Nikolay Tantchev v. Merrick B. Garland ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0195p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
NIKOLAY STOYANO TANTCHEV,
│
Petitioner, │
> No. 21-4067
│
v. │
│
MERRICK B. GARLAND, Attorney General, │
Respondent. │
┘
On Petition for Review from the Board of Immigration Appeals;
No. A 078 866 822.
Argued: July 27, 2022
Decided and Filed: August 19, 2022
Before: GUY, MOORE, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: Maria Baldini-Potermin, MARIA BALDINI-POTERMIN & ASSOCIATES, P.C.,
Chicago, Illinois, for Petitioner. Christina R. Zeidan, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Maria Baldini-Potermin, MARIA
BALDINI-POTERMIN & ASSOCIATES, P.C., Chicago, Illinois, for Petitioner. Christina R.
Zeidan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________
OPINION
_________________
CLAY, Circuit Judge. Nikolay Stoyanov Tantchev petitions for review of a decision of
the Board of Immigration Appeals (“BIA”) ordering him removed from the United States for
having been convicted of an aggravated felony under the Immigration and Nationality Act
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(“INA”), 8 U.S.C. § 1101(a)(43)(G). For reasons set forth below, we DENY the petition for
review.
I. BACKGROUND
A. Factual Background
Petitioner Nikolay Stoyanov Tantchev is a native and citizen of Bulgaria. He entered the
United States on May 1, 1999, with a business visa. He received lawful permanent resident
status on April 23, 2012. For many years, Tantchev ran a trucking business out of a warehouse
in Chicago. United States v. Tantchev, 916 F.3d 645, 648 (7th Cir. 2019). In 2008, Tantchev
and one of his employees started operating a side business coordinating the export of shipping
containers from Chicago to Mongolia for individual customers. See id. Tantchev would have
large shipping containers delivered to his warehouse. Id. His customers would then come to his
warehouse and load the shipping containers themselves. Id. at 649. Tantchev never looked
inside the containers. Id. He would fill out customs paperwork describing the contents of the
containers using information provided by the customers. Id. In 2011, Customs and Border
Protection learned that several of these shipping containers held stolen cars. Id. In 2016, a
federal grand jury in the Northern District of Illinois indicted Tantchev on several counts related
to this activity. Id. at 650. Relevant to this appeal, Tantchev was charged with exporting stolen
vehicles under 18 U.S.C. § 553. Id. at 650, 652. The case went to trial, and the jury convicted
Tantchev on all charges. Id. at 650.
At trial, the district court instructed the jury on the elements of a § 553 crime stating that
they must find, beyond a reasonable doubt, that:
1. The defendant attempted to export the motor vehicle . . . ;
2. The motor vehicle was stolen; and
3. When the defendant attempted to export the stolen motor vehicle, the
defendant knew that it was stolen.
(Jury Instr., A.R. #161.) To define knowledge, the district court gave what is known as an
“ostrich” instruction, referencing situations where the defendant is willfully blind to material
facts. Tantchev, 916 F.3d at 652. The judge instructed the jury that knowledge includes “a
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strong suspicion that the vehicle in the containers [Tantchev] was exporting . . . were stolen and
that he deliberately avoided the truth.” (Jury Instr., A.R. #179.)
The jury convicted Tantchev under § 553, and the district court sentenced him to 40
months of imprisonment. Tantchev, 916 F.3d at 648. The Seventh Circuit affirmed his
conviction on appeal after finding that the district court did not err in giving the ostrich
instruction. Id. at 652–54. Tantchev served out this sentence in full.
B. Procedural Background
After Tantchev was released from prison, the Department of Homeland Security (“DHS”)
detained him and placed him in removal proceedings pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).
DHS ordered his removal on the grounds that his conviction under 18 U.S.C. § 553 was an
aggravated felony as defined in the INA, 8 U.S.C. § 1101(a)(43)(G). Tantchev denied the
removability charge and argued that his § 553 conviction was not an aggravated felony. In a
decision issued on June 14, 2021, an immigration judge (“IJ”) concluded that exporting stolen
vehicles in violation of § 553 is an aggravated felony under the INA. The IJ therefore sustained
the charge of removability and ordered Tantchev deported to Bulgaria. Tantchev appealed to the
BIA. In an unpublished order issued by a single Board member, the BIA affirmed the IJ’s order
and upheld the removal order.
