Roman Novatchinski v. Eric Holder, Jr. ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0217n.06
No. 10-3873
FILED
UNITED STATES COURT OF APPEALS Mar 04, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
ROMAN NOVATCHINSKI, )
)
Petitioner, ) ON PETITION FOR REVIEW OF A
) DECISION OF THE BOARD OF
v. ) IMMIGRATION APPEALS
)
ERIC H. HOLDER, JR., Attorney General, ) OPINION
)
Respondent. )
_____________________________________ )
Before: WHITE, STRANCH, and FARRIS,* Circuit Judges.
JANE B. STRANCH, Circuit Judge. Petitioner Roman Novatchinski, a citizen of Ukraine,
pled guilty in September 2007 to violating 15 U.S.C. § 645(a) by knowingly making a false
statement for the purpose of influencing the action of the Small Business Administration (SBA). At
the time he pled guilty, he was in removal proceedings for remaining in the United States longer than
permitted. Novatchinski sought the relief of cancellation of removal. But because the Immigration
Judge (IJ) and the Board of Immigration Appeals (BIA) concluded that Novatchinski had been
convicted of a crime involving moral turpitude (CIMT), and thus was ineligible for cancellation of
removal, he was ordered removed.
Novatchinski petitions this court for review. For the reasons set forth below, we DENY his
petition.
*
The Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
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Page 2
I. BACKGROUND
The relevant facts are undisputed. Novatchinski was admitted into the United States in
October 1990 as a nonimmigrant tourist who was authorized to stay until April 1991. He overstayed,
and in August 2007, the Department of Homeland Security began removal proceedings, alleging that
he should be removed under 8 U.S.C. § 1227(a)(1)(B) because he overstayed. Novatchinski
admitted the allegations and conceded removability. He filed, in relevant part, an application for
special cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act
(NACARA).
While his removal proceedings were pending, he pled guilty in September 2007 to violating
15 U.S.C. § 645(a) by knowingly making a false statement for the purpose of influencing the action
of the SBA. In his plea agreement, he admitted that in August 2001 he
stated and represented in an SBA statement of Personal History Form that he was the
“100%” owner of Palace One Stop Shop, LLC, whereas in truth and as
[Novatchinski] well-knew, co-defendant Wladimir Mizemi was a 50% partner in
Palace One Stop Shop, LLC. The statement was made for the purpose of influencing
the action of the SBA.
Novatchinski was seeking a $1.3 million loan from the SBA to buy a gas station, and he falsely
represented that he was the sole owner of Palace One Stop Shop so that he could receive a SBA-
guaranteed loan.1 He received a SBA-guaranteed loan of over $1.3 million and defaulted on this loan
after making two payments. The SBA then paid a claim of over $1 million to the lender.
1
The co-owner of Palace One Stop Shop had already obtained a SBA loan to buy a different gas
station, a fact which precluded him from receiving another SBA loan. So Novatchinski falsely
claimed that he was the sole owner of Palace One Stop Shop to conceal this fact from the SBA and
obtain a loan.
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Relevant to this appeal, the IJ determined that Novatchinski was not eligible for special
cancellation of removal under NACARA because this conviction constituted a CIMT. The BIA
dismissed Novatchinski’s appeal of the IJ decision, concluding that Novatchinski had been convicted
of a CIMT and was therefore ineligible for special cancellation of removal. In so holding, the BIA
rejected Novatchinski’s argument that his crime does not categorically involve moral turpitude
because “a conviction under 15 U.S.C. § 645(a) does not require that the misrepresentation be
material.” Novatchinski timely petitioned this court for review of the BIA’s decision.
II. ANALYSIS
The issue on appeal is the legal issue of whether Novatchinski’s conviction under 15 U.S.C.
§ 645(a) is a CIMT. See Serrato-Soto v. Holder, 570 F.3d 686, 688 (6th Cir. 2009) (holding that
deciding whether an alien’s conviction under state law constitutes a CIMT is a legal issue). If it is,
then he is ineligible for special cancellation of removal under NACARA because he cannot establish
the requisite good moral character. See 8 C.F.R. § 240.66(c) (mandating that an alien must
demonstrate good moral character to be eligible for special cancellation of removal); 8 U.S.C.
