2D CIR. JOINS 9TH IN REJECTING BIA’S PRECEDENT, MATTER OF MENDEZ, 27 I. & N. Dec. 219 (BIA 2018) (Holding Misprision of Felony is a CIMT) – Mendez v. Barr

https://www.ca2.uscourts.gov/decisions/isysquery/75dbe12d-c0a1-497d-848e-59f07e9aa4b2/3/doc/18-801_complete_opn.pdf

Mendez v. Barr, 2d Cir., 05-27-20, published

PANEL: PARKER, CHIN, and SULLIVAN, Circuit Judges.

OPINION BY: Judge Barrington D. Parker

DISSENTING OPINION: Judge Richard Sullivan

KEY QUOTE FROM MAJORITY:

Tomas Mendez was admitted to the United States in 2004 as a lawful

17  permanent resident. In 2010, he was convicted of misprision of a felony in

18  violation of 18 U.S.C. § 4. That section makes it a crime for one with knowledge

19  of the commission of a federal felony to conceal it and not promptly report it to

20  the appropriate authorities. 18 U.S.C § 4.

21  In 2016, upon returning from a trip abroad, the Department of Homeland

22  Security charged him, based on his misprision conviction, as inadmissible under

23  § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, because he was a

24  noncitizen convicted of a crime involving moral turpitude (“CIMT”). The

25  immigration judge sustained the charge, and the Board of Immigration Appeals

2

1  (“BIA”) affirmed. The BIA concluded that the violation of § 4 meant that he had

2  committed a CIMT. Matter of Mendez, 27 I. & N. Dec. 219, 225 (BIA 2018).

3  The BIA defines a CIMT as crime that is “inherently base, vile, or

4  depraved, and contrary to the accepted rules of morality and duties owed

5  between persons or to society in general.” Rodriguez v. Gonzales, 451 F.3d 60, 63

6  (2d Cir. 2006).1 For decades, the BIA never considered misprision a CIMT. Matter

7  of Sloan, 12 I. & N. Dec. 840, 842 (BIA 1966) (holding misprision does not

8  constitute a CIMT).

9  However, in 2002, the Eleventh Circuit held in Itani v. Ashcroft that a

10  conviction under § 4 is categorically a CIMT “because it necessarily involves an

11  affirmative act of concealment or participation in a felony, behavior that runs

12  contrary to accepted societal duties and involves dishonest or fraudulent

1 Unless otherwise indicated, in quoting cases all internal quotation marks, alterations, emphases, footnotes, and citations are omitted.

3

1  activity.” 298 F.3d 1213, 1216 (11th Cir. 2002).2 Following the Eleventh Circuit’s

2  lead, the BIA did an about face and determined in a case arising in the Ninth

3  Circuit that misprision was a CIMT. In re Robles-Urrea, 24 I. & N. Dec. 22, 25 (BIA

4  2006).

5  The Ninth Circuit rejected the BIA’s conclusion. The court held that

6  because § 4 required only knowledge of the felony and did not require an intent

7  to defraud, or conceal, or to obstruct justice, the statute encompassed conduct

8  that was not inherently base or vile. Robles-Urrea v. Holder, 678 F.3d 702, 710-12

9  (9th Cir. 2012). The Ninth Circuit reasoned that “[n]othing in the statute

10  prohibiting misprision of a felony references the specific purpose for which the

11  concealment must be undertaken,” let alone a purpose sufficient to qualify

12  misprision as a categorical CIMT. Id. at 710.

