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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14340
____________________
EVERTON DAYE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A200-316-306
____________________
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20-14340 Opinion of the Court 2
Before GRANT, LUCK, and HULL, Circuit Judges.
HULL, Circuit Judge:
Everton Daye, a native and citizen of Jamaica, petitions for
review of the Board of Immigration Appeals’s (“BIA”) decision that
concluded that Daye was removable based on (1) his two state
convictions for felony transporting into Virginia controlled
substances with the intent to distribute and (2) his third state
conviction for felony conspiracy to transport marijuana into
Virginia.
After review and with the benefit of oral argument, we hold
that the BIA did not err in concluding that Daye was removable
because his state drug trafficking convictions categorically
constitute crimes involving moral turpitude (“CIMT”) within the
meaning of Immigration and Nationality Act (“INA”)
§ 237(a)(2)(A)(i)-(ii),
8 U.S.C. § 1227(a)(2)(A)(i)-(ii). Further, the
Supreme Court’s decision in Jordan v. De George forecloses Daye’s
claim that the phrase “crime involving moral turpitude” in the INA
is unconstitutionally vague. See
341 U.S. 223, 231-32,
71 S. Ct. 703,
708 (1951). Accordingly, we deny Daye’s petition.
I. BACKGROUND
A. Daye’s Virginia Convictions
On May 22, 2008, Daye was admitted to the United States
on a B-2 visitor’s visa. After Daye married a U.S. citizen, his status
was adjusted to lawful permanent resident in September 2009.
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In separate criminal cases in 2013, Daye was convicted of (1)
two substantive counts of transporting one ounce or more of
cocaine, or another Virginia Schedule I or II controlled substance,
or five pounds of marijuana into Virginia with the intent to sell or
distribute the substance, in violation of
Va. Code Ann. § 18.2-
248.01, and (2) one conspiracy count of transporting more than five
pounds of marijuana into Virginia, in violation of
Va. Code Ann.
§ 18.2-256 (the conspiracy statute). The underlying substantive
offense for the conspiracy count is
Va. Code Ann. § 18-2.248.01, the
same statute in Daye’s other convictions. The parties agree that
Daye committed his two substantive drug offenses on March 15,
2013 and his marijuana conspiracy offense beginning on August 13,
2013.
In February 2014, the state court imposed prison terms of
seven years for each of the two substantive drug offenses, to run
consecutively, and another consecutive prison term of five years
for the marijuana conspiracy offense. The resulting total term was
19 years, with six years to be served in prison and the balance
suspended.
B. Removal Proceedings Before the IJ
In 2018, the Department of Homeland Security issued a
Notice to Appear, charging Daye with removability on multiple
grounds, including: (1) under INA § 237(a)(2)(A)(i),
8 U.S.C.
§ 1227(a)(2)(A)(i), as an alien convicted of a CIMT committed
within five years after admission for which a sentence of one year
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20-14340 Opinion of the Court 4
or longer may be imposed; and (2) under INA § 237(a)(2)(A)(ii),
8
U.S.C. § 1227(a)(2)(A)(ii), as an alien who at any time after
admission was convicted of two CIMTs not arising out of a single
scheme of criminal misconduct. 1
In April 2019, Daye, represented by counsel, moved to
terminate removal proceedings. Daye argued that his state drug
convictions did not qualify as CIMTs because Virginia’s statutes
penalized substances that were not federally controlled and
transporting a non-federally controlled substance was akin to a
regulatory offense that was not morally reprehensible. In
opposition, the government argued, inter alia, that Daye’s drug
convictions supported removability because the BIA had long held
that participation in an illicit drug trafficking crime was an offense
involving moral turpitude. See In re Khourn,
21 I. & N. Dec. 1041,
1046-47 (BIA 1997).
The IJ denied Daye’s motion to terminate removal
proceedings based on the CIMT grounds. The IJ concluded that all
three of Daye’s Virginia drug convictions constituted CIMTs. The
IJ determined that the prohibited substances in
Va. Code Ann.
