Maria Banda Nino v. Eric Holder, Jr.

Case: 11-60314 Document: 00511954259 Page: 1 Date Filed: 08/13/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 13, 2012

No. 11-60314 Lyle W. Cayce

Clerk

MARIA ANGELICA BANDA NINO,

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before STEWART, ELROD, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

Maria Angelica Banda Nino petitions for review of the Board of

Immigration Appeals’ decision that she was ineligible for cancellation of

removal. We conclude that Banda’s ineligibility depends solely on whether her

prior state-court conviction was for a crime involving moral turpitude. It was.

We therefore DENY her petition.

FACTUAL AND PROCEDURAL BACKGROUND

Banda, a native and citizen of Mexico, entered the United States in March

1999 as a nonimmigrant. She had authorization to remain for a temporary

period, not to exceed six months, but she remained beyond that period without

Case: 11-60314 Document: 00511954259 Page: 2 Date Filed: 08/13/2012

No. 11-60314

authorization. In November 2007, she was convicted of unlawful possession of

fraudulent identifying information pursuant to Texas Penal Code § 32.51.

The Department of Homeland Security then filed a notice for her to

appear, charging Banda with removability as an alien who remained in the

United States for a time longer than permitted. See 8 U.S.C. § 1227(a)(1)(B).

Banda, represented by counsel, appeared before an immigration judge (IJ) and

conceded removability as charged. She subsequently filed an application for

cancellation of removal for nonpermanent residents pursuant to 8 U.S.C. §

1229b(b)(1). The IJ concluded that Banda’s Texas conviction was for a crime

involving moral turpitude, and she was therefore ineligible for cancellation of

removal. See 8 U.S.C. § 1227(a)(2). Banda filed an appeal, which the Board of

Immigration Appeals (BIA) dismissed. Banda filed a timely petition for review.

DISCUSSION

We have jurisdiction to review questions of law in petitions from the BIA.

8 U.S.C. § 1252(a)(2)(D). Banda contends first that she is eligible for

cancellation of removal because her 2007 Texas conviction was not for a crime

involving moral turpitude. Alternatively, she contends she is eligible for

cancellation under 8 U.S.C. § 1229b(b)(1)(C) because the crime was committed

more than five years after her entry into the United States. The five-year

provision appears in 8 U.S.C. § 1227(a)(2)(A). How those latter two statutes

work together is an issue of first impression in this circuit.

I. Crime Involving Moral Turpitude

A. Background

The Attorney General may cancel the removal of an alien who is

deportable if the alien, among other requirements, “has not been convicted of an

offense under section . . . 1227(a)(2) . . . of this title.” 8 U.S.C. § 1229b(b)(1)(C).

2

Case: 11-60314 Document: 00511954259 Page: 3 Date Filed: 08/13/2012

No. 11-60314

Section 1227(a)(2) relevantly includes any alien who “is convicted of a crime

involving moral turpitude.” 8 U.S.C. § 1227(a)(2)(A)(i).

These provisions do not contain a definition of “moral turpitude.” The BIA

employs the following definition:

Moral turpitude refers generally to conduct that shocks the public

conscience as being inherently base, vile, or depraved, and contrary

to the accepted rules of morality and the duties owed between

persons or to society in general. Moral turpitude has been defined

as an act which is per se morally reprehensible and intrinsically

wrong, or malum in se, so it is the nature of the act itself and not

the statutory prohibition of it which renders a crime one of moral

turpitude. Among the tests to determine if a crime involves moral

turpitude is whether the act is accompanied by a vicious motive or

a corrupt mind.

Hamdan v. I.N.S., 98 F.3d 183, 186 (5th Cir. 1996) (citing BIA precedent).

Our precedents apply a “categorical approach” to determine whether a

particular offense is one involving moral turpitude: “An offense is a crime

involving moral turpitude if the minimum reading of the statute [of conviction]

necessarily reaches only offenses involving moral turpitude.” Amouzadeh v.

Winfrey, 467 F.3d 451, 455 (5th Cir. 2006). If the statute of conviction includes

offenses not involving moral turpitude, then the statute does not categorically

describe a crime involving moral turpitude. Id. When the statute is divisible

and some parts describe crimes involving moral turpitude and some do not, we

apply a modified categorical approach. Id. Under that analysis, we examine the

alien’s record of conviction to determine whether she was convicted under a part

that describes a crime involving moral turpitude. Id.