Tantchev timely filed a petition for review with this Court. He also filed an emergency
motion with the Court seeking to stay his deportation pending his appeal. Another panel of this
Court denied that motion on January 5, 2022, and DHS deported Tantchev to Bulgaria on
January 6, 2022.1
II. DISCUSSION
A. Standard of Review
“This court has jurisdiction to review a final order of removal from the BIA pursuant to
8 U.S.C. § 1252.” Marikasi v. Lynch, 840 F.3d 281, 286 (6th Cir. 2016). “Where the BIA
1Tantchev continues to pursue his appeal to the end because, if he prevails, DHS policies may require the
agency to facilitate his return. See USICE, ICE Policy Directive No. 11061.1: Facilitating the Return to the United
States of Certain Lawfully Removed Aliens, Feb. 24, 2012, available at https://tinryurl.com/2p9cpz9u.
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reviews the immigration judge’s decision and issues a separate opinion, rather than summarily
affirming the immigration judge’s decision, we review the BIA’s decision as the final agency
determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). But “to the extent that the
BIA adopted the immigration judge’s reasoning, this court also reviews the immigration judge’s
decision.” Sanchez-Robles v. Lynch, 808 F.3d 688, 692 (6th Cir. 2015) (citing Khalili, 557 F.3d
at 435).
“[W]hether [a petitioner’s] conviction renders him removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) is a non-discretionary, purely legal question” that this Court reviews de
novo. Patel v. Ashcroft, 401 F.3d 400, 407 (6th Cir. 2005) (citing Leocal v. Ashcroft, 543 U.S. 1,
6–7 (2004)). “Where appropriate, however, the courts must defer to reasonable BIA
interpretations of the statutes they are charged with implementing,” i.e., the INA. Id. (citing
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)). “However,
the BIA’s ultimate conclusion that a particular . . . conviction amounts to an aggravated felony
conviction within the meaning of § 1227(a)(2)(A)(iii) is reviewed de novo because such a
conclusion depends upon interpreting state statutes and federal statutes unrelated to
immigration.” Id. (citing Chery v. Ashcroft, 347 F.3d 404, 407 (2d Cir. 2003)).
B. Analysis
Under the INA, an immigrant may be removed from the United States if he is convicted
of an “aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INA defines aggravated felony to
include “a theft offense (including receipt of stolen property) . . . for which the term of
imprisonment [is] at least one year.” Id. § 1101(a)(43)(G).
To determine whether a petitioner’s conviction is an aggravated felony warranting
removal, courts “look[] to the statute . . . of conviction, rather than to the specific facts
underlying the crime.” Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017) (quoting
Kawashima v. Holder, 565 U.S. 478, 483 (2012)). This process of comparing statutes is known
as the “categorical approach,” and it involves three related inquiries. Keeley v. Whitaker, 910
F.3d 878, 881 (6th Cir. 2018) (citing Esquivel-Quintana, 137 S. Ct. at 1567–68). First, the Court
must “identify the minimum conduct required for a conviction” under the criminal statute,
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18 U.S.C. § 553(a)(1). Id. (citing Esquivel-Quintana, 137 S. Ct. at 1568). Second, the Court
must identify the elements of a generic receipt of stolen property crime as that term is used in the
INA. See id. Finally, the Court must “determine if the minimum conduct criminalized by the
[predicate] statute ‘categorically fits’ within the generic crime.” Id. at 881–82 (quoting Esquivel-
Quintana, 137 S. Ct. at 1568). Accordingly, a conviction for exporting stolen vehicles qualifies
as an aggravated felony only “if the least of the acts criminalized by [18 U.S.C. § 553(a)(1)] falls
within the generic [INA] definition” of a receipt of stolen property crime. 2 Esquivel-Quintana,
137 S. Ct. at 1568.
Tantchev’s only argument on appeal is that the minimum conduct required for conviction
under 18 U.S.C. § 553(a)(1) involves a less culpable mens rea than a receipt of stolen property
crime under the INA. If that is true, then convictions under § 553(a)(1) would not be aggravated
felonies warranting removal under the INA. See Keeley, 910 F.3d at 881. Tantchev admits that,
taken at face value, the mens rea elements seem to require the same state of mind. A defendant
is criminally culpable under § 553(a)(1) if he exports a vehicle “knowing the [vehicle] to have
been stolen.” In comparison, a receipt of stolen property crime under the INA requires a mens
rea of “knowledge or belief” that the property was stolen. Matter of Daeng, 27 I. & N. Dec. 57,
63 (B.I.A. 2017). Still, Tantchev argues that knowledge in § 553(a)(1) is broader than in the
INA. To fully grasp the parties’ arguments, it is necessary to understand how the BIA has
interpreted the mens rea element of the INA’s receipt of stolen property crime in comparison to
how federal courts have interpreted the mens rea element of a § 553 offense.
