Moises Cruz Cruz v. Merrick Garland ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1907
MOISES CRUZ CRUZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: May 4, 2023 Decided: June 22, 2023
Before THACKER and HEYTENS, Circuit Judges, and KEENAN, Senior Circuit Judge.
Petition for review denied by unpublished per curiam opinion. Judge Keenan wrote a
dissenting opinion.
ARGUED: Paulina Nicole Vera, Washington, D.C.; Cornelia Waugh, GEORGE
WASHINGTON UNIVERSITY SCHOOL OF LAW, Washington, D.C., for Petitioner.
William Clark Minick, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Alberto Benitez, The Jacob Burns Community Legal
Clinics, THE GEORGE WASHINGTON UNIVERSITY, Washington, D.C., for
Petitioner. Brian M. Boynton, Principal Deputy Assistant Attorney General, Melissa K.
Lott, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Moises Cruz Cruz (“Petitioner”) seeks review of the decision of the Board of
Immigration Appeals (“BIA”) finding him ineligible for cancellation of removal. Because
we find that Petitioner’s prior conviction for falsely identifying himself to a law
enforcement officer in violation of Va. Code section 19.2-82.1 is a crime involving moral
turpitude (“CIMT”), we deny the petition for review.
I.
Petitioner is a native and citizen of Mexico who entered the United States without
authorization on or about June 1, 2000. On April 16, 2013, Petitioner was pulled over by
a police officer for driving through a gas station parking lot to avoid a crowded intersection.
The officer asked Petitioner, in “incoherent Spanish,” to provide his name. J.A. 28. 1
Petitioner responded that his name was “Moises Celio Cruz.” Id. Then, in English, the
officer repeated his request for Petitioner’s name and Petitioner “immediately knew there
was a misunderstanding.” Id. Petitioner responded, “let me write down my full name for
you because you don’t understand,” and then wrote down his correct name -- Moises Cruz
Cruz -- and his correct date of birth. Id. The officer arrested Petitioner for providing false
identification to a police officer in violation of Va. Code section 19.2-82.1. Petitioner
entered a guilty plea to that offense.
On May 29, 2013, the Department of Homeland Security (“DHS”) issued a Notice
to Appear, charging Petitioner with being removable pursuant to 8 U.S.C.
1
Citations to the “J.A.” refer to the Joint Appendix filed by the parties to this appeal.
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§ 1182(a)(6)(A)(i). Petitioner admitted the factual allegations in the Notice to Appear and
conceded removability. But Petitioner applied for Cancellation of Removal pursuant to 8
U.S.C. § 1229b(b). At the merits hearing on Petitioner’s application, DHS moved to
pretermit Petitioner’s application for cancellation of removal, arguing that he was ineligible
because his conviction for providing a false identification to law enforcement was a CIMT.
On June 10, 2019, the Immigration Judge (“IJ”) denied Petitioner’s application for
cancellation of removal based on a determination that his conviction was a CIMT. The IJ
determined that Va. Code section 19.2-82.1 is a categorical match for both the requisite
mental state and reprehensible conduct elements of a CIMT. Petitioner appealed the IJ’s
decision to the BIA. On August 3, 2022, the BIA -- in a decision issued by a single member
-- agreed with the IJ that Va. Code section 19.2-82.1 is a CIMT and dismissed the appeal.
Petitioner timely filed for review of the BIA decision.
II.
Where, as here, the BIA adopts or incorporates some of immigration judge’s
decision and supplements with its own reasoning, we review both decisions. See
Hernandez-Avalos v. Lynch, 784 F.3d 944, 948 (4th Cir. 2015). Whether an offense is a
CIMT is a question of law we review de novo. See Nunez-Vasquez v. Barr, 965 F.3d 272,
278–79 (4th Cir. 2020).
