Obregon de Leon v. Holder

Petitioner Cristian Eduardo Obregon de Leon (“Mr.Obregon”), a lawful permanent resident of the United States, was convict *1226 ed under Oklahoma law of various offenses, including possession of stolen vehicles and receipt of stolen property. He was subsequently placed into removal proceedings and deemed removable for having been convicted of a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2) (A) (i). The Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA” or “the Board”) found that he was statutorily ineligible to apply for a discretionary waiver of removal under 8 U.S.C. § 1182(h) because he had previously adjusted to lawful permanent residence status. Mr. Obregon challenges both of these determinations in his petition for review of the BIA’s decision.

We affirm the Board’s determination that Mr. Obregon is removable because his conviction for possession of stolen vehicles constitutes a crime involving moral turpitude. However, Mr. Obregon is statutorily eligible to apply for a discretionary waiver under § 1182(h). Thus, we deny in part and grant in part his petition for review and remand to the BIA for further proceedings consistent with this opinion.

I

Mr. Obregon is a native citizen of Guatemala who entered the United States without inspection in September 1997. On March 29, 2007, he adjusted his status to that of a lawful permanent resident (“LPR”) under Section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997, Pub.L. No. 105-100, 111 Stat. 2160. Four years later, in 2011, Mr. Obregon was charged with, and pleaded guilty to, the following offenses in Oklahoma state court: (1) one count of operation of a chop shop; 1 (2) four counts of possession of a vehicle with altered identification numbers; 2 (3) four counts of possession of a stolen vehicle; 3 and (4) two counts of receipt of stolen property. 4

In January 2013, the Department of Homeland Security (“DHS”) filed a Notice to Appear (“NTA”) charging that Mr. Obregon was removable for having committed a crime involving moral turpitude (“CIMT”) under 8 U.S.C. § 1227(a)(2)(A)©. 5 At his immigration hearing, Mr. Obregon admitted the factual allegations, but denied that he was remov *1227 able because, he claimed, the Oklahoma statutes under which he was convicted did “not require an intent to deprive” and thus did not qualify as crimes of' moral turpitude. R. at 53 (Hr’g Tr., dated Mar. 18, 2013). However, the IJ found that all four of his convictions constituted crimes involving moral turpitude. With respect to eligibility for waiver relief, the IJ concluded that Mr. Obregon could not “readjust his status with a [§ 1182](h) waiver” under BIA precedent. Id. at 39 (Oral Decision of IJ, dated Apr. 22,2013). 6

Mr. Obregon then appealed to the BIA, 'alleging that the IJ erred because his convictions lacked the “permanent intent to deprive” element necessary to constitute crimes involving moral turpitude. Further, he claimed that he should have been allowed to apply for a § 1182(h) waiver since he did not enter the country as a lawful permanent resident, but rather “adjusted status” to that of a lawful permanent resident after entry.

In a one-judge decision, the BIA dismissed Mr. Obregon’s 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.” Id. at 4 (BIA Decision, dated Oct. 2, 2013). It concluded that Mr. Obregon’s convictions for possession of stolen vehicles and receiving stolen property met this mens rea threshold because they both required “a permanent taking of property known to be stolen.” Id. Finally, the BIA affirmed the IJ’s “findings concerning [Mr. Obregon’s] eligibility for relief’ because, under its own precedential decision in Matter of Koljeno-vic, 25 I. & N. Dec. 219 (BIA 2010), Mr. Obregon “d[id] not qualify for a section [1182](h) waiver.” Id. This petition for review followed.

II

Mr. Obregon’s petition presents two legal questions 7 for our review: (1) whether any of his convictions constitutes a crime involving moral turpitude; and (2) whether 8 U.S.C. § 1182(h), which prevents the Attorney General from granting a waiver of inadmissibility to an individual “who has previously been, admitted to the United States as an alien lawfully admitted for permanent residence,” applies to those who did not enter as LPRs, but instead adjusted to LPR status after entry into the United States.

We hold that Mr. Obregon’s conviction for possession of stolen vehicles, in violation of Okla. Stat. tit. 47, § 4-103, is categorically a crime involving moral turpitude. However, under our court’s decision in Medina-Rosales v. Holder, 778 F.3d *1228 1140 (10th Cir.2015), and the BIA’s decision in Matter of J-H-J- 26 I. & N. Dec. 563 (BIA 2015), the § 1182(h) bar only applies to aliens who lawfully enter the United States as LPRs, and not those, like Mr. Obregon, who adjust to that immigration status after entering the country.

