Maricela Leyva Martinez v. Jefferson Sessions III

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1301
MARICELA LEYVA MARTINEZ, a/k/a Maricela Martinez, a/k/a Maricelo
Leyva,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
Respondent.
------------------------------
CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION; MARYLAND
OFFICE OF THE PUBLIC DEFENDER; NATIONAL IMMIGRATION
PROJECT OF THE NATIONAL LAWYERS GUILD; UNIVERSITY OF
MARYLAND CAREY IMMIGRATION CLINIC,
Amici Supporting Petitioner.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: December 6, 2017 Decided: June 15, 2018
Before NIEMEYER, TRAXLER, and KEENAN, Circuit Judges.
Petition for review granted; vacated and remanded by published opinion. Judge Traxler
wrote the majority opinion, in which Judge Keenan joined. Judge Niemeyer wrote a
dissenting opinion.
ARGUED: Maureen A. Sweeney, UNIVERSITY OF MARYLAND CAREY
IMMIGRATION CLINIC, Baltimore, Maryland; Adina Bassin Appelbaum, CAPITAL
AREA IMMIGRANTS’ RIGHTS COALITION, Washington, D.C., for Petitioner. Sara J.
Bayram, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Steven C. Planzer,
CASTANEDA PLANZER LLC, Salisbury, Maryland, for Petitioner. Chad A. Readler,
Acting Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright, Senior
Litigation Counsel, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Sejal Zota,
NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD,
Boston, Massachusetts, for Amicus National Immigration Project of the National
Lawyers Guild. Claudia R. Cubas, CAPITAL AREA IMMIGRANTS’ RIGHTS
COALITION, Washington, D.C., for Amicus Capital Area Immigrants’ Rights Coalition.
Nadine K. Wettstein, MARYLAND OFFICE OF THE PUBLIC DEFENDER, Rockville,
Maryland, for Amicus Maryland Office of the Public Defender.
2
TRAXLER, Circuit Judge:
Maricela Martinez was ordered removed from the United States after the Board of
Immigration Appeals (“BIA”) determined that Martinez’s prior convictions for theft were
crimes involving moral turpitude. Because not all of the offenses encompassed under the
relevant Maryland statute qualify as crimes involving moral turpitude, we grant
Martinez’s petition for review, vacate the BIA’s decision, and remand for consideration
of Martinez’s application for cancellation of removal.
I.
Thirty-five-year-old Maricela Martinez is a native of Mexico; she entered the
country illegally 20 years ago. She is the mother of four children, all of whom are
citizens of the United States. Between 2007 and 2016, Martinez was convicted three
times in Maryland for petty theft. One conviction involved theft of less than $500; the
others involved thefts of less than $100 each.
After her third conviction, Martinez was arrested and detained by immigration
officials, who sought to deport her because the convictions amounted to crimes involving
moral turpitude (“CIMT”) under 8 U.S.C. § 1182(a)(2)(A)(i)(I). Although Martinez
initially conceded removability, she later obtained counsel and contended that the theft
offenses did not qualify as CIMTs and that she was entitled to apply for cancellation of
removal.
An immigration judge concluded that the theft convictions qualified as CIMTs and
that Martinez therefore was removable and was not entitled to seek cancellation of
removal. The BIA affirmed, relying on its decision in In re Diaz-Lizarraga, 26 I&N Dec.
3
847 (BIA 2016), to conclude that the offenses were CIMTs. Martinez thereafter filed this
petition for review.
II.
Under the Immigration and Nationality Act (“INA”), a conviction for a crime
involving moral turpitude renders an alien inadmissible, see 8 U.S.C. §
1182(a)(2)(A)(i)(I), and removable, see id. § 1227(a)(2)(A). Under certain
circumstances, aliens who are present in the country without being legally admitted may
apply for cancellation of removal and adjustment of status. See 8 U.S.C. § 1229b(b)(1).
An alien convicted of a CIMT, however, is not eligible for cancellation of removal. See
id. § 1229b(1)(C).
A.
To determine whether a state offense qualifies as a CIMT, we apply the now-
familiar categorical approach, which looks to the elements of the offense rather than the
conduct the alien engaged in when committing the offense. See Sotnikau v. Lynch, 846
F.3d 731, 735 (4th Cir. 2017); Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir. 2012).
If all permutations of the conduct proscribed by the elements of the offense involve moral
turpitude, then the offense categorically qualifies as a CIMT. “But if those elements can
include behavior that does not involve moral turpitude, the crime is not categorically one
involving moral turpitude.” Sotnikau, 846 F.3d at 735.
