Everton Daye v. U.S. Attorney General

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14340

____________________

EVERTON DAYE,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A200-316-306

____________________

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20-14340 Opinion of the Court 2

Before GRANT, LUCK, and HULL, Circuit Judges.

HULL, Circuit Judge:

Everton Daye, a native and citizen of Jamaica, petitions for

review of the Board of Immigration Appeals’s (“BIA”) decision that

concluded that Daye was removable based on (1) his two state

convictions for felony transporting into Virginia controlled

substances with the intent to distribute and (2) his third state

conviction for felony conspiracy to transport marijuana into

Virginia.

After review and with the benefit of oral argument, we hold

that the BIA did not err in concluding that Daye was removable

because his state drug trafficking convictions categorically

constitute crimes involving moral turpitude (“CIMT”) within the

meaning of Immigration and Nationality Act (“INA”)

§ 237(a)(2)(A)(i)-(ii), 8 U.S.C. § 1227(a)(2)(A)(i)-(ii). Further, the

Supreme Court’s decision in Jordan v. De George forecloses Daye’s

claim that the phrase “crime involving moral turpitude” in the INA

is unconstitutionally vague. See 341 U.S. 223, 231-32, 71 S. Ct. 703,

708 (1951). Accordingly, we deny Daye’s petition.

I. BACKGROUND

A. Daye’s Virginia Convictions

On May 22, 2008, Daye was admitted to the United States

on a B-2 visitor’s visa. After Daye married a U.S. citizen, his status

was adjusted to lawful permanent resident in September 2009.

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In separate criminal cases in 2013, Daye was convicted of (1)

two substantive counts of transporting one ounce or more of

cocaine, or another Virginia Schedule I or II controlled substance,

or five pounds of marijuana into Virginia with the intent to sell or

distribute the substance, in violation of Va. Code Ann. § 18.2-

248.01, and (2) one conspiracy count of transporting more than five

pounds of marijuana into Virginia, in violation of Va. Code Ann.

§ 18.2-256 (the conspiracy statute). The underlying substantive

offense for the conspiracy count is Va. Code Ann. § 18-2.248.01, the

same statute in Daye’s other convictions. The parties agree that

Daye committed his two substantive drug offenses on March 15,

2013 and his marijuana conspiracy offense beginning on August 13,

2013.

In February 2014, the state court imposed prison terms of

seven years for each of the two substantive drug offenses, to run

consecutively, and another consecutive prison term of five years

for the marijuana conspiracy offense. The resulting total term was

19 years, with six years to be served in prison and the balance

suspended.

B. Removal Proceedings Before the IJ

In 2018, the Department of Homeland Security issued a

Notice to Appear, charging Daye with removability on multiple

grounds, including: (1) under INA § 237(a)(2)(A)(i), 8 U.S.C.

§ 1227(a)(2)(A)(i), as an alien convicted of a CIMT committed

within five years after admission for which a sentence of one year

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or longer may be imposed; and (2) under INA § 237(a)(2)(A)(ii), 8

U.S.C. § 1227(a)(2)(A)(ii), as an alien who at any time after

admission was convicted of two CIMTs not arising out of a single

scheme of criminal misconduct. 1

In April 2019, Daye, represented by counsel, moved to

terminate removal proceedings. Daye argued that his state drug

convictions did not qualify as CIMTs because Virginia’s statutes

penalized substances that were not federally controlled and

transporting a non-federally controlled substance was akin to a

regulatory offense that was not morally reprehensible. In

opposition, the government argued, inter alia, that Daye’s drug

convictions supported removability because the BIA had long held

that participation in an illicit drug trafficking crime was an offense

involving moral turpitude. See In re Khourn, 21 I. & N. Dec. 1041,

1046-47 (BIA 1997).

The IJ denied Daye’s motion to terminate removal

proceedings based on the CIMT grounds. The IJ concluded that all

three of Daye’s Virginia drug convictions constituted CIMTs. The

IJ determined that the prohibited substances in Va. Code Ann.

