Cesar Solis-Flores v. Merrick Garland

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-1147

CESAR SOLIS-FLORES,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: December 6, 2022 Decided: September 11, 2023

Before DIAZ, Chief Judge, and RUSHING and HEYTENS, Circuit Judges.

Petition for review denied in part, granted in part, and remanded by published opinion.

Judge Rushing wrote the opinion, in which Chief Judge Diaz and Judge Heytens joined.

ARGUED: Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE

CENTER, LLC, Alexandria, Virginia, for Petitioner. Sarah Kathleen Pergolizzi, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:

Lisa T. Johnson-Firth, VANDERPOOL, FROSTICK & NISHANIAN, PC, Manassas,

Virginia, for Petitioner. Brian M. Boynton, Principal Deputy Assistant Attorney General,

David J. Schor, Senior Litigation Counsel, Office of Immigration Litigation, Civil

Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

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RUSHING, Circuit Judge:

Cesar Solis-Flores, a native and citizen of Mexico, petitions for review of a final

order of removal entered by the Board of Immigration Appeals. The Board determined

that Solis-Flores was ineligible for cancellation of removal because his prior conviction for

receipt of stolen property was a crime involving moral turpitude. We agree and so deny

the petition for review in part. The Board also held that the immigration judge (IJ) provided

Solis-Flores with legally adequate notice of the conditions applicable to his voluntary

departure. We disagree and so grant the petition in part and remand to the Board to consider

Solis-Flores’s request for a remand to the IJ for a new period of voluntary departure.

I.

In 2012, the Department of Homeland Security issued Solis-Flores a notice to

appear, charging that he was removable as an alien present in the United States without

having been admitted or paroled. Solis-Flores admitted he was removable as charged and

applied for cancellation of removal. See 8 U.S.C. § 1229b(b). After conducting a hearing,

the IJ concluded that Solis-Flores was not eligible for cancellation of removal because he

had previously been convicted of a crime involving moral turpitude. See 8 U.S.C.

§§ 1229b(b)(1)(C), 1227(a)(2)(A)(i). Specifically, Solis-Flores had a 2000 conviction for

receiving stolen property in violation of Virginia Code § 18.2-108. But the IJ granted

Solis-Flores the privilege of voluntary departure in lieu of removal. See 8 U.S.C.

§ 1229c(b).

Solis-Flores appealed to the Board. Reviewing de novo, the Board held that his

conviction for receipt of stolen property was a crime involving moral turpitude and

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therefore Solis-Flores was ineligible for cancellation of removal. The Board declined to

reinstate voluntary departure or remand to the IJ for that purpose because Solis-Flores had

not posted the required bond despite receiving proper notice of his obligation to do so. In

reaching that conclusion, the Board held that the relevant regulation did not require the IJ

to provide advance notice of the bond requirement; one Board member dissented from that

holding. Solis-Flores then petitioned this Court for review.

II.

We first consider Solis-Flores’s challenge to the denial of his application for

cancellation of removal. Where, as here, the Board issues its own opinion without adopting

the IJ’s opinion, the Board’s decision “constitutes the final order of removal” and “we

review that opinion and not the opinion of the IJ.” Martinez v. Holder, 740 F.3d 902, 908

(4th Cir. 2014). Solis-Flores presents only questions of law, which we have jurisdiction to

resolve. See 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D). We review those questions de novo,

“affording appropriate deference to the [Board’s] interpretation of the [Immigration and

Nationality Act] and any attendant regulations.” Li Fang Lin v. Mukasey, 517 F.3d 685,

691–692 (4th Cir. 2008).

To be eligible for cancellation of removal, Solis-Flores was required to prove,

among other things, that he has not been convicted of a crime involving moral turpitude.

8 U.S.C. §§ 1229a(c)(4)(A), 1229b(b)(1)(C), 1227(a)(2)(A)(i); see Pereida v. Wilkinson,

141 S. Ct. 754, 758 (2021). A crime involving moral turpitude is one that not only violates

a statute but also is inherently immoral. See Uribe v. Sessions, 855 F.3d 622, 625 (4th Cir.

2017); Mohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014). Such a crime “‘requires

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two essential elements: a culpable mental state and reprehensible conduct.’” Sotnikau v.

