Victor Sasay v. Attorney General United States ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-1273
__________
VICTOR SASAY, a/k/a Victor Sesay, a/k/a Hermes Herrera-
Cuba,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF
AMERICA
____________________________________
On Petition for Review of a Final Order of the
Board of Immigration Appeals
(A058-985-272)
Immigration Judge: Audra Behne
____________________________________
Argued September 22, 2020
Before: SMITH, Chief Judge, McKEE, and JORDAN Circuit
Judges
(Opinion filed: September 10, 2021)
___________
Benjamin J. Osorio, Esq.
Murray Osorio
4103 Chain Bridge Road
Suite 300
Fairfax, VA 22030
Mark A. Stevens, Esq. [ARGUED]
Clark Hill
1001 Pennsylvania Avenue N.W.
Suite 1300 South
Washington, DC 20004
Counsel for Petitioner
Joseph H. Hunt, Assistant Attorney General
Cindy S. Ferrier, Assistant Director
Joseph A. O'Connell, Esq. [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
___________
OPINION
___________
McKEE, Circuit Judge.
Victor Sasay petitions for review of the Board of
Immigration Appeals’ ruling that his conviction for aggravated
identity theft in violation of 18 U.S.C. § 1028A(a)(1) is a crime
involving moral turpitude (“CIMT”), thus making him
removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii). Sasay
asserts that aggravated identity theft is not a CIMT because it
only criminalizes possession of another person’s identity
documents and does not require the use or the intent to use the
documents. For the reasons that follow, we will deny the
petition for review.
I.
A. Factual and Procedural History
Victor Sasay is a native and citizen of Sierra Leone. He
was admitted to the United States as a lawful permanent
resident in 2007. In 2015, he was convicted of misdemeanor
credit card fraud under Virginia law1 and sentenced to 175
days’ imprisonment.2 In 2018, he was convicted in South
1
Va. Code § 18.2-195(3).
2
Appx. at 5–6.
2
Dakota of aiding and abetting aggravated identity theft in
violation of 18 U.S.C. § 1028A(a)(1) and sentenced to 24
months’ imprisonment.3 That conviction is the one at the
center of this dispute. It resulted from Sasay and his co-
defendants purchasing credit card numbers online and using
counterfeit access devices to acquire hundreds of credit and
debit cards from multiple stores across the Midwest.4
A noncitizen, lawful permanent resident is removable
when she or he is convicted of “two or more crimes involving
moral turpitude, not arising out of a single scheme of criminal
misconduct.”5 The Department of Homeland Security
concluded that both of Sasay’s convictions were CIMTs and
that they arose from separate criminal schemes. Accordingly,
DHS initiated removal proceedings. Sasay applied for several
forms of relief including asylum, withholding of removal,
protection under the Convention Against Torture, and
cancellation of removal.6
3
Id. at 6. Although Sasay was convicted of aiding and
abetting aggravated identity theft as opposed to aggravated
identity theft, we treat the commission of those crimes the
same when considering whether a criminal offense is a
CIMT. See 18 U.S.C. § 2(a) (“Whoever commits an offense
against the United States or aids, abets, counsels, commands,
induces, or procures its commission, is punishable as a
principal.”); Matter of F-, 6 I. & N. Dec. 783, 785 (BIA 1955)
(“While the legal distinction between principal and accessory
remains, an accessory before the fact is punishable in the
same fashion as the principle by reference to the definition of
the substantive offense and the penalty so imposed by the
statute.” (citations omitted)). We will therefore refer to
Sasay’s conviction as one of aggravated identity theft.
4
A.R. at 755. For the reasons we discuss below, we can
consider his plea agreement.
5
INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii). See
Smith v. Att’y Gen., 983 F.3d 1206 (11th Cir. 2020).
6
Sasay did not appeal the denial of asylum, withholding of
removal, or protection under the Convention Against Torture
to the Board of Immigration Appeals. Sasay appealed the
Immigration Judge’s denial of cancellation of removal to the
BIA, but he did not raise cancellation before this Court.
