emphasis added).
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V. Conclusion
For the foregoing reasons, we GRANT the petition for review and REMAND
to the BIA for further proceedings.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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