Determining whether an offense is a CIMT “requires us to answer ‘two
interpretative questions.’” Salazar v. Garland, 56 F.4th 374, 377 (4th Cir. 2023) (quoting
Nunez-Vasquez, 965 F.3d at 279). “First, we determine what ‘moral turpitude’ means in
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the Immigration and Nationality Act, deferring under Chevron 2 to the agency’s reasonable
construction of the term. Second, we determine whether the Virginia statute necessarily
involves morally turpitudinous conduct.” Id. We do not defer to the BIA on the second
question. Salazar, 56 F.4th at 377.
As to the BIA’s interpretation of “moral turpitude,” “nonprecedential opinions by
the BIA do not carry the force of law and, thus, are ineligible for Chevron deference.”
Nunez-Vasquez, 965 F.3d at 279 (citations omitted). Precedential BIA opinions must be
issued by a three-member panel. See 8 C.F.R. § 1003.1(g). Nevertheless, “when single-
member, nonprecedential BIA opinions rely on a precedential BIA opinion, we determine
whether the precedential opinion is apposite and warrants deference.” Nunez-Vasquez,
965 F.3d at 279 (emphasis in original) (citations omitted).
III.
The question on appeal is whether Va. Code section 19.2-82.1 is a CIMT. The
statute provides as follows:
[a]ny person who falsely identifies himself to a law-
enforcement officer with the intent to deceive the law-
enforcement officer as to his real identity after having been
lawfully detained and after being requested to identify himself
by a law-enforcement officer, is guilty of a Class 1
misdemeanor.
2
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
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Va. Code § 19.2-82.1 (2006) (emphasis supplied). Because the statute requires an intent
to deceive a law enforcement officer, the IJ and the BIA determined that Va. Code section
19.2-82.1 is a CIMT.
A.
The BIA’s decision was issued by a single member, so it is not precedential. But
the BIA relied on two precedential decisions for its interpretation of the term “moral
turpitude.” Therefore, at the first step of our analysis, we must determine whether those
opinions are apposite and entitled to deference.
As this court has recognized, the BIA defines “moral turpitude” as behavior “that
shocks the public conscience as being inherently base, vile, or depraved.” Ramirez v.
Sessions, 887 F.3d 693, 704 (4th Cir. 2018) (internal quotation marks omitted) (citation
omitted). In its decision in this case, the BIA relied on its precedential decisions in Matter
of Flores, 17 I. & N. Dec. 225, 228-230 (BIA 1980) and Matter of Jurado-Delgado, 24 I.
& N. Dec. 29 (BIA 2006).
In Matter of Flores, the BIA determined that a conviction for falsifying immigration
papers under 18 U.S.C. § 1426(b) qualified as a CIMT. 17 I. & N. Dec. at 225. The statute
at issue there required that the petitioner “knowingly, willfully, and unlawfully conspire[d]
to commit an offense against the United States” by “uttering and selling false and
counterfeit papers relating to registry of aliens.” Id. at 226. Though the offense did not
specifically require an intent to defraud, the BIA noted that “fraud [may be] inherent in an
offense” and that “crimes in which fraud [is] an ingredient have always been regarded as
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involving moral turpitude.” Id. at 228 (citations omitted). The BIA held that the statute
was a CIMT, reasoning as follows:
In cases where fraud of the government has been charged, we
have held that the government need not have been cheated out
of money or property in order for the crime to involve moral
turpitude. It is enough to impair or obstruct an important
function of . . . the government by defeating its efficiency or
destroying the value of its lawful operations by deceit, graft,
trickery, or dishonest means.
Id. at 229 (emphasis supplied).
Similarly, in In re Jurado-Delgado, the BIA determined that a conviction for
making false statements to a government official “with intent to mislead a public servant
in performing his official function” involved moral turpitude. 24 I. & N. Dec. at 33–35
(citation omitted). In rejecting the petitioner’s argument that the misleading statements
were not made under oath and so could not be morally turpitudinous, the BIA held that “it
is the intent to mislead that is the controlling factor.” Id. at 35.
