Victor Sasay v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 20-1273

__________

VICTOR SASAY, a/k/a Victor Sesay, a/k/a Hermes Herrera-

Cuba,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF

AMERICA

____________________________________

On Petition for Review of a Final Order of the

Board of Immigration Appeals

(A058-985-272)

Immigration Judge: Audra Behne

____________________________________

Argued September 22, 2020

Before: SMITH, Chief Judge, McKEE, and JORDAN Circuit

Judges

(Opinion filed: September 10, 2021)

___________

Benjamin J. Osorio, Esq.

Murray Osorio

4103 Chain Bridge Road

Suite 300

Fairfax, VA 22030

Mark A. Stevens, Esq. [ARGUED]

Clark Hill

1001 Pennsylvania Avenue N.W.

Suite 1300 South

Washington, DC 20004

Counsel for Petitioner

Joseph H. Hunt, Assistant Attorney General

Cindy S. Ferrier, Assistant Director

Joseph A. O'Connell, Esq. [ARGUED]

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

___________

OPINION

___________

McKEE, Circuit Judge.

Victor Sasay petitions for review of the Board of

Immigration Appeals’ ruling that his conviction for aggravated

identity theft in violation of 18 U.S.C. § 1028A(a)(1) is a crime

involving moral turpitude (“CIMT”), thus making him

removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii). Sasay

asserts that aggravated identity theft is not a CIMT because it

only criminalizes possession of another person’s identity

documents and does not require the use or the intent to use the

documents. For the reasons that follow, we will deny the

petition for review.

I.

A. Factual and Procedural History

Victor Sasay is a native and citizen of Sierra Leone. He

was admitted to the United States as a lawful permanent

resident in 2007. In 2015, he was convicted of misdemeanor

credit card fraud under Virginia law1 and sentenced to 175

days’ imprisonment.2 In 2018, he was convicted in South

1

Va. Code § 18.2-195(3).

2

Appx. at 5–6.

2

Dakota of aiding and abetting aggravated identity theft in

violation of 18 U.S.C. § 1028A(a)(1) and sentenced to 24

months’ imprisonment.3 That conviction is the one at the

center of this dispute. It resulted from Sasay and his co-

defendants purchasing credit card numbers online and using

counterfeit access devices to acquire hundreds of credit and

debit cards from multiple stores across the Midwest.4

A noncitizen, lawful permanent resident is removable

when she or he is convicted of “two or more crimes involving

moral turpitude, not arising out of a single scheme of criminal

misconduct.”5 The Department of Homeland Security

concluded that both of Sasay’s convictions were CIMTs and

that they arose from separate criminal schemes. Accordingly,

DHS initiated removal proceedings. Sasay applied for several

forms of relief including asylum, withholding of removal,

protection under the Convention Against Torture, and

cancellation of removal.6

3

Id. at 6. Although Sasay was convicted of aiding and

abetting aggravated identity theft as opposed to aggravated

identity theft, we treat the commission of those crimes the

same when considering whether a criminal offense is a

CIMT. See 18 U.S.C. § 2(a) (“Whoever commits an offense

against the United States or aids, abets, counsels, commands,

induces, or procures its commission, is punishable as a

principal.”); Matter of F-, 6 I. & N. Dec. 783, 785 (BIA 1955)

(“While the legal distinction between principal and accessory

remains, an accessory before the fact is punishable in the

same fashion as the principle by reference to the definition of

the substantive offense and the penalty so imposed by the

statute.” (citations omitted)). We will therefore refer to

Sasay’s conviction as one of aggravated identity theft.

4

A.R. at 755. For the reasons we discuss below, we can

consider his plea agreement.

5

INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii). See

Smith v. Att’y Gen., 983 F.3d 1206 (11th Cir. 2020).

6

Sasay did not appeal the denial of asylum, withholding of

removal, or protection under the Convention Against Torture

to the Board of Immigration Appeals. Sasay appealed the

Immigration Judge’s denial of cancellation of removal to the

BIA, but he did not raise cancellation before this Court.