Appx. at 5 n.1; see also Petitioner’s Br. at 8.
3
Applying the so-called “categorical approach,” the
Immigration Judge concluded that both of Sasay’s convictions
were disqualifying CIMTs which did not arise from a single
scheme. The IJ reasoned that Sasay’s conviction for
aggravated identity theft in violation of § 1028A(a)(1) satisfied
the definition of a CIMT because it requires one to act
knowingly and it also requires one to act with fraudulent intent
or deceit.7
On appeal to the Board of Immigration Appeals, Sasay
conceded that his Virginia conviction constituted a CIMT and
that his two convictions did not arise from a single scheme.
However, he argued that his conviction for violating 18 U.S.C.
§ 1028A(a)(1) did not constitute a CIMT because the statute
“is categorically overbroad and indivisible, as the minimum
conduct required for a conviction under the statute is the mere
possession of someone else’s documents without lawful
authority.”8
The BIA affirmed the IJ’s decision that Sasay had
committed two qualifying CIMTs. The BIA concluded that §
1028A(a)(1) “require[d] that the possession be ‘during and in
relation to any felony violation enumerated in subsection (c),’
such that there must be proof of an intent to use the
identification unlawfully (and, indeed, feloniously).”9 It held
that “all conduct criminalized by this statute necessarily
involved dishonesty as an essential element.”10 This petition
for review followed. Although we reject the BIA’s
interpretation of § 1028A(a)(1), we will deny the petition and
hold that Sasay’s aggavated identify theft conviction is a
CIMT. In doing so, we apply the modified categorical
approach, consulting his plea agreement to ascertain which
alternative element—or here, which alternative felony
violation—formed the basis of his conviction. Sasay’s plea
agreement readily establishes that his conviction has as an
element the commission of bank fraud, in violation of § 18
U.S.C. § 1344. Because bank fraud categorically qualifies as a
7
A.R. at 678.
8
Appx. at 6 (internal citations and quotations omitted).
9
Id. (quoting 18 U.S.C. § 1028A(a)(1)).
10
Id.
4
CIMT, so too must Sasay’s aggravated identity theft
conviction.
B. Jurisdiction and Standard of Review
We have jurisdiction to review the BIA’s final removal
order pursuant to 8 U.S.C. § 1252(a). There are statutory
exceptions to our jurisdiction to review final removal orders of
people convicted of a CIMT under § 1252(a)(2)(C). However,
they do not apply here because Sasay raises a question of law
under the § 1252(a)(2)(D) exception to (a)(2)(C).
When “the BIA issues a written decision on the merits,
we review its decision and not the decision of the IJ.”11 We
defer to the BIA’s definition of moral turpitude and whether a
crime can be categorized as a CIMT, as long as its
determination is reasonable and “based on a permissible
interpretation of the immigration statute.”12 However,
unpublished, non-precedential, BIA decisions issued by a
single member panel are not entitled to such deference.13 Our
review of the BIA’s interpretation of criminal statutes is de
novo.14
II. DISCUSSION
“A noncitizen is removable from the United States if he
has been ‘convicted of two or more crimes involving moral
turpitude, not arising out of a single scheme of criminal
misconduct.’”15 Sasay concedes that his conviction under
Virginia law qualifies but argues that his conviction under 18
U.S.C. § 1028A(a)(1) does not.
11
Hernandez-Cruz v. Att’y Gen., 764 F.3d 281, 284 (3d Cir.
2014) (quoting Bautista v. Att’y Gen., 744 F.3d 54, 57 (3d
Cir. 2014)).
12
Larios v. Att’y Gen., 978 F.3d 62, 67 (3d Cir. 2020)
(quoting Mehboob v. Att’y Gen., 549 F.3d 272, 275 (3d Cir.
2008) (internal quotations omitted)).
13
Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014).
14
Hernandez-Cruz, 764 F.3d at 284.
15
Smith, 983 F.3d at 1210 (quoting 8 U.S.C. §
1227(a)(2)(A)(ii)).
