Jeisson Uribe v. Jefferson Sessions III , 855 F.3d 622 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1427
JEISSON HUMBERTO URIBE, a/k/a Pablo Uribe, a/k/a Jeisson Uribe, a/k/a
Jeisson Umberto Uribe, a/k/a Jeisson H. Uribe,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: March 23, 2017 Decided: May 3, 2017
Before DUNCAN, AGEE, and KEENAN, Circuit Judges.
Petition for review denied by published opinion. Judge Keenan wrote the opinion, in
which Judge Duncan and Judge Agee joined.
ARGUED: Luis Carlos Diaz, LAW OFFICES OF LUIS C. DIAZ, LLC, Silver Spring,
Maryland, for Petitioner. Jessica Dawgert, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Anthony Nicastro, Assistant Director,
Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
BARBARA MILANO KEENAN, Circuit Judge:
Jeisson Humberto Uribe, a native and citizen of Colombia, petitions for review of
a final order of removal entered by the Board of Immigration Appeals (BIA). The BIA
affirmed an immigration judge’s (IJ) holding that Uribe was removable under 8 U.S.C.
§ 1227(a)(2)(A)(ii), based on two convictions for crimes involving moral turpitude. In
reaching this conclusion, the IJ and the BIA rejected Uribe’s contention that his
conviction for the felony offense of third degree burglary, in violation of Maryland
Criminal Law Section 6-204 (Maryland third degree burglary), did not qualify as a crime
involving moral turpitude.
Upon our review, we conclude that Maryland third degree burglary qualifies as a
crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii). Accordingly, we
deny Uribe’s petition for review.
I.
Uribe was admitted to the United States as a lawful permanent resident in
December 2000. In 2011, he was convicted of theft valued at less than $100, a
misdemeanor offense under Maryland Criminal Law Section 7-104 (the Maryland theft
offense), and was sentenced to serve a term of 90 days’ imprisonment. In 2013, Uribe
was convicted of Maryland third degree burglary, and received a sentence of two years’
imprisonment.
Based on these two convictions, the Department of Homeland Security served
Uribe with a Notice to Appear, charging him with removability under two provisions in
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the Immigration and Nationality Act (INA) relating to his commission of crimes after
having been admitted into the United States. These INA provisions are: (1) 8 U.S.C.
§ 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony as defined in 8
U.S.C. § 1101(a)(43)(F); and (2) 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted
of two crimes involving moral turpitude.
Uribe denied removability on both these grounds. After a hearing, the IJ issued an
order dismissing the charge that Uribe had committed an aggravated felony within the
meaning of Section 1227(a)(2)(A)(iii). However, the IJ upheld the charge of
removability under Section 1227(a)(2)(A)(ii), concluding that both the Maryland theft
offense and Maryland third degree burglary were crimes involving moral turpitude. 1
According to the IJ, Maryland third degree burglary necessarily involves conduct
that inherently is vile and contrary to accepted moral norms because a dwelling, whether
occupied or not when the burglary occurs, is distinct in character compared to other
structures. The IJ reasoned that a dwelling is entitled to greater “protection and sanctity”
than other buildings, and that, therefore, it is “a greater wrong to break and enter a
dwelling in order to commit a crime than it is to break and enter any building in general
to commit a crime.” 2 Accordingly, the IJ sustained the charge of removability under
1
As explained below, before the BIA, Uribe did not challenge the IJ’s conclusion
regarding his Maryland theft offense conviction, nor does he challenge that conclusion
before this Court.
2
In reaching her conclusion, the IJ found inapplicable two prior BIA decisions
addressing burglary statutes of other states: (1) third degree burglary under New York
law, which prohibited breaking and entering a building, or a room, or any part of a
(Continued)
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Section 1227(a)(2)(a)(ii), and ordered that Uribe be removed from the United States to
Colombia.
On appeal before the BIA, Uribe challenged only the IJ’s conclusion that
Maryland third degree burglary qualifies as a crime involving moral turpitude. In an
opinion issued by a single member, the BIA rejected Uribe’s arguments, and affirmed the
IJ’s determination that Uribe was removable under Section 1227(a)(2)(A)(ii). The BIA
agreed with the IJ’s reasoning, stating that breaking and entering any dwelling
(1) infringes upon a resident’s reasonable expectation of privacy and security, and
(2) generates a risk of violent confrontation with a resident, or with a third party such as a
neighbor who may approach the dwelling while the crime is being committed.
Accordingly, the BIA agreed with the IJ that Maryland third degree burglary inherently
involves moral turpitude, and dismissed Uribe’s appeal.
II.