2 In 2017, the Fifth Circuit joined the Eleventh Circuit to hold that misprision is categorically a CIMT. Villegas-Sarabia v. Sessions, 874 F.3d 871, 878 (5th Cir. 2017). We respectfully decline to follow the Fifth and Eleventh Circuit’s approach. We believe that neither Itani nor Villegas-Sarabia satisfactorily supports the assertion that specific intent, or intent to defraud, can be read into § 4, especially when Congress did not include such a requirement and has shown elsewhere in the criminal code that it knows how to include such a requirement if it so chooses. The Eleventh Circuit in Itani reasoned only “that misprision of a felony is a crime of moral turpitude because it necessarily involves an affirmative act of concealment or participation in a felony, behavior that runs contrary to accepted societal duties and involves dishonest or fraudulent activity.” 298 F.3d at 1216. We are reluctant to adopt this reasoning because, “any crime, by definition, runs contrary to some duty owed to society” and “[i]f this were the sole benchmark for a crime involving moral turpitude, every crime would involve moral turpitude.” Robles-Urrea v. Holder, 678 F.3d 702, 709 (9th Cir. 2012). We are also unpersuaded by Villegas-Sarabia, where the Fifth Circuit relied almost exclusively on Itani’s reasoning.

4

1  Mendez moved to terminate removal proceedings and for cancellation of

2  removal, arguing that misprision is not a CIMT. Relying on the BIA’s decision in

3  Robles-Urrea, the IJ found Mendez removable as charged. The IJ also pretermitted

4  Mendez’s application for cancellation of removal, concluding that because his

5  2010 misprision conviction constituted a CIMT, it stopped the clock for

6  calculating length of residency and prevented him from establishing the required

7  seven years of continuous residency. In February 2018, the BIA issued a

8  precedential decision in this case. Matter of Mendez, 27 I. & N. Dec. at 219. It

9  reaffirmed its holding that misprision is a CIMT and declined to follow the Ninth

10  Circuit’s rejection of its reasoning in Robles-Urrea.

11  Mendez petitions for review. We have jurisdiction under 8 U.S.C. § 1252

12  (a)(2)(D). Mendez argues that a conviction for misprision is not a CIMT because

13  it does not categorically involve conduct that is inherently base, vile, or

14  depraved. He also argues that, contrary to the BIA’s contention, its decision is

15  not entitled to Chevron deference. We agree on both points.

16  DISCUSSION

17  The dispositive issue is whether misprision is a CIMT. Because the BIA has

18  no particular expertise in construing federal criminal statutes (as opposed to the

19  INA), we owe no deference to its construction of § 4. United States v. Apel, 571 5

1  U.S. 359, 369 (2014); Mendez v. Mukasey 547 F.3d 345, 346 (2d Cir. 2008).

2  Accordingly, we review de novo the BIA’s conclusion that Mendez’s conviction

3  under § 4 is a conviction for a CIMT. Rodriguez, 451 F.3d at 63.

. . . .

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There is a “Circuit split:” The 5th & 11th Circuits agree with the BIA’s decision in Matter of Mendez; the 9th and 2d Circuits reject it. That means it’s likiely to eventually be up to the Supremes to decide who’s right.

 

PWS

05-27-20

 

WELCOME TO BIA-LAND! – Where You Might Be Better Off Committing A Felony Than Concealing It – Matter of Mendez, 27 I&N Dec. 219 (BIA 2018)

3916

Matter of Mendez, 27 I&N Dec. 219 (BIA 2018)

BIA HEADNOTE:

“Misprision of felony in violation of 18 U.S.C. § 4 (2006) is categorically a crime involving moral turpitude. Matter of Robles, 24 I&N Dec. 22 (BIA 2006), reaffirmed. Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), followed in jurisdiction only.”

PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, GUENDELSBERGER, and MALPHRUS

OPINION BY: Judge Roger A. Pauley

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Pretty straight forward. There was a so-called “Circuit split.” Given alternative choices, the BIA almost always chooses the interpretation most favorable to the DHS and least favorable to the respondent.

Hence, the respondent loses, the BIA doesn’t “rock the boat,” the Office of Immigration Litigation can defend the most restrictive position in the Courts of Appeals and, if necessary, before the Supremes, Jeff Sessions remains happy, and BIA judges retain their jobs.

The only losers: Due Process, fairness, and the respondent. But, who cares about them anyway? It’s all about maximizing removals.

PWS

02-27-18