The INA does not define “receipt of stolen property.” See 8 U.S.C. §1101(a)(43)(G).
The leading BIA case defining the mens rea for a receipt of stolen property crime is Matter of
Daeng, 27 I. & N. Dec. 57 (B.I.A. 2017). The issue in that case was whether a conviction for
218 U.S.C. § 553 contains two subsections involving different types of crimes—one involving stolen
vehicles and another concerning vehicle parts that have been tampered with. See 18 U.S.C. § 553. “Where
a [criminal] statute contains several different crimes that are described separately, we employ what is known as the
‘modified categorical approach.’” Esquivel-Quintana, 137 S. Ct. at 1568 n.1 (quoting Gonzales v. Duenas-Alvarez,
549 U.S. 183, 187 (2007)). The purpose of the modified categorical approach is to determine the crime of which the
defendant was actually convicted. However, in the instant case, the parties agree that the statute is divisible and that
Tantchev was convicted under § 553(a)(1) (the stolen vehicle provision). The sole issue before this Court is
therefore whether the elements of an offense under § 553(a)(1) categorically fit within the INA’s definition of a
receipt of stolen property crime.
No. 21-4067 Tantchev v. Garland Page 6
receipt of a stolen vehicle under a South Dakota statute was an aggravated felony under the INA.
Id. at 58. The South Dakota law imposed criminal liability “for the possession of any motor
vehicle which [a person] knows, or has reason to believe, has been stolen.” Id. (emphasis
added). The BIA concluded that the mens rea of “reason to believe” was a less culpable state of
mind than the INA required. Id. at 63. Therefore, the South Dakota crime was not a categorical
match with the INA’s “receipt of stolen property” crime. Id.
In fleshing out the mens rea element for receipt of stolen property, the BIA held that the
INA requires both “knowledge or belief” that the property was stolen and “an intent to deprive
the owner of his or her property.” Id. at 59. According to the BIA, these are two separate
elements. Id. at 59, 63; see also United States v. Flores, 901 F.3d 1150, 1160 (9th Cir. 2018)
(“BIA decisions define ‘receipt of stolen property’ as having the following elements: (1) receipt,
possession, concealment, or retention of property, (2) knowledge or belief that the property has
been stolen, and (3) intent to deprive the owner of his property.” (citing Matter of Daeng, 27 I. &
N. Dec. at 59–63; Matter of Cardiel-Guerrero, 25 I. & N. Dec. 12, 16 (B.I.A. 2009); Matter of
Bahta, 22 I. & N. Dec. 1381, 1384–91 (B.I.A. 2000)).
But these elements significantly overlap. In Matter of Daeng, the BIA explained that:
We cannot infer that a violator who received property with a “reason to believe”
that the property was stolen (or a similar mens rea) intended to deprive the true
owner of the rights and benefits of ownership. This is so because such a violator
need not be actually aware of the stolen character of the item received in order to
be convicted of the offense. Instead, the prosecution need only establish that he
or she should have been aware of the fact that such property was stolen when
considering the circumstances presented. Accordingly, since a necessary element
of both generic theft and receipt of stolen property offenses is an intent to deprive
the owner of the rights or benefits of the property taken or received, a receipt of
stolen property offense committed with a mens rea of “reason to believe” (or a
similar mental state) cannot fall within the generic definition of an aggravated
felony receipt of stolen property offense under [§ 1101(a)(43)(G) of the INA].