Appx. at 5 n.1; see also Petitioner’s Br. at 8.

3

Applying the so-called “categorical approach,” the

Immigration Judge concluded that both of Sasay’s convictions

were disqualifying CIMTs which did not arise from a single

scheme. The IJ reasoned that Sasay’s conviction for

aggravated identity theft in violation of § 1028A(a)(1) satisfied

the definition of a CIMT because it requires one to act

knowingly and it also requires one to act with fraudulent intent

or deceit.7

On appeal to the Board of Immigration Appeals, Sasay

conceded that his Virginia conviction constituted a CIMT and

that his two convictions did not arise from a single scheme.

However, he argued that his conviction for violating 18 U.S.C.

§ 1028A(a)(1) did not constitute a CIMT because the statute

“is categorically overbroad and indivisible, as the minimum

conduct required for a conviction under the statute is the mere

possession of someone else’s documents without lawful

authority.”8

The BIA affirmed the IJ’s decision that Sasay had

committed two qualifying CIMTs. The BIA concluded that §

1028A(a)(1) “require[d] that the possession be ‘during and in

relation to any felony violation enumerated in subsection (c),’

such that there must be proof of an intent to use the

identification unlawfully (and, indeed, feloniously).”9 It held

that “all conduct criminalized by this statute necessarily

involved dishonesty as an essential element.”10 This petition

for review followed. Although we reject the BIA’s

interpretation of § 1028A(a)(1), we will deny the petition and

hold that Sasay’s aggavated identify theft conviction is a

CIMT. In doing so, we apply the modified categorical

approach, consulting his plea agreement to ascertain which

alternative element—or here, which alternative felony

violation—formed the basis of his conviction. Sasay’s plea

agreement readily establishes that his conviction has as an

element the commission of bank fraud, in violation of § 18

U.S.C. § 1344. Because bank fraud categorically qualifies as a

7

A.R. at 678.

8

Appx. at 6 (internal citations and quotations omitted).

9

Id. (quoting 18 U.S.C. § 1028A(a)(1)).

10

Id.

4

CIMT, so too must Sasay’s aggravated identity theft

conviction.

B. Jurisdiction and Standard of Review

We have jurisdiction to review the BIA’s final removal

order pursuant to 8 U.S.C. § 1252(a). There are statutory

exceptions to our jurisdiction to review final removal orders of

people convicted of a CIMT under § 1252(a)(2)(C). However,

they do not apply here because Sasay raises a question of law

under the § 1252(a)(2)(D) exception to (a)(2)(C).

When “the BIA issues a written decision on the merits,

we review its decision and not the decision of the IJ.”11 We

defer to the BIA’s definition of moral turpitude and whether a

crime can be categorized as a CIMT, as long as its

determination is reasonable and “based on a permissible

interpretation of the immigration statute.”12 However,

unpublished, non-precedential, BIA decisions issued by a

single member panel are not entitled to such deference.13 Our

review of the BIA’s interpretation of criminal statutes is de

novo.14

II. DISCUSSION

“A noncitizen is removable from the United States if he

has been ‘convicted of two or more crimes involving moral

turpitude, not arising out of a single scheme of criminal

misconduct.’”15 Sasay concedes that his conviction under

Virginia law qualifies but argues that his conviction under 18

U.S.C. § 1028A(a)(1) does not.

11

Hernandez-Cruz v. Att’y Gen., 764 F.3d 281, 284 (3d Cir.

2014) (quoting Bautista v. Att’y Gen., 744 F.3d 54, 57 (3d

Cir. 2014)).

12

Larios v. Att’y Gen., 978 F.3d 62, 67 (3d Cir. 2020)

(quoting Mehboob v. Att’y Gen., 549 F.3d 272, 275 (3d Cir.

2008) (internal quotations omitted)).

13

Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014).

14

Hernandez-Cruz, 764 F.3d at 284.

15

Smith, 983 F.3d at 1210 (quoting 8 U.S.C. §

1227(a)(2)(A)(ii)).