§ 18.2-248.01 were broader than the federal controlled substances.
Further,
Va. Code Ann. § 18.2-248.01 was not a divisible statute,
and thus the categorical approach applied.
1
The IJ granted Daye’s motion to terminate as to two other grounds for
removability charged in the Notice to Appear. The CIMT grounds are the
only ones before us.
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20-14340 Opinion of the Court 5
Applying the categorical approach, the IJ concluded an
offense under
Va. Code Ann. § 18.2-248.01—which includes an
intent to distribute—necessarily required a morally culpable
mental state and morally reprehensible conduct. The IJ relied upon
In re Khourn, in which the BIA held that cocaine distribution in
violation of
21 U.S.C. § 841(a)(1) constitutes a CIMT. See 21 I. &
N. Dec. at 1044 n.4, 1046-47. The IJ also cited Guevara-Solorzano
v. Sessions, in which the Fourth Circuit concluded that a Tennessee
conviction for unlawful possession of marijuana with intent to
manufacture, deliver or sell constituted a CIMT. See
891 F.3d 125,
129, 135-36 (4th Cir. 2018).
Because Daye committed the two substantive drug offenses
within five years after his May 22, 2008 admission, and those
offenses carried a sentence of one year or longer, the IJ found that
Daye was removable under INA § 237(a)(2)(A)(i),
8 U.S.C.
§ 1227(a)(2)(A)(i). Because those two substantive drug offenses and
Daye’s drug conspiracy offense all occurred after his 2008
admission and did not arise out of a single scheme of criminal
misconduct, the IJ found that Daye was removable also under INA
§ 237(a)(2)(A)(ii),
8 U.S.C. § 1227(a)(2)(A)(i).
The government’s motion for reconsideration argued that
the IJ erred in concluding that
Va. Code Ann. § 18.2-248.01 was not
divisible as to the particular substance transported. Denying the
motion, the IJ concluded that the particular substance transported
was not an element of the offense under Virginia law given that it
was not required to be found by the jury and there were no
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20-14340 Opinion of the Court 6
sentencing differences corresponding with the type of substance.
Daye was ordered removed to Jamaica.
C. Appeal to the BIA
On appeal to the BIA, Daye contended his Virginia offenses
were not categorically CIMTs. The government did not cross-
appeal to the BIA the IJ’s divisibility ruling, but it did “maintain[]”
in a motion for summary affirmance that
Va. Code Ann. § 18.2-
248.01 was divisible and the modified categorical approach should
apply.
The BIA affirmed the IJ’s decision that Daye was removable
on CIMT grounds under both INA § 237(a)(2)(A)(i) and (ii),
8
U.S.C. § 1227(a)(2)(A)(i) and (ii). Stressing that it had long held that
“participation in illicit drug trafficking is a CIMT,” the BIA agreed
with the IJ that a violation of
Va. Code Ann. § 18.2-248.01 was
categorically a CIMT. The BIA did not address or disturb the IJ’s
divisibility ruling.
II. DISCUSSION
A. Crime Involving Moral Turpitude under the INA
An alien is removable if he or she has been convicted of a
felony CIMT within five years after admission or has been con-
victed of two or more CIMTs not arising out of a single scheme at
any time after admission. INA § 237(a)(2)(A)(i)-(ii), 8 U.S.C.
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§ 1227(a)(2)(A)(i)-(ii). 2 The phrase “moral turpitude” is not defined
in the INA.
