Nancy Chacon v. Jefferson Sessions, III , 704 F. App'x 360 ( 2017 )

Case: 15-60194 Document: 00514097159 Page: 1 Date Filed: 08/01/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60194 FILED
August 1, 2017
NANCY KARINA CHACON, Lyle W. Cayce
Clerk
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A072 516 026
Before STEWART, Chief Judge, and JONES and CLEMENT, Circuit Judges.
PER CURIAM:*
Petitioner Nancy Karina Chacon requests review of the Board of
Immigration Appeals’ (“BIA”) denial of her application for cancellation of
removal under 8 U.S.C. § 1229b(a). For the following reasons, we DENY her
petition.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-60194 Document: 00514097159 Page: 2 Date Filed: 08/01/2017
No. 15-60194
I. BACKGROUND
Chacon is a native and citizen of Guatemala, who became a lawful
permanent resident in 2005. In 2010, she was convicted of larceny of
merchandise in violation of Oklahoma City Municipal Code § 30-39. In 2014,
she was convicted of larceny of merchandise from a retailer in violation of
OKLA. STAT. tit. 21, § 1731, based on an unrelated incident in 2011. Also in
2014, the Department of Homeland Security (“DHS”) issued a Notice to
Appear, charging Chacon with removability under 8 U.S.C. § 1227(a)(2)(A)(ii)
for having been convicted of two separate crimes involving moral turpitude
(“CIMT”). DHS later added an additional ground to remove Chacon: conviction
for possession of a controlled substance, under § 1227(a)(2)(B)(i). The
immigration judge (“IJ”) concluded that Chacon was removable because of her
prior controlled substance offense, but indicated that she could seek
cancellation of removal.
Chacon applied for cancellation of removal, but in a subsequent hearing,
the IJ found that Chacon did not qualify. The IJ concluded that both of
Chacon’s larceny convictions were CIMT, rendering her ineligible for
cancellation of removal. The BIA affirmed the IJ’s denial of Chacon’s
application for cancellation of removal. Chacon conceded that her 2014 larceny
conviction was a CIMT, but argued that her 2010 larceny conviction under the
Oklahoma City ordinance was not. First, the BIA determined that violation of
the city ordinance was a crime. Second, the BIA rejected Chacon’s argument
that larceny under the ordinance was not a crime involving moral turpitude
because it does not require intent to permanently deprive. It reasoned that
“the nature of the offense [was] such that it [was] reasonable to assume that
the taking [was] with the intention of retaining the merchandise permanently.”
(quoting In re Jurado-Delgado, 24 I. & N. Dec. 29, 33–34 (BIA 2006)). Based
2
Case: 15-60194 Document: 00514097159 Page: 3 Date Filed: 08/01/2017
No. 15-60194
on these two convictions, the BIA concluded that Chacon was ineligible for
cancellation of removal.
Chacon filed this petition for review.
II. STANDARD OF REVIEW
We review questions of law in the petition for review de novo, but give
“considerable deference to the BIA’s interpretation of the legislative scheme.”
Mercado v. Lynch, 823 F.3d 276, 278 (5th Cir. 2016) (per curiam) (quoting Zhu
v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007)). In other words, “[w]e give
Chevron deference to the BIA’s interpretation of the term ‘moral turpitude’ and
its guidance on the general categories of offenses which constitute CIMTs, but
we review de novo the BIA’s determination of whether a particular state or
federal crime qualifies as a CIMT.” Id. (quoting Esparza–Rodriguez v. Holder,
699 F.3d 821, 823–24 (5th Cir. 2012)) (alteration in original).
III. DISCUSSION
Chacon, as a permanent resident alien, is eligible for cancellation of
removal if she “(1) has been an alien lawfully admitted for permanent
residence for not less than 5 years, (2) has resided in the United States
continuously for 7 years after having been admitted in any status, and (3) has
not been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a). At issue for
Chacon is the continuous residency prong, which is governed by the stop-time
rule that states that continuous residency ends when a permanent resident
commits an offense listed in § 1182(a). Id. § 1229b(d)(1); see also Miresles-
Zuniga v. Holder,743 F.3d 110, 112 (5th Cir. 2014).
Relevant to Chacon, CIMTs are offenses that interrupt the continuous
residency requirement, 8 U.S.C. § 1182(a)(2)(A)(i)(I), unless such offenses
qualify for the petty offense exception, id. § 1182(a)(2)(A)(ii). The petty offense
exception exempts “an alien who committed only one crime,” which interrupts
the period, if “the maximum penalty possible for the crime of which the alien
3
Case: 15-60194 Document: 00514097159 Page: 4 Date Filed: 08/01/2017
No. 15-60194
was convicted . . . did not exceed imprisonment for one year and . . . the alien
was not sentenced to a term of imprisonment in excess of 6 months.” Id.
§ 1182(a)(2)(A)(ii) (emphasis added).