A

The question of whether a criminal conviction constitutes a crime involving moral turpitude is a question of law, which we review de novo. Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir.2011). We “owe[] no deference to [the BIA’s] interpretation of the substance of the state-law offense at issue.” Efagene v. Holder, 642 F.3d 918, 921 (10th Cir.2011). However, if a provision of the Immigration and Nationality Act (“INA”) “is arguably subject to differing interpretations, we will defer to the BIA’s interpretation provided it is reasonable.” Tapia Garcia v. INS, 237 F.3d 1216, 1220-21 (10th Cir.2001); see also Rodas-Orellana v. Holder, 780 F.3d 982, 990 (10th Cir.2015) (“ ‘[W]e review the BIA’s legal decisions de novo,’ but we defer to the BIA’s interpretation of ambiguous provisions of the INA, and must accept the BIA’s interpretation if it is reasonable.” (alteration in original) (quoting Ri vera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir.2012))).

The phrase “crime involving moral turpitude” is not defined in the INA; instead, its contours have been shaped through interpretation and application by the Attorney General, the Board, and federal courts. It is “perhaps the quintessential example of an ambiguous phrase.” Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir.2009) (en banc); see also Michel v. INS, 206 F.3d 253, 263 (2d Cir.2000) (“[N]othing in the statute or its legislative history informs our understanding of the term ‘moral turpitude[ ]’.... ”). We have defined the concept only very generally as “reaching] conduct that is inherently wrong, or malum in se, rather than conduct deemed wrong only because of a statutory proscription, malum prohibitum.” Efagene, 642 F.3d at 921; see also Wittgenstein v. INS, 124 F.3d 1244, 1246 (10th Cir.1997) (“Moral turpitude refers ‘to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality....’” (quoting Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA 1980))). In light of the nebulousness of “moral turpitude,” we defer to the BIA’s interpretation of the term, as long as it reflects a “reasonable policy choice for the agency to make.” Efagene, 642 F.3d at 921 (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 845, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); accord Rodas-Orellana, 780 F.3d at 990.

1

“[C]orrupt scienter is the touchstone of moral turpitude.” Michel, 206 F.3d at 263. Here, the parties disagree over what the requisite scienter is for the receipt or possession of stolen goods to qualify as a crime involving moral turpitude. Mr. Obregon argues that there must be intent to permanently deprive, while the government claims that knowledge that the goods are stolen is sufficient.

BIA precedent on this question strongly suggests that receiving or possessing stolen goods, with knowledge that the goods are stolen, implicates moral turpitude. See, e.g., Matter of Salvail, 17 I. & N. Dec. 19, 20 (BIA 1979) (“Conviction under [a] statute [criminalizing possession of stolen goods] is a conviction for a crime involving moral turpitude, as it specifically requires knowledge of the stolen nature of the goods.”); Matter of Patel, 15 I. & N. Dec. 212, 213 (BIA 1975) (“The California statute involved here requires knowledge that the goods were stolen; therefore, it in *1229 volves moral turpitude.”), overruled, on other grounds by Matter of Castro, 19 I. & N. Dec. 692 (BIA 1988); Matter of Z-, 7 I. & N. Dec. 253, 255-56 (BIA 1956) (holding that the crime under Connecticut law of “reeeiv[ing] and concealing] any stolen goods or articles, knowing them to be stolen” involves moral turpitude). Indeed, on at least one occasion, the Board has found that a statute punishing “negligent receipt of [stolen] property” was not a crime involving moral turpitude because it punished more than the knoiving receipt of stolen goods. Matter of K-, 2 I. & N. Dec. 90, 91 (BIA 1944).

Although our court has not addressed this issue, many of our sister circuits have also reached the conclusion that the knowing receipt or possession of stolen goods constitutes a crime involving moral turpitude. See, e.g., Hashish v. Gonzales, 442 F.3d 572, 576 n. 4 (7th Cir.2006) (“[Receiving stolen property requires the same state of mind, ‘knowingly,’ ... and has been recognized as a crime of moral turpitude.”); De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 637 (3d Cir.2002) (“[K]nowingly possessing stolen goods is a crime of moral turpitude.... ”); Michel, 206 F.3d at 263 (“[W]e conclude that all violations of [a New York statute criminalizing possession of stolen property] are, by their nature, morally turpitudinous because knowledge is a requisite element....”); United States v. Castro, 26 F.3d 557, 558 n. 1 (5th Cir.1994) (“Convictions for transporting and/or receiving stolen property with knowledge that such property is stolen constitute crimes of ‘moral turpitude.’ ”); Okoroha v. INS, 715 F.2d 380, 382 (8th Cir.1983) (deferring to the BIA’s decision that possession of stolen mail constituted a crime involving moral turpitude “because knowledge that the article of mail- had been stolen was an essential element of the offense”); see also Machado-Zuniga v. U.S. Att’y Gen., 564 Fed.Appx. 982, 986 (11th Cir.2014) (unpublished table decision) (per curiam) (holding that transportation of stolen property “once [an individual] knows it is stolen is an affirmative act of dishonest behavior” that constitutes a crime involving moral turpitude).