This Court has ruled that moral turpitude means an “act of
baseness, vileness, or depravity in the private and social duties
which a man owes to his fellow men, or to society in general,
contrary to the accepted and customary rule of right and duty
between man and man.” Cano v. U.S. Att’y Gen.,
709 F.3d 1052,
1053 (11th Cir. 2013) (quotation marks omitted). Similarly, the BIA
has defined “moral turpitude” to mean “conduct that is inherently
base, vile, or depraved” and has said that “[t]o involve moral
turpitude, a crime requires two essential elements: reprehensible
conduct and a culpable mental state.” In re Silva-Trevino,
26 I. &
N. Dec. 826, 833-34 (BIA 2016) (quotation marks omitted); see
Zarate v. U.S. Att’y Gen.,
26 F.4th 1196, 1200-01 (11th Cir. 2022)
(describing this Court’s definition of moral turpitude as similar to
the BIA’s definition). This Court has given Chevron3 deference to
the BIA’s definition of moral turpitude and “its application of that
definition in precedential opinions.” See Zarate, 26 F.4th at 1201,
1207.
2
Whether a conviction qualifies as a CIMT under the INA is a legal question
we review de novo. Lauture v. U.S. Att’y Gen.,
28 F.4th 1169, 1172 (11th Cir.
2022). Where, as here, the BIA affirmed the IJ and agreed with the IJ’s reason-
ing, we review the decisions of both the IJ and the BIA. See Gonzalez v. U.S.
Att’y Gen.,
820 F.3d 399, 403 (11th Cir. 2016).
3
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837,
104 S. Ct.
2778 (1984).
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20-14340 Opinion of the Court 8
“Consistent with the two elements identified by the BIA,”
this Court has concluded that “a crime involving moral turpitude
must involve conduct that not only violates a statute but also
independently violates a moral norm.” Id. at 1201 (quotation
marks omitted). We have identified two classes of crimes
involving moral turpitude: (1) fraud offenses, which based on
Supreme Court precedent are “categorically deemed to involve
moral turpitude”; and (2) “non-fraud offenses” that “must also
satisfy the ‘inherently base, vile, or depraved’ requirement to
constitute CIMTs.” Id. at 1201-02 (citing De George,
341 U.S. at
232,
71 S. Ct. at 708). “[I]t is inappropriate to conflate the BIA’s two
requirements in non-fraud scenarios so that one (a culpable mental
state) automatically satisfies the other (moral reprehensibility).”
Id. at 1207-08 (concluding the BIA erred “by collapsing the two
requirements of moral turpitude into one”). That said, “one can
inform the other.” Id.
The BIA has long held that drug trafficking offenses
constitute CIMTs. For instance, in In re Khourn, the BIA
concluded that distribution of cocaine, in violation of
21 U.S.C.
§ 841(a), is a CIMT. 21 I. & N. Dec. at 1041. In Khourn, the BIA
reasoned that § 841(a), unlike “a statute that was regulatory,” is a
criminal statute that “clearly requires a mental state of knowledge
or intent.” Id. at 1045-46. Additionally, “an evil intent”—i.e., moral
reprehensibility—is “inherent in the crime of distribution of a
controlled substance” under § 841(a). Id. at 1047; see also In re
Acosta,
27 I. & N. Dec. 420, 422-24 (BIA 2018) (concluding
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20-14340 Opinion of the Court 9
attempted criminal sale of a controlled substance under New York
law constitutes a CIMT); In re Gonzalez Romo,
26 I. & N. Dec.
743, 745-46 (BIA 2016) (concluding solicitation to possess
marijuana for sale under Arizona law constitutes a CIMT).
As to moral reprehensibility, the BIA in Khourn stressed that
“Congress” had “explained in legislative history” that “few criminal
acts . . . are more reprehensible than the act of abetting drug
addiction by engaging in the illicit narcotic and marihuana
trafficking.” 21 I. & N. Dec. at 1046 (quoting H.R. Rep. No. 84-
2388, at 11(1956)). The BIA observed that while there was
disagreement as to whether “mere possession of controlled
substances” involved moral turpitude, “both Federal and State
courts concur that participation in illicit drug trafficking is a crime
involving moral turpitude.” Id. at 1046-47 (listing federal and state
precedent finding that participation in the sale of illicit drugs is
“depraved” and “morally indefensible,” “involves the intent to
corrupt others,” and “contributes to the physical harm of the
purchaser”); see also Acosta, 27 I. & N. Dec. at 423 (rejecting
argument that “the intent in selling a drug may not be evil” where
the state law prohibiting the unauthorized sale of drugs was
enacted to prevent societal harm).
