Patel v. Holder , 707 F.3d 77 ( 2013 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 12-1349
    NUPUR PATEL,
    Petitioner,
    v.
    ERIC H. HOLDER, JR., Attorney General,
    Respondent.
    PETITION FOR REVIEW OF AN ORDER OF THE
    BOARD OF IMMIGRATION APPEALS
    Before
    Thompson, Stahl, and Lipez,
    Circuit Judges.
    Justin Conlon on brief for petitioner.
    Laura Halliday Hickein, Trial Attorney, United States
    Department of Justice, Office of Immigration Litigation, Stuart F.
    Delery, Acting Assistant Attorney General, Civil Division, and
    Russell J.E. Verby, Senior Litigation Counsel, Office of
    Immigration Litigation, on brief for respondent.
    February 1, 2013
    STAHL, Circuit Judge.   In 2003, petitioner Nupur Patel
    pled guilty to conspiracy-to-commit-larceny charges stemming from
    a scheme in which he stole from the dorm rooms of his college
    classmates.    As a result, an Immigration Judge (IJ) and the Board
    of Immigration Appeals (BIA) found that Patel, at the time a lawful
    permanent resident, was removable from the United States because
    his crimes involved "moral turpitude" within the meaning of the
    Immigration and Nationality Act (INA).   Patel now seeks our review
    of that determination.      Because the BIA's ruling does not find
    adequate support in the record, we reverse.
    I.   Facts & Background
    Patel is a twenty-eight-year-old native and citizen of
    India who became a lawful permanent resident of the United States
    in 1998.      His parents and only sibling are naturalized U.S.
    citizens, and many other relatives are either U.S. citizens or
    permanent residents. After immigrating to the United States, Patel
    attended high school in Connecticut and then enrolled at the
    University of Connecticut.     The incident that gave rise to this
    case occurred near the end of his freshman year.
    As recounted by the state prosecutor at Patel's plea
    hearing, Patel and two acquaintances concocted a plan whereby they
    would knock on doors in the university's dorms; if the resident
    answered, they would say they were looking for someone else and
    leave.     If not, they would enter the room (if the door was
    -2-
    unlocked) and take things. They executed the plan, taking clothes,
    DVDs, and electronics, but residents soon noticed the missing items
    and called the police.      University police officers found a car
    parked outside one of the dorms, in which they could plainly see
    many of the items that had been reported missing.            Patel and his
    companions returned to the car, admitted their involvement, and
    were arrested.
    Patel was charged with six counts of conspiracy under
    Conn. Gen. Stat. § 53a-48: three to commit misdemeanor larceny in
    the fourth degree, id. § 53a-125, and three to commit misdemeanor
    criminal trespass, id. § 53a-108.          He pled guilty, receiving a
    suspended sentence totaling four-and-a-half years and three years
    of probation.      Patel was also expelled from the University of
    Connecticut, but continued his education elsewhere, eventually
    earning a bachelor's and a master's degree.                He successfully
    completed the probation period and has had no other run-ins with
    the law.
    In March 2010, Patel returned to the United States from
    a vacation abroad.    Upon completion of Patel's reentry inspection,
    the Department of Homeland Security (DHS) issued a Notice to Appear
    charging him with removability on the ground that his convictions
    were   for   "crime[s]   involving    moral   turpitude"    (CIMTs)   under
    
    8 U.S.C. § 1182
    (a)(2)(A)(i)(I), and placed him in custody.
    -3-
    Before the IJ, Patel disputed removability, arguing that
    his offenses were not CIMTs because a theft offense qualifies as
    such only if it involves an intent to permanently deprive the owner
    of her property, and the record of his conviction did not establish
    that   intent.    In   the   alternative,    Patel    sought    a   waiver   of
    inadmissibility under 
    8 U.S.C. § 1182
    (h).              The IJ found Patel
    removable,   explaining      that,   under   her    reading    of   the   plea
    transcript, it was "clear that [Patel] intended to convert these
    items for his own . . . benefit and permanently deprive" the owners
    of their use.    The IJ also found Patel ineligible for a waiver of
    inadmissibility because his crimes qualified as aggravated felony
    theft offenses under 
    8 U.S.C. § 1101
    (a)(43)(G).
