Victor Manuel Villeda v. U.S. Attorney General , 532 F. App'x 897 ( 2013 )

Case: 13-10168 Date Filed: 09/30/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10168
Non-Argument Calendar
________________________
Agency No. A094-095-208
VICTOR MANUEL VILLEDA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 30, 2013)
Before HULL, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
Case: 13-10168 Date Filed: 09/30/2013 Page: 2 of 4
Victor Manuel Villeda, a native and citizen of El Salvador, seeks review of
the Board of Immigration Appeals’ (BIA) order affirming the Immigration Judge’s
(IJ) finding of ineligibility for special rule cancellation of removal under Section
203 of the Nicaraguan and Central American Relief Act (NACARA), Pub. L. No.
105-100, 110 Stat. 2160 (1997), as amended by Pub. L. No. 105-139, 111 Stat.
2644 (1997). Villeda previously pled nolo contendere in Florida state court to
willfully failing to stop and remain at the scene of an accident involving death
under § 316.027(1)(b) of the Florida Statutes. Using the modified categorical
approach, the BIA determined this conviction constituted a crime involving moral
turpitude, and that Villeda was ineligible for relief under NACARA because he had
not established a continuous period of at least ten years of residence following his
conviction. Villeda argues before this Court that the BIA considered portions of
the record relying on impermissible evidence to determine that his conviction
qualified as a crime involving moral turpitude. 1
We review only the BIA’s decision, except to the extent it expressly adopts
the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
Here, because the BIA issued its own decision, we review the BIA’s decision. See
1
Villeda also contends the term “crime involving moral turpitude” is vague and lacks
clarity, and we should conclude it is void as applied to § 316.027(1)(b). This argument is
without merit. See, e.g., Jordan v. De George, 341 U.S. 223, 229-30 (1951) (noting that the
phrase “crime involving moral turpitude” has “been part of the immigration laws for more than
sixty years” and “used for many years as a criterion in a variety of other statutes,” and “[n]o case
has been decided holding that the phrase is vague”).
2
Case: 13-10168 Date Filed: 09/30/2013 Page: 3 of 4
id. We review the BIA’s legal determinations de novo, Maldonado v. U.S. Att’y
Gen., 664 F.3d 1369, 1375 (11th Cir. 2011), but give deference to the BIA’s
interpretation of the statutes it administers, De la Rosa v. U.S. Att’y Gen., 579 F.3d
1327, 1335 (11th Cir. 2009).
Although “moral turpitude” is not defined by the immigration statute, this
Court has recognized that it involves “[a]n 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.” Itani v. Ashcroft, 298 F.3d 1213, 1215 (11th Cir. 2002). We use
the categorical approach to determine whether a particular offense constitutes a
crime involving moral turpitude. Fajardo v. U.S. Att’y Gen., 659 F.3d 1303, 1305
(11th Cir. 2011). However, if the statutory language “encompasses some conduct
that categorically would be grounds for removal as well as other conduct that
would not,” then adjudicators may use the modified categorical approach and look
at “the record of conviction—i.e., the charging document, plea, verdict, and
sentence.” Id.Under § 316.027(1)(b) of the Florida Statutes, a driver of a vehicle involved
in an accident that results in the death of any person must immediately stop at the
scene and remain at the scene until he has fulfilled the requirements of § 316.062,
which requires, inter alia, the driver of the vehicle to provide certain information
3
Case: 13-10168 Date Filed: 09/30/2013 Page: 4 of 4
and render “reasonable assistance” to any person injured in the crash. Fla. Stat.
§ 316.062(1).
The parties agree that the BIA properly determined that the statute is
divisible, such that use of the modified categorical approach was appropriate. In
finding that Villeda was convicted of a crime involving moral turpitude, the BIA
relied on the charging document, which stated that Villeda “unlawfully and
willfully fail[ed] to stop the vehicle at the scene of said crash . . . and remain at the
scene of the crash until fulfilling the requirements of Section 316.062, said crash
resulting in the death of [the victim] contrary to Section 316.027(1)(b).” The
BIA’s reliance on the charging document was proper under the modified
categorical approach, Fajardo, 659 F.3d at 1305, and, contrary to Villeda’s
assertion, the BIA’s determination was not affected by his arrest report or any
other impermissible evidence. Based on the record of conviction, we agree with
the BIA’s conclusion that Villeda’s willful failure to stop and remain at the scene
of the deadly crash was inherently base, vile, or depraved, and “contrary to the
accepted and customary rule of right and duty between man and man.” Itani, 298
F.3d at 1215. And, because Villeda could not establish ten years of continuous
physical presence in the United States following the conviction, the BIA did not err
by finding him ineligible for special rule cancellation of removal.
PETITION DENIED.
4