2

Mr. Obregon points out that the Ninth Circuit has diverged from this pattern, and instead has held that a conviction for receipt of stolen property can only constitute a crime of moral turpitude if the statute requires proof of intent to permanently deprive the original owner. See Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir.2009). With due respect, we are not persuaded by the Ninth Circuit’s analysis.

The Castillo-Cruz court drew support for an intent-to-deprive element from a distinct line of BIA precedent holding that “a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended.” Matter of Graz-ley, 14 I. & N. Dec. 330, 333 (BIA 1973) (emphasis added); see Castillo-Cruz, 581 F.3d at 1159 (citing, inter alia, Grazley, 14 I. & N. Dec. at 333, In re Jurado-Delgado, 24 I. & N. Dec. 29, 33 (BIA 2006), and Matter of P-, 2 I. & N. Dec. 887 (BIA 1947)). Those cases involve statutes that punished conduct closer to larceny, and do not shed light on the necessary scienter for the receipt or possession of stolen property to be morally turpitudinous. See, e.g., Jurado-Delgado, 24 I. & N. Dec. at 33 (involving a Pennsylvania statute criminalizing retail theft, which required proof that the defendant “took merchandise offered for sale by a store without paying for it and with the intention of depriving the store owner of the goods” (emphasis added)); Grazley, 14 I. & N. Dec. at 332 (involving a Canadian statute stating that “[e]very one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts” the property of another (em *1230 phases added)); Matter of P-, 2 I. & N. Dec. at 887 (involving “the offense of breaking and entering and theft”).

As even the Ninth Circuit has acknowledged, the most relevant precedents — i.e., those involving convictions for the receipt or possession of stolen goods — require only knowledge that the goods were stolen. See Castillo-Cruz, 581 F.3d at 1159-60, 1159 n. 7. The court attempted to distinguish these precedents by observing that the BIA has not expressly found a conviction for the receipt of stolen goods to constitute a crime involving moral turpitude where the alien “acted with ... knowledge, but not with the intent to deprive the owner of property permanently.” Id. at 1160. However, the BIA has, at least implicitly, held just that. In both Matter of Salvail and Matter of Patel, for example, the fact that the state statute criminalized knowing possession of stolen goods was enough to establish a crime involving moral turpitude. Salvail, 17 I. & N. Dec. at 20; Patel, 15 I. & N. Dec. at 213. That the BIA did not inquire further into the aliens’ intentions regarding' the stolen property suggests that the existence of a permanent intent to deprive, or a lack thereof, is not relevant to the analysis.

Thus, the weight of apposite caselaw from the BIA and our sister circuits supports the view that knowing the goods to be stolen, alone, is sufficient to render an offense a crime of moral turpitude.

3

We turn now to the question of whether knowledge is the required mens rea for the specific statutes under which Mr. Obregon was convicted. Because the one-judge BIA decision issued - in Mr. Obregon’s ease only addressed his convictions for possession of stolen vehicles and receipt of stolen property, the scope of our inquiry ordinarily would be confined to these two offenses. See Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.2006) (holding that where a “single BIA member ... decide[s] the merits of the appeal by himself and issue[s] ‘a brief order,’ ” “we will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in its affirmance” (quoting Cruz-Funez v. Gonzales, 406 F.3d 1187, 1190 (10th Cir.2005))). Ultimately, because we affirm the agency’s decision that Mr. Obregon was convicted of a crime involving moral turpitude based on his stolen-vehicle conviction, we need not (and thus do not) reach his conviction for receipt of stolen property.

“To determine if a particular conviction under state law meets the definition of an offense for which a noncitizen may be removed under the INA, the elements of the state-law offense are ... analyzed using the categorical approach....” Efagene, 642 F.3d at 921. Mr. Obregon’s actual conduct is irrelevant to this analysis; we “presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized [by the statute], and then determine whether even those acts are encompassed by the generic federal offense.” Mon-crieffe v. Holder, — U.S.-, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (first and second alterations in original) (quoting Johnson v. United States, 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)); accord Ibarra v. Holder, 736 F.3d 903, 907 (10th Cir.2013).