    On appeal, the BIA agreed that Patel was removable and
    ineligible for a waiver.      Patel petitioned for our review, but, at
    the Government's unopposed request, we instead vacated the decision
    and remanded to the BIA to consider an argument related to the
    waiver-of-inadmissibility issue. Patel v. Holder, No. 11-1104 (1st
    Cir. Sept. 6, 2011) (Judgment). On remand, the BIA again dismissed
    Patel's appeal. The BIA explained that its CIMT cases do, as Patel
    contended,   distinguish     between   thefts   involving      an   intent   to
    permanently deprive the owner of the property and those involving
    only an intent to do so temporarily.               Because the Connecticut
    larceny statute covered both kinds of theft, the BIA applied the
    modified categorical approach, under which it "look[s] to the
    -4-
    record of conviction to discern the nature of the respondent's
    conviction."    Based on the prosecutor's description of Patel's
    crimes at the plea hearing, the BIA concluded that Patel did indeed
    intend a permanent deprivation of the purloined items.          Thus, in
    the BIA's view, his offenses were CIMTs, and he was removable.         The
    BIA also reiterated its conclusion that Patel was not eligible for
    a waiver of inadmissibility. Patel now petitions for our review of
    the BIA's decision.
    II.   Analysis
    We review de novo the BIA's legal conclusions, Idy v.
    Holder,   
    674 F.3d 111
    ,   117   (1st   Cir.   2012),   including   its
    determination that a non-citizen's criminal conviction is grounds
    for removal, Campbell v. Holder, 
    698 F.3d 29
    , 32 (1st Cir. 2012).
    Where the Government asserts that a lawful permanent resident
    returning from abroad has been convicted of a crime rendering him
    removable, the government must so prove by clear and convincing
    evidence.   See In re Valenzuela-Felix, 
    26 I. & N. Dec. 53
    , 54 (BIA
    2012); In re Rivens, 
    25 I. & N. Dec. 623
    , 625 (BIA 2011).               We
    afford deference to the BIA's reasonable interpretations of the
    INA, including its construction of the term "moral turpitude," but
    not to its reading of an underlying criminal statute (as to which
    it has no expertise).     Da Silva Neto v. Holder, 
    680 F.3d 25
    , 28 &
    n.3 (1st Cir. 2012).      Where, as here, "the BIA has rendered a
    decision with its own analysis of the question at issue, our review
    -5-
    focuses on the BIA's decision, not the IJ's."              Vásquez v. Holder,
    
    635 F.3d 563
    , 565 (1st Cir. 2011).
    The term "moral turpitude" has a long history in federal
    immigration law, but Congress has never defined it.               See Da Silva
    Neto, 
    680 F.3d at 28
    .       Accordingly, we "have adopted the BIA's
    definition of a CIMT as '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.'"       
    Id. at 29
     (quoting Maghsoudi v. INS, 
    181 F.3d 8
    , 14 (1st Cir. 1999)); see also In re Silva-Trevino, 
    24 I. & N. Dec. 687
    , 689 n.1 (A.G. 2008) (a CIMT "must involve both
    reprehensible conduct and some degree of scienter").              It is common
    ground   among   the   parties    that     theft   offenses     can   meet   this
    definition, and that not all theft offenses do so.              As noted above,
    the BIA generally distinguishes between turpitudinous thefts and
    their less depraved counterparts by asking whether the defendant
    intended    to   permanently     deprive    the    owner   of   the   purloined
    property.   See In re Grazley, 
    14 I. & N. Dec. 330
    , 333 (BIA 1973).1
    1
    Pointing to language in another BIA opinion, see In re
    Jurado-Delgado, 
    24 I. & N. Dec. 29
    , 33 (BIA 2006), the Government
    suggests that "[w]hether the distinction between temporary and
    permanent takings is a necessary one in the CIMT context remains an
    open question."    In this case, however, the BIA treated the
    permanent-or-temporary-intent question as dispositive, and our
    review is limited to the reasoning articulated below. Mihaylov v.
    Ashcroft, 
    379 F.3d 15
    , 21 (1st Cir. 2004); see Wala v. Mukasey, 
    511 F.3d 102
    , 106 (2d Cir. 2007) (bypassing this issue where the BIA
    "treated the [permanent intent] inquiry as determinative").