Lynch, 846 F.3d 731, 736 (4th Cir. 2017) (quoting In re Ortega-Lopez, 26 I. & N. Dec. 99,

100 (BIA 2013)). In determining whether a crime involves moral turpitude, courts and the

Board apply the “categorical approach,” which “requires that we examine the statutory

elements of the crime” rather than the facts underlying the particular violation. Prudencio

v. Holder, 669 F.3d 472, 484 (4th Cir. 2012). Only if “all permutations” of the proscribed

conduct involve moral turpitude will the offense categorically qualify. Martinez v.

Sessions, 892 F.3d 655, 658 (4th Cir. 2018).

Solis-Flores disputes (1) under what circumstances receipt of stolen property

involves moral turpitude, and (2) whether his statute of conviction qualifies. We consider

each in turn.

A.

The Board has long held that receipt of stolen property is a crime involving moral

turpitude if the offense requires knowledge that the received property was stolen. See, e.g.,

Matter of Salvail, 17 I. & N. Dec. 19, 20 (BIA 1979) (holding that possession of stolen

goods was a crime involving moral turpitude, “as it specifically requires knowledge of the

stolen nature of the goods”); Matter of Patel, 15 I. & N. Dec. 212, 213 (BIA 1975) (“The

crime of receiving stolen property involves moral turpitude, if knowledge that the goods

were stolen is an element of the offense.”), overruled on other grounds by Matter of Castro,

19 I. & N. Dec. 692 (BIA 1988). In its decision below, the Board reiterated this standard

and rejected Solis-Flores’s argument that receipt of stolen property cannot be a crime

involving moral turpitude absent proof that the accused intended to permanently deprive

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the owner of her property. As the Board explained, it has never adopted that requirement

for receipt offenses but “has always” maintained that “the salient element” for purposes of

moral turpitude is “the defendant’s knowledge of the stolen nature of the property.” J.A.

5. The Board distinguished an earlier line of cases requiring proof of intent to permanently

deprive for “ordinary theft or larceny offenses,” explaining that theft and receipt of stolen

property are “conceptually distinct.” J.A. 5 n.5.

We defer to the Board’s precedential “determination of what type of conduct

involves moral turpitude,” provided its interpretation is reasonable. Yousefi v. I.N.S., 260

F.3d 318, 326 (4th Cir. 2001) (per curiam) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837 (1984)); see also Prudencio, 669 F.3d at 484. Solis-Flores

says deference is not warranted here because the Board has contradicted its own precedent

and, in any event, it would be arbitrary and capricious to regard receipt of stolen property

as a crime of moral turpitude without proof of intent to permanently deprive the owner of

her property. See Amaya v. Rosen, 986 F.3d 424, 432 (4th Cir. 2021) (“An interpretation

is unreasonable under Chevron deference if it is arbitrary, capricious, or manifestly

contrary to the statute.” (internal quotation marks omitted)). We disagree on both counts.

First, the Board did not contradict its precedent. Solis-Flores contends that, in 1944,

the Board ruled that receipt of stolen property could be a crime involving moral turpitude

only if it required proof of the receiver’s intent to permanently deprive the victim of her

property and that this precedent has never been overruled. The decision was Matter of K-

, 2 I. & N. Dec. 90 (BIA 1944), and the Board held that a German statute criminalizing

receipt of stolen property did not involve moral turpitude because it included “negligent

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receipt of property by a person acting in good faith.” Id. at 91. The Board explained that,

“[w]here property is acquired without knowledge that it is stolen or without intent to

deprive the rightful owner of his possession, the offense does not involve moral turpitude.”

Id. Contrary to Solis-Flores’s argument, the Board did not hold that a statute must require

proof the receiver intended to permanently deprive the rightful owner of the property in

order to involve moral turpitude. The other Board decisions Solis-Flores cites are not to

the contrary. See, e.g., Matter of G-, 2 I. & N. Dec. 235, 238 (BIA 1945) (holding that “the

original theft” involved moral turpitude because the thief intended to permanently deprive

the owner of the property and “the appellant’s retention of the goods with knowledge that

it had been so obtained likewise involve[d] moral turpitude”); Matter of Serna, 20 I. & N.