A modification to the categorical approach applies in cases involving “divisible”
statutes. A divisible statute is one that sets out alternate elements that create multiple
forms of the criminal offense and at least one form of the offense qualifies -- by its
4
elements -- as the generic predicate offense. A statute that lists alternative means of
committing a single offense, rather than alternative elements, is not divisible. See Mathis
v. United States, 136 S. Ct. 2243, 2256 (2016); Descamps v. United States, 570 U.S. 254,
257 (2013). If the statute is divisible, then the modified categorical approach applies,
which permits the court to consult a limited universe of documents to determine which of
the various forms of the offense was the offense of conviction. But even when the
modified categorical approach applies, the focus remains on the elements of the offense
rather than the offender’s conduct. As the Supreme Court has explained, the modified
categorical approach does not permit us “to substitute . . . a facts-based inquiry for an
elements-based one. A court may use the modified approach only to determine which
alternative element in a divisible statute formed the basis of the defendant’s conviction.”
Descamps, 570 U.S. at 278.
B.
Martinez’s theft convictions arise under § 7-104 of Maryland’s criminal code,
which consolidated multiple offenses into a single statute. Under § 7-104, various kinds
of conduct are treated as theft: exerting unauthorized control over property, see Md. Code
Ann., Crim. Law § 7-104(a); obtaining control over property through deception, see id. §
7-104(b); possessing stolen property, see id. § 7-104(c); obtaining control over lost or
misdelivered property, see id. § 7-104(d); and obtaining services without consent or
through deception, see id. § 7-104(e).
Although the structure of the statute might seem to suggest that it encompasses
multiple separate offenses, that is not the case. Section 7-102 explains that the “[c]onduct
5
described as theft in this part constitutes a single crime and includes the separate crimes
formerly known as: (1) larceny; (2) larceny by trick; (3) larceny after trust; (4)
embezzlement; (5) false pretenses; (6) shoplifting; and (7) receiving stolen property.”
Md. Code Ann., Crim. Law § 7-102(a). And, consistent with the understanding that the
statute encompasses a single offense, the Maryland Court of Appeals has explained that
the jury is not required to unanimously agree on the manner in which the statute was
violated. See Rice v. State, 532 A.2d 1357, 1361 (Md. 1987) (rejecting argument that
jury was required to agree whether defendant violated the theft statute by committing
larceny or by possessing stolen property: “No unanimity was to be forced upon [the jury]
because there was to be no necessity to choose: either inference, whether of larceny or of
possessing stolen goods, would lead to the conclusion that the defendant was guilty of
theft. We thus construe Maryland’s theft statute to not require the jury unanimity that
appellant seeks.”); Jones v. State, 493 A.2d 1062, 1069-70 (Md. 1985) (“Maryland’s
consolidated theft statute constitutes a single crime; . . . the subsections of [the statute]
merely specify different acts or transactions through which theft can be proved . . . .”). 1
1
Although Rice and Jones were considering an earlier version of the
consolidated theft statute, there is no substantive difference between the current and
previous versions of the statute, and Maryland courts continue to view the statute as
creating a single offense of theft. See, e.g., Watts v. State, ___ A.3d ___, 2018 WL
947746, at *7 (Md. Feb. 20, 2018) (“Rice informs our answer to the question before us.
As we previously noted, the General Assembly intended for the changes to the assault
statute to be in lock-step with the changes to the theft statute. Like the theft statute,
nothing in the plain language of Crim. Law Art., § 3–201(b) describes battery, attempted
battery, or intent to frighten as separate crimes. . . . Consistent with our interpretation of
the theft statute in Rice, here the assault statute refers to a single crime . . . .”).
6
Because Maryland’s theft statute is not divisible, the modified categorical
approach is inapplicable. The question, then, is whether all of the conduct prohibited by
the statute, including the least culpable conduct, categorically qualifies as a CIMT.
III.
A.
Although the INA does not define “crime involving moral turpitude,” the
restriction is meant to “single out offenders who do more than simply the wrong inherent
in violating a statute.” Jimenez-Cedillo v. Sessions, 885 F.3d 292, 294 (4th Cir. 2018)
(internal quotation marks and alteration omitted). “The term moral turpitude refers to
behavior that shocks the public conscience as being inherently base, vile, or depraved.