5

The Supreme Court has instructed that we must apply

the so-called “categorical approach” to determine if a given

crime is a CIMT. That approach requires that we ignore a

petitioner’s actual conduct and instead “focus[] on the legal

question of what a conviction necessarily establishe[s].”16

This approach is, the Court has said, “[r]ooted in Congress’

specification of conviction, not conduct, as the trigger for

immigration consequences, [and] is [therefore] suited to the

realities of the [immigration] system.”17

To apply the categorical approach, we first review

“elements of the statute forming the basis of the defendant’s

conviction,”18 in order “to ascertain the least culpable conduct

hypothetically necessary to sustain a conviction under the

statute.”19 We then consider whether that conduct “fall[s]

within the scope of the ‘crime involving moral turpitude’

offense.”20 Sometimes, however, “[t]he simple fact of

conviction may not provide enough information to determine

whether” a defendant’s conviction is a CIMT.21 Specifically,

when a statute is divisible, meaning it “sets out one or more

elements of the offense in the alternative,”22 that statute

effectively creates several different crimes.23 And if some but

not all of the divisible statute’s alternative crimes qualify as a

CIMT, then “a court must determine which crime formed the

basis of the defendant’s conviction” using the modified

categorical approach.24

Under the modified approach, we may “consult a

limited class of documents . . . to determine which alternative

formed the basis of the defendant’s . . . conviction.”25 “[We]

can then do what the categorical approach demands: compare

16

Mellouli v. Lynch, 575 U.S. 798, 806 (2015) (emphasis in

original).

17

Id.

18

Descamps v. United States, 570 U.S. 254, 257 (2013).

19

Jean-Louis v. Att’y Gen., 582 F.3d 462, 471 (3d Cir. 2009).

20

Id. at 482 (citation omitted).

21

United States v. Gibbs, 656 F.3d 180, 186 (3d Cir. 2011).

22

Descamps, 570 U.S. at 257.

23

Id. at 263-64.

24

Id. at 263; see also Gibbs, 656 F.3d at 187.

25

Descamps, 570 U.S. at 254.

6

the elements of the crime of conviction (including the

alternative element used in the case) with the generic”

definition of the removable offense.26 When properly applied,

this modified categorical approach “acts not as an exception,

but instead a tool.”27

The modified approach clearly applies to § 1028A

because it incorporates several felonies enumerated in

subsection (c).28 Those felonies represent alternative elements

26

Id. at 257.

27

Id. at 263.

28

A “felony violation enumerated in subsection (c)” includes

any offense in violation of--

(1) section 641 (relating to theft of public

money, property, or re[co]rds), section

656 (relating to theft, embezzlement, or

misapplication by bank officer or employee),

or section 664 (relating to theft from employee

benefit plans);

(2) section 911 (relating to false personation of

citizenship);

(3) section 922(a)(6) (relating to false

statements in connection with the acquisition of

a firearm);

(4) any provision contained in this chapter

(relating to fraud and false statements), other

than this section or section 1028(a)(7);

(5) any provision contained in chapter 63

(relating to mail, bank, and wire fraud);

(6) any provision contained in chapter 69

(relating to nationality and citizenship);

(7) any provision contained in chapter 75

(relating to passports and visas);

(8) section 523 of the Gramm-Leach-Bliley Act

(15 U.S.C. 6823) (relating to obtaining

customer information by false pretenses);

(9) section 243 or 266 of the Immigration and

Nationality Act (8 U.S.C. 1253 and 1306)

(relating to willfully failing to leave the United

States after deportation and creating a

counterfeit alien registration card);

7

for an aggravated identity theft conviction because a jury could

not convict a defendant under § 1028A(a)(1) without finding

each element of the underlying felony violation and

unanimously agreeing on that violation as the predicate felony

for an aggravated identify theft conviction.29 Accordingly, §

1028A is divisible and we must use the modified categorical

approach.