§ 18.2-248.01 were broader than the federal controlled substances.

Further, Va. Code Ann. § 18.2-248.01 was not a divisible statute,

and thus the categorical approach applied.

1

The IJ granted Daye’s motion to terminate as to two other grounds for

removability charged in the Notice to Appear. The CIMT grounds are the

only ones before us.

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20-14340 Opinion of the Court 5

Applying the categorical approach, the IJ concluded an

offense under Va. Code Ann. § 18.2-248.01—which includes an

intent to distribute—necessarily required a morally culpable

mental state and morally reprehensible conduct. The IJ relied upon

In re Khourn, in which the BIA held that cocaine distribution in

violation of 21 U.S.C. § 841(a)(1) constitutes a CIMT. See 21 I. &

N. Dec. at 1044 n.4, 1046-47. The IJ also cited Guevara-Solorzano

v. Sessions, in which the Fourth Circuit concluded that a Tennessee

conviction for unlawful possession of marijuana with intent to

manufacture, deliver or sell constituted a CIMT. See 891 F.3d 125,

129, 135-36 (4th Cir. 2018).

Because Daye committed the two substantive drug offenses

within five years after his May 22, 2008 admission, and those

offenses carried a sentence of one year or longer, the IJ found that

Daye was removable under INA § 237(a)(2)(A)(i), 8 U.S.C.

§ 1227(a)(2)(A)(i). Because those two substantive drug offenses and

Daye’s drug conspiracy offense all occurred after his 2008

admission and did not arise out of a single scheme of criminal

misconduct, the IJ found that Daye was removable also under INA

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

The government’s motion for reconsideration argued that

the IJ erred in concluding that Va. Code Ann. § 18.2-248.01 was not

divisible as to the particular substance transported. Denying the

motion, the IJ concluded that the particular substance transported

was not an element of the offense under Virginia law given that it

was not required to be found by the jury and there were no

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20-14340 Opinion of the Court 6

sentencing differences corresponding with the type of substance.

Daye was ordered removed to Jamaica.

C. Appeal to the BIA

On appeal to the BIA, Daye contended his Virginia offenses

were not categorically CIMTs. The government did not cross-

appeal to the BIA the IJ’s divisibility ruling, but it did “maintain[]”

in a motion for summary affirmance that Va. Code Ann. § 18.2-

248.01 was divisible and the modified categorical approach should

apply.

The BIA affirmed the IJ’s decision that Daye was removable

on CIMT grounds under both INA § 237(a)(2)(A)(i) and (ii), 8

U.S.C. § 1227(a)(2)(A)(i) and (ii). Stressing that it had long held that

“participation in illicit drug trafficking is a CIMT,” the BIA agreed

with the IJ that a violation of Va. Code Ann. § 18.2-248.01 was

categorically a CIMT. The BIA did not address or disturb the IJ’s

divisibility ruling.

II. DISCUSSION

A. Crime Involving Moral Turpitude under the INA

An alien is removable if he or she has been convicted of a

felony CIMT within five years after admission or has been con-

victed of two or more CIMTs not arising out of a single scheme at

any time after admission. INA § 237(a)(2)(A)(i)-(ii), 8 U.S.C.

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§ 1227(a)(2)(A)(i)-(ii). 2 The phrase “moral turpitude” is not defined

in the INA.

