Pauline Nadege Binam v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10630
Non-Argument Calendar
________________________
Agency No. A205-209-641
PAULINE NADEGE BINAM,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 1, 2020)
Before JILL PRYOR, LUCK and MARCUS, Circuit Judges.
PER CURIAM:
Pauline Binam, a native and citizen of Cameroon, seeks review of the Board
of Immigration Appeals’ (“BIA”) order affirming, in relevant part, the Immigration
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Judge’s (“IJ”) denial of her application for cancellation of removal under the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b). In her petition,
Binam argues that: (1) the BIA legally erred in finding that her previous conviction
for possession of stolen goods, under N.C. Gen. Stat. § 14-71.1, qualifies as a crime
involving moral turpitude (“CIMT”) under the categorical approach; (2) her previous
conviction for concealment of merchandise, under N.C. Gen. Stat. § 14-72.1(a), is
not a CIMT; (3) the BIA legally erred in applying Matter of Diaz-Lizarraga, 26 I. &
N. Dec. 847 (BIA 2016), retroactively; and (4) she is statutorily eligible for the petty
offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii). After careful review, we deny
her petition.
The INA strips appellate courts of jurisdiction to review, in relevant part, “any
judgment regarding the granting of relief under section . . . 1229b . . . of this title.”
8 U.S.C. § 1252(a)(2)(B)(i). Nevertheless, we still retain jurisdiction over
“constitutional claims or questions of law.” Id. § 1252(a)(2)(D). Whether a previous
conviction qualifies as a CIMT is a legal question we review de novo. Gelin v. U.S.
Att’y Gen., 837 F.3d 1236, 1240 (11th Cir. 2016). Retroactivity is also a question
of law that we review de novo. Rendon v. U.S. Att’y Gen., 972 F.3d 1252, 1264
n.10 (11th Cir. 2020).
“When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the [IJ’s] decision” or explicitly agrees with the
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IJ’s findings. Juene v. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016). We do not
reach issues not considered by the BIA. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399,
403 (11th Cir. 2016).
First, we are unpersuaded by Binam’s argument that her North Carolina
conviction for possession of stolen goods did not qualify as a crime involving moral
turpitude. The Attorney General has discretion to grant cancellation of removal to
nonpermanent residents who show, inter alia, that they have not been convicted of a
CIMT. 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1229b(b)(1)(C). While undefined by
statute, we’ve said that a CIMT “involves [a]n act of baseness, vileness, or depravity
in the private and social duties which a man owes to his fellow men, or to society in
general, contrary to the accepted and customary rule of right and duty between man
and man.” Cano v. U.S. Att’y Gen., 709 F.3d 1052, 1053 (11th Cir. 2013)
(quotations omitted). The BIA has concluded that, “[t]o involve moral turpitude, a
crime requires two essential elements: reprehensible conduct and a culpable mental
state.” Matter of Silva-Trevino, 26 I. & N. Dec. 826, 834 (BIA 2016).
“[I]n deciding whether a particular offense constitutes a crime involving
moral turpitude, we apply the categorical approach and look to the statutory
definition of the crime rather than the underlying facts of the conviction.” Cano,
709 F.3d at 1053. Under that approach, “we analyze whether the least culpable
conduct necessary to sustain a conviction under the statute meets the standard of a
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crime involving moral turpitude.” Id. at 1053 n.3 (quotations omitted). “If a
conviction requires that a defendant acted knowingly or intentionally, the statute
requires a sufficiently culpable mental state to constitute a CIMT.” Pierre v. U.S.
Att’y Gen., 879 F.3d 1241, 1251 (11th Cir. 2018) (quotations omitted). We’ve also
recognized that, “[g]enerally, a crime involving dishonesty or false statement is
considered to be one involving moral turpitude.” Walker v. U.S. Att’y Gen., 783
F.3d 1226, 1229 (11th Cir. 2015) (quotations omitted).
“[T]he version of state law that the defendant was actually convicted of
violating” must be analyzed under the categorical approach. McNeill v. United
States, 563 U.S. 816, 821, 824 (2011) (applying the categorical approach to
determine whether the defendant’s convictions qualified as “serious drug offenses”
under the Armed Career Criminal Act). In analyzing whether an offense constitutes
a CIMT, we “may rely on court decisions in the convicting jurisdiction that interpret
the meaning of the statutory language.” Gelin, 837 F.3d at 1243.
North Carolina’s possession-of-stolen-goods statute says, in relevant part:
If any person shall possess any chattel, property, money, valuable
security or other thing whatsoever, the stealing or taking whereof
amounts to larceny or a felony, either at common law or by virtue of
any statute made or hereafter to be made, such person knowing or
having reasonable grounds to believe the same to have been feloniously
stolen or taken, he shall be guilty of a Class H felony . . . .
N.C. Gen. Stat. § 14-71.1. Under North Carolina common law, “[t]he elements of
possession of stolen goods are: (1) possession of personal property; (2) which has
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been stolen; (3) the possessor knowing or having reasonable grounds to believe the
property to have been stolen; and (4) the possessor acting with a dishonest purpose.”
State v. Tanner, 695 S.E.2d 97, 100 (N.C. 2010) (quotations omitted). “[R]easonable
grounds to believe” is the equivalent of “implied guilty knowledge.” State v. Parker,
341 S.E.2d 555, 560 (N.C. 1986). “Dishonest purpose is an essential element of
possession of stolen goods,” and a “[d]ishonest purpose is equivalent to felonious
intent.” State v. Withers, 432 S.E.2d 692, 698 (N.C. 1993).