5
The Supreme Court has instructed that we must apply
the so-called “categorical approach” to determine if a given
crime is a CIMT. That approach requires that we ignore a
petitioner’s actual conduct and instead “focus[] on the legal
question of what a conviction necessarily establishe[s].”16
This approach is, the Court has said, “[r]ooted in Congress’
specification of conviction, not conduct, as the trigger for
immigration consequences, [and] is [therefore] suited to the
realities of the [immigration] system.”17
To apply the categorical approach, we first review
“elements of the statute forming the basis of the defendant’s
conviction,”18 in order “to ascertain the least culpable conduct
hypothetically necessary to sustain a conviction under the
statute.”19 We then consider whether that conduct “fall[s]
within the scope of the ‘crime involving moral turpitude’
offense.”20 Sometimes, however, “[t]he simple fact of
conviction may not provide enough information to determine
whether” a defendant’s conviction is a CIMT.21 Specifically,
when a statute is divisible, meaning it “sets out one or more
elements of the offense in the alternative,”22 that statute
effectively creates several different crimes.23 And if some but
not all of the divisible statute’s alternative crimes qualify as a
CIMT, then “a court must determine which crime formed the
basis of the defendant’s conviction” using the modified
categorical approach.24
Under the modified approach, we may “consult a
limited class of documents . . . to determine which alternative
formed the basis of the defendant’s . . . conviction.”25 “[We]
can then do what the categorical approach demands: compare
16
Mellouli v. Lynch, 575 U.S. 798, 806 (2015) (emphasis in
original).
17
Id.
18Descamps v. United States, 570 U.S. 254, 257 (2013).
19
Jean-Louis v. Att’y Gen., 582 F.3d 462, 471 (3d Cir. 2009).
20
Id. at 482 (citation omitted).
21
United States v. Gibbs, 656 F.3d 180, 186 (3d Cir. 2011).
22
Descamps, 570 U.S. at 257.
23
Id. at 263-64.
24
Id. at 263; see also Gibbs, 656 F.3d at 187.
25
Descamps, 570 U.S. at 254.
6
the elements of the crime of conviction (including the
alternative element used in the case) with the generic”
definition of the removable offense.26 When properly applied,
this modified categorical approach “acts not as an exception,
but instead a tool.”27
The modified approach clearly applies to § 1028A
because it incorporates several felonies enumerated in
subsection (c).28 Those felonies represent alternative elements
26
Id. at 257.
27
Id. at 263.
28
A “felony violation enumerated in subsection (c)” includes
any offense in violation of--
(1) section 641 (relating to theft of public
money, property, or re[co]rds), section
656 (relating to theft, embezzlement, or
misapplication by bank officer or employee),
or section 664 (relating to theft from employee
benefit plans);
(2) section 911 (relating to false personation of
citizenship);
(3) section 922(a)(6) (relating to false
statements in connection with the acquisition of
a firearm);
(4) any provision contained in this chapter
(relating to fraud and false statements), other
than this section or section 1028(a)(7);
(5) any provision contained in chapter 63
(relating to mail, bank, and wire fraud);
(6) any provision contained in chapter 69
(relating to nationality and citizenship);
(7) any provision contained in chapter 75
(relating to passports and visas);
(8) section 523 of the Gramm-Leach-Bliley Act
(15 U.S.C. 6823) (relating to obtaining
customer information by false pretenses);
(9) section 243 or 266 of the Immigration and
Nationality Act (8 U.S.C. 1253 and 1306)
(relating to willfully failing to leave the United
States after deportation and creating a
counterfeit alien registration card);
7
for an aggravated identity theft conviction because a jury could
not convict a defendant under § 1028A(a)(1) without finding
each element of the underlying felony violation and
unanimously agreeing on that violation as the predicate felony
for an aggravated identify theft conviction.29 Accordingly, §
1028A is divisible and we must use the modified categorical
approach.