Accordingly, a crime involving moral turpitude encompasses conduct that not only
violates a statute but also independently violates a moral norm.” Uribe v. Sessions, 855
F.3d 622, 625 (4th Cir. 2017) (citations, footnote, and internal quotation marks omitted).
A CIMT therefore has “two essential elements: a culpable mental state and reprehensible
conduct.” Sotnikau, 846 F.3d at 736 (internal quotation marks omitted).
The BIA has long concluded that theft offenses qualify as CIMTs if the defendant
committed the offense with the intent to permanently deprive the owner of the property.
See, e.g., Matter of Grazley, 14 I&N Dec. 330, 333 (BIA 1973) (“Ordinarily, a conviction
for theft is considered to involve moral turpitude only when a permanent taking is
intended.”); Matter of P-, 2 I&N Dec. 887, 887 (BIA 1947) (holding that the Canadian
statute of conviction did not require an intent to permanently deprive the owner of the
property and therefore did not involve moral turpitude). The point of the permanent-
7
deprivation requirement “was to distinguish between substantial and reprehensible
deprivations of an owner’s property on the one hand and, on the other, mere de minimis
takings in which the owner’s property rights are compromised little, if at all.” Diaz-
Lizarraga, 26 I&N Dec. at 850.
The paradigmatic example of the type of “de minimis taking” that should not be
treated as a morally turpitudinous theft is “‘joyriding’ -- the nonconsensual taking of a
motor vehicle with the intent to return it to the owner shortly thereafter.” Id. If a statute
punished joyriding as theft, the BIA historically declined to treat convictions under that
statute as CIMTs. See, e.g., Matter of P-, 2 I&N Dec. at 887 (conviction for violation of
Canadian statute did not render alien inadmissible because the statute “is similar to the
various statutes in this country covering ‘joy riding’ and does not comprehend theft of
automobile or intent to deprive the owner thereof permanently, and, therefore, does not
involve moral turpitude”).
In Diaz-Lizarraga, however, the BIA modified its approach to theft convictions.
The BIA noted that in the decades since it first considered the issue, the law governing
theft offenses had “evolved significantly.” Diaz-Lizarraga, 26 I&N Dec. at 851.
In most jurisdictions, legislation and judicial opinions have refined the
distinction between substantial and de minimis takings to such an extent
that the traditional dichotomy of permanent versus temporary takings has
become anachronistic. In particular, responding to new economic and
social realities, lawmakers and judges across the country have come to
recognize that many temporary takings are as culpable as permanent ones.
Id. Given the significant change in the treatment of theft offenses, the BIA concluded
“that the mere antiquity of our case law is not a sound reason for continuing to adhere to
8
it.” Id. at 854. The BIA therefore adopted what it described as the “mainstream,
contemporary understanding of theft,” id., and held that “a theft offense is a crime
involving moral turpitude if it involves an intent to deprive the owner of his property
either permanently or under circumstances where the owner’s property rights are
substantially eroded,” id. at 853. The BIA made it clear, however, that “[w]e continue to
believe that it is appropriate to distinguish between substantial and de minimis takings
when evaluating whether theft offenses involve moral turpitude.” Id. at 851.
B.
When determining whether Martinez’s convictions qualify as CIMTs, Chevron’s 2
rules of deference apply to the BIA’s interpretation of the statutes it administers. See
INS v. Aguirre–Aguirre, 526 U.S. 415, 424–25 (1999); Soliman v. Gonzales, 419 F.3d
276, 281 (4th Cir. 2005). Accordingly, because “crime involving moral turpitude” is not
defined in the INA and its intended meaning it is not otherwise apparent, we are generally
obliged to defer to the BIA’s definition of that phrase. We are not, however, obliged to
defer to the BIA’s conclusion that the Maryland theft offenses at issue here qualify as
CIMTs: “Whether the elements of a particular state offense are a categorical match with
the elements of a [CIMT] requires an analysis of state criminal law, which does not lie
within the BIA’s authority or expertise.” Amos v. Lynch, 790 F.3d 512, 518 n.5 (4th Cir.
2015).
2
Chevron U.S.A., Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837
(1984).