Though Petitioner’s arguments to this court did not specifically address these
decisions, Petitioner argues generally that fraud is a distinct legal concept from deceit. This
may be true, but the decisions above are not limited to cases involving fraud. Rather, the
BIA made clear that for purposes of being a CIMT, “[i]t is enough to impair or obstruct an
important function of a department of the government by defeating its efficiency or
destroying the value of its lawful operations by deceit, graft, trickery, or dishonest means.”
Matter of Flores, 17 I. & N. Dec. at 229. And the offense at issue in In re Jurado-Delgado
did not include fraud as an element. See 24 I. & N. Dec. at 34–35. Instead, it prohibited
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making false written statements “with intent to mislead a public servant in performing his
official function.” Id.
These cases are apposite and are entitled to Chevron deference. Therefore, in
determining whether Va. Code section 19.2-82.1 is a CIMT, we defer to the BIA’s
reasonable interpretation that “impair[ing] or obstruct[ing] an important function of a
department of the government . . . by deceit, graft, trickery, or dishonest means is a
[CIMT].” Matter of Jurado-Delgado, 24 I. & N. Dec. at 35 (citing Matter of Flores, 17 I.
& N. Dec. at 229). Indeed, an “intent to mislead . . . is the controlling factor.” Matter of
Jurado-Delgado, 24 I. & N. Dec. at 35.
B.
The next “interpretative question” is whether the offense, Va. Code section 19.2-
82.1, is a CIMT. Salazar, 56 F.4th at 377.
1.
“We apply the categorical approach to determine whether a state offense qualifies
as a [CIMT], looking to the elements of the offense rather than the noncitizen’s particular
conduct.” Salazar, 56 F.4th at 377 (citing Martinez v. Sessions, 892 F.3d 655, 658 (4th
Cir. 2018)). An offense qualifies as a CIMT “only if the statute’s elements are the same
as, or narrower than, those of the generic offense.” Descamps v. United States, 570 U.S.
254, 257 (2013). “Under this approach, a crime does not involve moral turpitude if there
is a ‘realistic probability’ that the statute of conviction could ‘be applied to reach conduct
that does not involve moral turpitude.’” Cabrera v. Barr, 930 F.3d 627, 636 (4th Cir. 2019)
(citation omitted). In other words, if the “least culpable conduct” that could reasonably be
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criminalized by the statute is not morally turpitudinous, then the offense is not a CIMT.
Salazar, 56 F.4th at 378–79; see also Ramirez, 887 F.3d at 704 (explaining that an offense
is a CIMT “if even the minimum conduct needed to violate the state statute would involve
moral turpitude”).
2.
The generic definition of a CIMT requires “two essential elements: a culpable
mental state and reprehensible conduct.” Nunez-Vasquez, 965 F.3d at 282 (citations
omitted). The culpable mental state requires “an intent to achieve an immoral result or
willful disregard of an inherent and substantial risk that an immoral act will occur.”
Salazar, 56 F.4th at 378 (quoting Ramirez, 887 F.3d at 704). Thus, we have explained that
“a mens rea of at least recklessness is required.” Granados v. Garland, 17 F.4th 475, 481
(4th Cir. 2021). Because Va. Code section 19.2-82.1 requires making a false statement
“with the intent to deceive the law-enforcement officer,” the mens rea element is easily
satisfied. Therefore, we turn our attention to whether the offense meets the actus reus
requirement of “morally reprehensible conduct.” Salazar, 56 F.4th at 378.
The BIA defines “moral turpitude” as reprehensible behavior “that shocks the
public conscience as being inherently base, vile, or depraved.” Ramirez, 887 F.3d at 704(citations omitted). “To meet the reprehensible conduct element, the crime ‘must involve
conduct that not only violates a statute but also independently violates a moral norm.’”
