Fredy Gabriel Machado-Zuniga v. U.S. Attorney General ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12671
Non-Argument Calendar
________________________
Agency No. A058-405-587
FREDY GABRIEL MACHADO-ZUNIGA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 6, 2014)
Before WILSON, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Fredy Gabriel Machado-Zuniga seeks review of an order of the Board of
Immigration Appeals (BIA) finding him removable pursuant to Immigration and
Nationality Act (INA) § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i). The BIA
found that Machado-Zuniga’s 2007 conviction for transporting stolen goods in
violation of 18 U.S.C. § 2314 constituted a crime involving moral turpitude. On
appeal, Machado-Zuniga argues that the BIA applied the wrong legal framework
when it analyzed the prior conviction, and that under the proper framework the
conviction would not qualify as a crime involving moral turpitude. After careful
review, we deny Machado-Zuniga’s petition for review.
I.
Machado-Zuniga is a native and citizen of Honduras who was admitted to
the United States as a lawful permanent resident on April 8, 2006. On September
28, 2007, he pleaded guilty to transporting stolen goods in interstate commerce in
violation of 18 U.S.C. § 2314. Under the INA, an alien who, within five years of
admission, is convicted of a crime involving moral turpitude punishable by one
year or more of imprisonment is removable. INA § 237(a)(2)(A)(i), 8 U.S.C.
§ 1227(a)(2)(A)(i).
The Department of Homeland Security initiated removal proceedings against
Machado-Zuniga pursuant to this crime-involving-moral-turpitude removal
provision. An Immigration Judge (IJ) found that Machado-Zuniga’s conviction
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was categorically a crime involving moral turpitude. The BIA affirmed the IJ’s
decision, but did not say that every conviction under § 2314 qualifies. Rather, the
BIA concluded that Machado-Zuniga’s “conviction is for a crime involving moral
turpitude” because the “portion of the statute” under which he was convicted
involves moral turpitude. It is this determination that Machado-Zuniga now
appeals. Because the BIA merely “agree[d]” with the result but did not “expressly
adopt[]” the IJ’s decision, our review is limited to the BIA’s order. See Ruiz v.
Gonzales, 479 F.3d 762, 765 (11th Cir. 2007).
II.
The question we consider in this appeal is whether a violation of 18 U.S.C.
§ 2314 is a crime involving moral turpitude. Although we are mindful that
Congress has restricted appellate review of immigration proceedings, it is clear that
we retain jurisdiction over questions of law such as this one. 8 U.S.C.
§ 1252(a)(2)(D); Cano v. U.S. Attorney Gen., 709 F.3d 1052, 1053 (11th Cir.
2013) (“We have jurisdiction to review the constitutional claims or questions of
law raised upon petition for review, including the legal questions of whether an
alien’s conviction qualifies as a crime involving moral turpitude.” (quotation marks
and alterations omitted)). We review de novo questions of statutory interpretation,
but defer to the BIA’s interpretation if it is reasonable. Cano, 709 F.3d at 1053.
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In resolving whether a conviction involves moral turpitude, this Court
applies the categorical approach or the modified categorical approach, depending
on the statutory scheme. See Fajardo v. U.S. Attorney Gen., 659 F.3d 1303, 1305
(11th Cir. 2011). Under the categorical approach, a court must “confine its
consideration only to the fact of conviction and the statutory definition of the
offense,” asking only whether the statute of conviction on its face defines a crime
that categorically qualifies as a crime of moral turpitude. See Donawa v. U.S.
Attorney Gen., 735 F.3d 1275, 1280 (11th Cir. 2013).1
In a “narrow range of cases,” courts may apply what is known as the
modified categorical approach. Id. at 1281 (quoting Descamps v. United States,
570 U.S. ___, 133 S. Ct. 2276, 2281 (2013)). The modified categorical approach
applies only when the statute of conviction is “divisible.” Id. at 1280. A divisible
statute is one that “sets out one or more elements of the offense in the alternative”
in such a way that conviction under one of the alternatives would be considered a
crime involving moral turpitude but conviction under another would not.
Descamps, 133 S. Ct. at 2281. Specifically, there are statutes that list elements in
the alternative in such a way that “renders opaque which element played a part in
1
Donawa explains the categorical and modified categorical approaches in a case asking whether
a prior conviction was an aggravated felony. 735 F.3d at 1279–80. The general analytical
framework and underlying principles, however, apply with equal force in cases asking whether a
prior conviction is a crime involving moral turpitude. See Fajardo, 659 F.3d at 1305–06 (relying
on precedent from other contexts in which the categorical and modified categorical approaches
apply in a case about whether a prior conviction qualified as a crime involving moral turpitude).