An analytical path which strays somewhat from what we just described

has been established by the Attorney General. See Matter of Silva-Trevino, 24

I. & N. Dec. 687 (A.G. 2008). First, the adjudicator is to ask whether “moral

turpitude necessarily inheres in all cases that have a realistic probability of

being prosecuted” under the statute. Id. at 696. “[I]f the language of the

3

Case: 11-60314 Document: 00511954259 Page: 4 Date Filed: 08/13/2012

No. 11-60314

criminal statute could encompass both conduct that involves moral turpitude

and conduct that does not, and there is a case in which the relevant criminal

statute has been applied to the latter category of conduct, the adjudicator cannot

categorically treat all convictions under that statute as convictions for crimes

that involve moral turpitude.” Id. In such situations, the next step under Silva-

Trevino would permit the adjudicator to proceed beyond the record of conviction:

“immigration judges should be permitted to consider evidence beyond that record

if doing so is necessary and appropriate to ensure proper application of the Act’s

moral turpitude provisions.” Id. at 699.

In this case, the BIA determined that Banda’s conviction was for a crime

involving moral turpitude. At the time of Banda’s conviction, the statute of

conviction provided: “A person commits an offense if the person obtains,

possesses, transfers, or uses identifying information of another person without

the other person’s consent and with intent to harm or defraud another.” Tex.

Penal Code § 32.51(b) (2007). The BIA applied Silva-Trevino and concluded that

“appropriating another’s identifying information with the specific intent either

to harm or to defraud another is inherently reprehensible conduct, committed

with sufficient scienter to qualify it as a categorical” crime involving moral

turpitude, and that Banda had not shown a “realistic probability” that Section

32.51 would apply to non-morally turpitudinous conduct.

We now review whether this conviction was properly categorized.

B. Application of Standards

We review de novo whether a statute is a crime of moral turpitude.

Smalley v. Ashcroft, 354 F.3d 332, 336 (5th Cir. 2003). Many of the arguments

presented by the parties and amici concern the degree of deference owed the

Attorney General’s opinion in Silva-Trevino. As we deem Banda’s offense to be

one for moral turpitude under our precedents as well as under Silva-Trevino,

we need not resolve that dispute here.

4

Case: 11-60314 Document: 00511954259 Page: 5 Date Filed: 08/13/2012

No. 11-60314

Banda concedes that a crime involving the intent to defraud is one of

moral turpitude. See, e.g., Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir.

2002). Her contention is that, because her offense could be committed with

either the intent to defraud or the intent to harm, the statute does not include

“only offenses involving moral turpitude.” Amouzadeh, 467 F.3d at 455.

Banda cites a district court opinion as support for the proposition that an

intent to harm is not a sufficiently depraved intent as always to evidence moral

turpitude. See Hudson v. Bd. of Regents of Tex. S. Univ., No. 4:05-CV-03297,

2008 WL 2754622 (S.D. Tex. July 14, 2008). The relevant part of Hudson is not

the federal court holding, which dismissed claims under 42 U.S.C. § 1983.

Banda relies on the fact that prior to the federal suit, the Hudson plaintiffs were

prosecuted under Texas Penal Code Section 32.51(b) for conduct that Banda

argues was not morally repugnant. See id. at *7.

We first explain what can be determined about the state prosecution. The

Hudson suit was filed by Texas Southern University students who had

circulated a flyer containing the salary and Social Security number of a

university administrator. University officials filed a complaining affidavit, and

the students were charged under Texas Penal Code Section 32.51(b). The federal

court stated that a state court judge, without a written opinion, dismissed the

charge for lack of probable cause to arrest. Id. at *1-2. Subsequently, the

students brought a civil suit for malicious prosecution. The district court

granted the university officials’ motion for summary judgment on the ground of

qualified immunity, ruling that they were reasonable to believe the students

possessed the requisite “intent to harm” under Section 32.51(b). Id. at *7.

The opinion of the federal court in Hudson does not demonstrate that a

decision was made by the state trial judge about whether Section 32.51(b) would

have applied to the students’ conduct. Accepting without deciding, as no state

court ever had to decide, that the students’ conduct was properly prosecuted

5

Case: 11-60314 Document: 00511954259 Page: 6 Date Filed: 08/13/2012

No. 11-60314

under Section 32.51(b), we are not persuaded that the students’ charged conduct

in Hudson did not involve moral turpitude. To the contrary, publicizing a

person’s private identifying information, such as a Social Security number,

easily could be seen as violating “accepted rules of morality and the duties owed

between persons.” Hamdan, 98 F.3d at 186.

As noted, Banda was convicted of “obtain[ing], possess[ing], transfer[ing],

or us[ing] identifying information of another person without the other person’s

consent and with intent to harm or defraud another.” Tex. Penal Code § 32.51(b)

(2007) (emphasis added). Given the statutory requirement of a specific intent

“to harm or defraud another,” we think “the minimum reading of the statute

necessarily reaches only offenses involving moral turpitude.” Amouzadeh, 467

F.3d at 455. It follows that, were we to apply the Silva-Trevino standard, we

likewise would agree with the BIA’s determination in this case that “moral

turpitude necessarily inheres in all cases that have a realistic probability of

being prosecuted” under the statute. Silva-Trevino, 24 I. & N. Dec. at 697.