Nunez-Vasquez, 965 F.3d at 282 (citations omitted). We have previously considered this
element in two relevant cases, taking into account the BIA’s interpretation of “moral
turpitude” described above.
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First, in Ramirez, we held that the Virginia obstruction of justice statute, which does
not require the use of fraud or deceit, was not a CIMT. 887 F.3d at 704–05. We explained
that “an act of obstruction, standing alone, does not categorically involve moral turpitude.
. . . In other words, there must be some other aggravating element that pushes a mere
violation of the law into the territory of moral depravity.” Id. at 704. Of particular
importance here, we explained that Virginia’s general obstruction statute “does not require
the use of fraud or deceit” “[u]nlike the statute the BIA considered in [In re] Jurado–
Delgado.” Id. We also noted that “deceit was the critical aggravator that rendered an
obstruction offense a CIMT” in In re Jurado-Delgado. Id. at 702 (emphasis supplied).
The second relevant case is Nunez-Vasquez. There, we considered whether
Virginia’s identity theft statute is a CIMT. 965 F.3d at 283–85. That statute made it
unlawful “for any person to use identification documents or identifying information of
another person, whether that person is dead, or alive, or of a false or fictitious person, to
avoid summons, arrest, prosecution, or to impede a criminal investigation.” Id. (quoting
Va. Code § 18.2-186.3(B1)). In holding that the offense was not a CIMT we explained,
“unlike the statutes at issue in Matter of Flores and [In re] Jurado-Delgado, Va. Code Ann.
§ 18.2–186.3(B1) does not require perpetrators to intend to impair or obstruct a
government function through deceit because an individual can violate the statute by
misleading a private person.” Nunez-Vasquez, 965 F.3d at 284 (emphasis supplied). Then,
citing the very statute at issue here, we noted, “[i]ndeed, it is a separate crime to ‘falsely
identif[y] [oneself] to a law-enforcement officer with the intent to deceive the law-
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enforcement officer as to his real identity.’” Id. (quoting Va. Code § 19.2-82.1) (alterations
in original).
Considering our precedent along with the BIA’s interpretation of “moral turpitude,”
we have no choice but to conclude that Va. Code section 19.2-82.1 is a CIMT. The statute
requires that one “falsely identifies himself to a law-enforcement officer with the intent to
deceive the law-enforcement officer as to his real identity after having been lawfully
detained and after being requested to identify himself.” Va. Code § 19.2-82.1 (emphasis
supplied). Though “obstruction, standing alone, does not categorically involve moral
turpitude,” the aggravating factor identified by both this court and the BIA that “pushes
[the] mere violation of the law into the territory of moral depravity” is “the use of fraud or
deceit.” Ramirez, 887 F.3d at 704. Indeed, “the intent to mislead [] is the controlling
factor.” In re Jurado-Delgado, 24 I. & N. Dec. at 35.
Petitioner attempts to escape this conclusion by claiming now that he gave the
wrong name “in a moment of heightened nerves” and then “immediately corrected this,”
and, therefore, his conduct did not involve moral turpitude. Opening Br. at 17–18.
Petitioner’s description of his conduct would not make him guilty of violating Va. Code
section 19.2-82.1. But Petitioner pled guilty to violating Va. Code section 19.2-82.1. This
presents a problem Petitioner cannot overcome. The categorical approach requires us to
consider whether “even the minimum conduct needed to violate the state statute would
involve moral turpitude.” Ramirez, 887 F.3d at 704. The facts before us are that Petitioner
pled guilty to all of the elements of Va. Code section 19.2-82.1, including its requirement
that he act with an “intent to deceive the law enforcement officer.” There is nothing in the
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record that convinces us that Virginia has expanded its definition of “intent to deceive” to
include conduct that, in fact, lacks that intent. And because the intent to deceive element
makes a violation of this statute morally turpitudinous, we conclude that even the least
culpable conduct that has a realistic probability of being prosecuted pursuant to Va. Code
section 19.2-82.1 is morally turpitudinous.
