Gurpreet Singh v. Attorney General United States ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 22-1045
_____________
GURPREET SINGH,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of a Final Order of the
Board of Immigration Appeals
No. A060-605-541
Immigration Judge: Steven A. Morley
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on
December 16, 2022
Before: RESTREPO, McKEE, and SMITH Circuit Judges
(Opinion filed: August 17, 2023)
_______________________
OPINION ∗
_______________________
∗
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
McKEE, Circuit Judge.
Gurpreet Singh petitions for review of the Board of Immigration Appeals’
decision concluding he is removable under 8 U.S.C. § 1227(a)(2)(A)(i), for having been
convicted of a crime involving moral turpitude. For the following reasons, we will grant
the petition and vacate the BIA’s decision holding that Singh was convicted of a CIMT.
I.
Gurpreet Singh, a citizen of India, was admitted to the United States as a lawful
permanent resident in May 2009. A married father of two, Singh operated two
convenience stores in central Pennsylvania. In November 2011, two Pennsylvania State
Police Troopers searched one of Singh’s stores and found “incense” for sale that
contained JWH-122, a form of synthetic marijuana that was controlled under
Pennsylvania law but not under federal law. Singh pled guilty to conspiracy (18 Pa. Cons.
Stat. § 903(a)(1)) and possession with intent to distribute a counterfeit controlled
substance (35 Pa. Cons. Stat. § 780-113(a)(30)) in June 2013.
The Department of Homeland Security charged Singh with removability under 8
U.S.C. § 1227(a)(2)(A)(i), for having been convicted of a crime involving moral
turpitude. 1 Applying the modified categorical approach, the Board of Immigration
1
This petition marks Singh’s second appearance before our Court. When he was charged
with removability on the basis of being convicted of a CIMT, he was also charged with
removability on two other grounds: (1) having committed an aggravated felony as
defined in 8 U.S.C. § 1101(a)(43)(B) (illicit trafficking in a controlled substance), see 8
U.S.C. § 1227(a)(2)(A)(iii) and (2) violating (or conspiring to violate) any state law or
regulation relating to a federally controlled substance, see 8 U.S.C. § 1127(a)(2)(B)(i).
An Immigration Judge found that Singh was removable as charged on all three grounds.
2
Appeals determined that Section 780-113(a)(30) defined a CIMT. The Board “remain[ed]
convinced . . . that the unlawful delivery of illegal drugs, ‘[a]n act which creates human
misery, corruption, and moral ruin in the lives of individuals is necessarily so base and
shameful as to leave the offender not wanting in the depravity which the words “moral
turpitude” imply.’” 2 The Board then remanded the matter to the Immigration Judge to
consider whether Singh was eligible for relief from removal.
On remand, the IJ found Singh ineligible for relief and ordered him removed on
the basis of having committed a CIMT. Singh again appealed to the Board, asserting that
his conviction was not a CIMT and that the phrase CIMT is unconstitutionally vague as
applied in his case. The Board disagreed. Incorporating the reasoning of its May 2017
decision, the Board held that Singh’s conviction qualified as a CIMT and declined to rule
on Singh’s constitutional vagueness arguments. This appeal followed.
The Board of Immigration Appeals dismissed Singh’s appeal, concluding that his
“conviction under § 780-113(a)(30) [was] a ‘drug trafficking crime’ aggravated felony by
virtue of its categorical correspondence to the Federal felony offense of possession with
the intent to distribute or dispense a counterfeit substance defined by 21 U.S.C. §
841(a)(2).” AR 452.
Singh filed a petition for review, which this Court granted, holding that “Singh’s
crime of conviction does not sufficiently match the elements of the generic federal
offense, and his conviction under section 780-113(a)(30) was not for an aggravated
felony.” Singh v. Att'y Gen., 839 F.3d 273, 285-86 (3d Cir. 2016). This Court remanded
the matter to the Board.
In May 2017, the Board held that Singh was not removable for violating (or
conspiring to violate) a state law relating to a federally controlled substance because the
synthetic marijuana at issue was not included in the federal controlled substance
schedules. But the Board nevertheless found Singh was removable because he had been
convicted of a CIMT, a question which it had declined to address in its first decision.