Consistent with the BIA, our sister circuits that have
addressed the issue have also concluded that drug trafficking
offenses have the requisite culpable mental state and moral
reprehensibility to constitute CIMTs. See Mota v. Barr,
971 F.3d
96, 99-101 (2d Cir. 2020) (addressing felony possession of narcotics
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20-14340 Opinion of the Court 10
with intent to sell under Connecticut law); Guevara-Solorzano, 891
F.3d at 128, 135-36 (addressing unlawful possession of marijuana
with intent to manufacture, deliver, or sell under Tennessee law);
Barragan-Lopez v. Mukasey,
508 F.3d 899, 903-04 (9th Cir. 2007)
(addressing solicitation to possess over four pounds of marijuana
for sale under Arizona law).
B. Categorical Approach
Here, the IJ concluded that
Va. Code Ann. § 18.2-248.01 is
not divisible and that the categorical approach applies. As noted
earlier, the BIA did not address or disturb that ruling. In their initial
merits briefs filed with this Court, the parties do not dispute the IJ’s
divisibility determination and instead argue about whether under
the categorical approach a violation of the Virginia statute
constitutes a CIMT. Therefore, we do not address the divisibility
of
Va. Code Ann. § 18.2-248.01 and assume for purposes of this
petition for review that we apply the categorical approach. 4
4
For the first time in supplemental briefing, the government argued that
Va.
Code Ann. § 18.2-248.01 is divisible and the modified categorical approach
applies. We decline to address divisibility because the government’s initial
brief failed to raise divisibility. See United States v. Nealy,
232 F.3d 825, 830
(11th Cir. 2000). In any event, as discussed later, even the least culpable acts
under
Va. Code Ann. § 18.2-248.01 categorically constitute a CIMT. See Gelin
v. U.S. Att’y Gen.,
837 F.3d 1236, 1243 (11th Cir. 2016) (declining to address
the “divisibility question” where the least culpable conduct under the statute
of conviction categorically constituted a CIMT “in any event”).
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Under the categorical approach, we “ask whether the least
culpable conduct necessary to sustain a conviction under the
statute meets the standard of a crime involving moral turpitude.”
Zarate, 26 F.4th at 1199 (quotation marks omitted); see also Cano,
709 F.3d at 1053 n.3. In determining whether an offense constitutes
a CIMT, “we ‘may rely on court decisions in the convicting
jurisdiction that interpret the meaning of the statutory language.’”
Smith v. U.S. Att’y Gen.,
983 F.3d 1206, 1210 (11th Cir. 2020)
(quoting Gelin v. U.S. Att’y Gen.,
837 F.3d 1236, 1243 (11th Cir.
2016)). We begin with the Virginia statute of conviction and the
elements of the offense and then compare them to the two
requirements for a CIMT. 5
Virginia Code § 18.2-248.01 makes it a felony for:
[A]ny person to transport into the Commonwealth by
any means with intent to sell or distribute one ounce
or more of cocaine, coca leaves or any salt,
compound, derivative or preparation thereof as
described in Schedule II of the Drug Control Act or
one ounce or more of any other Schedule I or II
controlled substance or five or more pounds of
marijuana.
5
Daye agrees that his petition for review stands or falls on whether the
substantive offense of transportation categorically constitutes a CIMT because
in immigration proceedings inchoate offenses such as conspiracy qualify as a
CIMT if the underlying substantive offense qualifies as a CIMT. See In re
Gonzalez Romo, 26 I. & N. Dec. at 743, 746.
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Va. Code Ann. § 18.2-248.01.
Virginia courts have concluded that “[t]he plain and obvious
meaning of [Va.] Code § 18.2-248.01 is to prohibit the
transportation of illegal substances into Virginia by a person whose
intent is to distribute those substances.” Washington v.
