Introduction: When Possession of a Stolen Vehicle is Categorically a Crime of Moral Turpitude
On December 22, 2015, the Tenth Circuit Court of Appeals issued a decision in De Leon v. Lynch No. 13-9601 (10th Cir. Dec. 22, 2015) [PDF version] that ruled on two important immigration issues. First, the Tenth Circuit held that an Oklahoma statute for possession stolen vehicles is categorically a crime of moral turpitude (CIMT), thus triggering inadmissibility. On a separate point, the Tenth Circuit held that an alien who adjusted to lawful permanent resident (LPR) status after entering the United States is eligible for a section 212(h) waiver of inadmissibility. In this article, I will discuss the facts of De Leon v. Lynch, the reasoning behind the Tenth Circuit's decision, and the significance of the decision.
Facts of De Leon v. Lynch
The petitioner is a native citizen of Guatemala who entered the United States without inspection in 1997. In 2007, he adjusted to LPR status under section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA). In 2011, he was charged with, and pled guilty, to the following offenses in Oklahoma state court:
- one count of operation of a chop shop;
- four counts of possession of a vehicle with altered identification numbers;
- four counts of possession of a stolen vehicle;1 and
- two counts of receipt of stolen property.2
In 2013, the Department of Homeland Security (DHS) filed a Notice to Appear (NTA) charging that the Petitioner was removable for having committed a CIMT under section 237(a)(2)(A)(i) of the INA. At his hearing, the Petitioner denied that he was removable for having been convicted of a CIMT because the statutes he was convicted under did “not require an intent to deprive.” However, the Immigration Judge (IJ) rejected his arguments and found that all four of his convictions were categorically CIMTs. Furthermore, the IJ found that the Petitioner was ineligible for a 212(h) waiver because he could not “readjust his status with a [212(h)] waiver.”
The Petitioner next appealed to the Board of Immigration Appeals (BIA). In addition to making the same arguments about his convictions not being for CIMTs, the Petitioner argued that he was eligible for a 212(h) waiver because he did not enter the country as an LPR, but rather adjusted status after entry. In a one-judge decision, the BIA dismissed the appeal. It noted that “an offense of receiving stolen property qualifies as a CIMT where the offense includes an element of knowing that the property is stolen.” Furthermore, it concluded that the convictions for possession of stolen vehicles and receiving stolen property met the mens rea threshold because both of the convictions required “a permanent taking of property known to be stolen.” The BIA did not comment on the other convictions. Additionally, the BIA upheld the IJ's decision that the Petitioner was not eligible for a 212(h) waiver.
The Petitioner then appealed to the Tenth Circuit.
Decision: Oklahoma Statute for Possession of Stolen Vehicles is Categorically a CIMT
On the first point, the Tenth Circuit concurred with the BIA that the convictions for receiving stolen property constituted CIMTs (the Tenth Circuit, like the BIA, did not reach the other convictions). The Tenth Circuit only reached the conviction for “possession of a stolen vehicle,” finding that sufficient to uphold the BIA's conclusion that the Petitioner was removable.
The Petitioner argued that in order for the convictions to qualify as CIMTs, they must require the intent to permanently deprive. The government argued that the mere knowledge that the property was stolen was sufficient for the conviction to qualify as a CIMT. The Tenth Circuit sided with the government, citing a line of BIA decisions3 which supported the interpretation that a statute that criminalizes receiving or possessing stolen goods with knowledge that the goods are stolen is a CIMT. Furthermore, the Court also noted that multiple other circuits have come to the same conclusion.4
The Petitioner argued that the Ninth Circuit decision in Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. 2009) [PDF version] supported his argument. In that decision, the Ninth Circuit held that a conviction for receipt of stolen property must require proof of intent to permanently deprive the original owner of his or her property in order to be for a CIMT. However, the Tenth Circuit noted that Castillo-Cruz followed from a separate and distinct line of BIA decisions which held that “a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended.”5 Because this line of BIA cases implicated different criminal conduct, the Tenth Circuit disagreed with the Ninth that they were applicable to the receipt of stolen property. The Tenth Circuit stated that the weight of caselaw instead supports its conclusion that the intent to permanently deprive is not necessary for the conviction to be for a CIMT.
In analyzing whether the Petitioner's specific conviction was a CIMT, the Tenth Circuit applied the categorical approach to compare the least of the acts criminalized under the statute to the generic federal offense.6 The Tenth Circuit relied on an Oklahoma appellate court decision for guidance on the main points required for conviction under the Oklahoma statute for felony possession of a stolen vehicle:
- a person not entitled to the possession of a vehicle;
- who receives, possesses, conceals, sells or disposes of it;
- knowing it to be stolen or converted under circumstances constituting a crime.7
Because “knowledge” that the vehicle is stolen is required for a conviction under the statute and because that is sufficient for the conviction to be for a CIMT, the Tenth Circuit concurred with the BIA that the conviction was categorically for a CIMT.8
Decision: Waiver Eligibility for LPR's who Adjust Status without being Admitted as LPRs
With regard to the second argument, the Tenth Circuit reversed the BIA and held that the Petitioner was eligible for a 212(h) waiver.