    -6-
    Here, the parties agree that the Connecticut larceny
    statute under which Patel was convicted is "divisible," in that it
    covers   both   permanent    and   temporary   takings   (and   thus   both
    turpitudinous and non-turpitudinous conduct).2       Under the statute,
    "[a] person commits larceny when, with intent to deprive another of
    property or to appropriate the same . . . , he wrongfully takes,
    obtains or withholds such property from an owner."              Conn. Gen.
    Stat. § 53a-119.   In turn, "to appropriate" has two meanings: "(A)
    to exercise control over it . . . [so] as to acquire the major
    portion of its economic value or benefit"; or "(B) to dispose of
    the property for the benefit of oneself or a third person."            Id.
    § 53a-118(a)(4).    The latter form of appropriation requires that
    the defendant have acted without the intent to cause a permanent
    deprivation, Connecticut v. Wieler, 
    660 A.2d 740
    , 742 (Conn. 1995),
    whereas the other prongs of the statute require a permanent intent,
    see Conn. Gen. Stat. §§ 53a-118(a)(4)(A), 53a-119.        Therefore, the
    question is whether Patel was convicted under subsection 53a-
    118(a)(4)(B) (in which case his crimes were not CIMTs) or one of
    the other provisions of the larceny statute, see id. §§ 53a-
    118(a)(4)(A), 53a-119       (in which case they were).
    2
    Although Patel pled guilty to conspiracy to commit
    larceny rather than larceny itself, the parties agree that larceny
    is the crime that matters for CIMT purposes.          See 
    8 U.S.C. § 1182
    (a)(2)(A)(i)(I) (rendering inadmissible an alien convicted of
    "a crime involving moral turpitude" or "conspiracy to commit such
    a crime"); cf. Conteh v. Gonzales, 
    461 F.3d 45
    , 57 (1st Cir. 2006).
    For convenience, we refer to Patel's crimes as larcenies.
    -7-
    Because the larceny statute reaches both permanent and
    temporary takings, the parties concur that we should apply the
    modified categorical approach, under which "we may look to the
    record      of    conviction   --   the    indictment,   plea,   verdict,   and
    sentence," Idy, 
    674 F.3d at 118
    , to determine which prong of the
    statute Patel pled guilty to violating.             In doing so, we must bear
    in mind that "the facts underlying the conviction are relevant, if
    at all, only to identify which crime is the crime of conviction
    where . . . it is unclear which subsumed offense the defendant pled
    to."       Campbell, 698 F.3d at 33.            For example, in Campbell, we
    applied this methodology to hold that the Government had not shown
    that the petitioner committed an aggravated felony under the INA,
    where the smallest applicable subdivision of the statute he pled
    guilty to violating covered both aggravated and non-aggravated
    crimes (in that case, both sexual abuse and other types of offenses
    against children).        See 698 F.3d at 33, 35.3
    Here, the only part of the record of conviction that
    potentially illuminates this issue is the plea colloquy.               At the
    3
    The modified categorical approach roughly aligns with the
    middle phase of the three-step CIMT framework prescribed by the
    Attorney General in Silva–Trevino, 
    24 I. & N. Dec. 687
    . Because
    the parties agree that the modified categorical approach governs
    here, we need not address the other two Silva–Trevino steps, see Da
    Silva Neto, 
    680 F.3d at
    29 nn.6-7, nor otherwise wade into the
    debate about whether this approach is out of place in the CIMT
    context, compare Prudencio v. Holder, 
    669 F.3d 472
    , 484 (4th Cir.
    2012), with 
    id. at 491-92
     (Shedd, J., dissenting).
    -8-
    plea hearing, the state prosecutor described Patel's offenses this
    way:
    He had some friends visiting him . . . . In
    their words they were bored and they were
    looking for something to do and they came up
    with a plan where they would go through the
    dorm[s and] knock on fellow dorm residents'
    doors.   If somebody answered the door, they
    would say they were looking for a certain
    individual, close the door and then leave. If
    nobody answered, they would then open that
    door, if it was unlocked, go inside and find
    things that they could take and steal for
    their own benefit. They did this throughout
    the many dorms on the . . . campus.