Dec. 579, 586 (BIA 1992) (quoting Matter of K-); Matter of S-, 4 I. & N. Dec. 365, 365–

366 (BIA 1951) (examining the same German statute as Matter of K-).

Second, the Board’s determination that knowing receipt of stolen property is a crime

involving moral turpitude is reasonable. Independent of any statutory proscription, it is

morally wrong to possess property knowing it has been stolen from its rightful owner. See

Mohamed, 769 F.3d at 888 (asking whether the conduct “not only violates a statute but also

independently violates a moral norm”). The vast majority of our sister circuits agree. See

Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000) (holding receipt crime was “morally

turpitudinous because knowledge is a requisite element . . . and corrupt scienter is the

touchstone of moral turpitude”); De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 637 (3d Cir.

2002) (“[K]nowingly possessing stolen goods is a crime of moral turpitude.”); United

States v. Castro, 26 F.3d 557, 558 n.1 (5th Cir. 1994) (“Convictions for . . . receiving stolen

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property with knowledge that such property is stolen constitute crimes of ‘moral

turpitude.’”); Hashish v. Gonzales, 442 F.3d 572, 576 n.4 (7th Cir. 2006) (“[R]eceiving

stolen property requires the same state of mind, ‘knowingly,’ . . . and has been recognized

as a crime of moral turpitude.”); Okoroha v. INS, 715 F.2d 380, 382 (8th Cir. 1983)

(deferring to the Board’s decision that possessing stolen mail was a crime involving moral

turpitude “because knowledge that the article of mail had been stolen was an essential

element of the offense”); De Leon v. Lynch, 808 F.3d 1224, 1230 (10th Cir. 2015) (“[T]he

weight of apposite caselaw from the [Board] and our sister circuits supports the view that

knowing the goods to be stolen, alone, is sufficient to render an offense a crime of moral

turpitude.”); Nasrallah v. U.S. Att’y Gen., 762 Fed. App. 638, 643 (11th Cir. 2019), rev’d

on other grounds sub nom. Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (holding that

“knowledge that the items were stolen” “is enough to qualify as a crime involving moral

turpitude”).

Only the Ninth Circuit has held to the contrary, and it did so based on an incorrect

assessment of Board precedent. See Castillo-Cruz v. Holder, 581 F.3d 1154, 1159–1161

(9th Cir. 2009). The court reasoned, and Solis-Flores now argues, that because the Board

considers “whether there was an intention to permanently deprive the owner of his

property” in assessing whether a theft offense is a crime of moral turpitude, “the same

principle would appear to apply to the receipt of stolen property.” Id. at 1159–1160

(internal quotation marks omitted). Like our sister circuits, “we are not persuaded by the

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Ninth Circuit’s analysis.” 1 De Leon, 808 F.3d at 1229. Theft and receipt of stolen property

are distinct offenses that require different mental states and different conduct. The Board

used to hold that theft is not a crime of moral turpitude if the thief did not intend to

permanently deprive the owner of the property; the favored example is “‘joyriding’—the

nonconsensual taking of a motor vehicle with the intent to return it to the owner shortly

thereafter.” Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847, 850 (BIA 2016); see id. at 854

(abandoning this rule in favor of one that requires “intent to deprive the owner of his

property either permanently or under circumstances where the owner’s property rights are

substantially eroded”). But a receipt crime requires proof that a theft has already occurred;

what makes receipt of stolen property morally culpable is the receiver’s knowledge that the

property was previously stolen. See, e.g., Matter of Serna, 20 I. & N. Dec. at 585 n.10

(reasoning that possession of stolen property “perpetuate[s] the harm already inflicted” by

the theft). The Board’s theft cases, therefore, “do not shed light on the necessary scienter

for the receipt or possession of stolen property to be morally turpitudinous.” De Leon, 808

F.3d at 1229.

We defer to the Board’s reasonable interpretation that “[t]he crime of receiving

stolen property involves moral turpitude, if knowledge that the goods were stolen is an

element of the offense.” Matter of Patel, 15 I. & N. Dec. at 213. Proof of the receiver’s

intent to permanently deprive the original owner of the property is not required.