§§ 1101(f)(3), 1182(a)(2)(A)(i)(I) (providing that an alien does not have good moral character if he
or she has been convicted of a CIMT). Because the BIA issued a separate opinion rather than
summarily affirming the IJ’s decision, we review the BIA’s decision. Khalili v. Holder, 557 F.3d
429, 435 (6th Cir. 2009).
A. Chevron deference
This court generally accords Chevron deference to the BIA’s reasonable interpretation of the
Immigration and Nationality Act (INA). Serrato-Soto, 570 F.3d at 688. In particular, we defer to
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the BIA’s interpretation of the term “CIMT,” Kellerman v. Holder, 592 F.3d 700, 702–03 (6th Cir.
2010); accord Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006) (per curiam), but review de
novo the BIA’s conclusion that a particular crime of conviction fits within that interpretation.
Kellerman, 592 F.3d at 703; Rodriguez, 451 F.3d at 63. Because Novatchinski contests the BIA’s
interpretation of the phrase moral turpitude rather than its interpretation of 15 U.S.C. § 645(a), his
arguments are reviewed under the Chevron framework. See Michel v. INS, 206 F.3d 253, 262 (2d
Cir. 2000) (reviewing the alien’s arguments under the Chevron framework because he challenged
the BIA’s interpretation of moral turpitude rather than its construction of the criminal statute
involved).
Applying Chevron, we must first determine “whether Congress has directly spoken to the
precise question at issue.” Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842 (1984).
Congress has not. The INA does not define moral turpitude. Serrato-Soto, 570 F.3d at 689.
The second and final step under Chevron requires that we defer to the agency’s interpretation
unless it is “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844. An agency’s
interpretation is “arbitrary and capricious” when
the agency has relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an explanation
for its decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the product of
agency expertise.
City of Cleveland v. Ohio, 508 F.3d 827, 838 (6th Cir. 2007) (quoting Motor Vehicles Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
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Novatchinski argues that a false-statement crime is categorically a CIMT only if fraud or
materiality of the false statement is an essential element. Because neither are essential elements
under 15 U.S.C. § 645(a), he contends that he has not committed a CIMT. Although the “exact
definition of ‘moral turpitude’ . . . has never been fully settled,” the BIA has explained that it
“refers generally to conduct that 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.” Singh v. Holder, 321 F. App’x 473, 477 (6th Cir. 2009) (quoting Matter
of Torres-Varela, 23 I. & N. Dec. 78, 83 (BIA 2001)). “Moral turpitude has been
defined as an act which is per se morally reprehensible and intrinsically wrong or
malum in se, so it is the nature of the act itself and not the statutory prohibition of it
which renders a crime one of moral turpitude.” See Matter of Ajami, 22 I. & N. Dec.
949, 950 (BIA 1999). “Among the tests to determine if a crime involves moral
turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.”
Id.
Kellerman, 592 F.3d at 703.
Applying this general concept to cases where the alien knowingly made false statements to
the government, the BIA has held that crimes “impair[ing] or obstruct[ing] 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” involve moral turpitude. Matter of Flores,
17 I. & N. Dec. 225, 229 (BIA 1980); accord Rodriguez, 451 F.3d at 63. Put another way, a crime
is morally turpitudinous if it involves “an affirmative act calculated to deceive the government.” Id.
at 229; accord Rodriguez, 451 F.3d at 64.
In Flores, the BIA decided that “the crime of uttering and selling false and counterfeit papers
relating to registry of aliens is one involving moral turpitude.” Id. at 228. Though that criminal
statute did not include fraud or materiality of the false statement as essential elements, see 18 U.S.C.
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§ 1426(b), the BIA reasoned that knowingly committing such an act “inherently involves a deliberate
deception of the government and an impairment of its lawful functions.” 17 I. & N. Dec. at 230.
Since “fraudulent conduct is implicit in the statute,” id., the statute did not need to “include the usual
phraseology concerning fraud” for the offense to involve moral turpitude, id. at 228.
The BIA continued this logic in Matter of Jurado-Delgado, which held that a state conviction
for unsworn falsification to authorities involved moral turpitude even though the statute did not
require that the written false statement be material. 24 I. & N. Dec. 29, 34–35 (BIA 2006). Relying
on its prior holding in Flores, the BIA reasoned that the statute required the state to prove that the
defendant intended to mislead a public official in performing his official function by knowingly
making a false statement. Id. As in Flores, the crime involved deliberately deceiving the
government and impairing its lawful function. Id.