As an initial matter, we have jurisdiction to address whether the categorical
approach applies to Binam’s conviction for possession of stolen goods because it is
a legal question. See Gelin, 837 F.3d at 1240. But even though we agree that the
categorical approach applies, we can give Binam no relief on her claim.
The categorical approach requires an analysis of the elements of the
conviction, and North Carolina courts have interpreted their possession-of-stolen-
goods statute as requiring a dishonest purpose. See Mathis, 136 S. Ct. at 2248;
Tanner, 695 S.E.2d at 100; Gelin, 837 F.3d at 1243. We’ve held that, “[g]enerally,
a crime involving dishonesty or false statement is considered to be one involving
moral turpitude.” Walker, 783 F.3d at 1229 (quotations omitted). Thus, Binam’s
conviction for possession of stolen goods qualifies as a CIMT. See id.
Because we’ve held that the dishonest purpose element provides a sufficient
mens rea to render a conviction a CIMT, see id., Binam’s reliance on Matter of
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Salvail, 17 I. & N. Dec. 19 (BIA 1979) -- which held that a Canadian statute that
required actual knowledge of the stolen nature of the goods qualified as a CIMT --
is immaterial. Further, to the extent Binam relies on State v. Martin, 387 S.E.2d 211(N.C. Ct. App. 1990), to argue that the categorical approach requires courts to limit
themselves to the language of the statute, she is mistaken; that case dealt with the
validity of an indictment, not the elements of a conviction. See id. at 213-14.
As for Binam’s reliance on Matter of Deang, 27 I. & N. Dec. 57 (BIA 2017),
that case is inapplicable because it dealt with whether a conviction under North
Dakota law for receipt of stolen property qualified as an “aggravated felony” under
the INA. Id. at 58-64. Here, the issue is whether a conviction for possession of
stolen property -- which does not require an intent to permanently deprive -- qualifies
as a CIMT, and, as we’ve said, this can be shown by establishing that the crime
involved dishonesty. See Walker, 783 F.3d at 1229. Likewise, Matter of Machado
Brindis, A078 968 678 (BIA Oct. 3, 2017), is inapplicable because, in North
Carolina, “reasonable grounds to believe” has been equated with “implied guilty
knowledge,” unlike the Florida statute at issue in that case, where “should know”
meant criminal negligence. See Parker, 341 S.E.2d at 560. Moreover, Machado
Brindis is of no precedential value because it is unpublished. Accordingly, we
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conclude that the BIA did not err in finding that Binam’s conviction for possession
of stolen goods qualifies as a CIMT, and we deny her petition as to this issue. 1
We also deny Binam’s petition concerning her argument that the BIA erred
by applying retroactively Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016)
-- which she says announced a new rule regarding theft offenses -- to her case. As
the record makes clear, the BIA’s passing reference to Matter of Diaz-Lizarraga did
not retroactively apply its holding in determining whether Binam’s North Carolina
convictions qualified as CIMTs. Thus, we need not reach this issue.
Finally, we find no merit to Binam’s claim that she is eligible for cancellation
of removal pursuant to the petty offense exception. In the cancellation-of-removal
context, the petty-offense exception applies when: (1) a person has committed only
one CIMT; (2) the maximum possible sentence for the CIMT did not exceed
imprisonment for a term of one year; and (3) a sentence of six months or less was
imposed. 8 U.S.C. § 1229b(b)(1)(c); id. § 1182(a)(2)(A)(ii). In 2008, a conviction
for possession of stolen goods under North Carolina law constituted a Class H
1
Binam also has a previous conviction for concealment of merchandise under N.C. Gen. Stat. §
14-72.1, which proscribes “without authority, willfully conceal[ing] the goods or merchandise of
any store, not theretofore purchased by such person, while still upon the premises of such store.”
N.C. Gen. Stat. § 14-72.1(a). However, the BIA did not reach the issue of whether Binam’s
conviction for concealment of merchandise qualifies as a CIMT, so we need not address it. See
Gonzalez, 820 F.3d at 403.
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felony, which carried a maximum possible sentence of 25 months’ imprisonment.
N.C. Gen. Stat. § 14-71.1. 2
Binam concedes in her brief that her conviction for misdemeanor larceny,
under N.C. Gen. Stat. § 14-72(a), qualifies as a CIMT, but contrary to her claims,
this is not her only conviction for a CIMT. As we’ve already discussed, her
conviction for possession of stolen goods constitutes a CIMT as well. In addition,
that conviction alone disqualifies her for the exception because it carried a possible
sentence of more than one year. See 8 U.S.C. § 1182(a)(2)(A)(ii). Therefore, Binam
is statutorily ineligible for the petty offense exception, see id., and we deny her
petition in full.3
DENIED.
2
Felony Punishment Chart and Minimum/Maximum Table for Offenses Committed on or after
December 1, 1995 to December 1, 2009, N.C. JUD. BRANCH,
https://www.nccourts.gov/assets/documents/publications/felonychart_12_01_95maxchart.pdf?R
CA2u_.9En4i.e8d67rDmBML2kHzGSQs.
3
In her brief, Binam does not contest the denial of her applications for withholding of removal or
for relief under the Convention Against Torture (“CAT”), and therefore, she has abandoned these
issues. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
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