IV.
We are sympathetic to Petitioner’s plight. But the law is clear -- Va. Code section
19.2-82.1 is a CIMT.
PETITION FOR REVIEW DENIED
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BARBARA MILANO KEENAN, Senior Circuit Judge, dissenting:
In my view, the majority’s analysis fails because it never explains why the act of
giving a false name to a police officer with the intent to deceive is so egregious that it
“shocks the public conscience as being inherently base, vile, or depraved.” Ramirez v.
Sessions, 887 F.3d 693, 704 (4th Cir. 2018) (citation omitted). I would hold that such
misdemeanor activity in Virginia does not necessarily meet this definition and, thus, that
this offense does not qualify as a crime involving moral turpitude (CIMT) under the Board
of Immigration Appeals’ (BIA) definition that must guide our analysis. I respectfully
dissent.
Moises Cruz Cruz (petitioner) was convicted in state court for violating Virginia
Code § 19.2-82.1 (the false name statute), a misdemeanor that prohibits the act of providing
a law enforcement officer with a false name. The majority concludes that this conviction
qualifies as a CIMT, barring petitioner from cancellation of removal because the false name
statute requires an “intent to deceive” an officer regarding one’s real identity. Opi at 2.
Notably, however, this statute does not require that the intended deception result in the
impairment or obstruction of an important government function, nor does the statute
require an intent to harm, or any resulting harm, to another.
At the outset, I agree with the majority that we defer to the BIA’s reasonable
definition of a CIMT. 3 The BIA defines the term “moral turpitude” as behavior that
3
As the majority observes, a CIMT also must have a culpable mental state of “at
least recklessness,” Opi at 8 (quoting Granados v. Garland, 17 F.4th 475, 481 (4th Cir.
(Continued)
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“shocks the public conscience as being inherently base, vile, or depraved.” Ramirez, 887
F.3d at 704 (citation omitted); Uribe v. Sessions, 855 F.3d 622, 625 (4th Cir. 2017). Thus,
a CIMT encompasses “conduct that not only violates a statute but also independently
violates a moral norm.” Ramirez, 887 F.3d at 704; Uribe, 855 F.3d at 625. An offense
qualifies as a CIMT when it “impair[s] and obstruct[s] a function of a department of
government . . . by deceit, graft, trickery, or dishonest means.” Matter of Jurado-Delgado,
24 I. & N. Dec. 29, 35 (B.I.A. 2006) (citing Matter of Flores, 17 I. & N. Dec. 225, 229
(B.I.A. 1980)); see Ramirez, 887 F.3d at 703 n.5.
As the majority observes, we recently have considered two Virginia statutes, one
involving obstruction of justice and the other involving the use of a false identity, holding
that convictions under those statutes did not qualify as CIMTs. See Ramirez, 887 F.3d at
705-06; Nunez-Vasquez v. Barr, 965 F.3d 272, 286 (4th Cir. 2020). I disagree with the
majority regarding the impact of those decisions on the question before us.
In Ramirez, we held that a violation of Virginia Code § 18.2-460(A) (the obstruction
statute), which prohibits knowingly obstructing a law enforcement officer in the
performance of his duties, was not a CIMT. 887 F.3d at 705-06. We observed that this
statute did not contain an “aggravating element,” like the use of “fraud or deceit” or “threats
or force” to complete the obstructive act. Id. at 704. Accordingly, we held that a violation
of the obstruction statute did not necessarily involve “depravity.” Id. at 704-05. As we
2021)). I agree with the majority’s conclusion that a conviction under the false name statute
satisfies this mens rea requirement. Id.14
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explained, a “refusal[] to comply” with law enforcement cannot alone be “categorically
immoral.” Id. at 705.