9
Although Martinez contends that we should not defer to Diaz-Lizarraga and its
revised definition of CIMT because the BIA abandoned decades of precedent without
adequate explanation, notice, or opportunity for comment, we need not address that
argument. We likewise need not consider whether Diaz-Lizarraga may be applied
retroactively to cases involving theft offenses that were committed before Diaz-Lizarraga
was decided and were not CIMTs under the rule then applicable, a question several
circuits have answered in the negative. See Garcia-Martinez v. Sessions, ___ F.3d ___,
2018 WL 1702839 at *4 (9th Cir. April 9, 2018); Obeya v. Sessions, 884 F.3d 442, 449
(2d Cir. 2018); Lucio-Rayos v. Sessions, 875 F.3d 573, 578 (10th Cir. 2017). Assuming
that Diaz-Lizarraga applies and is entitled to deference, we nonetheless conclude that
Martinez’s theft offenses do not qualify as CIMTs under the broader Diaz-Lizarraga
standard.
As noted above, Diaz-Lizarraga holds that a theft offense is a CIMT if the
offender intended “to deprive the owner of his property either permanently or under
circumstances where the owner’s property rights are substantially eroded.” Diaz-
Lizarraga 26 I&N Dec. at 853 (emphasis added). While the Diaz-Lizarraga standard
encompasses certain “serious” temporary takings -- for example, where “property is taken
‘temporarily’ but returned damaged or after its value or usefulness to the owner has been
vitiated,” id. at 854, the BIA made it clear that a statute that permits a theft conviction for
a de minimis, temporary taking like joyriding does not qualify as a CIMT.
We agree with Martinez that Maryland’s theft statute does not “distinguish
between substantial and de minimis takings” as required to qualify as a CIMT under
10
Diaz-Lizarraga. Id. at 851. Several portions of Maryland’s theft statute require proof of
the defendant’s intent to “deprive the owner of the property.” Md. Code, Crim. Law § 7-
104(a)(1), (b)(1), (c)(1)(i). “Deprive” is defined as the “withhold[ing of] property of
another . . . permanently [or] for a period that results in the appropriation of a part of the
property’s value.” Id. § 7-101(c) (emphasis added). Thus, a defendant may be convicted
under § 7-104 for a temporary taking that deprives the owner of any portion of the
property’s value. This standard is lower than the BIA’s substantial-erosion standard, and
it permits the state to obtain a theft conviction for joyriding, the paradigmatic example of
a de minimis and non-morally-turpitudinous taking; if nothing else, a joyrider deprives
the vehicle owner of the value of the gasoline, oil, and tire treads that are consumed
during the ride. Indeed, as shown by documents attached to the brief of Amici Curiae,
Maryland prosecuted a defendant for theft under § 7-104 after he borrowed a piece of
construction equipment overnight and returned it with no damage other than scratches
consistent with normal wear and tear.
Because § 7-104 permits de minimis, temporary takings like joyriding to be
prosecuted as theft, the statute is overbroad and does not categorically qualify as a CIMT
under the standard spelled out in Diaz-Lizarraga. 3 The BIA therefore erred in
concluding that Martinez had been convicted of crimes involving moral turpitude. See
Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1087 n.3 (9th Cir. 2017) (concluding that
3
Given this conclusion, we need not consider Martinez’s other arguments
regarding § 7-104, such as her contention that the statute does not qualify as a CIMT
because it includes theft of services with nominal value, such as subway-turnstile
jumping.
11
Idaho’s theft statute was not a CIMT under Diaz-Lizarraga standard because statute
“penalizes the kinds of temporary takings the BIA continues to place outside of generic
theft -- statutes that encompass joyriding or other short-term takings of property”
(internal quotation marks and alterations omitted)). And because the convictions do not
qualify as CIMTs, Martinez is not ineligible for cancellation of removal. We therefore
vacate the BIA’s order and remand for consideration of Martinez’s application for
cancellation of removal.
IV.
We briefly address another issue raised by Martinez. When Martinez first
appeared before the immigration judge, she was not represented by counsel, and she
admitted the allegations of the Notice to Appear and conceded removability. Less than
two weeks later, Martinez had obtained counsel and she appeared again before the
immigration judge. Through counsel, Martinez sought to withdraw her concession that
the theft convictions qualified as CIMTs and rendered her removable. The immigration
judge denied the request, concluded that the convictions qualified as CIMTs, and denied
Martinez’s application for cancellation of removal. The BIA affirmed on the merits of
the CIMT issue, and it expressly declined to consider Martinez’s claim that the
immigration judge erred by denying her request to withdraw the concession of
removability.