The offense is one of moral turpitude under either our categorical analysis

or the realistic probability test. We leave undecided whether Silva-Trevino is a

proper test to use in resolving issues such as this.1

II. Eligibility for Cancellation of Removal

Though we have found the offense to qualify as one involving moral

turpitude, we also must decide whether Banda is still entitled to be considered

for the relief she seeks. A nonpermanent resident may be eligible for

cancellation of removal if she “has not been convicted of an offense under” any

of three statutes, including 8 U.S.C. § 1227(a)(2). 8 U.S.C. § 1229b(b)(1)(C).

1

A petition for review of Silva-Trevino is pending in this court. Silva-Trevino v.

Holder, No. 11-60464 (5th Cir. filed July 12, 2011).

6

Case: 11-60314 Document: 00511954259 Page: 7 Date Filed: 08/13/2012

No. 11-60314

Section 1227(a)(2) provides this: “Any alien who – (I) is convicted of a

crime involving moral turpitude committed within five years . . . after the date

of admission, and (II) is convicted of a crime for which a sentence of one year or

longer may be imposed, is deportable.” The parties dispute whether “under” in

Section 1229b(b)(1)(C) references only the crime or refers also to the requirement

it be committed within five years after admission. Banda’s crime of moral

turpitude was committed more than five years after her admission.

The first step in interpreting a statute is to determine whether “Congress

has directly spoken to the precise question at issue” such that we must “give

effect to the unambiguously expressed intent of Congress” stated in the statute’s

text. Tex. Coal. of Cities Util. Issues v. F.C.C., 324 F.3d 802, 806-07 (5th Cir.

2003) (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837,

842-43 (1984)). If an unambiguous answer is not found, we move to the second

step of the analysis and defer to the agency entrusted with implementing the

statute, if its construction is permissible. Id. When deciding the permissibility

of the BIA’s interpretation, we “consider only whether the decision is arbitrary,

capricious, or manifestly contrary to the statute, and may not substitute our own

judgment for a reasonable alternative formulated by the BIA.” Khalid v. Holder,

655 F.3d 363, 367 (5th Cir. 2011) (quotation marks and citation omitted).

The government argues that Section 1229b(b)(1)(C) is unambiguous. The

Ninth Circuit has agreed, holding that the statutory language was plain “that

it should be read to cross-reference a list of offenses in three statutes, rather

than the statutes as a whole.” Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652

(9th Cir. 2004). “The most logical reading of ‘convicted of an offense under’ is

that reached by the BIA: ‘convicted of an offense described under.’” Id. We agree

that it is not possible to be convicted under the referenced immigration statute

as it only refers to categories of offenses that are criminalized by other statutes.

7

Case: 11-60314 Document: 00511954259 Page: 8 Date Filed: 08/13/2012

No. 11-60314

The government suggests this interpretation is supported by the different

manner in which another statute cross-references Section 1227(a)(2). The other

statute provides that an alien’s continuous residence in this country legally ends

for certain purposes “when the alien has committed an offense referred to in

section 1182(a)(2) of this title that renders the alien inadmissible to the United

States under section 1182(a)(2) of this title or removable from the United States

under section 1227(a)(2) or 1227(a)(4) of this title.” 8 U.S.C. § 1229b(d)(1). This

language accomplishes explicitly what Banda argues Section 1229b(b)(1)(C)

implies, namely, it provides that the offense must have been committed and

have rendered the alien inadmissible or removable. According to the

government, the failure of Congress to give an explanation in Section

1229b(b)(1)(C) similar to that used in Section 1229b(d)(1) shows the sections do

not operate the same.

Banda also finds plain statutory language to support her position. She

contends no conviction “under” this section occurs unless a conviction was for a

morally turpitudinous crime that was committed within five years of admission

with the relevant sentence imposed. Banda relies on a D.C. Circuit definition

of “under” in another context to mean “by reason of the authority of.” See St.

Louis Fuel & Supply Co. v. F.E.R.C., 890 F.2d 446, 450 (D.C. Cir. 1989). She

argues that Section 1227(a)(2) provides the authority to deport an alien having

committed a crime of moral turpitude within five years and subject to a sentence

of at least a year.

Banda’s argument is unpersuasive. Section 1227(a)(2) does not provide

the authority for the conviction. It provides the authority for the deportation.

An alien will never be convicted under any part of Section 1227. All that section

provides is a list of the kinds of offenses which bar cancellation of removal.

We conclude that Section 1229b(b)(1)(C), without ambiguity, references

Section 1227(a)(2) in order to identify the kinds of offenses that will make an

8

Case: 11-60314 Document: 00511954259 Page: 9 Date Filed: 08/13/2012

No. 11-60314

alien ineligible for cancellation of removal. For purposes of that ineligibility, it

does not matter when the offense occurred in relation to the alien’s admission.

Because we determine the statute is unambiguous, we do not engage in

the additional Chevron analysis relevant for resolving ambiguity.

Petition for review DENIED.

9