Margaret Marie Forbes v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14773
Non-Argument Calendar
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Agency No. A042-258-080
MARGARET MARIE FORBES,
a.k.a. Margaret Marie Parke,
Petitioner,
versus
US ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 28, 2013)
Before CARNES, HULL, and JORDAN, Circuit Judges.
PER CURIAM:
Margaret Marie Forbes, a Jamaican citizen, petitions for review of the Board
of Immigration Appeals’ denial of her motion to reconsider its final order of
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removal, which found that she was inadmissible at the time of her entry into the
United States for having been convicted of a crime involving moral turpitude.
I.
Forbes first came to the United States on a visa in 1981. Seven years later,
in February 1988, she pleaded nolo contendre in Florida state court to grand theft
in the second degree, in violation of Fla. Stat. § 812.014, for which she was
sentenced to five years probation and ordered to pay over $10,000 in restitution.
At that time, Florida’s theft statute prohibited “knowingly obtain[ing] or us[ing], or
endeavor[ing] to obtain or to use, the property of another” with the intent to either
“temporarily or permanently” deprive that person of a right to the property or to
appropriate the property for one’s own use. Fla. Stat. Ann. § 812.014(1) (1988). If
the stolen property was “[v]alued at $300 or more, but less than $20,000,” the
offender was guilty of grand theft in the second degree. Id. § 812.014(2)(b). The
criminal information underlying Forbes’ conviction largely tracked the language of
the statute, alleging that she “unlawfully and knowingly obtain[ed] or endeavor[ed]
to obtain the property of First Union National Bank, to-wit: money, of the value of
[$300] or more, with intent to permanently or temporarily deprive” the bank “of a
right to the property” or “to appropriate the property to her own use.”
Forbes returned to Jamaica the following year and applied for permanent
resident status at the American Embassy in Kingston. With or without knowledge
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of her conviction for grand theft, the Embassy granted Forbes’ application and she
was admitted into the United States in November 1989 as a lawful permanent
resident. In 2005, however, the Department of Homeland Security charged Forbes
with removability under 8 U.S.C. § 1227(a)(1)(A) as an alien who was
inadmissible at the time of entry or adjustment of status because, among other
things, she (1) had been convicted of a crime involving moral turpitude and (2)
lacked a valid entry document.
On May 27, 2010, an immigration judge sustained those two charges of
removability, finding that Forbes’ theft conviction was for a crime involving moral
turpitude that made her both inadmissible at the time of her last entry into the
United States and, by extension, meant that she lacked a valid entry document
because she should never have been granted permanent resident status. The IJ
found that neither § 812.014 nor Forbes’ record of conviction conclusively
established whether she had been convicted of a crime involving moral turpitude,
which under BIA precedent required that she have intended to permanently deprive
the bank of its funds. However, based on the Attorney General’s decision in
Matter of Silva Trevino, 24 I. & N. Dec. 687 (A.G. 2008), which announced that
immigration courts could consider evidence outside the record of conviction in
evaluating whether an offense involved moral turpitude, the IJ found that Forbes’
police report indicated she intended a permanent taking.
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Forbes appealed the IJ’s decision to the BIA, contending that the IJ erred in
relying on the police report to find that her theft conviction constituted a crime
involving moral turpitude and that the legal framework set forth in Silva Trevino
was inconsistent with binding precedent. While her appeal was pending, we issued
our decision in Fajardo v. U.S. Att’y Gen., 659 F.3d 1303 (11th Cir. 2011), which
rejected the framework adopted in Silva Trevino and held that immigration courts
could not consider evidence outside the record of conviction in determining
whether an alien was convicted of a crime involving moral turpitude.
On April 27, 2012, the BIA dismissed Forbes’ appeal. The BIA
acknowledged Fajardo’s impact on Silva Trevino but nevertheless found that
Forbes’ theft conviction qualified as a crime involving moral turpitude because the
criminal information, a part of her record of conviction, showed that the object of
her theft was cash, which under its own precedent raised a presumption of a
permanent taking. 1 Forbes did not seek judicial review of the BIA’s decision.