Commonwealth,
597 S.E.2d 256, 305-06 (Va. Ct. App. 2004)
(cleaned up). To convict a defendant of violating
Va. Code Ann.
§ 18.2-248.01, the state must prove the defendant transported “by
any means” one of the illegal substances identified in the statute
with the intent to distribute it. Seke v. Commonwealth,
482 S.E.2d
88, 89-90, 91 (Va. Ct. App. 1997) (quoting
Va. Code Ann. § 18.2-
248.01). 6
We readily conclude that even the least culpable conduct
that violates this Virginia drug statute categorically constitutes a
CIMT. As to culpable mental state,
Va. Code Ann. § 18.2-248.01
requires that the defendant have the intent to distribute to others
the illegal substance he has transported into Virginia. The intent
to traffic an illegal substance satisfies the mens rea requirement for
a CIMT.
6
The state, however, “is not required to prove the place where a defendant
intends to distribute illegal substances in order to obtain a conviction” because
the statute “contains no express geographical limitation applicable to the in-
tent element.” Seke,
482 S.E.2d at 90. “[A] violation of [Va.] Code § 18.2-
248.01 occurs the moment a person transporting illegal substances penetrates
the borders of the Commonwealth.” Green v. Commonwealth,
528 S.E.2d
187, 192 (Va. Ct. App. 2000).
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As to moral reprehensibility, transporting an illegal
substance with the intent to distribute it is inherently base, vile, or
depraved conduct. We agree with the BIA and our sister circuits
that, given the profound societal harms caused by drug abuse and
unlawful drug distribution, participating in illicit drug trafficking,
including by transporting the drugs to be trafficked with intent to
distribute, is reprehensible conduct.
What Daye views as the least culpable conduct covered by
Va. Code Ann. § 18.2-248.01 has been something of a moving
target. He appears to have settled on the act of transporting five or
more pounds of marijuana through Virginia with the intent to
distribute it in another state where its distribution is lawful with a
license. Daye contends this conduct is not a CIMT because, in light
of evolving societal views on marijuana, that conduct “can no
longer be said to violate societal norms.”
Daye points to the fact that Virginia, along with many other
states, recently decriminalized the possession of small amounts of
marijuana for either medical or personal use. See
Va. Code Ann.
§§ 4.1-1100(A), 54.1-3408.3, 54.1-3442.7, 54.1-3442.8. 7 That some
7
In July 2021, Virginia legalized simple possession of one ounce or less of ma-
rijuana by persons who are at least 21 years of age. See
Va. Code Ann. § 4.1-
1100(A); see also Va. Acts 2021, Sp. S. 1, chap. 550 (“Acts 2021”), cl. 1 at 155,
cl. 3 at 279. Possession of amounts over one ounce is subject to a civil penalty,
but possession of more than one pound of marijuana remains a felony offense.
Va. Code Ann. § 4.1-1100(B),(C). It also remains illegal to sell, possess with
intent to sell, or distribute any amount of marijuana in Virginia and to
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states allow possession of small amounts of marijuana is irrelevant
to whether trafficking large amounts of it involves moral turpitude.
In any event, Virginia, like many states, continues to criminalize
possession of larger amounts of marijuana. See
Va. Code Ann.
§ 4.1-1100(C); see also, e.g.,
Colo. Rev. Stat. § 18-18-406(4); Cal
Health & Safety Code § 11357; Rev. Code Wash. § 69.50.4014. And
Virginia continues to prohibit, and prosecute as a felony, marijuana
trafficking, including selling, giving, distributing, or possessing
with intent to sell, give, or distribute more than one ounce of
marijuana, and transporting five or more pounds of marijuana with
the intent to distribute.
Va. Code Ann. §§ 18.2-248.1(2), 18.2-
248.01. Whatever might be said about personal use of small
amounts of marijuana, Daye has not shown a corresponding
change in society’s views about trafficking marijuana in larger
amounts.