This approach permits us to consult Sasay’s plea
agreement to ascertain which alternative element of a crime he
committed. It is clear from that agreement that this plea
includes admission to conduct constituting the predicate felony
of bank fraud—an undeniable CIMT and a crime specifically
enumerated in § 1028A(c)(5).30 That, by itself is sufficient to
support the BIA’s ruling that Sasay’s 1028A(a)(1) conviction
constituted a CIMT because it requires fraudulent intent. The
Supreme Court’s pronouncement more than half a century ago
that “[f]raud is the touchstone by which this case should be
judged”31 ends our inquiry. Although the Court was there
addressing a different statute, it was nevertheless intepreting
(10) any provision contained in chapter 8 of title
II of the Immigration and Nationality Act (8
U.S.C. 1321 et seq.) (relating to various
immigration offenses); or
(11) section 208, 811, 1107(b), 1128B(a), or
1632 of the Social Security Act (42 U.S.C.
408, 1011, 1307(b), 1320a-7b(a), and 1383a)
(relating to false statements relating to programs
under the Act).
29
See Richardson v. United States, 526 U.S. 813, 817-22
(1999) (“A ‘violation’ is not simply an act or conduct; it is an
act or conduct that is contrary to law. That circumstance is
significant because the criminal law ordinarily entrusts a jury
with determining whether alleged conduct ‘violates’ the law.”
(citation omitted)); see also Gibbs, 656 F.3d at 186-88.
30
A.R. at 755-56. A person is guilty of bank fraud if he:
“knowingly executes, or attempts to execute, a scheme or
artifice--(1) to defraud a financial institution; or (2) to obtain
any of the moneys, funds, credits, assets, securities, or other
property owned by, or under the custody or control of, a
financial institution.” 18 U.S.C. § 1344.
31
Jordan v. De George, 341 U.S. 223, 232 (1951).
8
the phrase “crime involving moral turpitude.” The Court there
held: “[t]he phrase ‘crime involving moral turpitude’ has
without exception been constructed to embrace fraudulent
conduct.”32
As noted earlier, Sasay claims his conviction does not
amount to a CIMT because under the broad reach of §
1028A(a)(1), he could be convicted of “mere possession of
someone else’s identity document without lawful authority.”33
According to him, a statute that criminalizes mere
unauthorized possession of documents cannot be morally
turpitudinous. The argument lacks even superficial appeal.
The statute does not criminalize mere possession of
certain items. His argument to the contrary ignores that the
more exacting statutory language requires that such
unauthorized possession be “during and in relation to any
felony” enumerated in subsection (c) of the statute. That
means that Sasay’s unauthorized possession of documents
aided and abetted certain felonies specifically listed in
subsection (c) by possessing the documents.
Sasay argues that we must ignore his specific conduct
because this statute is indivisible and therefore the categorical
approach applies. He then argues the minimum conduct
criminalized by § 1028A(a)(1) is the mere possession of an
unauthorized identity document, which cannot be a CIMT. As
we have just explained, the statute does not criminalize “mere”
possession or transfer. Rather, the possession and transfer
must be in relation to an enumerated felony. It is therefore
consequential that he admitted that his possession was
fraudulent during his plea colloquy, and he also admitted to
bank fraud.
A.
Section 1028A(a)(1) criminalizes transfer, use, or
possession in conjuction with one of the eleven categories of
crimes listed in subsection (c). The enumerated offenses
relevent to Sasay are included in (c)(5) and (c)(7), which refer
to offenses in violation of “(5) any provision contained in
32
Id.
33
Petitioner Br. at 8.
9
chapter 63 (relating to mail, bank, and wire fraud); . . . [and]
(7) any provision contained in chapter 75 (relating to passports
and visas) . . . .”34
In Matter of Serna, the BIA found that possession of an
altered identity document in violation of 18 U.S.C. § 1546 (a
crime also enumerated in subsection (c)(7)) was not a CIMT.