This is the determination that we now address.
2
AR 382, quoting Matter of Y-, 2 I&N Dec. 600, 602 (BIA 1946).
3
II. 3
We defer to the BIA’s definition of moral turpitude and its determination that a
certain crime involves moral turpitude when that determination is reasonable. 4 We owe
no deference, however, to the administrative interpretation of a state criminal statute. 5 In
particular, we accord no deference to the BIA’s determination of “the elements . . . of a
particular criminal statute deemed to implicate moral turpitude.” 6
The BIA defines a CIMT as an offense involving “reprehensible conduct
committed with a culpable mental state.” 7 Conduct is reprehensible if it is “inherently
base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed
between persons or to society in general.” 8 An act is turpitudinous if it “is accompanied
by a vicious motive or a corrupt mind.” 9 Thus, an “evil intent” is a requisite element of a
morally turpitudinous offense. 10
3
The Board’s jurisdiction arose under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15, granting it
appellate jurisdiction over decisions of Immigration Judges in removal proceedings. This
Court’s jurisdiction over Singh’s petition for review arises under 8 U.S.C. § 1252(a)(1),
which confers exclusive jurisdiction on the courts of appeals to review final removal
orders issued by the Board.
4
Mehboob v. Att’y Gen. U.S., 549 F.3d 272, 275 (3d Cir. 2008).
5
Castillo v. Att’y Gen. U.S., 729 F.3d 296, 302 (3d Cir. 2013).
6
Partyka v. Att’y Gen. U.S., 417 F.3d 408, 411 (3d Cir. 2005) (citing Knapik v. Ashcroft,
384 F.3d 84, 88 (3d Cir.2004)).
7
See Matter of Silva-Trevino, 26 I&N Dec. 826, 834 (BIA 2016).
8
Id. at 833; see Knapik v. Ashcroft, 384 F.3d 84, 89 (3d Cir. 2004) (citing Matter of
Franklin, 20 I&N Dec. 867, 868 (BIA 1994)).
9
See Partyka v. Att’y Gen. U.S., 417 F.3d 408, 413 (3d Cir. 2005).
10
See id. (citing Matter of Khourn, 21 I&N Dec. 1041,1046 (BIA 1997) stating, “‘evil
intent’ is a requisite element for a crime involving moral turpitude”); see also Matter of
Flores, 17 I&N Dec. 225, 227 (BIA 1980) (“An evil or malicious intent is said to be the
essence of moral turpitude.”); Matter of Abreu-Semino, 12 I&N Dec. 775, 777 (BIA
1968) (providing “moral turpitude normally inheres in the intent”).
4
In our previous analysis of Section 780–113(a)(30), we determined that the
“particular controlled substance at issue” is an element of the statute. 11 Because Section
780–113(a)(30) “is divisible with regard . . . to the controlled substances to which it
applies,” we apply the modified categorical approach. 12 We look to both the statute of
conviction and a “limited class of documents” including “the charging document, plea
agreement, and trial court judgment” to determine whether the noncitizen was convicted
under the part of the statute defining a CIMT. 13 Thus, we must determine whether the
controlled substances at issue—the synthetic marijuana—implicates moral turpitude.
Applying the BIA’s definition, we examine whether Singh’s sale of synthetic
marijuana was “inherently base, vile, or depraved, and contrary to the accepted rules of
morality” 14 and “accompanied by a vicious motive or a corrupt mind.” 15 We hold that it
was not.
As the BIA itself has explained, “the nature of a crime is measured against
contemporary moral standards and may be susceptible to change based on the prevailing
views in society.” 16 The shifting moral standards surrounding marijuana—coupled with
the legal ambiguity of its synthetic counterparts at the time of Singh’s arrest—convince
11
Singh v. Att'y Gen. U.S., 839 F.3d 273, 284 (3d Cir. 2016).