Alternatively, Daye suggests the least culpable conduct is
transporting into Virginia a substance on Virginia’s list of
controlled substances but not on the federal list of controlled
substances. 8 Daye contends such substances are “harmless,”
transport five pounds or more of marijuana into the state.
Va. Code Ann.
§§ 18.2-248.1, 18.2-248.01.
8
Virginia codifies its Schedule I and Schedule II lists of controlled substances
in provisions of the Drug Control Act,
Va. Code Ann. § 54.1-3446 and § 54.1-
3448, respectively. While there is some dispute as to the number of
substances, the parties agree that at the time of Daye’s convictions, Virginia’s
Schedule I listed some substances that the federal schedules did not.
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making their transportation into Virginia a mere regulatory offense
similar to transporting alcohol or cigarettes. See In re J-,
2 I. & N.
Dec. 99, 104-05 (BIA 1944) (holding that unlawful sale of alcohol to
Native Americans who are wards of the government in violation
of a federal statute that had no mens rea requirement was a
regulatory offense and not a CIMT).
Virginia, by listing a particular substance in one of its
schedules, has determined that the substance has a high potential
for abuse and poses a risk to public health if it is left uncontrolled.
See
Va. Code Ann. §§ 54.1-3443, 54.1-3445, 54.1-3447. The fact that
the federal government has not listed the same substance does not
establish that the substance is per se “harmless.” As the
government points out, both state governments and the federal
government must periodically add substances to their schedules in
an effort to keep up with underground chemists who search out
and use new chemicals to circumvent drug laws. The federal
government prosecutes some of the substances listed in the
Virginia schedules as analogues or isomers of federally listed
substances. See
21 U.S.C. § 813; see e.g., United States v. Phifer,
909 F.3d 372, 375-81 (11th Cir. 2018) (involving a conviction for
possession with intent to distribute ethylone, a non-listed
substance, as an isomer of butylone, a temporarily listed
substance); United States v. Achey,
943 F.3d 909, 912 (11th Cir.
2019) (involving a conspiracy to distribute and possess with intent
to distribute tetrahydrofuran fentanyl, an analogue of fentanyl, a
Schedule II controlled substance). We will not second guess
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Virginia’s determination that the substances it has listed are
potentially harmful to others if left uncontrolled solely on the basis
that the federal government has not also listed, or has delisted,
those substances. Daye’s argument that transportation with intent
to distribute a non-federally controlled substance into Virginia
amounts to only a regulatory offense, and not a CIMT, is without
merit.
C. Vagueness Challenge
Daye argues that the statutory phrase “crime involving
moral turpitude” in the INA is unconstitutionally vague in light of
the Supreme Court’s decisions in Johnson v. United States,
576 U.S.
591,
135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 584 U.S. ___,
138 S. Ct. 1204 (2018). 9 In Jordan v. De George, the Supreme Court
held that the phrase “crime involving moral turpitude” was not
unconstitutionally vague.
341 U.S. at 231-32,
71 S. Ct. at 708. We
are bound by De George. Zarate, 26 F.4th at 1200 & n.2. Johnson
and Dimaya addressed different federal statutes with different
statutory phrases and therefore do not permit this Court to deviate
from De George. See United States v. Thomas,
242 F.3d 1028, 1035
(11th Cir. 2001) (explaining this Court is bound to follow Supreme
Court precedent “until the Supreme Court itself overrules that
decision”).
9
We review constitutional questions de novo. Poveda v. U.S. Att’y Gen.,
692
F.3d 1168, 1172 (11th Cir. 2012).
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III. CONCLUSION
For the foregoing reasons, we conclude the BIA did not err
in determining that Daye’s convictions for violating, and
conspiring to violate,
Va. Code Ann. § 18.2-248.01 were
categorically CIMTs. As a consequence, the BIA properly
determined that Daye was removable pursuant to INA
§ 237(a)(2)(A)(i),
8 U.S.C. § 1227(a)(2)(A)(i), and 237(a)(2)(A)(ii),
8
U.S.C. § 1227(a)(2)(A)(ii).
PETITION DENIED.