Circuit-court precedent supports the BIA’s view that CIMTs include crimes that involve
deliberately deceiving the government and impairing its lawful function. In Rodriguez, the Second
Circuit deferred to this interpretation because it found the BIA’s interpretation was reasonable.
Rodriguez, 451 F.3d at 63. Rodriguez then analyzed de novo whether the alien’s conviction for
violating 18 U.S.C. § 1542 (which prohibits making a false statement in an application for a
passport) fell within the BIA’s interpretation of a CIMT. Id. Even though the statute did not require
fraud or materiality as essential elements, Rodriguez held that a conviction under the statute was
categorically a CIMT because it “involves deceit and an intent to impair the efficiency and lawful
functioning of the government. This alone is sufficient to categorize a crime as a CIMT.” Id. at 64.
Similarly, the Seventh Circuit observed that “almost all courts have held that intentionally deceiving
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the government involves moral turpitude.” Ghani v. Holder, 557 F.3d 836, 840–41 (7th Cir. 2009)
(internal quotation marks omitted); accord Omagah v. Ashcroft, 288 F.3d 254, 262 (5th Cir. 2002).
The Eleventh Circuit set the bar even lower when it remarked that generally “a crime involving
dishonesty or false statement is considered to be one involving moral turpitude.” Itani v. Ashcroft,
298 F.3d 1213, 1215 (11th Cir. 2002) (per curiam) (internal quotation marks omitted). The reason
is obvious: “[W]e do not classify a prevaricator as a person of good moral character. Certainly
mendacity is not a virtue.” Ghani, 557 F.3d at 841 n.3 (internal quotation marks omitted).
Moreover, as the government correctly notes, “nearly every court to consider the issue has
concluded that crimes involving willful false statements are turpitudinous.” Ghani, 557 F.3d at 841;
accord Rodriguez, 451 F.3d at 64; Montero-Ubri v. INS, 229 F.3d 319, 321(1st Cir. 2000) (holding
that a conviction for using a false driver’s license—as opposed to merely possessing one—is a CIMT
because the “attempt at deceit is inherent in this act”); Kabongo v. INS, 837 F.2d 753, 758 (6th Cir.
1988) (holding that, “[u]nder the facts of the present case, where petitioner has acknowledged his
false statements and the statements made to defraud the United States Government, we find that the
convictions may be considered as involving moral turpitude”).
Although the crime at issue in the Sixth Circuit Serrato-Soto case did not require that
Serrato-Soto deceive the government, its holding is consistent with the BIA’s interpretation that a
crime is morally turpitudinous if it involves “an affirmative act calculated to deceive the
government.” Flores, 17 I. & N. Dec. at 229; accord Rodriguez, 451 F.3d at 64. In Serrato-Soto,
this court found that making a false statement concerning personal identifying information (such as
a Social Security account number or a credit-card number) with the intent to obtain goods, services,
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or anything of value is categorically a CIMT. Serrato-Soto, 570 F.3d at 690–91. Although the
statute at issue used the word fraud in defining the offense, it defined fraud as requiring that the
perpetrator act “willfully, knowingly, or with intent to deceive.” Id. at 690 (internal quotation marks
omitted). So “Serrato-Soto was convicted of a crime that . . . involves dishonesty as an essential
element.” Id. Because the statute also required some type of affirmative action beyond mere
possession of illegal documents, this court held that Serrato-Soto’s crime involved moral turpitude.
Id. at 690–91. An affirmative act plus deception was therefore enough to constitute a CIMT, just
as the BIA had previously determined. Compare id. with Flores, 17 I. & N. Dec. at 229.
As the above precedent demonstrates, the BIA has reasonably interpreted a CIMT to include
crimes that involve deliberately deceiving the government and impairing its lawful function. We
must defer to that interpretation under Chevron because where, as here, the statute is silent or
ambiguous on the issue the court is analyzing—the INA does not define moral turpitude—“the
question for the court [is] whether the agency’s answer is based on a permissible construction of the
statute.”2 See INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (quoting Chevron, 467 U.S. at 843).