On appeal, Martinez contends that the immigration judge erred by refusing to
permit her to withdraw the concession. The immigration judge’s refusal appears to have
been largely based on his conclusion that the convictions qualified as CIMTs, and the
12
BIA declined to address the withdrawal issue for the same reason. Under these
circumstances, we decline to consider this issue on appeal, and we leave it for the BIA to
address on remand. See SEC v. Chenery Corp., 318 U.S. 80, 95 (1943) (explaining that
“an administrative order cannot be upheld unless the grounds upon which the agency
acted in exercising its powers were those upon which its action can be sustained”); Nken
v. Holder, 585 F.3d 818, 822 (4th Cir. 2009) (“[W]hen a BIA order does not demonstrate
that the agency has considered an issue, the proper course, except in rare circumstances,
is to remand to the agency for additional investigation or explanation.” (internal quotation
marks omitted)).
V.
For the foregoing reasons, we conclude that Maryland’s consolidated theft statute
does not categorically qualify as a crime involving moral turpitude for purposes of 8
U.S.C. § 1182(a)(2)(A)(i)(I). We therefore grant the petition for review, vacate the BIA’s
order, and remand for consideration of Martinez’s request to withdraw her uncounseled
concession of removability and her application for cancellation of removal pursuant to 8
U.S.C. § 1229b(b)(1).
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED
13
NIEMEYER, Circuit Judge, dissenting:
The Immigration Judge’s order removing Maricela Martinez to Mexico was based
on Martinez’s three convictions for theft in violation of Maryland Code, Criminal Law
§ 7-104. The Immigration Judge concluded that Maryland’s theft offense categorically
qualifies as a crime involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I),
thereby rendering Martinez ineligible for cancellation of removal under 8 U.S.C.
§ 1229b(b)(1)(C). The Board of Immigration Appeals (“BIA”) affirmed.
The majority vacates the BIA’s decision, concluding that § 7-104 allows for a
conviction based on “joyriding” and that it therefore does not categorically qualify as a
“crime involving moral turpitude” under the BIA precedent interpreting that term. In
reaching this conclusion, the majority speculates, without the benefit of any Maryland
case law, that the Maryland theft law could, by its terms, be applied to punish joyriding
as the theft of an automobile. This approach, however, violates the Supreme Court’s
standard for applying the categorical approach.
The applicable statute denies relief from an order of removal when the alien has
been “convicted of . . . a crime involving moral turpitude.” 8 U.S.C.
§ 1182(a)(2)(A)(i)(I); id. § 1229b(b)(1)(c). In the abstract, crimes involving moral
turpitude “encompass[] ‘conduct that not only violates a statute but also independently
violates a moral norm.’” Uribe v. Sessions, 855 F.3d 622, 625 (4th Cir. 2017) (quoting
Mohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014)). The BIA has concluded, as
relevant here, that a theft offense is a crime of moral turpitude if the offender must have
intended “to deprive the owner of his property either permanently or under circumstances
14
where the owner’s property rights are substantially eroded.” Matter of Diaz-Lizarraga,
26 I&N Dec. 847, 853 (BIA 2016). It explained, “We continue to believe that it is
appropriate to distinguish between substantial and de minimis takings when evaluating
whether theft offenses involve moral turpitude.” Id. at 851. But by “de minimis
takings,” the BIA was not referring to the stealing of property with a de minimis value.
Rather, in pointing to examples of takings that are de minimis and do not involve moral
turpitude, the BIA referred to “joyriding or ‘borrowing’ a Victrola [record player] or ring
for a short-term use at a party,” id. at 854, all instances in which the offender takes
property “with the intent to return it to the owner shortly thereafter” and thus without an
intent to substantially compromise the owner’s rights in that property, id. at 850.
We apply § 1182(a)(2)(A)(i)(I), as reasonably construed by the BIA, categorically,
determining whether the Maryland state offense under which Martinez was convicted
categorically fits the BIA’s definition of a theft crime of moral turpitude. See Sotnikau v.
Lynch, 846 F.3d 731, 735 (4th Cir. 2017). In applying the categorical approach, the
Supreme Court instructs:
[T]o find that a state statute creates a crime outside the generic definition of
a listed crime in a federal statute requires more than the application of legal
imagination to the state statute’s language. It requires a realistic
probability, not a theoretical possibility, that the State would apply its
statute to conduct that falls outside the generic definition of a crime. To
show that realistic probability, an offender, of course, may show that the
statute was so applied in his own case. But he must at least point to his own
case or other cases in which the state courts in fact did apply the statute in
the special (non-generic) manner for which he argues.
Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (emphasis added); see also
Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (explaining that the categorical
15
approach’s “focus on the minimum conduct criminalized by the state statute is not an
invitation to apply ‘legal imagination’ to the state offense”). Thus, under this standard,
we must determine whether there is a “realistic probability” — as distinguished from a
“theoretical possibility” — that Maryland courts would allow joyriding-type offenses to
support a conviction under § 7-104 so as to make the Maryland theft statute broader than
generic theft involving moral turpitude. And such a realistic probability is shown by
referring to cases supporting Martinez’s position.
It is readily apparent that neither the majority nor Martinez has conducted the
necessary analysis. The Maryland theft statute — § 7-104 — prohibits “willfully or
knowingly obtain[ing] or exert[ing] unauthorized control over property” with the intent to
“deprive the owner of the property,” Md. Code Ann., Crim. Law § 7-104(a)(1), and the
term “deprive” is defined, as relevant here, as the “withhold[ing] [of] property of another
. . . [either] permanently [or] for a period that results in the appropriation of a part of the
property’s value,” id. § 7-101(c)(1)-(2). Maryland courts thus hold that a defendant who
knowingly exercises unauthorized control over another’s property with the intent to
withhold the property for a period “long enough to appropriate a portion of” the
property’s value is guilty of violating § 7-104. In re Lakeysha P., 665 A.2d 264, 276
(Md. Ct. Spec. App. 1995) (interpreting nearly identical predecessor statute). And
critically, for present purposes, the Lakeysha P. court explained, “It is clear that [the]
definition of ‘deprive’ [as including the ‘withhold[ing] [of] property of another . . . [f]or
such a period as to appropriate a portion of its value’] does not embrace every
unauthorized use of another’s property, no matter how minimal or how brief” because,
16
“[i]f that were the case, what is now the crime of Unauthorized Use would be subsumed
into the consolidated crime of Theft.” Id. (emphasis added). Indeed, a major premise
underlying Lakeysha P.’s analysis was that facts consistent with mere joyriding would
not be sufficient to support a conviction for the theft of that automobile. See id. at 265.
Despite this, the majority nonetheless speculates that § 7-104 would treat joyriding
as automobile theft because a joyrider intentionally “deprives the vehicle owner of the
value of the gasoline, oil, and tire treads that are consumed during the ride.” Ante at 11.
But, to be clear, the BIA has never said that the theft of even relatively small amounts of
“gasoline, oil, and tire treads” is not morally turpitudinous. See, e.g., Matter of
Scarpulla, 15 I&N Dec. 139, 140–41 (BIA 1974) (noting that it is “well settled” that
petty theft involves moral turpitude). Rather, what it has specified is that a theft statute
that allows joyriding to be punished as automobile theft cannot qualify as a crime
involving moral turpitude because the intended deprivation involved in joyriding does not
substantially compromise the owner’s property rights in the vehicle. See Diaz-Lizarraga,
26 I&N Dec. at 850–51. And, here, the majority has done no more than speculate —
based on its reading of § 7-101(c) and contrary to the analysis provided in Lakeysha P. —
that joyriding would be punished as the theft of a vehicle under § 7-104. This is precisely
the type of “application of legal imagination to a state statute’s language” that Duenas-
Alvarez prohibits when conducting the categorical approach. 549 U.S. at 193.
Moreover, neither the majority nor Martinez has cited to any case where a
Maryland court has applied § 7-104 to joyriding-type conduct. The best that the majority
can do is identify an instance where an individual was charged with theft under § 7-104
17
for unauthorized borrowing of property resulting in normal wear and tear. See ante at 11.
But the existence of such a charge does not amount to case law and is nothing more than
the “theoretical possibility” that Duenas-Alvarez instructs is insufficient. 549 U.S. at
193. The Supreme Court has made clear that Martinez “must at least point to . . . cases in
which the state courts in fact did apply the statute” to cover a de minimis, temporary
taking. Id. (emphasis added). Because Martinez and the majority have not shown that
there is such a case and therefore a “realistic probability” that Maryland courts would
apply § 7-104 to “de minimis, temporary takings like joyriding,” ante at 11, they fail in
their argument that § 7-104 does not qualify as a crime involving moral turpitude.
The BIA held in this case that “MD Code, Criminal Law § 7-104 categorically
matches the generic definition of a [crime involving moral turpitude] because, viewed in
conjunction with the definition of ‘deprive’ at MD Code, Criminal Law § 7-101(c), the
statute necessarily requires the perpetrator to either engage in fraud or deception, or
withhold at least some of the rights and benefits of ownership from the victim with a
culpable mental state,” citing Diaz-Lizarraga. I agree and therefore would affirm the
BIA’s decision.
18