We apply the categorical approach to determine whether a conviction is
a CIMT. Gomez–Perez v. Lynch, 829 F.3d 323, 326–27 (5th Cir. 2016);
Cisneros-Guerrerro v. Holder, 774 F.3d 1056, 1058 (5th Cir. 2014). Recently,
our court reaffirmed that we look to only the minimum reading of the statute,
instead of examining whether there is a “realistic probability” that the statute
applies to conduct that falls outside the definition of a CIMT. Mercado, 823
F.3d at 278. “Pursuant to this approach, ‘[a]n offense is a crime involving
moral turpitude if the minimum reading of the statute [of conviction]
necessarily reaches only offenses involving moral turpitude.’” Id. at 278–79
(quoting Nino v. Holder, 690 F.3d 691, 694 (5th Cir. 2012)) (alterations in
original).
The Immigration and Nationality Act does not define “moral turpitude,”
therefore, “Congress left the interpretation of this provision to the BIA and
interpretation of its application to state and federal laws to the federal courts.”
Rodriguez-Castro v. Gonzales, 427 F.3d 316, 319–20 (5th Cir. 2005). “It is well
settled that theft or larceny offenses involve moral turpitude.” In re Jurado-
Delgado, 24 I. & N. Dec. at 33. Traditionally, the BIA considered a theft or
larceny statute a CIMT only if it included as an element the “intent to
permanently deprive an owner of property.” See In re Diaz-Lizarraga, 26 I. &
N. Dec. 847, 849 (BIA 2016). The BIA recently overruled this line of decisions,
however, and held that “a theft [or larceny] offense is a crime involving moral
turpitude if it involves an intent to deprive the owner of his property either
permanently or under circumstances where the owner’s property rights are
substantially eroded.” Id. at 853. In other words, a theft or larceny statute is
not a CIMT in circumstances where it criminalizes a de minimis taking, such
4
Case: 15-60194 Document: 00514097159 Page: 5 Date Filed: 08/01/2017
No. 15-60194
as joyriding. See id at 850–51. Applying “substantial deference” to the BIA’s
interpretation of the term “moral turpitude,” Amouzadeh v. Winfrey, 467 F.3d
451, 455 (5th Cir. 2006) (quoting Smalley v. Ashcroft, 354 F.3d 332, 335–36
(5th Cir. 2003)), we will examine whether Chacon’s conviction under the
Oklahoma City ordinance involves a crime of moral turpitude.
Chacon has conceded that her 2011 conviction for larceny of merchandise
from a retailer in violation of OKLA. STAT. tit. 21, § 1731 is a CIMT, but she
insists that her 2010 conviction for larceny of merchandise under Oklahoma
City Municipal Code § 30-39 is not. She argues that the Oklahoma City
ordinance is not a CIMT because it does not require the intent to permanently
deprive the owner of the property and that the BIA erred in presuming such
intent was a necessary element of the crime. Chacon further asserts that the
rule of lenity should apply to interpret the ordinance in her favor.
Our de novo review of the ordinance convinces us that Chacon’s 2010
conviction is a CIMT. See Mercado, 823 F.3d at 278. Oklahoma City Municipal
Code § 30-39 provides that “[n]o person shall commit the offense of larceny of
merchandise from a retail or wholesale establishment.” It defines larceny as
“taking of private or public property accomplished by fraud or stealth, with the
intent to deprive another thereof.” Id. § 30-31(2). The definition of larceny
contained in section 30-31(2) tracks the language of the state statute that
Chacon conceded was a CIMT almost verbatim, see OKLA. STAT. tit. 21, § 1701
(defining larceny as “the taking of personal property accomplished by fraud or
stealth, and with intent to deprive another thereof”). Moreover, in a note the
city ordinance under which Chacon was convicted in 2010 cites to the
Oklahoma statute under which Chacon was convicted in 2014. OKLA. CITY,
OKLA. CODE § 30-39 (citing OKLA. STAT. tit. 21, § 1731). Our determination is
strengthened by prior Fifth Circuit precedent, which held that a conviction
under a Delaware theft statute was a CIMT, even though that statute did not
5
Case: 15-60194 Document: 00514097159 Page: 6 Date Filed: 08/01/2017
No. 15-60194
expressly include the intent to permanently deprive another of goods. Okoro
v. I.N.S., 125 F.3d 920, 926 & n.11 (5th Cir. 1997) (citing 11 DEL. CODE § 841,
which states that “[a] person is guilty of theft when the person . . . obtains the
property of another person intending to deprive that person of it or appropriate
it”); accord In re Jurado-Delgado 26 I. & N. Dec. at 33 (determining that a
Pennsylvania statute that “require[d] proof that the person took merchandise
offered for sale by a store without paying for it and with the intention of
depriving the store owner of the goods” was a CIMT). Thus, on its face, the
Oklahoma City Municipal code appears to comport with the generic offense of
larceny. 1 See Gomez–Perez, 829 F.3d at 326–27.
Accordingly, we conclude that Chacon’s 2010 conviction under Oklahoma
City Municipal Code § 30-39 is a CIMT, see Mercado, 823 F.3d at 278, and she
is therefore ineligible for cancellation of removal.
IV. CONCLUSION
For the foregoing reasons, we DENY Chacon’s petition for review.
1 Because we conclude that the Oklahoma City ordinance is not ambiguous, we do not
apply the rule of lenity. See United States v. Kay, 513 F.3d 432, 445 (5th Cir. 2007).
6