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