This Court has ruled that moral turpitude means an “act of

baseness, vileness, or depravity in the private and social duties

which a man owes to his fellow men, or to society in general,

contrary to the accepted and customary rule of right and duty

between man and man.” Cano v. U.S. Att’y Gen., 709 F.3d 1052,

1053 (11th Cir. 2013) (quotation marks omitted). Similarly, the BIA

has defined “moral turpitude” to mean “conduct that is inherently

base, vile, or depraved” and has said that “[t]o involve moral

turpitude, a crime requires two essential elements: reprehensible

conduct and a culpable mental state.” In re Silva-Trevino, 26 I. &

N. Dec. 826, 833-34 (BIA 2016) (quotation marks omitted); see

Zarate v. U.S. Att’y Gen., 26 F.4th 1196, 1200-01 (11th Cir. 2022)

(describing this Court’s definition of moral turpitude as similar to

the BIA’s definition). This Court has given Chevron3 deference to

the BIA’s definition of moral turpitude and “its application of that

definition in precedential opinions.” See Zarate, 26 F.4th at 1201,

1207.

2

Whether a conviction qualifies as a CIMT under the INA is a legal question

we review de novo. Lauture v. U.S. Att’y Gen., 28 F.4th 1169, 1172 (11th Cir.

2022). Where, as here, the BIA affirmed the IJ and agreed with the IJ’s reason-

ing, we review the decisions of both the IJ and the BIA. See Gonzalez v. U.S.

Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016).

3

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct.

2778 (1984).

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“Consistent with the two elements identified by the BIA,”

this Court has concluded that “a crime involving moral turpitude

must involve conduct that not only violates a statute but also

independently violates a moral norm.” Id. at 1201 (quotation

marks omitted). We have identified two classes of crimes

involving moral turpitude: (1) fraud offenses, which based on

Supreme Court precedent are “categorically deemed to involve

moral turpitude”; and (2) “non-fraud offenses” that “must also

satisfy the ‘inherently base, vile, or depraved’ requirement to

constitute CIMTs.” Id. at 1201-02 (citing De George, 341 U.S. at

232, 71 S. Ct. at 708). “[I]t is inappropriate to conflate the BIA’s two

requirements in non-fraud scenarios so that one (a culpable mental

state) automatically satisfies the other (moral reprehensibility).”

Id. at 1207-08 (concluding the BIA erred “by collapsing the two

requirements of moral turpitude into one”). That said, “one can

inform the other.” Id.

The BIA has long held that drug trafficking offenses

constitute CIMTs. For instance, in In re Khourn, the BIA

concluded that distribution of cocaine, in violation of 21 U.S.C.

§ 841(a), is a CIMT. 21 I. & N. Dec. at 1041. In Khourn, the BIA

reasoned that § 841(a), unlike “a statute that was regulatory,” is a

criminal statute that “clearly requires a mental state of knowledge

or intent.” Id. at 1045-46. Additionally, “an evil intent”—i.e., moral

reprehensibility—is “inherent in the crime of distribution of a

controlled substance” under § 841(a). Id. at 1047; see also In re

Acosta, 27 I. & N. Dec. 420, 422-24 (BIA 2018) (concluding

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20-14340 Opinion of the Court 9

attempted criminal sale of a controlled substance under New York

law constitutes a CIMT); In re Gonzalez Romo, 26 I. & N. Dec.

743, 745-46 (BIA 2016) (concluding solicitation to possess

marijuana for sale under Arizona law constitutes a CIMT).

As to moral reprehensibility, the BIA in Khourn stressed that

“Congress” had “explained in legislative history” that “few criminal

acts . . . are more reprehensible than the act of abetting drug

addiction by engaging in the illicit narcotic and marihuana

trafficking.” 21 I. & N. Dec. at 1046 (quoting H.R. Rep. No. 84-

2388, at 11(1956)). The BIA observed that while there was

disagreement as to whether “mere possession of controlled

substances” involved moral turpitude, “both Federal and State

courts concur that participation in illicit drug trafficking is a crime

involving moral turpitude.” Id. at 1046-47 (listing federal and state

precedent finding that participation in the sale of illicit drugs is

“depraved” and “morally indefensible,” “involves the intent to

corrupt others,” and “contributes to the physical harm of the

purchaser”); see also Acosta, 27 I. & N. Dec. at 423 (rejecting

argument that “the intent in selling a drug may not be evil” where

the state law prohibiting the unauthorized sale of drugs was

enacted to prevent societal harm).