1

Nor do we find persuasive Solis-Flores’s citation to an unpublished decision

arising out of the Ninth Circuit in which the Board complied with Castillo-Cruz, as it must.

See D-E-P-L-, AXXX XXX 458 (BIA Dec. 18, 2014).

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B.

Applying the Board’s standard to Solis-Flores’s crime of conviction, we conclude

it qualifies as a crime involving moral turpitude. We owe no deference to the Board’s

determination of this issue. See Martinez, 892 F.3d at 661.

At the time of Solis-Flores’s conviction in 2000, Section 18.2-108 of the Virginia

Code stated: “If any person buy or receive from another person, or aid in concealing, any

stolen goods or other thing, knowing the same to have been stolen, he shall be deemed

guilty of larceny thereof . . . .” Virginia courts have identified four elements required for

conviction under the statute: “(1) That the goods or other things were previously stolen by

some other person. (2) That the accused bought or received them from another person, or

aided in concealing them. (3) That at the time he so bought or received them, or aided in

concealing them, he knew they had been stolen. (4) That he so bought or received them,

or aided in concealing them, malo animo or with a dishonest intent.” Patterson v.

Commonwealth, 181 S.E. 281, 282 (Va. 1935) (internal quotation marks and citations

omitted); see Whitehead v. Commonwealth, 684 S.E.2d 577, 580 (Va. 2009).

Because knowledge that the property was stolen is an element of Section 18.2-108,

Solis-Flores’s conviction thereunder qualifies as a crime involving moral turpitude. To the

extent he hypothesizes about the possibility of receiving stolen property with intent to

return it to its rightful owner, Solis-Flores has not shown a “realistic probability” that

Virginia would apply the statute to such conduct in view of the dishonest intent element.

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); see, e.g., Jones v. Commonwealth,

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No. 0351-16-1, 2017 WL 586519, at *3 (Va. Ct. App. Feb. 14, 2017) (describing dishonest

intent as intent “to continue acting adversely to the owner’s property interest”).

Solis-Flores alternatively contends that someone could be convicted under Section

18.2-108 for passively receiving benefits flowing from the sale of stolen goods, which

would fall outside the bounds of what the Board considers a crime involving moral

turpitude. In support of his contention, Solis-Flores relies on Whitehead v. Commonwealth,

No. 1699-06-3, 2008 WL 762189 (Va. Ct. App. Mar. 25, 2008). There, the defendant’s

partner stole personal property, sold it, and used the proceeds to support the defendant and

her child. The Virginia Court of Appeals affirmed her conviction for receipt of stolen

property. But the Virginia Supreme Court reversed, deriding the Court of Appeals’

decision as “plainly wrong in holding that Whitehead ‘received’ the property merely

because she benefited from the proceeds of its sale.” Whitehead, 684 S.E.2d at 581

(emphasis added). The Virginia Supreme Court emphasized that it had “never recognized

this manner of receipt for the purposes of this offense” and “such a manner of receipt does

not fall within the plain meaning of Code § 18.2-108.” Id.

Despite the Supreme Court’s clear statement of Virginia law, Solis-Flores asserts

that the brief existence of the Court of Appeals’ contrary 2008 decision demonstrates that,

at the time of his conviction in 2000, it was possible for a defendant to be convicted on this

erroneous theory. Yet Solis-Flores does not identify a single conviction other than

Whitehead’s. And, as the Virginia Supreme Court explained, the plain text of Section 18.2-

108 does not support such a theory. Solis-Flores therefore has not shown a “realistic

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probability”—as opposed to a “theoretical possibility”—that Virginia would have applied

the statute in such a manner, even in 2000. Gonzales, 549 U.S. at 193.

Because Solis-Flores’s conviction for receipt of stolen property was a crime

involving moral turpitude, we deny the petition for review as regards the Board’s denial of

cancellation of removal.

III.

