Garcia Maria De La Luz v. Attorney General United States , 578 F. App'x 156 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 13-3293
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GARCIA GAYOLLO MARIA DE LA LUZ,
a/k/a Maria De La Luz Garcia Gayosso,
a/k/a Norma Rodriguez-Acevedo,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
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On Petition for Review from the Board of Immigration Appeals
(B.I.A. No. A200-688-646)
Immigration Judge: Honorable Charles M. Honeyman
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 9, 2014
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Before: SMITH, SHWARTZ, and ROTH, Circuit Judges.
(Filed: September 16, 2014)
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OPINION
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SHWARTZ, Circuit Judge.
Petitioner Maria De La Luz Garcia Gayosso (“Petitioner”) petitions for review of
an order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s
(“IJ’s”) determination that Petitioner was ineligible for cancellation of removal. For the
reasons that follow, we will deny the petition.
I
As we write principally for the benefit of the parties, we recite only the essential
facts and procedural history. Petitioner, a citizen of Mexico, was convicted of two counts
of forgery in the third degree for altering a document in violation of Del. Code Ann. tit.
11, § 861(b)(3), and was sentenced to three months’ imprisonment and a term of
supervision.1 The Department of Homeland Security then charged Petitioner under 8
U.S.C. § 1182(a)(6)(A)(i) as an alien who entered the United States without being
admitted or paroled. Before the IJ, Petitioner conceded her inadmissibility but sought
cancellation of her removal. The Government filed a motion to pretermit Petitioner’s
application on the ground that Petitioner had been convicted of a crime involving moral
turpitude, which the IJ granted. The BIA affirmed. Petitioner now petitions for review.
II2
1
The charges stemmed from Petitioner’s use of a stolen Social Security card that
had been altered.
2
We have jurisdiction to review the BIA’s orders pursuant to 8 U.S.C. § 1252(a).
We review the BIA’s legal determinations de novo, except when Chevron v. Natural Res.
Def. Council, 467 U.S. 837 (1984), requires that we defer to the BIA. Denis v. Att’y
Gen., 633 F.3d 201, 205-06 (3d Cir. 2011). We defer under Chevron “when an agency
construes or interprets a statute that it administers” and the agency’s interpretation is
“based on a permissible interpretation of the statute.” Knapik v. Ashcroft, 384 F.3d 84,
87 (3d Cir. 2004). We therefore defer to the BIA’s definition of moral turpitude and its
determination that a certain crime involves moral turpitude. Mehboob v. Att’y Gen., 549
2
A noncitizen who is subject to removal bears the burden of establishing her
eligibility for discretionary cancellation of removal. 8 U.S.C. § 1229a(c)(4)(A)(i). To
meet this burden, she must demonstrate that (1) she “has been physically present in the
United States for a continuous period of not less than 10 years;” (2) she “has been a
person of good moral character during such period;” (3) she “has not been convicted of
an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3);” and (4) “removal would
result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or
child, who is a citizen of the United States or an alien lawfully admitted for permanent
residence.” 8 U.S.C. § 1229b(b)(1).
Our inquiry focuses on the third element—whether Petitioner’s forgery conviction
qualifies as an offense under §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3). Because we
conclude that Petitioner’s forgery conviction is an offense under § 1227(a)(2), we need
not consider whether it also qualifies as an offense under §§ 1182(a)(2) or 1227(a)(3).
Section 1227(a)(2) pertains to offenses in which an alien “(I) is convicted of a
crime involving moral turpitude . . . and (II) is convicted of a crime for which a sentence
of one year or longer may be imposed . . . .” 8 U.S.C. § 1227(a)(2)(A)(i); see also
Cortez, 25 I. & N. Dec. 301, 307 (BIA 2010). The statute does not define “moral
turpitude,” but our Court has described “[m]orally turpitudinous conduct [a]s inherently
base, vile, or depraved; contrary to the accepted rules of morality and the duties owed
F.3d 272, 275 (3d Cir. 2008). “No deference, however, is given to the BIA’s parsing of
the elements of the underlying crime.” Id.
3
other persons, either individually or to society in general.” Mehboob, 549 F.3d at 275.