The statute for the section 212(h) waiver prohibits the Attorney General from granting a waiver to “an alien who has previously been admitted to the United States as an [LPR].” The Petitioner argued that the prohibition only applies to an alien who entered the United States as an LPR, and not to an alien who adjusted to LPR status after entering the United States.
The government originally argued that the language of section 212(h) is ambiguous, and that the Tenth Circuit should defer to the BIA precedent from the Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010) and Matter of Rodriguez, 25 I&N Dec. 784 (BIA 2012). However, the government retracted that argument after the Tenth Circuit, in a separate case titled Medina-Rosalez v. Holder, 778 F.3d 1140 (10th Cir. 2015) [PDF version], held that the bar only applies to “persons who obtained LPR status before or when they entered the United States.” Another important factor in the government's decision was that the BIA itself withdrew its existing precedent and adopted the view of the Tenth Circuit, and eight other circuits, in the Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015) [PDF version], holding that an alien who adjusts status after entering the United States is not ineligible for a section 212(h) waiver.
Accordingly, the Tenth Circuit granted the Petitioner's petition that he was eligible for consideration for a section 212(h) waiver and remanded the case back to the BIA for further proceedings.
Conclusion — When Possession of a Stolen Vehicle is Categorically a Crime of Moral Turpitude
With regard to the first part of the case, the Tenth Circuit held in De Leon v. Lynch that a statute that criminalizes, at a minimum, possession of a vehicle that an individual knows to be stolen is categorically a CIMT. While this decision is not binding outside of the Tenth Circuit, it is in line with a decisions from other circuits, including with the Second Circuit which covers New York (Michel v. INS, 206 F.3d 253 (2d. Cir, 2000) [PDF version]). However, the Tenth Circuit noted that the Ninth Circuit reached a different conclusion on a similar issue, meaning that there is now a circuit split on when a statute that criminalizes the “receipt of stolen property” is categorically for a CIMT. Any alien who is charged with having been convicted of a CIMT should consult with an experienced immigration attorney who will be able to explore all potential avenues for relief.
The Tenth Circuit's decision regarding the petitioner's eligibility for a section 212(h) waiver is consistent with eight other circuits and now the BIA as well. The BIA's decision to withdraw its previous decisions on the issue sets a clear precedent that an alien who adjusts status after entering the United States is not barred from eligibility for a section 212(h) waiver. However, it is important to remember that this only means the alien will not be statutorily ineligible, and in no way changes the evidentiary requirements (such as demonstrating extreme hardship) for obtaining a section 212(h) waiver.
- The decision quoted the relevant part of Okla. Stat. tit. 47 § 4-103: A person not entitled to the possession of a vehicle … who receives, possesses, conceals, sells, or disposes of it, knowing the vehicle … to be stolen or converted under circumstances constituting a crime, shall be guilty of a felony.
- The decision quoted the relevant part of Okla. Stat 21 § 1713(A): Every person who buys or receives, in any manner, upon any consideration, any personal property of any value whatsoever that has been stolen … knowing or having reasonable cause to believe the same to have been stolen … or who conceals, withholds, or aids in concealing or withholding such property from the owner, shall be guilty of a felony….
- e.g. Matter of Salvail, 17 I&N Dec. 19, 20 (BIA 1979); Matter of Patel, 15 I&N Dec. 212, 213 (BIA 1975);l Matter of Castro, 19 I&N Dec. 692 (BIA 1988); Matter of Z—-, 7 I&N Dec. 253, 255-56 (BIA 1956); Matter of K——, 2 I&N Dec. 90, 91 (BIA 1944)
- e.g. Hashish v. Gonzales, 442 F.3d 572, 576 n.4 (7th Cir. 2006); De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 6387 (3d Cir. 2002); Michel v. INS, 206 F.3d 253 (2d. Cir, 2000); United States v. Gastro, 26 F.3d 557, 558 n.1 (5th Cir. 1994); Okoroha v. INS, 715 F.2d 380, 382 (8th Cir. 1983);
- Dec. quoting the Matter of Grazley, 14 I&N Dec. 330, 333 (BIA 1973)
- Paraphrasing from the decision's quotation from Efagene v. Holder, 642 F.3d 918 (10th Cir. 2013)
- F.D.H. v. State, 734 P.2d 308, 309 (Okla.Crim.App.1987)
- The Tenth Circuit noted that a different case by the same court held that it was sufficient to prove that the individual had “reasonable cause” to believe the vehicle was stolen. However, it stated that because the Petitioner neither cited that decision or made an argument that the decision represented the state of Oklahoma law “regarding the necessary mens rea for the stolen-vehicle offense, it waived the argument in its discretion.