Consistent with the BIA, our sister circuits that have

addressed the issue have also concluded that drug trafficking

offenses have the requisite culpable mental state and moral

reprehensibility to constitute CIMTs. See Mota v. Barr, 971 F.3d

96, 99-101 (2d Cir. 2020) (addressing felony possession of narcotics

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with intent to sell under Connecticut law); Guevara-Solorzano, 891

F.3d at 128, 135-36 (addressing unlawful possession of marijuana

with intent to manufacture, deliver, or sell under Tennessee law);

Barragan-Lopez v. Mukasey, 508 F.3d 899, 903-04 (9th Cir. 2007)

(addressing solicitation to possess over four pounds of marijuana

for sale under Arizona law).

B. Categorical Approach

Here, the IJ concluded that Va. Code Ann. § 18.2-248.01 is

not divisible and that the categorical approach applies. As noted

earlier, the BIA did not address or disturb that ruling. In their initial

merits briefs filed with this Court, the parties do not dispute the IJ’s

divisibility determination and instead argue about whether under

the categorical approach a violation of the Virginia statute

constitutes a CIMT. Therefore, we do not address the divisibility

of Va. Code Ann. § 18.2-248.01 and assume for purposes of this

petition for review that we apply the categorical approach. 4

4

For the first time in supplemental briefing, the government argued that Va.

Code Ann. § 18.2-248.01 is divisible and the modified categorical approach

applies. We decline to address divisibility because the government’s initial

brief failed to raise divisibility. See United States v. Nealy, 232 F.3d 825, 830

(11th Cir. 2000). In any event, as discussed later, even the least culpable acts

under Va. Code Ann. § 18.2-248.01 categorically constitute a CIMT. See Gelin

v. U.S. Att’y Gen., 837 F.3d 1236, 1243 (11th Cir. 2016) (declining to address

the “divisibility question” where the least culpable conduct under the statute

of conviction categorically constituted a CIMT “in any event”).

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Under the categorical approach, we “ask whether the least

culpable conduct necessary to sustain a conviction under the

statute meets the standard of a crime involving moral turpitude.”

Zarate, 26 F.4th at 1199 (quotation marks omitted); see also Cano,

709 F.3d at 1053 n.3. In determining whether an offense constitutes

a CIMT, “we ‘may rely on court decisions in the convicting

jurisdiction that interpret the meaning of the statutory language.’”

Smith v. U.S. Att’y Gen., 983 F.3d 1206, 1210 (11th Cir. 2020)

(quoting Gelin v. U.S. Att’y Gen., 837 F.3d 1236, 1243 (11th Cir.

2016)). We begin with the Virginia statute of conviction and the

elements of the offense and then compare them to the two

requirements for a CIMT. 5

Virginia Code § 18.2-248.01 makes it a felony for:

[A]ny person to transport into the Commonwealth by

any means with intent to sell or distribute one ounce

or more of cocaine, coca leaves or any salt,

compound, derivative or preparation thereof as

described in Schedule II of the Drug Control Act or

one ounce or more of any other Schedule I or II

controlled substance or five or more pounds of

marijuana.

5

Daye agrees that his petition for review stands or falls on whether the

substantive offense of transportation categorically constitutes a CIMT because

in immigration proceedings inchoate offenses such as conspiracy qualify as a

CIMT if the underlying substantive offense qualifies as a CIMT. See In re

Gonzalez Romo, 26 I. & N. Dec. at 743, 746.

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Va. Code Ann. § 18.2-248.01.

Virginia courts have concluded that “[t]he plain and obvious

meaning of [Va.] Code § 18.2-248.01 is to prohibit the

transportation of illegal substances into Virginia by a person whose

intent is to distribute those substances.” Washington v.