In the immigration context, as in diversity cases, we follow the decisions of the state’s highest court 8 in order to determine the minimum conduct proscribed by the relevant criminal statute; where that court has not interpreted the provi *1231 sion, however, we must predict how it would rule on the issue. See Castillo v. Holder, 776 F.3d 262, 268 n. 3 (4th Cir.2015); see also Ibarra, 736 F.3d at 913-15, 919-21 (looking to both state statutes and state court decisions interpreting those statutes in determining the elements of the crime of child abuse); Efagene, 642 F.3d at 923-24 (referring to Colorado courts’ characterization of the state’s sex offender registration statute in deciding whether a violation of the statute was a crime involving moral turpitude); cf. Wade v. EMCASCO Ins. Co., 483 F.3d 657, 665-66 (10th Cir. 2007) (stating, in a diversity action, that a “federal court must follow the most recent decisions of the state’s highest court,” but that if “no controlling state decision exists,” the court “must attempt to predict what the state’s highest court would do” (quoting Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir.2003))).

Felony possession of a stolen vehicle, under Oklahoma law, requires proof of the following elements: “(1) a person not entitled to the possession of a vehicle; (2) who receives, possesses, conceals, sells or disposes of it; (3) knowing it to be stolen or converted under circumstances constituting a crime.” F.D.H. v. State, 734 P.2d 308, 309 (Okla.Crim.App.1987) (emphasis added); see Okla. Stat. tit. 47, § 4-103; Okla. Uniform 'Jury Instructions-Crim. (OUJI-CR) § 5-117 (listing as an element “knowing [the vehicle] was stolen” or “knowing it was converted under” circumstances constituting' a crime). Because knowledge is the mens rea for the crime of possession of a stolen vehicle, we may conclude that “the minimum conduct criminalized by the [Oklahoma] statute,” Mon-crieffe, 133 S.Ct. at 1684, qualifies as morally turpitudinous under 8 U.S.C. § 1227(a)(2)(A)®.

To be sure, we recognize that, contrary to the overwhelming weight of Oklahoma authority, in one instance, the Oklahoma Court of Criminal Appeals (“OCCA”) has held that “[i]t is sufficient to prove that the accused had reasonable cause to believe” the vehicle was stolen in order to convict under § 4-103. Anderson v. State, 704 P.2d 499, 502 (Okla.Crim.App.1985) (quoting Fields v. State, 666 P.2d 1301, 1303 (Okla.Crim.App.1983)). However, Mr. Obregon has not cited Anderson to us, much less made a cognizable argument for why Anderson represents the state of Oklahoma law regarding the necessary mens rea for the stolen — vehicle offense. Therefore, we deem-through a proper exercise of our discretion — any Anderson- based argument to be waived. See, e.g., United States v. Ibarra-Diaz, 805 F.3d 908, 933 (10th Cir.2015) (“[W]e note that Mr. Ibarra-Diaz has waived any challenge to his conviction as a principal by failing to raise or brief the issue.”); Cahill v. Am. Family Mut. Ins. Co., 610 F.3d 1235, 1238 (10th Cir.2010) (“[W]e have no interest in denying relief to [appellant] on technical grounds. But it is not our role to serve as his lawyer. We will not construct arguments for him out of isolated sentences in his briefs. Nor will we fill the gaps in undeveloped arguments unsupported by citations to relevant authority.”); see also Warner v. Patterson, 534 Fed.Appx. 785, 787 (10th Cir.2013) (unpublished table decision) (collecting cases). 9

*1232 In order to avoid this result, Mr. Obre-gon claims that mere knowledge cannot be a sufficiently “vile or depraved” mental state because an individual could be prosecuted under § 4-103 if he received a stolen car, knowing it to be stolen, but with the noble intent of returning it to its rightful owner. Yet his “application of legal imagination to [§ 4-103’s] language” will not persuade us without “a realistic probability ... that [Oklahoma] would apply [the] statute” in such a manner. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). Given that Mr. Obregon does not cite any eases that bear out his fears — and we have not located any — he has not carried his burden of showing an actual risk that Oklahoma would prosecute his hypothetical Good Samaritan. See id. (“[H]e 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 (nongeneric) manner for which he argues.”).