On appeal to this Court, Uribe contends that Maryland third degree burglary is not
categorically a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii),
because the offense: (1) does not require that the dwelling be occupied, inhabited, or
within a lease period at the time of the burglary; (2) encompasses breaking into a
dwelling by constructive means; (3) includes breaking into a motor vehicle or boat used
building, and (2) second degree burglary of an occupied dwelling under Florida law. See
Matter of Louissaint, 24 I. & N. Dec. 754 (B.I.A. 2009) (Florida statute); Matter of M., 2
I. & N. Dec. 721 (B.I.A. 1946) (New York statute).
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as a “dwelling”; and (4) does not require that the crime the defendant intended to commit
upon breaking and entering be one involving moral turpitude. Thus, Uribe maintains that
Maryland third degree burglary does not necessarily involve conduct that inherently
violates moral norms. We disagree with Uribe’s position.
Under Section 1227(a)(2)(A)(ii), an “alien who at any time after admission is
convicted of two or more crimes involving moral turpitude, not arising out of a single
scheme of criminal misconduct, . . . is deportable.” The term “moral turpitude” refers to
behavior “that shocks the public conscience as being inherently base, vile, or depraved.” 3
Mohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014) (citing Matter of Tobar-Lobo, 24
I. & N. Dec. 143, 144 (B.I.A. 2007); Matter of Danesh, 19 I. & N. Dec. 669, 670 (B.I.A.
1988)). Accordingly, a crime involving moral turpitude encompasses “conduct that not
only violates a statute but also independently violates a moral norm.” Id.Because the BIA adopted the IJ’s opinion and supplemented the analysis with its
own reasoning, we consider both rulings. See Hernandez-Avalos v. Lynch, 784 F.3d 944,
948 (4th Cir. 2015). The issue whether Maryland third degree burglary qualifies as a
crime involving moral turpitude is a legal question that we review de novo. See Sotnikau
v. Lynch, 846 F.3d 731, 735 (4th Cir. 2017) (citing Mohamed, 769 F.3d at 888). In
3
We afford Chevron deference to the BIA’s reasonable interpretation of the term
“crime involving moral turpitude,” used in the INA. See Mohamed v. Holder, 769 F.3d
885, 888 (4th Cir. 2014); Prudencio v. Holder, 669 F.3d 472, 480 (4th Cir. 2012);
Soliman v. Gonzales, 419 F.3d 276, 281 (4th Cir. 2005) (citing Chevron U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)); Yousefi v. INS, 260 F.3d 318,
325-26 (4th Cir. 2001). Uribe does not challenge the reasonableness of these established
BIA definitions.
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answering this question, we consider only the statutory elements of the offense, not the
underlying facts of Uribe’s conviction. Id. (citing Mohamed, 769 F.3d at 888). If the
elements of Maryland third degree burglary encompass only conduct that involves moral
turpitude, then that offense qualifies categorically as a crime involving moral turpitude
under Section 1227(a)(2)(A)(ii). Id. In conducting our analysis, we apply the
interpretations of Maryland law rendered by Maryland’s state appellate courts. See id. at
736.
Maryland’s third degree burglary statute prohibits “break[ing] and enter[ing] the
dwelling of another with the intent to commit a crime.” 4 Md. Code, Crim. Law § 6-
204(a). The Court of Appeals of Maryland has explained that a breaking can be either
actual or constructive. Hobby v. State, 83 A.3d 794, 811 (Md. 2014). An actual breaking
occurs when an individual “unloos[ens], remov[es] or displac[es] any covering or
fastening of the premises.” Id. (internal quotation marks and citation omitted). In
contrast, a constructive breaking occurs when an individual gains entry “by artifice,
fraud, conspiracy or threat.” Id. (internal quotation marks and citation omitted).
According to the Court of Appeals of Maryland, a “dwelling” is a structure that a
person regularly uses as a place in which to sleep. McKenzie v. State, 962 A.2d 998,
1002, 1006 (Md. 2008); see Hobby, 83 A.3d at 811-12. Relying on this authority from
Maryland’s highest court, we have recognized that boats and other motor vehicles can
4
The terms “break” and “dwelling,” as used in the statute, retain their “judicially
determined meaning[s,]” because the Maryland legislature has not altered those terms
after the appellate courts of Maryland have defined them. Md. Code, Crim. Law § 6-
201(b), (e).
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constitute “dwellings” within the meaning of Maryland’s burglary statutes. See United
States v. Henriquez, 757 F.3d 144, 148-49 (4th Cir. 2014). And, under Maryland law, a
structure retains its character as a dwelling even if it temporarily is left vacant, provided
that the structure has not been abandoned completely by the occupants and remains
“suitable for occupancy” throughout the vacancy. See Hobby, 83 A.3d at 812; McKenzie,
962 A.2d at 1002, 1007.
For example, in McKenzie v. State, 962 A.2d 998 (Md. 2008), the Court of
Appeals of Maryland held that a vacant apartment qualified as a dwelling, when the most
recent tenant had vacated the apartment two weeks earlier, the new tenant was scheduled
to move in one day after the burglary occurred, and the apartment remained suitable for a
new tenant during the period of vacancy. Id. at 999, 1005-07. The court explained that
the apartment remained a dwelling throughout this sequence of events, because the
apartment’s owner intended that it be occupied on a continuous basis, and there was a
“likelihood that people w[ould] be returning to inhabit the rental unit at any given time.”