In Nunez-Vasquez, we concluded that a violation of Virginia Code § 18.2-186.3(B1)
(the identity theft statute), which prohibits the use of another’s identifying information “to
avoid summons, arrest, prosecution, or to impede a criminal investigation,” was not a
CIMT. 965 F.3d at 284. We held that the identity theft statute did not require an intent to
impair or to obstruct a government function, because it could be violated by presenting a
false identity to a non-governmental recipient such as a loss prevention officer. 4 Id.
Critically, in Nunez-Vasquez, we rejected the government’s argument that “the use
of false identification is reprehensible conduct because it involves deceit.” Id. at 285 n.8.
Although the majority in the present case does not address this portion of Nunez-Vasquez,
we explained in that decision that “[i]n addition to deception, there must be harm to others,
which can include obstructing an important government function.” Id. (citing Blanco v.
Mukasey, 518 F.3d 714, 719 (9th Cir. 2008) (holding that giving false identification to a
peace officer is not a CIMT because the only “benefit” the individual obtains is to impede
law enforcement and not to obtain something tangible), and Flores-Molina v. Sessions, 850
F.3d 1150, 1160-65 (10th Cir. 2017) (holding that giving false information to a police
4
The majority appears to find dispositive our statement in Nunez-Vasquez that “it
is a separate crime to ‘falsely identif[y] [oneself] to a law-enforcement officer with the
intent to deceive the law enforcement [officer] as to his real identity.’” Opi at 9-10. But
this reference to the false name statute merely served to point out that the false name statute
involved law enforcement officers, in contrast to the identity theft statute, which applied to
interactions with both governmental and private parties. We did not opine in Nunez-
Vasquez whether the false name statute qualified as a CIMT.
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officer or city official acting in their official capacity was not a CIMT because it lacked the
specific intent to procure a benefit to the detriment of another)).
With our analyses from Ramirez and Nunez-Vasquez in mind, I turn to consider the
offense at issue here and whether it qualifies categorically as a CIMT because the false
name statute involves impairing or obstructing “a function of a department of government
. . . by deceit, graft, trickery, or dishonest means.” Matter of Jurado-Delgado, 24 I. & N.
Dec. at 35. The false name statute states:
Any person who falsely identifies himself to a law-enforcement officer with
the intent to deceive the law-enforcement officer as to his real identity after
having been lawfully detained and after being requested to identify himself
by a law-enforcement officer, is guilty of a Class 1 misdemeanor.
Va. Code § 19.2-82.1.
Although the false name statute requires an intent to deceive an officer regarding
one’s identity, this statute, unlike the obstruction statute at issue in Ramirez, does not
require or even address whether the individual’s conduct must impede an officer in the
performance of his duties. See 887 F.3d at 704-05. In addition, the false name statute does
not require that the defendant intend to deceive the officer concerning his identity for any
particular purpose. This stands in stark contrast to the identity theft statute at issue in
Nunez-Vasquez, which required an intended benefit, namely, “to avoid summons, arrest,
prosecution, or to impede a criminal investigation.” 965 F.3d at 284 (citation omitted).
The false name statute does not require an intent to gain a benefit, or to cause harm to
another as a result of the intended deception.
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The majority nonetheless appears to assume that a violation of the false name statute
necessarily results in “obstruction” or impairment of an officer’s duties and, thus,
concludes that the required “intent to deceive” results in a categorical match as a CIMT.
Opi at 10. Perhaps such circumstances represent the typical violation of the false name
statute. Importantly, however, the categorical approach demands that “the minimum
conduct needed to violate the state statute” involve moral turpitude. Ramirez, 887 F.3d at
704 (emphasis added).
One need only consider a lawfully licensed teenage driver who, restricted by his
parents from using the family car, takes the car for a drive one night without knowing that
one of the car’s taillights is not working. When a law enforcement officer conducts a lawful
traffic stop to warn the driver of the taillight malfunction and asks the driver’s name, the
driver provides his older brother’s name in an attempt to keep his parents from learning of
his activity. The officer first provides a verbal warning to the driver but, upon discovering
the driver’s deception, also issues the driver a summons for violating the false name statute.