12
Avila v. Att’y Gen. U.S., 826 F.3d 662, 666 (3d Cir. 2016). Section 780–113(a)(30) is
also divisible with regard to conduct because it describes distinct offenses of
manufacture, delivery, and possession with intent to deliver or manufacture. Id.13
Id.14
Matter of Silva-Trevino, 26 I&N Dec. 826, 833 (BIA 2016); see Knapik v. Ashcroft,
384 F.3d 84, 89 (3d Cir. 2004) (citing Matter of Franklin, 20 I&N Dec. 867, 868 (BIA
1994)).
15
See Partyka v. Att’y Gen. U.S., 417 F.3d 408, 413 (3d Cir. 2005).
16
In Re Lopez-Meza, 22 I. & N. Dec. 1188, 1192 (BIA 1999).
5
us that Singh’s possession with intent to distribute synthetic marijuana was not
“inherently base, vile, or depraved, and contrary to the accepted rules of morality.” 17
The Ninth Circuit recently held that possession for sale of less than two pounds of
marijuana was not a CIMT. 18 In Walcott v. Garland, the Court considered the
increasingly positive societal attitudes toward marijuana and the growing number of
states legalizing its use. 19 Citing these “[c]ontemporary societal attitudes,” the Walcott
Court ultimately held that possession for sale of less than two pounds of marijuana was
not so “inherently base, vile, or depraved that [it] offend[ed] society’s most fundamental
values or shock[ed] society’s conscience.” 20
Like the Walcott Court, we may consider “contemporary moral standards” when
determining whether the sale of synthetic marijuana was a CIMT. As Singh points out,
the cases establishing drug-trafficking as a CIMT involved cocaine and heroin. 21
Synthetic marijuana appeared in the United States for the first time in 2008 and, at the
time of Singh’s arrest in 2011, it was still considered a “recent phenomenon.” 22 Often
perceived as legal, synthetic marijuana was “typically advertised as herbal incense…by
17
Silva-Trevino, 26 I&N Dec. at 833; see Knapik, 384 F.3d at 89.
18
21 F.4th 590, 599 (9th Cir. 2021).
19
Id. at 600.
20
Id. at 599. In emphasizing the “need to consider current moral standards in determining
whether an offense is morally turpitudinous,” the Ninth Circuit looked to our own
precedential decision in Chavez-Alvarez v. Attorney General, 850 F.3d 583 (3d Cir.
2017). There, we held that a 2000 conviction for sodomy was not a CIMT in light of the
Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558, (2003).
21
See, e.g., Matter of Khourn, 21 I&N Dec. 1041,1046 (BIA 1997); In the Matter of Y-----
, 2 I. & N. Dec. 600, 600 (BIA 1946).
22
AR 901-902.
6
Internet retailers, tobacco shops, head shops and other domestic brick and mortar retail
venues.” 23 Its level of social acceptance was such that it was commonly sold at gas
stations and convenience stores. 24 Indeed, Singh did not sell the synthetic marijuana that
led to his arrest covertly or on a street corner. Like many other proprietors, he sold it
openly from the counters of his store along with cigarettes and other items openly
displayed.
Considering the increasing societal acceptance of marijuana and the legal
confusion surrounding its synthetic counterparts, it would strain credulity to conclude that
Singh’s possession with intent to deliver was “inherently base, vile, or depraved, and
contrary to the accepted rules of morality” 25 under contemporary moral standards and the
then “prevailing views in society.” 26 Given the unique circumstances here, we hold that
the crime of which Singh was convicted was not a CIMT. 27
III.
For the reasons described above, we will grant the petition for review and vacate
the BIA’s decision finding that Gurpreet Singh was convicted of a CIMT.
23
AR 901.
24
Pet’r’s Reply Br., citing AGs Seek To Get Synthetic Drugs Out Of Convenience Stores,
WRAL News (Feb. 10, 2015) https://www.wral.com/ags-seek-to-get-synthetic-drugs-out-
of-convenience-stores/14437755/.
25
Matter of Silva-Trevino, 26 I&N Dec. 826, 833 (BIA 2016).
26
In Re Lopez-Meza, 22 I. & N. Dec. 1188, 1192 (BIA 1999).
27
Because we hold that Singh was not convicted of a CIMT, we need not address his
argument that the phrase “crime involving moral turpitude” is unconstitutionally vague.
7