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the defendant’s conviction.” Id. at 2283. In such cases, “we expand our inquiry
beyond the fact of conviction and also look to the record of conviction” to decide
whether the alien was convicted under a subsection of the divisible statute that
qualifies as a crime involving moral turpitude. Donawa, 735 F.3d at 1280
(quotation mark omitted). This approach “retains the categorical approach’s
central feature: a focus on the elements, rather than the facts, of a crime.”
Descamps, 133 S. Ct. at 2285; see also Moncrieffe v. Holder, 569 U.S. ___, 133 S.
Ct. 1678, 1690 (2013) (noting that the modified categorical approach must not be
used to engage in “the sort of post hoc investigation into the facts of predicate
offenses that we have long deemed undesirable”).2
III.
Machado-Zuniga argues that the BIA erred because it should have applied
the modified categorical approach but failed to do so. But this position
misapprehends the BIA’s decision. Rather than finding that a violation of § 2314
is categorically a crime of violence, the BIA applied the modified categorical
approach, analyzing the “portion of the statute” under which Machado-Zuniga was
convicted. Of course, Machado-Zuniga also disagrees with the BIA’s application
of the modified categorical approach, insofar as he argues that the paragraph under
2
Machado-Zuniga urges us to remand for precisely this sort of forbidden post-hoc investigation
into the particular facts of his conduct, arguing that the modified categorical approach would
require “an evidentiary hearing wherein [Machado-Zuniga] could reveal when he learned the
stolen nature of the goods.” This reflects a misunderstanding of the modified categorical
approach’s purpose and application.
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which he was convicted is not necessarily a crime involving moral turpitude
because a person can be convicted under it even if he only learns that the property
was stolen after he receives the property and begins the transportation process.
Under our precedent, the BIA’s determination was correct.
It is clear from the indictment underlying Machado-Zuniga’s conviction and
the pattern jury instructions for 18 U.S.C. § 2314 that the statute effectively creates
several different offenses, as it includes six different paragraphs that define an
alternative way the statute can be violated. As evidenced by Machado-Zuniga’s
indictment, the prosecutor selects one of the six alternatives when charging the
defendant and the jury must find each element of that alternative beyond a
reasonable doubt. See Descamps, 133 S. Ct. at 2281, 2284; see also id. at 2285 n.2
(noting that in determining whether a statute is divisible, courts may look to the
indictment and jury instructions). So long as at least one of the six alternatives
covers conduct that is not a crime involving moral turpitude, the statute is divisible
and the BIA and Machado-Zuniga’s reliance on the modified categorical approach
is appropriate. See Descamps, 133 S. Ct. at 2281. The parties briefed us only on
the one paragraph of the statute which formed the basis of Machado-Zuniga’s
conviction. For that reason, and because it makes no difference, we will assume
that at least one of the other five paragraphs covers conduct that does not involve
moral turpitude. Given this assumption, we focus, as the BIA did, on the particular
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paragraph that formed the basis of Machado-Zuniga’s conviction and ask whether
it qualifies as a crime involving moral turpitude.
Machado-Zuniga was convicted under the first paragraph of § 2314, which
provides that “[w]hoever transports, transmits, or transfers in interstate or foreign
commerce any goods, wares, merchandise, securities or money, of the value of
$5,000 or more, knowing the same to have been stolen, converted or taken by
fraud” has violated the section. A person violates this paragraph whenever he
transports property he knows to be stolen, even if he learns that it is stolen only
after he has received the property and begun the transportation process. United
States v. Turner, 871 F.2d 1574, 1578–79 (11th Cir. 1989).
Although the term “moral turpitude” is not defined by either statute or
implementing regulation, this Court has offered some guidance. We have
recognized that an act of moral turpitude involves 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 a man and man.” Itani v. Ashcroft, 298 F.3d 1213, 1215 (11th Cir. 2002).
We have also noted that “[g]enerally, a crime involving dishonesty . . . is
considered to be one involving moral turpitude.” Id.; see also id. at 1216 (finding
misprision of a felony to be a crime involving moral turpitude in part because it
“involves dishonest or fraudulent activity”).
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Using this definition, Machado-Zuniga’s conviction for transporting stolen
property is necessarily a crime involving moral turpitude. Regardless of when a
person learns that property is stolen in the process of transporting it, the act of
continuing to transport it once he knows it is stolen is an affirmative act of
dishonest behavior that “runs contrary to accepted societal duties.” Id.; cf. Savail,
17 I. & N. Dec. 19, 20 (BIA 1979) (finding that possession of stolen goods with
the knowledge that they are stolen is a crime involving moral turpitude).
The BIA thus correctly determined that the conduct criminalized by the
portion of § 2314 under which Machado-Zuniga was convicted is a crime
involving moral turpitude. For this reason, we DENY Machado-Zuniga’s petition.
PETITION DENIED.
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