See id. at 1006-07 (internal quotation marks and citation omitted). Similarly, the court
held in Hobby v. State, 83 A.3d 794 (Md. 2014), that a home that was vacant for eight
months remained a dwelling, because its prior occupant moved out of the home with the
intent to sell it as a dwelling, maintained the home in a condition suitable for occupancy
during the period of vacancy, and legally could have returned to the home at any time
during the period of vacancy. See id. at 812.
In light of this authority, we conclude that under Maryland’s third degree burglary
statute, breaking and entering a dwelling of another, with the intent to commit a crime,
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“implicate[s] . . . moral value[s] beyond the duty to obey the law” and inherently is “base,
vile, or depraved.” See Mohamed, 769 F.3d at 887, 889. The act of breaking and
entering a dwelling, with the intent to commit any crime, necessarily involves conduct
that violates an individual’s reasonable expectation that her personal living and sleeping
space will remain private and secure. 5 See Hobby, 83 A.3d at 812; McKenzie, 962 A.2d
at 1006-07. And we are persuaded that an individual’s expectation that her dwelling will
remain private, secure, and free from intruders intending to commit a crime is violated
regardless whether the dwelling is occupied at the time of the burglary.
Uribe maintains, nevertheless, that because the Court of Appeals of Maryland held
in Hobby that Maryland third degree burglary encompasses the act of breaking and
entering a house offered for sale that has been unoccupied for eight months, the
commission of that offense under such circumstances cannot meet the definition of a
crime involving moral turpitude. See 83 A.3d at 812. We disagree. As that court
explained, in order for a house to constitute a dwelling under Maryland law in these
circumstances, the house must not have been abandoned and must have remained suitable
for habitation. See id.; McKenzie, 962 A.2d at 1002, 1007. Under such facts, a current or
a prospective resident could occupy the house at any moment. Thus, the act of breaking
5
Insofar as Uribe relies on Matter of M. for the proposition that a state burglary
conviction qualifies as a crime involving moral turpitude only if the offense that the
defendant intended to commit upon breaking and entering involves moral turpitude, the
BIA recently rejected that approach in Louissaint. See 24 I. & N. Dec. at 759 (holding
“that a residential burglary [does not] derive[ ] its morally turpitudinous nature solely
from the culpability inherent in the crime that accompanies or precedes the act of
breaking and entering a building”). And, for the reasons stated above, we agree with the
BIA’s reasoning in Louissaint interpreting a Florida burglary statute.
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and entering a vacant house under these circumstances inherently would violate the
current or prospective owner’s expectation of security, and would infringe upon the
current owner’s right of habitation. Accordingly, the crime of breaking and entering with
the intent to commit a crime, even in this factual context, remains contrary to well-
recognized moral norms and is “base, vile, or depraved.” See Mohamed, 769 F.3d at 887-
89.
Additionally, we reject Uribe’s assertion that a breaking is morally turpitudinous
only if it involves the use, or the risk of use, of physical force, and that a constructive
breaking is less reprehensible than an actual breaking. A constructive breaking is as
equally reprehensible as an actual breaking because a constructive breaking includes acts
of subterfuge and may also involve threats directed at another person. See Hobby, 83
A.3d at 811 (defining constructive breaking as breaking “by artifice, fraud, conspiracy, or
threat”).
Finally, we find no merit in Uribe’s argument that the act of breaking and entering
a boat or motor vehicle would not qualify as a crime involving moral turpitude under
Maryland’s third degree burglary statute. A burglar who breaks and enters a boat or a
vehicle that is meant to be occupied, and is intended to be a place of personal security and
privacy, has committed a crime that is contrary to well-recognized moral norms. See
Hobby, 83 A.3d at 812; McKenzie, 962 A.2d at 1002, 1006. Therefore, the principles that
render breaking and entering a traditional house contrary to moral norms apply equally to
breaking and entering a boat or motor vehicle that meets the definition of a “dwelling”
under Maryland law.
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We therefore conclude that a conviction under Maryland’s third degree burglary
statute necessarily involves conduct that “shocks the public conscience as inherently
base, vile, or depraved” and is contrary to recognized moral norms. See Mohamed, 769
F.3d at 887-88. Accordingly, we hold that Maryland third degree burglary qualifies as a
crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii).
III.
For these reasons, we deny Uribe’s petition for review.
PETITION FOR REVIEW DENIED
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