27 I. & N. Dec. at 59 (citing United States v. Sanchez-Rodriguez, 830 F.3d 168, 172–73 (5th Cir.
2016)). As courts have later explained, the “knowledge or belief” element in the INA therefore
“refers to a specific defendant’s knowledge or belief.” Lewin v. Att’y Gen. of the United States,
885 F.3d 165, 170 (3d Cir. 2018). The BIA also went out of the way to clarify that its use of the
No. 21-4067 Tantchev v. Garland Page 7
term “knowledge” encompassed the widely accepted doctrine of “willful blindness.” Matter of
Daeng, 27 I. & N. Dec. at 60 n.5. As to the intent to deprive element, courts have generally
agreed that, under Matter of Daeng, “[i]ntent to deprive can be inferred from knowledge that the
property was stolen.” Flores, 901 F.3 at 1160 (citing Matter of Sierra, 26 I. & N. Dec. 288, 291
(B.I.A. 2014)); see also Santana v. Barr, 975 F.3d 195, 201 (2d Cir. 2020) (“[A]n intent to
deprive can be inferred from the requirement that the offender knew that the property was
stolen.” (citing Abimbola v. Ashcroft, 378 F.3d 173, 179–80 (2d Cir. 2004))).
That brings us to the elements of 18 U.S.C. § 553(a)(1), exporting stolen motor vehicles.
Few courts have opined on the elements of this offense. The ones that have agree that
§ 553(a)(1)’s knowledge requirement—i.e., “knowing the [vehicle] to have been stolen”—
includes willful blindness. See Tantchev, 916 F.3d at 652, 653–54; United States v. Dambelly,
714 F. App’x 87, 88 (2d Cir. 2018). The willful blindness doctrine has been widely accepted in
criminal law for many decades. See Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754,
766 (2011). It goes by many names, including “conscious-avoidance,” Dambelly, 714 F. App’x
at 88, and, in this circuit, “deliberate ignorance,” United States v. Mahmud, 541 F. App’x 630,
633 (6th Cir. 2013) (quoting United States v. Beaty, 245 F.3d 617, 621–22 (6th Cir. 2001)).
As the Supreme Court has explained:
Many criminal statutes require proof that a defendant acted knowingly or
willfully, and courts applying the doctrine of willful blindness hold that
defendants cannot escape the reach of these statutes by deliberately shielding
themselves from clear evidence of critical facts that are strongly suggested by the
circumstances. . . .
* * *
While the Courts of Appeals articulate the doctrine of willful blindness in slightly
different ways, all appear to agree on two basic requirements: (1) The defendant
must subjectively believe that there is a high probability that a fact exists and
(2) the defendant must take deliberate actions to avoid learning of that fact. We
think these requirements give willful blindness an appropriately limited scope that
surpasses recklessness and negligence.
Global-Tech Appliances, 563 U.S. at 766, 769 (footnote omitted). Some circuits, including this
Court, have said that willful blindness is as culpable, and therefore interchangeable, with a mens
rea of knowledge. See United States v. Matthews, 31 F.4th 436, 449 (6th Cir. 2022); see also
No. 21-4067 Tantchev v. Garland Page 8
Global-Tech Appliances, 563 U.S. at 766 (citing Edwards, The Criminal Degrees of Knowledge,
17 Mod. L. Rev. 294, 302 (1954)). But the D.C. Circuit has seriously questioned the willful
blindness doctrine, finding it more akin to a mens rea of recklessness than of knowledge. See
United States v. Alston-Graves, 435 F.3d 331, 339–341 (D.C. Cir. 2006); Global-Tech
Appliances, 563 U.S. at 767–68, 769 n.9 (citing Alston–Graves, 435 F.3d at 339–41).
In Tantchev’s criminal appeal, the Seventh Circuit held that a defendant can be convicted
of exporting stolen cars under § 553(a)(1) under a willful blindness mens rea. See Tantchev,
916 F.3d at 652–54. The Seventh Circuit concluded that the district court did not err in giving a
willful blindness instruction—often called an “ostrich instruction”—in Tantchev’s case. See id.
at 652–54. As the court explained, an ostrich instruction “is meant ‘to inform the jury that a
person may not escape criminal liability by pleading ignorance if he knows or strongly suspects
he is involved in criminal dealings but deliberately avoids learning more exact information about
the nature or extent of those dealings.’” Id. at 652–53 (quoting United States v. Green, 648 F.3d
569, 582 (7th Cir. 2011)) (emphasis added). As Tantchev admits, the Seventh Circuit’s
interpretation of the willful blindness doctrine in his case still requires more than negligence or
recklessness.
That brings us back to the ultimate issue before this Court: whether the mens rea under
§ 553(a)(1), which encompasses willful blindness,3 categorically matches the “knowledge or
belief” and “intent to deprive” elements of a receipt of stolen property offense in the INA.