Thus, Mr. Obregon’s conviction for possession of a stolen vehicle under Okla. Stat. tit. 47, § 4-103, is categorically a crime of moral turpitude, and we need not go further in order to affirm the BIA’s conclusion that he is removable.

B

Mr. Obregon next claims that even if he is removable, he should nevertheless have been afforded the opportunity to apply for a waiver under 8 U.S.C. § 1182(h). Under controlling precedent from our court and the BIA’s recent decision in Matter of J-H-J- he is correct.

Section 1182(h) authorizes the Attorney General, in her discretion, to allow certain convicted aliens' to remain in the United States, but prohibits her from granting such a waiver to “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” unless certain narrow conditions are met. 8 U.S.C. *1233 § 1182(h). Mr. Obregon claims that the statute precludes waivers only for aliens who entered the United States as lawful permanent residents, and does not apply to aliens like him who adjust their status to that of lawful permanent residents after entering the country. The government, in its briefing and at oral argument, countered that the language of § 1182(h) is ambiguous, and as such, we should defer to the agency’s decisions in Matter of Kolje-novic, 25 I. & N. Dec. 219 (BIA 2010), and Matter of Rodriguez, 25 I. & N. Dec. 784 (BIA 2012), which construed “admitted” in § 1182(h) to include those who have adjusted their status after entry. 10

The government has now withdrawn its argument in light of two decisions announced subsequent to the parties’ briefing and oral argument in this case. 11 First, in Medina-Rosales, we held that “only persons who obtained LPR status before or when they entered the United States are barred from seeking a waiver under § 1182(h).” 778 F.3d at 1145. Central to our interpretation of the waiver bar was the “long-standing canon of statutory interpretation[ ] [that] one should avoid construing a statute so as to render statutory language superfluous.” McCloy v. U.S. Dep’t of Agric., 351 F.3d 447, 451 (10th Cir.2003); see Medina-Rosales, 778 F.3d at 1145. Specifically, we observed that “admitted” and “lawfully admitted for permanent residence” are separately defined terms in the immigration statute. Medina-Rosales, 778 F.3d at 1144-45. Compare 8 U.S.C. § 1101(a)(13)(A) (defining “admitted”), with id. § 1101(a)(20) (defining “lawfully admitted for permanent residence”). While “admitted” “refers expressly to entry into the United States,” Medina-Rosales, 778 F.3d at 1144-45 (quoting Negrete-Ramirez v. Holder, 741 F.3d 1047, 1051 (9th Cir.2014)), “lawfully admitted for permanent residence” refers to “the status of having been lawfully accorded the privilege of residing permanently in the United States,” id. at 1145 (quoting 8 U.S.C. § 1101(a)(20)), and “encompasses all LPRs, regardless of whether they obtained that status” before or after entering the country, id. (quoting Negrete-Ramirez, 741 F.3d at 1053). Thus, “[i]f the term ‘admitted’ in the phrase ‘previously been admitted’ included post-entry adjustment ... the first section of the statutory language, ‘an alien who has previously been admitted to the United States as,’ would be superfluous because the definition of ‘lawfully admitted for permanent residence’ encompasses adjustment of status.” Id. at 1145 (quoting Negrete-Ramirez, 741 F.3d at 1053-54). 12

*1234 Second, in Matter of the BIA withdrew its opinions in Koljenovic and Rodriguez, and “aecede[d] to the clear majority view” taken by nine circuits, 13 including our own — namely, that the plain language of § 1182(h) “precludes aliens from establishing eligibility for relief only if they lawfully entered the United States as permanent residents” and not if they adjusted to lawful permanent residence status. 26 I. & N. Dec. at 564.

These two decisions clearly foreclose the position that Mr. Obregon is ineligible for relief under § 1182(h), and the government has prudently withdrawn this argument. Thus, bound by our controlling decision in Medina-Rosales — and bolstered by consistent holdings from the vast majority of our sister circuits and the BIA’s most recent interpretation of § 1182(h) in Matter of J-H-J-we conclude that Mr. Obregon, as an alien who adjusted to LPR status after entry into the United States, should have been afforded the opportunity to apply for a discretionary waiver under 8 U.S.C. § 1182(h).

Ill

Although Mr. Obregon is removable for having committed a crime involving moral turpitude — namely, knowing possession of a stolen vehicle — the BIA erred in finding that he was statutorily ineligible to apply for a waiver under § 1182(h). Thus, we DENY in part and GRANT in part Mr. Obregon’s petition for review and REMAND the matter to the Board for further proceedings consistent with this opinion.