    As described by the prosecutor, the items taken included a digital
    camera, a cellular phone, video game consoles, DVDs, clothing, and
    a laptop. The presiding judge asked Patel whether the prosecutor's
    recitation       of   the   facts     was   accurate,    and     Patel     answered
    affirmatively,        without    adding     anything    to     the   prosecutor's
    description.4
    The parties cross swords over the significance of the
    particular words the prosecutor chose to describe Patel's scheme:
    "they would . . . go inside and find things that they could take
    and    steal    for   their     own   benefit"   (emphasis      added).      Patel
    emphasizes the prosecutor's use of the phrase "for their own
    benefit," which, he points out, mirrors the language of subsection
    53a-118(a)(4)(B),       the     temporary-intent       prong    of   the   larceny
    4
    The Government is thus incorrect to assert, repeatedly,
    that Patel "chose to use the term 'steal' during his plea
    colloquy." He never used that word himself.
    -9-
    statute. See Conn. Gen. Stat. § 53a-118(a)(4)(B) ("[T]o dispose of
    the property for the benefit of oneself . . . .").        For its part,
    the Government focuses on the word "steal," asserting, with some
    support, that "steal" naturally suggests a permanent intent. E.g.,
    Morissette v. United States, 
    342 U.S. 246
    , 271 (1952) (defining
    "steal" to mean "to take away from one in lawful possession without
    right with the intention to keep wrongfully" (citation and internal
    quotation mark omitted)); Black's Law Dictionary (9th ed. 2009)
    (similar).5
    We     think   both   parties'   careful    parsing   of   the
    prosecutor's language puts more weight on a few isolated words than
    they can bear.    There is no indication that the prosecutor chose
    his words with the goal of indicating anything about Patel's
    intent, or with a specific statutory subsection in mind.        Indeed,
    precisely because Patel could be guilty of larceny regardless of
    whether his intent was temporary or permanent, there was no reason
    for the prosecutor to consider that issue.           Cf. Connecticut v.
    Spillane, 
    770 A.2d 898
    , 907 (Conn. 2001).       As far as the record
    reveals, he was simply explaining, in conversational language, what
    5
    Patel says that we cannot consider the Government's
    argument regarding the word "steal" because the BIA did not rely on
    this rationale below, making the Government's present position an
    impermissible "post-hoc rationalization." Patel is right that our
    review is limited to the reasoning articulated by the agency,
    Mihaylov, 379 F.3d at 21, but we think the BIA may have considered
    this language, which does appear in its opinion. Regardless, the
    Government's argument does not carry the day.
    -10-
    Patel and his fellow miscreants did; this description can only tell
    us so much about what was in Patel's own mind during the crime.
    Both parties' interpretations of the prosecutor's language are
    tenable, but we do not believe his choice of words does much to
    illuminate the issue before us.
    Consequently, we turn to the prosecutor's description of
    "the nature [of] and circumstances surrounding [Patel's] theft
    offense[s]."    In Re Jurado-Delgado, 
    24 I. & N. Dec. 29
    , 33 (BIA
    2006).   The BIA concluded, and the Government argues, that the
    volume   and   character   of   the   items   taken   (mostly   expensive
    electronics), and the fact that a security cable on the laptop was
    broken, showed Patel's intent to cause a permanent deprivation.
    Patel rejoins that the BIA's conclusion was based on inferences
    that are beyond its power to draw when applying the modified
    categorical approach.      In support of this argument, he points to
    the Second Circuit's decision in Wala v. Mukasey, 
    511 F.3d 102
     (2d
    Cir. 2007).
    In Wala, the petitioner pled guilty to two counts of
    third-degree burglary under Connecticut law as a result of his
    entry into, and theft from, the house of a woman he was working
    for; with two accomplices, he took two rings, other jewelry, a
    credit card, and two watches.     
    Id. at 103
    .   Because the Connecticut
    burglary statute criminalizes unlawful entry with the intent to
    commit a crime, and the intended crime in question was larceny, the
    -11-
    Wala court was called upon to answer essentially the same question
    presented here: whether the record of conviction established that
    the petitioner had been convicted under one of the permanent-
    deprivation prongs of the larceny statute.    See 
    id. at 107
    .