2
Novatchinski argues that we should not accord Chevron deference to the BIA’s interpretation of
moral turpitude in Jurado because that decision, which explicitly holds that materiality is not
required for a false-statement crime to involve moral turpitude, represents a sharp and sudden break
from prior BIA decisions. This argument is unpersuasive. More than 26 years earlier, the BIA held
in 1980 that a conviction for deliberately deceiving the government and impairing its lawful function
involves moral turpitude. See Flores, 17 I. & N. Dec. at 229. This holding on its own supports the
BIA’s conclusion in this case that a conviction under 15 U.S.C. § 645(a) constitutes a CIMT. The
Second Circuit accorded Chevron deference to the interpretation of moral turpitude advanced in
Flores. Rodriguez, 451 F.3d at 63. Moreover, the case Novatchinski relies on, Gao v. Jenifer, 185
F.3d 548 (6th Cir. 1999), is distinguishable. When the INS decided Gao’s case, it lacked a consistent
interpretation of the controlling statutory language. Id. at 556–57. By contrast, the BIA followed
26 years of consistent precedent when it decided Jurado.
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Barb. 15 U.S.C. § 645(a)
The next step in the analysis is to determine under de novo review whether 15 U.S.C.
§ 645(a) falls within the BIA’s interpretation of a CIMT. Rodriguez, 451 F.3d at 63. To determine
whether a crime is a CIMT, we use the “categorical approach,” which focuses on whether a
conviction under the statute in the abstract must necessarily be a CIMT rather than on whether the
alien’s actual conduct constitutes a CIMT. Serrato-Soto, 570 F.3d at 689. “Accordingly, we look
to the elements of the statutory . . . offense, not to the specific facts. We rely on what the convicting
court must necessarily have found to support the conviction and not to other conduct in which the
defendant may have engaged in connection with the offense.” Id. at 690 (internal quotation marks
omitted). If a conviction under the statute is not necessarily a CIMT, then we employ the “modified
categorical approach,” by “conduct[ing] a limited examination of documents in the record to
determine whether the particular offense for which the alien was convicted constitutes a CIMT.”
Kellerman, 592 F.3d at 704.
Novatchinski was convicted under § 645(a), which is found in Chapter 14A of Title 15 of
the United States Code. Chapter 14A establishes the Small Business Administration, sets forth the
law governing its operation, and includes provisions to promote small business through other
departments of the government. See 15 U.S.C. §§ 631–657g. Section 645(a) provides that
[w]hoever makes any statement knowing it to be false, or whoever willfully
overvalues any security, for the purpose of obtaining for himself or for any applicant
any loan, or extension thereof by renewal, deferment of action, or otherwise, or the
acceptance, release, or substitution of security therefor, or for the purpose of
influencing in any way the action of the [Small Business] Administration, or for the
purpose of obtaining money, property, or anything of value, under this chapter, shall
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be punished by a fine of not more than $5,000 or by imprisonment for not more than
two years, or both.
The first element requires the perpetrator to make a knowing false statement or to willfully overvalue
any security.3 Either option involves deliberate deception. The second element specifies the purpose
for which the perpetrator must have engaged in the deliberate deception. Each possible purpose
involves impairing the lawful function of government (either the SBA or some other department).
Crimes under the statute therefore necessarily involve deliberately deceiving the government and
impairing its lawful function. Because such crimes fall within the BIA’s definition of a CIMT, see
Flores, 17 I. & N. Dec. at 229, Novatchinski has committed a CIMT.
Novatchinski’s conviction of a crime involving moral turpitude means that he cannot
establish the good moral character necessary to be eligible for special cancellation of removal under
NACARA. See 8 C.F.R. § 240.66(c) (establishing that an alien must demonstrate good moral
character to be eligible for special cancellation of removal); 8 U.S.C. §§ 1101(f)(3),
1182(a)(2)(A)(i)(I) (providing that an alien does not have good moral character if he or she has been
convicted of a CIMT). We therefore deny his petition for review.
III. CONCLUSION
For the above reasons, we DENY Novatchinski’s petition for review.
3
A knowing false statement or a willful overvaluing of any security could each be further broken
down into two subparts: knowing and false statement, and willful and overvaluing any security,
respectively.