Tantchev says it does not. He argues that an ostrich instruction allows a jury to convict someone
with a mens rea that is less culpable than “knowledge or belief,” and more akin to “reason to
believe.”
3Even though the D.C. Circuit may require more than willful blindness to sustain a conviction for an
offense that, like § 553(a)(1), requires “knowledge,” see Global-Tech Appliances, 563 U.S. at 767–68, 769 n.9
(citing Alston–Graves, 435 F.3d at 339–341), the categorical approach requires us to compare the elements of an
aggravated felony under the INA to the least culpable conduct that could sustain a conviction under the criminal
statute, see Keeley, 910 F.3d at 881–82 (explaining categorical approach requires courts to “determine if the
minimum conduct criminalized by the [predicate] statute ‘categorically fits’ within the generic crime” (quoting
Esquivel-Quintana, 137 S. Ct. at 1568)). Even though some courts would not uphold a conviction under § 553(a)(1)
based on a willful blindness standard, most would. Indeed, the Seventh Circuit did exactly that in Tantchev’s case.
Accordingly, we must compare a willful blindness mens rea to the mens rea of a receipt of stolen property crime in
the INA, 8 U.S.C. § 1101(a)(43)(G).
No. 21-4067 Tantchev v. Garland Page 9
But Tantchev faces a significant hurdle with this argument. Although the crime at issue
in Matter of Daeng did not involve a mens rea of willful blindness, the BIA nonetheless weighed
in on whether that mens rea constitutes knowledge or belief under the INA. See Matter of
Daeng, 27 I. & N. Dec. at 60 n.5. In a footnote, the BIA explained that:
Almost all circuits have adopted the concept that “‘[k]nowingly’ in criminal
statutes is not limited to positive knowledge, but includes the state of mind of one
who does not possess positive knowledge only because he consciously avoided
it.” . . . Thus, in contemplating “knowledge,” we include the concept of []“willful
blindness.”
Id. (quoting United States v. Jewell, 532 F.2d 697, 702 (9th Cir. 1976) (en banc)) (emphasis
added). Tantchev does not argue that the BIA erred in interpreting knowledge to include willful
blindness. Thus, this footnote in Matter of Daeng requires the conclusion that a mens rea of
willful blindness categorically matches the “knowledge or belief” element for an aggravated
receipt of stolen property crime. See Matter of Daeng, 27 I. & N. Dec. at 60 n.5.
That leaves Tantchev with one argument. He posits that while the BIA may equate
“knowledge or belief” with “willful blindness,” that “does not explain how such deliberate
avoidance would amount to ‘intent to deprive,’” which is a separate element. (Pet’r Br. at 11 n.3
(citing Matter of Daeng, 27 I. & N. Dec. at 60 n.5).) There is some support for the proposition
that certain facts may allow a jury to infer knowledge, but those same facts would not support an
inference of intent. See Dambelly, 714 F. App’x at 89 (citing United States v. Samaria, 239 F.3d
228, 239–40 (2d Cir. 2001)). But it would be unnatural to read the BIA’s footnote in Matter of
Daeng—which plainly intended to bring willful blindness within the purview of the INA’s
receipt of stolen property crime—as saying that willful blindness is enough to establish
“knowledge or belief” while falling short on the “intent to deprive” element. Indeed, we read
Matter of Daeng as tethering the two elements such that if the “knowledge or belief” element is
met, that would support an inference of intent to deprive. See generally Matter of Daeng, 27 I. &
N. Dec. at 59, 63; see also Santana, 975 F.3d at 201 (“[A]n intent to deprive can be inferred from
the requirement that the offender knew that the property was stolen.” (citing Abimbola, 378 F.3d
at 179–80)). Therefore, as the government notes, “by equating ‘willful blindness’ to
‘knowledge,’ the [BIA] indicated that persons exhibiting willful blindness can be said to possess
No. 21-4067 Tantchev v. Garland Page 10
an intent to deprive for the same reason as those with actual knowledge or belief that property is
stolen.” (Gov’t Br. at 20.)
Accordingly, the BIA in Tantchev’s case did not err in concluding that the mens rea of
willful blindness encompassed in 18 U.S.C. § 553(a)(1) categorically matches the mens rea
requirement of a receipt of stolen property crime under 8 U.S.C. § 1101(a)(43)(G).
III. CONCLUSION
For these reasons, we DENY Tantchev’s petition for review.