Instead, she filed a motion for reconsideration on May 29, 2012, arguing that the
BIA’s determination that she had been convicted of a crime involving moral
1
Crimes involving dishonesty or false statement, including theft offenses of all stripes,
are generally deemed by courts to involve moral turpitude. See e.g., Itani v. Ashcroft, 298 F.3d
1213, 1215 (11th Cir. 2002); Chiaramonte v. INS, 626 F.2d 1093, 1097 (2d Cir. 1980); U.S. ex
rel. McKenzie v. Savoretti, 200 F.2d 546, 548 & n.7 (5th Cir. 1953). Although courts have not
distinguished between theft offenses involving permanent or temporary takings, the BIA has held
that “a conviction for theft is considered to involve moral turpitude only when a permanent
taking is intended,” though it has also held that it is reasonable to presume that the theft of cash
involves a permanent taking. Matter of Grazley, 14 I. & N. Dec. 330, 333 (BIA 1973).
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turpitude was inconsistent with the holding of Fajardo, which she described as
establishing that immigration courts may consider only the nature of the offense, as
defined in the relevant statute, and may never look to the underlying facts or
circumstances of the offense. Forbes asserted that takings under Fla. Stat. §
812.014 need not be permanent and suggested that the BIA erred in relying on the
criminal information to conclude that her conviction involved the theft of cash,
thereby allowing it to apply a presumption that the taking was permanent.
The BIA denied Forbes’ motion for reconsideration in an order issued on
August 17, 2012, concluding that its earlier decision was not inconsistent with
Fajardo because it was permitted to rely on her criminal information, which was a
part of the record of conviction, to determine that her theft conviction was for a
crime involving moral turpitude. The BIA explained that because it was applying
a modified categorical analysis, instead of a categorical analysis, Forbes did not
preclude it from considering the record of conviction in making that determination.
Forbes filed a petition for review of the BIA’s decision on September 14, 2012.
II.
Although Forbes’ petition for review and supporting brief indicate that she is
only seeking review of the order denying her motion for reconsideration, her
claims of error are directed at the underlying merits of the BIA’s final removal
order. She asserts that the “BIA erred in upholding the [IJ’s] Order of Removal,”
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“erred in determining that her conviction for grand theft constituted a crime of
moral turpitude,” and applied “an incorrect legal standard in determining that [she]
was guilty of a crime of moral turpitude.” In particular, she contends that the BIA
impermissibly relied on the facts and circumstances of her theft offense—namely,
that it involved the taking of cash—and erroneously presumed that her offense
involved a permanent taking because Fla. Stat. § 812.014 and the criminal
information both refer to permanent as well as temporary takings.
We review the BIA’s denial of a motion for reconsideration for an abuse of
discretion. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007). But
before examining the merits of Forbes’ contentions, we must first consider the
extent to which we have jurisdiction to consider her petition for review. See
Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262, 1266 (11th Cir. 2004).
Section 1252(b)(1) of Title 8 imposes a “mandatory and jurisdictional” 30-day
time limit for seeking review of a final order of removal, which is neither subject
to equitable tolling nor affected by the later filing of motion for reconsideration.
See 8 U.S.C. § 1252(b)(1); Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3
(11th Cir. 2005) (noting that the 30-day deadline is “mandatory and jurisdictional”
and is not suspended or tolled by the filing of a motion to reopen removal
proceedings); see also Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 1549
(1995) (“[A] deportation order is final, and reviewable when issued. Its finality is
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not affected by the subsequent filing of a motion to reconsider.”). While Forbes’
September 14, 2012 petition for review was filed within 30 days of the denial of
her motion for reconsideration, it was filed more than four months after the BIA’s
April 27 removal order. We therefore lack jurisdiction to consider any claims
challenging the merits of the final order of removal, including the BIA’s finding
that Forbes’ grand theft conviction constitutes a crime involving moral turpitude.
