Mohamed Bushra v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0630n.06
No. 12-4393
FILED
UNITED STATES COURT OF APPEALS Jul 03, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
MOHAMED MUSSA BUSHRA, )
)
Petitioner, )
)
v. )
) ON PETITION FOR REVIEW
ERIC H. HOLDER, JR., Attorney General, ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
Respondent. ) APPEALS
)
BEFORE: KEITH and McKEAGUE, Circuit Judges; WATSON, District Judge.*
PER CURIAM. Mohamed Mussa Bushra, a native of Ethiopia, petitions through counsel for
review of a decision by the Board of Immigration Appeals (BIA) finding him removable under 8
U.S.C. § 1227(a)(2)(A)(ii) for having committed two crimes involving moral turpitude.
Bushra entered this country in 2001 with his wife and children, as refugees. Bushra and his
wife claimed to have been persecuted in Ethiopia for supporting the Oromo Liberation Front, an anti-
government organization. They fled Ethiopia to Kenya, where they lived as refugees for several
years before being granted admission to the United States. In 2005, Bushra was granted legal
permanent residence status.
*
The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 12-4393
Bushra v. Holder
In 2002, Bushra was convicted of fourth-degree criminal sexual conduct, which he admits
is a crime involving moral turpitude. In 2011, he was convicted of willful failure to comply with sex
offender registration requirements and possession with intent to deliver property with a counterfeit
mark, i.e., counterfeit Nike shoes. He was placed in removal proceedings and applied for relief in
the form of withholding of removal and protection under the Convention Against Torture (CAT).
An immigration judge (IJ) concluded that both of Bushra’s new convictions constituted crimes
involving moral turpitude. He was denied the relief of withholding or protection under the CAT on
the grounds that he was ineligible because he was a member of a terrorist organization and because
his testimony was found not credible. In his petition for review, Bushra challenges only the finding
that he is removable for having been convicted of two crimes involving moral turpitude, contending
that neither failure to register as a sex offender nor delivery of property with a counterfeit mark
involves moral turpitude.
We have jurisdiction to review the order of removal in this case because Bushra is raising
a question of law. See Ruiz-Lopez v. Holder, 682 F.3d 513, 516 (6th Cir. 2012). The BIA’s legal
interpretation of what criminal acts involve moral turpitude must be upheld unless it is arbitrary,
capricious, or manifestly contrary to the statute. Id. The BIA applied a categorical analysis, under
which Bushra’s conduct was not examined, but only the inherent nature of the crimes of which he
was convicted, as defined by statute and interpreted by the courts.
The only challenge Bushra raises before us is that he did not commit crimes of moral
turpitude because he lacked the necessary scienter due to his being barely literate. He argues that
he did not understand the sex offender reporting requirements or the law concerning counterfeit
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No. 12-4393
Bushra v. Holder
goods. It is true that crimes involving moral turpitude generally include those in which knowledge
is an element of the statute. See Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000). The BIA reasoned
that Michigan Compiled Laws § 28.729(1)(a) criminalizes willful failure to register as a sex
offender, and found persuasive an earlier case holding California’s statute criminalizing failure to
register as a sex offender to be a crime involving moral turpitude because it contained an element
of willfulness. See Matter of Tobar-Lobo, 24 I. & N. Dec. 143, 144–47 (BIA 2007). Similarly,
crimes involving fraud have generally been considered to involve moral turpitude because they
include the element of scienter. See Yeremin v. Holder, 707 F.3d 616, 622 (6th Cir. 2013). The BIA
found the delivery of property with a counterfeit mark to be a crime of moral turpitude under this
analysis. The BIA is entitled to rely on the fact of his convictions as evidence that he was guilty of
all elements of the offenses, including the willfulness or scienter elements; Bushra may not challenge
the moral turpitude finding on the basis of facts that were necessary to his prior convictions. Id.Because the only argument Bushra raises is not properly before the court, the finding that he is
removable on the basis of at least two convictions of crimes involving moral turpitude cannot be
disturbed. Accordingly, the petition for review is denied.
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