Lastly, we consider the Board’s refusal to remand to the IJ for a new grant of

voluntary departure. After denying cancellation of removal, the IJ granted Solis-Flores

voluntary departure. Solis-Flores, however, did not post the mandatory bond. On appeal

to the Board, he argued that the IJ failed to comply with 8 C.F.R. § 1240.26(c)(3)(i), which

requires the IJ to inform an alien of the bond obligation before granting voluntary

departure. He requested a remand for the IJ to grant a new period of voluntary departure

after providing the required advisals. Over the dissent of one member, the Board held that

advance notice is required only for discretionary conditions on voluntary departure and not

for mandatory conditions like the bond requirement. The Board therefore concluded the IJ

had not erred and denied remand.

We have jurisdiction to review the Board’s interpretation of 8 C.F.R.

§ 1240.26(c)(3) because it is a question of law. See 8 U.S.C. §§ 1252(a)(2)(B)(i),

(a)(2)(D), 1229c(f). At the conclusion of removal proceedings, an IJ may permit an alien

to voluntarily depart in lieu of removal, provided certain criteria are satisfied. 8 U.S.C.

§ 1229c(b); 8 C.F.R. § 1240.26(c). An alien permitted to voluntarily depart must post a

“voluntary departure bond” to ensure timely departure. 8 U.S.C. § 1229c(b)(3). “Before

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granting voluntary departure, the immigration judge shall advise the alien of the specific

amount of the bond to be set and the duty to post the bond . . . within 5 business days of

the immigration judge’s order granting voluntary departure.” 8 C.F.R. § 1240.26(c)(3)(i).

The Board erred as a matter of law. The relevant regulation unequivocally requires

the IJ, “[i]n all cases,” to inform an alien of the bond amount and deadline “[b]efore

granting voluntary departure.” 8 C.F.R. § 1240.26(c)(3), (c)(3)(i) (emphasis added). The

regulation makes no exception for cases in which the IJ sets the bond at the mandatory

minimum of $500. Contrary to the Board’s conclusion, therefore, it was insufficient for

the IJ to advise Solis-Flores of the bond amount and deadline in the order itself.

The Government does not make any argument in support of the Board’s ruling but

instead urges us to deny the petition because Solis-Flores has not demonstrated prejudice. 2

However, the Board did not address whether an alien must show he was prejudiced by the

IJ’s delay in providing the required advisals or whether Solis-Flores had made such a

showing. Cf. Matter of Gamero Perez, 25 I. & N. Dec. 164, 168 (2010) (concluding that

remand is “the appropriate remedy when the mandatory advisals have not been provided”).

Because “‘[a]n agency’s action must be upheld, if at all, on the basis articulated by the

agency itself,’” we decline to consider this argument in the first instance. Gonzalez v.

Garland, 16 F.4th 131, 144 (4th Cir. 2021) (quoting Motor Vehicle Mfrs. Ass’n v. State

Farm Mut. Auto. Ins., 463 U.S. 29, 50 (1983)).

2

The Government also has not asked us to apply 8 C.F.R. § 1240.26(i) in these

circumstances. That provision states that “any grant of voluntary departure shall terminate

automatically upon the filing of [a] petition [for review] or other judicial challenge” and

the alternate order of removal “shall immediately take effect.” 8 C.F.R. § 1240.26(i).

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We therefore grant the petition in part and remand for the Board to consider Solis-

Flores’s request for remand to the IJ for a new period of voluntary departure with the

required advisals. 3

IV.

We affirm the Board’s holding that Solis-Flores’s conviction for receipt of stolen

property rendered him ineligible for cancellation of removal. But the Board erred in

concluding that the IJ was not required to advise Solis-Flores of the bond requirement

before granting voluntary departure. Accordingly, we deny the petition with respect to

cancellation of removal but remand for the Board to consider Solis-Flores’s request for

voluntary departure.

DENIED IN PART, GRANTED IN PART, AND REMANDED

3

The parties agree that 8 C.F.R. § 1240.26(k)(1), which prohibits the Board from

remanding to an IJ to reconsider a request for voluntary departure, does not apply here.

Solis-Flores filed his appeal to the Board before the effective date of this new provision.

See 85 Fed. Reg. 81588, 81588 (Dec. 16, 2020). And implementation of the regulation

remains enjoined nationwide. See Centro Legal de la Raza v. Exec. Off. for Immigr. Rev.,

524 F. Supp. 3d 919, 980 (N.D. Cal. 2021).

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