And though we do have jurisdiction to review whether the BIA abused its
discretion in denying Forbes’ motion for reconsideration, she has waived any such
challenge by failing to adequately address that issue. See Greenbriar, Ltd. v. City
of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (explaining that a party that
“elaborates no arguments on the merits” of an issue waives consideration of that
issue). As noted earlier, while Forbes generally states that she is seeking review of
the denial of her motion for reconsideration, her claims of error are directed at the
merits of the BIA’s final order of removal, not the relevant issue of whether the
BIA abused its discretion in declining to reconsider that order. Cf. Jester v. United
States, 714 F.2d 97, 99 n.2 (11th Cir. 1983) (explaining that a motion for
reconsideration filed under Federal Rule of Civil Procedure 60(b) “does not bring
up the underlying judgment for review” and that appellate review is limited to
determining whether the court “abused its discretion in refusing to set aside the
original judgment”) (quotation marks omitted). Forbes does not discuss whether
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the BIA erred in rejecting the specific arguments raised in support of her motion
for reconsideration or even address the legal standards governing such motions.
Instead, the thrust of her arguments is that the BIA erred in ordering her removal to
begin with based on a finding that she had committed a crime of moral turpitude.
Those arguments, however, go the merits of the underlying removal order, not the
merits of the BIA’s later determination that Forbes failed to demonstrate that
reconsideration of its earlier order was warranted.
Moreover, even if Forbes had adequately challenged the denial of her
motion for reconsideration, the BIA did not abuse its discretion in denying that
motion. A motion for reconsideration filed with the BIA must “specify the errors
of law or fact in the previous order” and must be “supported by pertinent
authority.” 8 U.S.C. § 1229a(c)(6)(C); see also 8 C.F.R. § 1003.2(b)(2). In her
motion for reconsideration, Forbes maintained that the BIA’s finding that she had
been convicted of a crime involving moral turpitude was inconsistent with the
holding of Fajardo. The BIA, however, rightly rejected that argument. In Fajardo
we explained that, in determining whether a crime involves moral turpitude, courts
have historically applied either a “categorical approach,” which looks no further
than “the inherent nature of the offense[] as defined in the relevant statute,” or a
“modified categorical approach,” which permits consideration of an alien’s record
of conviction (i.e., the charging document, plea, verdict, and sentence) where “the
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statutory definition of a crime encompasses some conduct that categorically would
be grounds for removal as well as other conduct that would not.” 659 F.3d at 1305(quotation marks omitted). We then went on to hold that the BIA in that case erred
in considering evidence outside the record of conviction because “Congress
unambiguously intended adjudicators to use the categorical and modified
categorical approach to determine whether a person was convicted of a crime
involving moral turpitude.” Id. at 1310.
In accordance with Fajardo, the BIA’s underlying removal order applied a
modified categorical approach and looked no further than Forbes’ record of
conviction to determine that her theft offense was a crime of moral turpitude
because it involved the taking of cash. Contrary to the arguments made by Forbes
in her motion for reconsideration, Fajardo does not stand for the proposition that
adjudicators may never look beyond the inherent nature of the offense, as defined
in the relevant statute, nor did it hold that the BIA may not presume a permanent
taking where the record of conviction reveals that a theft offense involved cash. In
fact, courts have long held that all theft offenses are presumed to involve moral
turpitude. See e.g., Chiaramonte, 626 F.2d at 1097 (“It has been long
acknowledged by this Court and every other circuit that has addressed the issue
that crimes of theft, however they may be technically translated into domestic
penal provisions, are presumed to involve moral turpitude.”); Soertarto v. INS, 516
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F.2d 778, 780 (7th Cir. 1975) (“Theft has always been held to involve moral
turpitude, regardless of the sentence imposed or the amount stolen.”). Because the
BIA’s underlying decision was not inconsistent with the principles announced in
Fajardo, it did not abuse its discretion in concluding that Forbes failed to
demonstrate that reconsideration was warranted.
For these reasons, we dismiss Forbes’ petition for lack of jurisdiction to the
extent that she challenges the merits of the BIA’s underlying order of removal, and
deny that petition insofar as it challenges the denial of her motion for
reconsideration.
PETITION DISMISSED IN PART, DENIED IN PART.
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