This approach permits us to consult Sasay’s plea

agreement to ascertain which alternative element of a crime he

committed. It is clear from that agreement that this plea

includes admission to conduct constituting the predicate felony

of bank fraud—an undeniable CIMT and a crime specifically

enumerated in § 1028A(c)(5).30 That, by itself is sufficient to

support the BIA’s ruling that Sasay’s 1028A(a)(1) conviction

constituted a CIMT because it requires fraudulent intent. The

Supreme Court’s pronouncement more than half a century ago

that “[f]raud is the touchstone by which this case should be

judged”31 ends our inquiry. Although the Court was there

addressing a different statute, it was nevertheless intepreting

(10) any provision contained in chapter 8 of title

II of the Immigration and Nationality Act (8

U.S.C. 1321 et seq.) (relating to various

immigration offenses); or

(11) section 208, 811, 1107(b), 1128B(a), or

1632 of the Social Security Act (42 U.S.C.

408, 1011, 1307(b), 1320a-7b(a), and 1383a)

(relating to false statements relating to programs

under the Act).

29

See Richardson v. United States, 526 U.S. 813, 817-22

(1999) (“A ‘violation’ is not simply an act or conduct; it is an

act or conduct that is contrary to law. That circumstance is

significant because the criminal law ordinarily entrusts a jury

with determining whether alleged conduct ‘violates’ the law.”

(citation omitted)); see also Gibbs, 656 F.3d at 186-88.

30

A.R. at 755-56. A person is guilty of bank fraud if he:

“knowingly executes, or attempts to execute, a scheme or

artifice--(1) to defraud a financial institution; or (2) to obtain

any of the moneys, funds, credits, assets, securities, or other

property owned by, or under the custody or control of, a

financial institution.” 18 U.S.C. § 1344.

31

Jordan v. De George, 341 U.S. 223, 232 (1951).

8

the phrase “crime involving moral turpitude.” The Court there

held: “[t]he phrase ‘crime involving moral turpitude’ has

without exception been constructed to embrace fraudulent

conduct.”32

As noted earlier, Sasay claims his conviction does not

amount to a CIMT because under the broad reach of §

1028A(a)(1), he could be convicted of “mere possession of

someone else’s identity document without lawful authority.”33

According to him, a statute that criminalizes mere

unauthorized possession of documents cannot be morally

turpitudinous. The argument lacks even superficial appeal.

The statute does not criminalize mere possession of

certain items. His argument to the contrary ignores that the

more exacting statutory language requires that such

unauthorized possession be “during and in relation to any

felony” enumerated in subsection (c) of the statute. That

means that Sasay’s unauthorized possession of documents

aided and abetted certain felonies specifically listed in

subsection (c) by possessing the documents.

Sasay argues that we must ignore his specific conduct

because this statute is indivisible and therefore the categorical

approach applies. He then argues the minimum conduct

criminalized by § 1028A(a)(1) is the mere possession of an

unauthorized identity document, which cannot be a CIMT. As

we have just explained, the statute does not criminalize “mere”

possession or transfer. Rather, the possession and transfer

must be in relation to an enumerated felony. It is therefore

consequential that he admitted that his possession was

fraudulent during his plea colloquy, and he also admitted to

bank fraud.

A.

Section 1028A(a)(1) criminalizes transfer, use, or

possession in conjuction with one of the eleven categories of

crimes listed in subsection (c). The enumerated offenses

relevent to Sasay are included in (c)(5) and (c)(7), which refer

to offenses in violation of “(5) any provision contained in

32

Id.

33

Petitioner Br. at 8.

9

chapter 63 (relating to mail, bank, and wire fraud); . . . [and]

(7) any provision contained in chapter 75 (relating to passports

and visas) . . . .”34

In Matter of Serna, the BIA found that possession of an

altered identity document in violation of 18 U.S.C. § 1546 (a

crime also enumerated in subsection (c)(7)) was not a CIMT.

