Juan Inzunza Reyna v. William P. Barr , 935 F.3d 630 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-1614
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Juan Jose Inzunza Reyna,
lllllllllllllllllllllPetitioner,
v.
William P. Barr, Attorney General of the United States,1
lllllllllllllllllllllRespondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: May 15, 2019
Filed: August 29, 2019
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Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
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COLLOTON, Circuit Judge.
Juan Inzunza Reyna, a citizen of Mexico, petitions for review of a decision of
the Board of Immigration Appeals that he is ineligible for cancellation of removal
1
Attorney General Barr is substituted for his predecessor under Federal Rule of
Appellate Procedure 43(c)(2).
because he sustained a prior conviction for a crime involving moral turpitude. We
agree with the Board and therefore deny the petition.
Reyna entered the United States from Mexico illegally in 1998. In September
2008, he pleaded guilty to theft by receiving stolen property, in violation of Neb. Rev.
Stat. § 28-517 (1977). The Nebraska statute declares that “[a] person commits theft
if he receives, retains, or disposes of stolen movable property of another knowing that
it has been stolen, or believing that it has been stolen, unless the property is received,
retained, or disposed with intention to restore it to the owner.” Id. § 28-517. Reyna’s
theft by receiving offense was a Class I misdemeanor, punishable by up to one year
of imprisonment. See id. § 28-106(1).
The government commenced removal proceedings against Reyna in 2008.
Reyna conceded removability but applied for cancellation of removal under 8 U.S.C.
§ 1229b. An immigration judge denied the application, and the Board dismissed
Reyna’s administrative appeal. The Board concluded that Reyna was ineligible for
cancellation of removal because his Nebraska theft by receiving offense was
categorically a crime involving moral turpitude. See id. §§ 1229b(b)(1)(C),
1227(a)(2)(A)(i). Reyna disputes that conclusion, and we review the Board’s legal
determination de novo. See Gomez-Gutierrez v. Lynch, 811 F.3d 1053, 1058 (8th Cir.
2016).
As a threshold matter, Reyna contends that neither the immigration judge nor
the Board had subject matter jurisdiction over his removal proceedings, because the
initial notice to appear served on Reyna did not include information about when and
where to appear. We recently rejected the same argument in Ali v. Barr, 924 F.3d
983, 986 (8th Cir. 2019), and Reyna’s preliminary contention is foreclosed by that
decision.
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The Immigration and Nationality Act provides that an alien who is convicted
of a crime involving moral turpitude is ineligible for cancellation of removal where
the offense is punishable by a sentence of one year or longer. See 8 U.S.C.
§§ 1229b(b)(1)(C), 1227(a)(2)(A)(i); Pereida v. Barr, 916 F.3d 1128, 1133 n.2 (8th
Cir. 2019). Congress did not define “crime involving moral turpitude,” and we have
accepted the Board’s interpretation that such crimes require conduct that is “inherently
base, vile, or depraved, and contrary to accepted rules of morality and the duties owed
between persons or to society in general.” Pereida, 916 F.3d at 1131 (internal
quotation omitted). At the time of Reyna’s theft by receiving offense, the Board had
long concluded that theft crimes involve moral turpitude, but “only when a permanent
taking is intended.” Dominguez-Herrera v. Sessions, 850 F.3d 411, 418 (8th Cir.
2017) (quoting In re Grazley, 14 I. & N. Dec. 330, 333 (B.I.A. 1973)).2
We use the so-called categorical approach to determine whether Reyna’s theft
offense is a crime involving moral turpitude. Under that approach, we consider
whether the elements of his offense necessarily fit within the Board’s generic
definitions. See Pereida, 916 F.3d at 1131-32. We proceed by presuming that
Reyna’s conviction rested on no more than “the least of the acts criminalized” by the
Nebraska statute, but this analysis is not “an invitation to apply ‘legal imagination’ to
the state offense.” Gomez-Gutierrez, 811 F.3d at 1058 (internal quotations omitted).
For an offense to fall outside of the generic definition of a crime involving moral
turpitude, “there must be a realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the generic definition.” Id.
(internal quotation omitted). Reyna has the burden of establishing that realistic
2
The Board more recently has interpreted the Act to classify a larger set of theft
offenses as crimes involving moral turpitude. See In re Diaz-Lizarraga, 26 I. & N.
Dec. 847, 852-53 (B.I.A. 2016). We do not address that new interpretation, because
we agree with the Board that Reyna’s offense categorically involves moral turpitude
under the old, narrower standard.
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probability. See 8 U.S.C. § 1229a(c)(4)(A)(i); Pereida, 916 F.3d at 1132; Villatoro
v. Holder, 760 F.3d 872, 879 (8th Cir. 2014).
Reyna’s offense of theft by receiving under Neb. Rev. Stat. § 28-517 is
categorically a crime involving moral turpitude. The statute prohibits receiving,
retaining, or disposing of stolen movable property while knowing or believing the
property to be stolen, unless undertaken “with intention to restore it to the owner.”
Lack of intent to restore the property to its owner is an element of the crime. State v.
Hubbard, 673 N.W.2d 567, 575 (Neb. 2004). Proving a lack of intent to restore
property to its owner is functionally equivalent to establishing an intent to deprive an
owner of property permanently. The Nebraska Supreme Court has quoted favorably
commentary on § 223.6 of the Model Penal Code—upon which § 28-517 is
based—that equates the two intent standards:
Theft convictions generally require a purpose to deprive another of his
property. In terms, Section 223.6 does not require such a purpose for
criminal receiving, but the net effect of its provisions is the same. . . .
Since a purpose to restore defeats conviction, and since the prosecution
must establish beyond a reasonable doubt that the actor did not have such
a purpose, the culpability required under Section 223.6 can properly be
assimilated to a purpose to deprive the victim of his property. As a
practical matter, the absence of a purpose to restore will be proved by
showing that it was part of the receiver’s plan to avoid detection and to
realize for himself the benefits of the property.
Id. at 574-75 (emphases added) (quoting Model Penal Code & Commentaries § 223.6
cmt. 4(a) (Am. Law Inst. 1980)).
Reyna contends that there is daylight between lacking intent to restore property
to an owner and intending to deprive an owner permanently. He offers a type of
“joyriding” as an example: a person who drives a stolen vehicle and then abandons
it might not care whether the vehicle ultimately ends up back in the hands of the
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rightful owner. That person, Reyna argues, would not have intent to deprive the
owner permanently but could be covered by the Nebraska statute as one who lacks
intent to restore property to the owner.
Reyna points to no case where the State has applied its theft by receiving statute
on those or similar facts. Given the Nebraska Supreme Court’s receptiveness to the
commentary quoted above, we conclude that the joyriding hypothetical remains in the
realm of mere “theoretical possibility.” Gomez-Gutierrez, 811 F.3d at 1058 (internal
quotation omitted). Reyna has failed to establish a realistic probability that the State
would apply § 28-517 to non-turpitudinous conduct. The Board therefore properly
concluded that Reyna’s offense is categorically a crime involving moral turpitude and
that he is ineligible for cancellation of removal.
The petition for review is denied.
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