Deury Plasencia v. Attorney General United States ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-1242
___________
DEURY PLASENCIA PLASENCIA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A064-175-092)
Immigration Judge: Kuyomars Q. Golparvar
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 27, 2023
Before: HARDIMAN, PORTER, and FREEMAN, Circuit Judges
(Opinion filed July 28, 2023)
___________
OPINION*
___________
PER CURIAM
Deury Plasencia petitions for review of an order of the Board of Immigration
Appeals (BIA) dismissing his appeal. We will deny the petition.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
Plasencia is a citizen of the Dominican Republic. He entered the United States in
2015 as a lawful permanent resident. In 2017, he was convicted of receiving stolen
property in violation of 18 Pa. Cons. Stat. Ann. § 3925(a). The Department of Homeland
Security served him with a Notice to Appear charging him with having been convicted of
a crime involving moral turpitude (CIMT) for which a sentence of a year or more could
be imposed, within five years of his admission to the United States. See 8 U.S.C. §
1227(a)(2)(A)(i). Plasencia, proceeding pro se, conceded the charge and an Immigration
Judge (IJ) sustained it, but Plasencia later moved to terminate removal proceedings by
challenging the CIMT charge.1 The IJ rejected his arguments, denied the motion and
other relief, and ordered him removed to the Dominican Republic. The BIA agreed that
Plasencia’s conviction constituted a CIMT, affirmed the denial of relief, and dismissed
the appeal. Plasencia timely petitioned for review.
We have jurisdiction over Plasencia’s petition under 8 U.S.C. § 1252(a). We
review de novo the BIA’s legal determinations, which include its interpretation of state
criminal laws and analysis of constitutional issues. See Hernandez-Cruz v. Att’y Gen.,
764 F.3d 281, 284 (3d Cir. 2014); Mehboob v. Att’y Gen., 549 F.3d 272, 275 (3d Cir.
2008). Our decisions describe the requisite “morally turpitudinous” conduct for a CIMT
as an act that is “inherently base, vile, or depraved,” and state that “the hallmark of moral
constitute binding precedent.
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He also sought asylum, withholding of removal, and protection under the Convention
Against Torture, but he has forfeited any challenges to the denial of that relief because he
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turpitude is a reprehensible act committed with an appreciable level of consciousness or
deliberation.” Hernandez-Cruz, 764 F.3d at 284-85 (citations and internal quotation
marks omitted).
We use the categorial approach to determine whether a petitioner’s conviction
qualifies as a CIMT. See Mahn v. Att’y Gen., 767 F.3d 170, 174 (3d Cir. 2014). This
requires an examination of the relevant criminal statute and the record of conviction, not
the petitioner’s conduct. See id. We must consider whether “the least culpable conduct
necessary to sustain a conviction under the statute” would still qualify as a CIMT.
Partyka v. Att’y Gen., 417 F.3d 408, 411 (3d Cir. 2005).
Plasencia conceded that he was convicted of the crime of receiving stolen property
under 18 Pa. Cons. Stat. Ann. § 3925(a).2 We have twice held in precedential opinions
that a conviction under that statutory provision amounts to a CIMT. See De Leon-
Reynoso v. Ashcroft, 293 F.3d 633, 637 (3d Cir. 2002); Smriko v. Ashcroft, 387 F.3d
279, 283 (3d Cir. 2004). Although De Leon-Reynoso and Smriko preceded the U.S.
Supreme Court’s line of cases which more fully articulated the categorical approach like
Moncrieffe v. Holder, 569 U.S. 184 (2013), we nonetheless adhered to the same guiding
criteria of the categorical approach in those cases. We analyzed whether a conviction for
did not raise them in his opening brief. In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016).
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The statute provides that “[a] person is guilty of theft if he intentionally received,
retains, or disposes of movable property of another knowing that it has been stolen, or
believing that it has probably been stolen, unless the property is received, retained, or
disposed with intent to restore it to the owner.” § 3925(a).
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§ 3925(a) was a CIMT by looking to the statute and record of conviction, and not by
considering the petitioner’s particular conduct supporting the conviction. Smriko, 387
F.3d at 283. We found that a conviction for receiving stolen property under § 3925(a)
“‘speak[s] . . . to the honesty of a person,’” and thus constituted a CIMT. Id. (quoting De
Leon-Reynoso, 293 F.3d at 637). The holdings of De Leon-Reynoso and Smriko
continue to govern here.
On appeal, Plasencia claims that Pennsylvania courts have applied § 3925(a) in a
manner criminalizing behavior that would not qualify as a CIMT. First, he argues that
some Pennsylvania courts have applied a lower mens rea threshold to convict for §
3925(a), with a mere “reason to believe” that property was stolen. But we rejected this
argument in De Leon-Reynoso, and we recently reaffirmed that the statutory language of
§ 3925(a) requires subjective knowledge. See Barradas Jacome v. Att’y Gen., 39 F.4th
111, 123-24 (3d Cir. 2022) (holding that a conviction for receiving stolen property under
§ 3925(a) constitutes an aggravated felony), cert. denied 2023 WL 3158362 (May 1,
2023). Likewise, Barradas Jacome answers the question raised by Plasencia’s argument
that the statute does not require an intent to permanently deprive: it does. See id. at 124-
25 (noting that the Pennsylvania Superior Court has “consistently held that intent to
deprive permanently is an element of receiving stolen property” (cleaned up)).
Finally, Plasencia argues that 18 Pa. Cons. Stat. Ann § 3902, which provides in
part that “[c]onduct denominated theft in this chapter constitutes a single offense,”
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requires § 3925(a) to be considered as part of a “single indivisible offense” for theft, and
that it is thus “overly board and contains non-turpitudinous conduct.” Pet’r’s Opening
Br. at 9. Again, Plasencia’s argument echoes that of the petitioner in Barradas Jacome.
In that case we explained that § 3902 does not change the elements of the separate theft
offenses, and it certainly does not allow the state to prosecute a § 3925 charge by proving
elements of other theft offenses. 39 F.4th at 124. Section 3902 “permits the
Commonwealth to present evidence supporting theft ‘committed in any manner . . . under
this chapter,’ even if the initial complaint or indictment specified a different theft crime.”
Id. (quoting § 3902). Plasencia admitted that he was prosecuted for and convicted of
receiving stolen property under § 3925, which we have ruled is a CIMT. Thus,
Plasencia’s argument is meritless.
Accordingly, we will deny the petition for review.
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