Commonwealth, 597 S.E.2d 256, 305-06 (Va. Ct. App. 2004)

(cleaned up). To convict a defendant of violating Va. Code Ann.

§ 18.2-248.01, the state must prove the defendant transported “by

any means” one of the illegal substances identified in the statute

with the intent to distribute it. Seke v. Commonwealth, 482 S.E.2d

88, 89-90, 91 (Va. Ct. App. 1997) (quoting Va. Code Ann. § 18.2-

248.01). 6

We readily conclude that even the least culpable conduct

that violates this Virginia drug statute categorically constitutes a

CIMT. As to culpable mental state, Va. Code Ann. § 18.2-248.01

requires that the defendant have the intent to distribute to others

the illegal substance he has transported into Virginia. The intent

to traffic an illegal substance satisfies the mens rea requirement for

a CIMT.

6

The state, however, “is not required to prove the place where a defendant

intends to distribute illegal substances in order to obtain a conviction” because

the statute “contains no express geographical limitation applicable to the in-

tent element.” Seke, 482 S.E.2d at 90. “[A] violation of [Va.] Code § 18.2-

248.01 occurs the moment a person transporting illegal substances penetrates

the borders of the Commonwealth.” Green v. Commonwealth, 528 S.E.2d

187, 192 (Va. Ct. App. 2000).

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As to moral reprehensibility, transporting an illegal

substance with the intent to distribute it is inherently base, vile, or

depraved conduct. We agree with the BIA and our sister circuits

that, given the profound societal harms caused by drug abuse and

unlawful drug distribution, participating in illicit drug trafficking,

including by transporting the drugs to be trafficked with intent to

distribute, is reprehensible conduct.

What Daye views as the least culpable conduct covered by

Va. Code Ann. § 18.2-248.01 has been something of a moving

target. He appears to have settled on the act of transporting five or

more pounds of marijuana through Virginia with the intent to

distribute it in another state where its distribution is lawful with a

license. Daye contends this conduct is not a CIMT because, in light

of evolving societal views on marijuana, that conduct “can no

longer be said to violate societal norms.”

Daye points to the fact that Virginia, along with many other

states, recently decriminalized the possession of small amounts of

marijuana for either medical or personal use. See Va. Code Ann.

§§ 4.1-1100(A), 54.1-3408.3, 54.1-3442.7, 54.1-3442.8. 7 That some

7

In July 2021, Virginia legalized simple possession of one ounce or less of ma-

rijuana by persons who are at least 21 years of age. See Va. Code Ann. § 4.1-

1100(A); see also Va. Acts 2021, Sp. S. 1, chap. 550 (“Acts 2021”), cl. 1 at 155,

cl. 3 at 279. Possession of amounts over one ounce is subject to a civil penalty,

but possession of more than one pound of marijuana remains a felony offense.

Va. Code Ann. § 4.1-1100(B),(C). It also remains illegal to sell, possess with

intent to sell, or distribute any amount of marijuana in Virginia and to

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states allow possession of small amounts of marijuana is irrelevant

to whether trafficking large amounts of it involves moral turpitude.

In any event, Virginia, like many states, continues to criminalize

possession of larger amounts of marijuana. See Va. Code Ann.

§ 4.1-1100(C); see also, e.g., Colo. Rev. Stat. § 18-18-406(4); Cal

Health & Safety Code § 11357; Rev. Code Wash. § 69.50.4014. And

Virginia continues to prohibit, and prosecute as a felony, marijuana

trafficking, including selling, giving, distributing, or possessing

with intent to sell, give, or distribute more than one ounce of

marijuana, and transporting five or more pounds of marijuana with

the intent to distribute. Va. Code Ann. §§ 18.2-248.1(2), 18.2-

248.01. Whatever might be said about personal use of small

amounts of marijuana, Daye has not shown a corresponding

change in society’s views about trafficking marijuana in larger

amounts.