See Va. Code § 19.2-74 (permitting issuance of summons for Class 1 and Class 2
misdemeanor offenses). Although the driver provided the officer with a false name with
the intent to deceive the officer regarding his real identity, thereby violating the plain terms
of the false name statute, no vile or depraved conduct occurred. And no independent moral
norm was violated. Giving an officer a false name with the intent to deceive, like
“refus[ing] to comply” with law enforcement, cannot alone be “categorically immoral.”
Ramirez, 887 F.3d at 705.
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I also observe that regardless whether the petitioner can demonstrate the actual
factual circumstances underlying his offense, circumstances similar to those he proffered
fall short of meeting the definition of a CIMT. 5 A lawfully detained defendant initially
could intend to deceive an officer regarding his identity, but soon thereafter have a change
of heart and give his true name without causing any impediment to that officer’s duties or
harm to another. The elements of the statute would have been met in these circumstances,
without any vile or depraved conduct or violation of an independent moral norm.
Additionally, contrary to the government’s position, the lack of a written record
demonstrating the “factual basis” for a conviction cannot serve as an impediment here. As
noted above, a conviction under the false name statute is a Class 1 misdemeanor. The facts
underlying such minor offenses charged in state courts in Virginia are not memorialized in
a written record. Instead, these cases routinely are heard in a general district court,
commonly referred to in Virginia as a court “not of record.” There, the trial judge merely
records the defendant’s plea and the court’s disposition of the case. Also, such offenses
rarely are addressed in decisions issued by the Court of Appeals of Virginia or the Supreme
Court of Virginia. Thus, we should not hold the petitioner to an impossible standard of
“demonstrat[ing] that [Virginia] actually prosecutes” conduct under the false name statute
in cases in which the intended deception does not result in the impairment or obstruction
5
The majority explains that because the false name statute requires an intent to
deceive, petitioner could not have been convicted if he lacked that intent and mistakenly
provided a false name. Although I agree with that statement, I disagree with the majority’s
singular focus that a petitioner’s “intent to deceive” alone makes any violation of the false
name statute vile and depraved and, thus, “morally turpitudinous.” Opi at 11.
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of an important government function, or any other harm. Moncrieffe v. Holder, 569 U.S.
184, 205-06 (2013) (discussing Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)
(holding that there must be a “realistic probability, not a theoretical possibility” of
prosecution for the asserted conduct)). “[W]hen the state, through plain statutory language,
has defined the reach of the state statute” to include conduct that does not categorically
match the definition of a CIMT, “the categorical analysis is complete.” Gordon v. Barr,
965 F.3d 252, 260 and n.8 (4th Cir. 2020).
In sum, I would hold that a conviction under the false name statute does not
categorically qualify as a CIMT. The false name statute requires only an intent to deceive
an officer as to one’s identity, and nothing more, in the context of a lawful detention. See
Arias v. Lynch, 834 F.3d 823, 828 (7th Cir. 2016) (observing that “troubling results . . .
would follow from a rule that every crime that involves any element of deception involves
moral turpitude”); Bobadilla v. Holder, 679 F.3d 1052, 1058 (8th Cir. 2012) (“We reject
the notion, all too prevalent in government circles, that every person who intentionally
makes a government official’s task more difficult is guilty of ‘inherently base, vile, or
depraved’ conduct. . . . This is the type of crime where the risk of both over-inclusiveness
and under-inclusiveness is real.”). Manifestly, the act of giving a false name to a law
enforcement officer with the intent to deceive the officer regarding one’s identity does not
necessarily involve vile or depraved conduct that independently violates a moral norm. See
Nunez-Vasquez, 965 F.3d at 285 n.8. I would grant the petition for review.
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