35

Sasay seizes on that here, just as he did before the BIA. The

BIA properly distinguished Matter of Serna. The asylum

petitioner there had been convicted of possession of an altered

immigration document in violation of § 1546,36 and Sasay

correctly notes that that statute is included in the offenses

specified in subsection (c) as a predicate offense to violating §

1028A(a)(1).37 However, the analogy ends there. As the BIA

recognized, one can violate § 1546 simply by knowingly

possessing altered immigration documents and the statute does

not require that possession be accompanied by the intent to

defraud or another crime involving moral turpitude. As we

have already explained, Sasay’s conviction under §

1028A(a)(1) is different because it required that his possession

was during and in relation to the predicate felony of bank fraud.

Sasay also points to several other BIA decisions as well

as decisions by other Circuit Courts of Appeals “involving

34

18 U.S.C. § 1028A(c).

35

Matter of Serna, 20 I. & N. Dec. 579 (BIA 1992).

36

The relevant part of the statute states:

Whoever knowingly forges, counterfeits, alters,

or falsely makes any immigrant or nonimmigrant

visa, permit, or other document required for

entry into the United States, or utters, uses,

attempts to use, possesses, obtains, accepts, or

receives any such visa, permit, or document,

knowing it to be forged, counterfeited, altered, or

falsely made, or to have been procured by means

of any false claim or statement, or to have been

otherwise procured by fraud or unlawfully

obtained ... [s]hall be fined not more than $2,000

or imprisoned not more than five years, or both.

18 U.S.C. § 1546. See Matter of Serna, 20 I&N Dec. at 853.

37

Section 1546 falls in to § 1028A(c)(7) as a provision of

chapter 75 (relating to passports and visas).

10

dishonesty,” which were found not to be CIMTs.38 The

authorities he relies upon, like Matter of Serna, are all

distinguishable for the reason we just explained. Essentially,

Sasay’s argument requires that we read “during and in relation

to any felony . . .” out of § 1028A. We refuse to do that.

III. Conclusion

For the reasons set forth above, this petition for review

must be resolved using the modified categorical approach. We

therefore consider that Sasay pled guilty to violating §1028A

with the predicate felony of bank fraud and therefore convicted

of a CIMT. Since this conviction is Sasay’s second CIMT, the

38

Petitioner’s Br. at 24. See Notash v. Gonzales, 427 F.3d

693, 696-700 (9th Cir. 2005) (finding Petitioner’s conviction

in violation of 18 U.S.C. § 542 was not a categorical CIMT

and the government failed to establish a CIMT under the

modified categorical approach); In re Zangwill, 18 I. & N.

Dec. 22, 28 (BIA 1981) (finding passing bad checks with

knowledge of insufficient funds in violation of Florida state

law to not be a CIMT because conviction does not require

showing intent to defraud); Beltran-Tirado v. INS, 213 F.3d

1179, 1183-85 (9th Cir. 2000) (finding false attestation on an

I-9 form in violation of 18 U.S.C. 1546(b)(3) and use of a

false social security number in violation of 42 U.S.C.

408(a)(7)(B) to not be CIMTs and not inherently wrong acts);

Bobadilla v. Holder, 679 F.3d 1052, 1058 (8th Cir. 2012)

(finding the petitioner’s conviction of false identification to a

police officer in violation of Minnesota state law to not be a

CIMT when applying the modified categorical approach);

Flores-Molina v. Sessions, 850 F.3d 1150, 1167–69 (10th Cir.

2017) (finding giving false information to an official during

an investigation in violation of a city ordinance to not be a

CIMT because the statement does not have to be material nor

does it have to be given with the intent to cause harm or

obtain benefit); Matter of S-, 2 I&N Dec. 353 (BIA, A.G.

1945) (finding knowingly making false statements – not

amounting to perjury, on an immigrant registration

application – is not a CIMT); and Rivera v. Lynch, 816 F.3d

1064, 1079 (9th Cir. 2016) (finding written perjury in

violation of California law is not a CIMT applying the

modified categorical approach).

11

BIA did not err in concluding that he is removable under 8

U.S.C. § 1227 (a)(2)(A)(ii).

For the reasons we have discussed, Sasay’s petition for

review will be denied.

12