    Writing for the court, then-Judge Sotomayor answered that
    question in the negative.   She explained:
    In his plea colloquy, . . . Wala "actually
    admitted" to facts establishing that he was
    convicted of a burglary with the intent to
    commit a larceny.       Wala did not admit,
    however, to taking these items with the intent
    to   appropriate   them    permanently.   Wala,
    moreover, was not charged with committing a
    permanent taking; the charging document does
    not specifically name the intended crime
    associated   with   his   burglary   conviction
    . . . . However improbable, Wala could have
    been taking the jewelry with the intent to
    loan it to his girlfriend for one "night on
    the town" and then return it. Or, he could
    have been taking the credit cards with the
    intent   to   use    them    for   a   one-time
    identification purpose. The point is that
    either would have been sufficient to sustain
    Wala's guilty plea and conviction . . . .
    
    Id. at 109
     (citation omitted).        The Wala court's bottom-line
    conclusion was that, "although it may have been reasonable for the
    BIA to infer that Wala intended permanently to keep the items he
    admitted taking, the modified categorical approach does not permit
    the BIA to draw inferences of this kind."    Id.; accord Akinsade v.
    Holder, 
    678 F.3d 138
    , 146 (2d Cir. 2012); cf. Renteria-Morales v.
    Mukasey, 
    551 F.3d 1076
    , 1085 (9th Cir. 2008) (inferences drawn from
    -12-
    the    record    of   conviction   must    be     "necessary,"     not    merely
    "reasonable").
    Wala's holding was based on the broader principle that
    "the   BIA   cannot   adjudicate   the    facts    in   a    criminal    case   to
    determine whether, standing alone, they suggest that the petitioner
    committed a removable offense."           
    511 F.3d at
    109 (citing Sui v.
    INS, 
    250 F.3d 105
    , 119 (2d Cir. 2001)).                     Our cases likewise
    emphasize that, "as a general rule, 'the BIA may not adjudicate
    guilt' and 'must base removal orders on convictions, not on conduct
    alone.'"     Campbell, 698 F.3d at 32 (quoting Conteh, 
    461 F.3d at 56
    ).    And we agree with the Wala court's application of this
    principle.      As in Wala, there may be some reason to think that
    Patel intended to cause a permanent deprivation, but the facts
    revealed by the plea colloquy are not sufficient to "identify which
    crime" -- subsection 53a-118(a)(4)(B), or another prong of the
    larceny statute --       "is the crime of conviction."           Campbell, 698
    F.3d at 33 (emphasis omitted).       It is true that, as the Government
    points out, Wala's plea colloquy used the word "took" whereas
    Patel's used the word "steal," but, for the reasons given above, we
    do not see this as a dispositive distinction (and there is no
    indication that the Wala court considered the use of "took" to be
    decisive).      And we do not think it any more "improbable" that Patel
    was engaged in a foolish collegiate prank than that Wala took "the
    jewelry with the intent to loan it to his girlfriend."                  Wala, 511
    -13-
    F.3d at 109.6     Ultimately, although the inferences drawn by the BIA
    here are not unreasonable, they impermissibly bridge the "gap
    between the 'offense' and the actual conduct" involved, Campbell,
    698 F.3d at 35, because "there is no statement in [Patel]'s plea
    colloquy admitting an intent to commit a permanent taking," Wala,
    
    511 F.3d at 110
    ; see Akinsade, 678 F.3d at 144 ("[T]he BIA may only
    consider facts to which a defendant actually and necessarily
    pleaded in order to establish the elements of the offense . . . ."
    (citation and internal quotation mark omitted)).            Consequently, we
    hold that the BIA erred in finding Patel removable, and need not
    decide whether he would be eligible for a waiver.
    This result may seem strange, but that is a not-uncommon
    side effect of the modified categorical approach. "Sometimes th[is
    approach] hurts the alien . . . .           Other times, as in this case,
    the alien . . . comes out ahead. This is hardly the most jarring
    example."      Campbell, 698 F.3d at 36.
    III.     Conclusion
    For the foregoing reasons, Patel's petition for review is
    granted, the BIA's order dismissing Patel's appeal is vacated, and
    the   matter    is   remanded   to   the    BIA   for   further   proceedings
    consistent with this decision.
    6
    We do not agree with the BIA that the fact that an item
    was damaged necessarily places this escapade beyond the realm of
    the prank. Cf. Rodriguez-Herrera v. INS, 
    52 F.3d 238
    , 240 (9th
    Cir. 1995) (conviction under property-damage law that reached
    "pranksters with poor judgment" was not categorically a CIMT).
    -14-