35
Sasay seizes on that here, just as he did before the BIA. The
BIA properly distinguished Matter of Serna. The asylum
petitioner there had been convicted of possession of an altered
immigration document in violation of § 1546,36 and Sasay
correctly notes that that statute is included in the offenses
specified in subsection (c) as a predicate offense to violating §
1028A(a)(1).37 However, the analogy ends there. As the BIA
recognized, one can violate § 1546 simply by knowingly
possessing altered immigration documents and the statute does
not require that possession be accompanied by the intent to
defraud or another crime involving moral turpitude. As we
have already explained, Sasay’s conviction under §
1028A(a)(1) is different because it required that his possession
was during and in relation to the predicate felony of bank fraud.
Sasay also points to several other BIA decisions as well
as decisions by other Circuit Courts of Appeals “involving
34
18 U.S.C. § 1028A(c).
35
Matter of Serna, 20 I. & N. Dec. 579 (BIA 1992).
36
The relevant part of the statute states:
Whoever knowingly forges, counterfeits, alters,
or falsely makes any immigrant or nonimmigrant
visa, permit, or other document required for
entry into the United States, or utters, uses,
attempts to use, possesses, obtains, accepts, or
receives any such visa, permit, or document,
knowing it to be forged, counterfeited, altered, or
falsely made, or to have been procured by means
of any false claim or statement, or to have been
otherwise procured by fraud or unlawfully
obtained ... [s]hall be fined not more than $2,000
or imprisoned not more than five years, or both.
18 U.S.C. § 1546. See Matter of Serna, 20 I&N Dec. at 853.
37
Section 1546 falls in to § 1028A(c)(7) as a provision of
chapter 75 (relating to passports and visas).
10
dishonesty,” which were found not to be CIMTs.38 The
authorities he relies upon, like Matter of Serna, are all
distinguishable for the reason we just explained. Essentially,
Sasay’s argument requires that we read “during and in relation
to any felony . . .” out of § 1028A. We refuse to do that.
III. Conclusion
For the reasons set forth above, this petition for review
must be resolved using the modified categorical approach. We
therefore consider that Sasay pled guilty to violating §1028A
with the predicate felony of bank fraud and therefore convicted
of a CIMT. Since this conviction is Sasay’s second CIMT, the
38
Petitioner’s Br. at 24. See Notash v. Gonzales, 427 F.3d
693, 696-700 (9th Cir. 2005) (finding Petitioner’s conviction
in violation of 18 U.S.C. § 542 was not a categorical CIMT
and the government failed to establish a CIMT under the
modified categorical approach); In re Zangwill, 18 I. & N.
Dec. 22, 28 (BIA 1981) (finding passing bad checks with
knowledge of insufficient funds in violation of Florida state
law to not be a CIMT because conviction does not require
showing intent to defraud); Beltran-Tirado v. INS, 213 F.3d
1179, 1183-85 (9th Cir. 2000) (finding false attestation on an
I-9 form in violation of 18 U.S.C. 1546(b)(3) and use of a
false social security number in violation of 42 U.S.C.
408(a)(7)(B) to not be CIMTs and not inherently wrong acts);
Bobadilla v. Holder, 679 F.3d 1052, 1058 (8th Cir. 2012)
(finding the petitioner’s conviction of false identification to a
police officer in violation of Minnesota state law to not be a
CIMT when applying the modified categorical approach);
Flores-Molina v. Sessions, 850 F.3d 1150, 1167–69 (10th Cir.
2017) (finding giving false information to an official during
an investigation in violation of a city ordinance to not be a
CIMT because the statement does not have to be material nor
does it have to be given with the intent to cause harm or
obtain benefit); Matter of S-, 2 I&N Dec. 353 (BIA, A.G.
1945) (finding knowingly making false statements – not
amounting to perjury, on an immigrant registration
application – is not a CIMT); and Rivera v. Lynch, 816 F.3d
1064, 1079 (9th Cir. 2016) (finding written perjury in
violation of California law is not a CIMT applying the
modified categorical approach).
11
BIA did not err in concluding that he is removable under 8
U.S.C. § 1227 (a)(2)(A)(ii).
For the reasons we have discussed, Sasay’s petition for
review will be denied.
12