The “hallmark” of moral turpitude is a “reprehensible act committed with an appreciable
level of consciousness or deliberation,” and the general rule is that “evil intent is a
requisite element.” Partyka v. Att’y Gen., 417 F.3d 408, 413-14 (3d Cir. 2005) (internal
quotation marks and citations omitted). Therefore, to “determine whether a particular
crime involves moral turpitude, we ask whether the criminal act [covered by the criminal
statute] is ‘accompanied by a vicious motive of a corrupt mind.’” Mehboob, 549 F.3d at
275-76. Hence, we focus on “the criminal statute and the record of conviction, not the
alien’s conduct.” Partyka, 417 F.3d at 411.
In this case, Petitioner was convicted of altering a document in violation of Del.
Code Ann. tit. 11, § 861(a)(1) and (b)(3). The statute provides that a “person is guilty of
forgery when, intending to defraud, deceive or injure another person, or knowing that the
person is facilitating a fraud or injury to be perpetrated by anyone, the person . . . [a]lters
any written instrument of another person without the other person’s authority.” Del.
Code Ann. tit. 11, § 861(a)(1). The statute’s requirement that the offender have either
intent to defraud or knowledge she is facilitating a fraud is sufficient to render the crime
morally turpitudinous because fraud is “universally recognized” as a crime involving
moral turpitude. 3 Doe v. Att’y Gen., 659 F.3d 266, 270 n.2 (3d Cir. 2011) (citing Jordan
3
Petitioner advances arguments premised on the notion that she was convicted of
mere possession of altered documents under § 861(a)(3). The record of conviction
specifies, however, that she was convicted of altering documents, which is an offense
under § 861(a)(1). We therefore need only consider whether altering documents in
4
v. De George, 341 U.S. 223, 232 (1951) (“[F]raud has consistently been regarded as such
a contaminating component in any crime that American courts have, without exception,
included such crimes without the scope of moral turpitude.”).4
Additionally, Petitioner’s forgery conviction satisfies § 1227(a)(2)’s requirement
that the crime be eligible for a sentence of “one year or longer,” as individuals convicted
of forgery in violation of § 861(b)(3) may receive sentences of “up to 1 year
incarceration.” Del. Code Ann. tit. 11, § 4206(a). Therefore, Petitioner’s forgery
conviction qualifies as an offense under § 1227(a)(2), and the BIA correctly determined
that she is not eligible for cancellation of removal.
violation of § 861(a)(1) is a crime involving moral turpitude. Mehboob, 549 F.3d at 275
(“When a statute is ‘divisible,’ meaning that it prohibits several different types of
conduct, we ‘look to the record of conviction to determine whether the alien was
convicted under a part of the statute which defines a crime involving moral turpitude.”)
(internal citations and alterations omitted). Moreover, our result would be the same even
if Petitioner had been convicted of possessing documents under § 861(a)(3) because that
offense also requires intent to defraud or knowledge she is facilitating a fraud. See
Omagash v. Ashcroft, 288 F.3d 254, 261 (5th Cir. 2002) (“We find reasonable the BIA’s
decision to classify, as moral turpitude, conspiracy to possess illegal immigration
documents with the intent to defraud the government.”) (emphasis omitted); Lagunas-
Salgado v. Holder, 584 F.3d 707, 711-12 (7th Cir. 2009) (holding that transfer of an
identification document knowing that it was stolen or produced without lawful authority
was a crime of moral turpitude and distinguishing it from a crime for “mere[]
possessi[on]” that “contained no requirement or proof that a document was used or was
intended to be used in an unlawful manner”).
4
Petitioner contends that forgery under Delaware law does not involve moral
turpitude because it is broader than the definition of forgery under federal law. In
particular, she argues that she could not have been convicted of forgery under federal law
because she used a “genuine” document that had been altered and according to Petitioner,
forgery under federal law pertains only to documents that were fraudulently created.
Whether her conduct is also criminal under federal law, however, is immaterial for our
purposes of determining whether her state conviction is for a crime involving moral
turpitude. See Mehboob, 549 F.3d at 276-79.
5
III
For the foregoing reasons, we will deny the petition.
6