Alternatively, Daye suggests the least culpable conduct is

transporting into Virginia a substance on Virginia’s list of

controlled substances but not on the federal list of controlled

substances. 8 Daye contends such substances are “harmless,”

transport five pounds or more of marijuana into the state. Va. Code Ann.

§§ 18.2-248.1, 18.2-248.01.

8

Virginia codifies its Schedule I and Schedule II lists of controlled substances

in provisions of the Drug Control Act, Va. Code Ann. § 54.1-3446 and § 54.1-

3448, respectively. While there is some dispute as to the number of

substances, the parties agree that at the time of Daye’s convictions, Virginia’s

Schedule I listed some substances that the federal schedules did not.

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making their transportation into Virginia a mere regulatory offense

similar to transporting alcohol or cigarettes. See In re J-, 2 I. & N.

Dec. 99, 104-05 (BIA 1944) (holding that unlawful sale of alcohol to

Native Americans who are wards of the government in violation

of a federal statute that had no mens rea requirement was a

regulatory offense and not a CIMT).

Virginia, by listing a particular substance in one of its

schedules, has determined that the substance has a high potential

for abuse and poses a risk to public health if it is left uncontrolled.

See Va. Code Ann. §§ 54.1-3443, 54.1-3445, 54.1-3447. The fact that

the federal government has not listed the same substance does not

establish that the substance is per se “harmless.” As the

government points out, both state governments and the federal

government must periodically add substances to their schedules in

an effort to keep up with underground chemists who search out

and use new chemicals to circumvent drug laws. The federal

government prosecutes some of the substances listed in the

Virginia schedules as analogues or isomers of federally listed

substances. See 21 U.S.C. § 813; see e.g., United States v. Phifer,

909 F.3d 372, 375-81 (11th Cir. 2018) (involving a conviction for

possession with intent to distribute ethylone, a non-listed

substance, as an isomer of butylone, a temporarily listed

substance); United States v. Achey, 943 F.3d 909, 912 (11th Cir.

2019) (involving a conspiracy to distribute and possess with intent

to distribute tetrahydrofuran fentanyl, an analogue of fentanyl, a

Schedule II controlled substance). We will not second guess

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Virginia’s determination that the substances it has listed are

potentially harmful to others if left uncontrolled solely on the basis

that the federal government has not also listed, or has delisted,

those substances. Daye’s argument that transportation with intent

to distribute a non-federally controlled substance into Virginia

amounts to only a regulatory offense, and not a CIMT, is without

merit.

C. Vagueness Challenge

Daye argues that the statutory phrase “crime involving

moral turpitude” in the INA is unconstitutionally vague in light of

the Supreme Court’s decisions in Johnson v. United States, 576 U.S.

591, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 584 U.S. ___,

138 S. Ct. 1204 (2018). 9 In Jordan v. De George, the Supreme Court

held that the phrase “crime involving moral turpitude” was not

unconstitutionally vague. 341 U.S. at 231-32, 71 S. Ct. at 708. We

are bound by De George. Zarate, 26 F.4th at 1200 & n.2. Johnson

and Dimaya addressed different federal statutes with different

statutory phrases and therefore do not permit this Court to deviate

from De George. See United States v. Thomas, 242 F.3d 1028, 1035

(11th Cir. 2001) (explaining this Court is bound to follow Supreme

Court precedent “until the Supreme Court itself overrules that

decision”).

9

We review constitutional questions de novo. Poveda v. U.S. Att’y Gen., 692

F.3d 1168, 1172 (11th Cir. 2012).

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III. CONCLUSION

For the foregoing reasons, we conclude the BIA did not err

in determining that Daye’s convictions for violating, and

conspiring to violate, Va. Code Ann. § 18.2-248.01 were

categorically CIMTs. As a consequence, the BIA properly

determined that Daye was removable pursuant to INA

§ 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), and 237(a)(2)(A)(ii), 8

U.S.C. § 1227(a)(2)(A)(ii).

PETITION DENIED.