Italo Ferrer Rojas v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11896
____________________
ITALO ANTONI FERRER ROJAS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A099-318-250
____________________
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2 Opinion of the Court 22-11896
Before G RANT, ABUDU, and E D C ARNES, Circuit Judges.
PER CURIAM:
Italo Ferrer Rojas (Ferrer), a native and citizen of Peru, peti-
tions for review of the Board of Immigration Appeals’ decision re-
fusing to reconsider his removal order. Ferrer has a conviction for
receipt of stolen property, which the BIA determined qualifies as a
crime involving moral turpitude, making him ineligible for cancel-
lation of removal. He challenges that determination.
I. Background
Ferrer entered the United States without inspection in 2000.
In 2007 he was convicted of misdemeanor receipt of stolen prop-
erty in violation of Va. Code Ann. § 18.2-108. That statute makes
it a crime to “buy or receive from another person, or aid in con-
cealing, any stolen goods or other thing, knowing the same to have
been stolen.” Va. Code Ann. § 18.2-108 (2007).
In October 2020 the Department of Homeland Security
served Ferrer with a notice to appear, charging him as removable
under the Immigration and Nationality Act (INA) for being a
noncitizen present in the United States without being admitted or
paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). At his preliminary hearing
Ferrer admitted the factual allegations against him and conceded
the charge of removability. He then applied for cancellation of re-
moval.
An immigration judge denied Ferrer’s application. She ruled
that Ferrer was statutorily ineligible for cancellation of removal
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22-11896 Opinion of the Court 3
because his 2007 conviction qualified as a “crime involving moral
turpitude.” The IJ noted that the Virginia statute criminalized
three distinct crimes (buying, receiving, and aiding in concealing
stolen goods), and after reviewing the record of conviction she de-
termined that Ferrer had been convicted of “receipt” of stolen
goods. She then concluded that under BIA precedent receipt of
stolen goods is a crime involving moral turpitude when the statute
of conviction requires knowledge that the goods were stolen, and
the Virginia statute does.
Ferrer appealed to the BIA, raising arguments unrelated to
this petition for review. The BIA dismissed Ferrer’s appeal and
adopted and affirmed the IJ’s decision that Ferrer was ineligible for
cancellation of removal because he had been convicted of a crime
involving moral turpitude.
Ferrer filed a motion to reconsider, this time contending that
a conviction under Va. Code. Ann. § 18.2-108 for receipt of stolen
goods is not a crime involving moral turpitude because intent to
permanently deprive the owner of the property is not an element
of the offense.
The BIA denied Ferrer’s motion to reconsider. It agreed
with the IJ that Ferrer had been convicted of receipt of stolen
goods. And it concluded that receipt of stolen goods under Virginia
law is a crime involving moral turpitude because the statute re-
quires knowledge that the property was stolen. The BIA explained
that to constitute a crime involving moral turpitude, receipt of
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4 Opinion of the Court 22-11896
stolen goods need not have a separate “intent to deprive” element
in addition to knowledge that the goods were stolen.
Ferrer timely petitioned this Court for review. He contends
that the statute he was convicted of violating does not require an
intent to permanently deprive, and for that reason the BIA wrongly
concluded that his receipt of stolen goods conviction was a crime
involving moral turpitude. He also contends that the statute en-
compasses conduct that is not inherently base, vile, or depraved,
which is another reason why his conviction was not for a crime
involving moral turpitude.
II. Standards of Review
We review the BIA’s denial of a motion to reconsider for
abuse of discretion. Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1286
(11th Cir. 2008). “The BIA abuses its discretion when it misapplies
the law in reaching its decision” or does “not follow[] its own prec-
edents without providing a reasoned explanation for doing so.” Fer-
reira v. U.S. Att’y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013). “We
review only the BIA’s decision, except to the extent that it expressly
adopts the IJ’s opinion.” Flores-Panameno v. U.S. Att’y Gen., 913 F.3d
1036, 1040 (11th Cir. 2019) (quotation marks omitted).
Though the INA strips us of jurisdiction to review “any judg-
ment regarding the granting of relief under section . . . 1229b” of
Title 8 (which covers cancellation of removal), we retain jurisdic-
tion over “constitutional claims or questions of law.” 8
U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D). Whether a previous conviction
qualifies as a crime involving moral turpitude is a legal question
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22-11896 Opinion of the Court 5
that we review de novo. See Lauture v. U.S. Att’y Gen., 28 F.4th 1169,
1172 (11th Cir. 2022); Pierre v. U.S. Att’y Gen., 879 F.3d 1241, 1248–
49 (11th Cir. 2018).
III. Discussion
The Attorney General has discretion to cancel the removal
of a noncitizen who establishes that: (1) he has been continuously
physically present in the United States for at least ten years; (2) he
has been a “person of good moral character” while present in the
United States; (3) he has not been convicted of certain specified
criminal offenses; and (4) his “removal would result in exceptional
and extremely unusual hardship” to a spouse, parent, or child who
is a U.S. citizen or lawful permanent resident. 8 U.S.C.
§ 1229b(b)(1); see id. § 1229a(c)(4)(A). Under the third requirement,
one type of crime that bars cancellation of removal is a “crime in-
volving moral turpitude” for which the maximum possible sen-
tence is at least one year. Id. § 1227(a)(2)(A)(i); see id.
§ 1229b(b)(1)(C). As the noncitizen petitioning for relief from a re-
moval order, Ferrer bears the burden of proving that he was not
convicted of a crime involving moral turpitude. See Pereida v. Wil-
kinson, 592 U.S. 224, 231–33 (2021).
The term “moral turpitude” has never been defined by fed-
eral statute or rule, but the BIA has held that the term generally
refers to “conduct that is inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed be-
tween persons or to society in general.” Zarate v. U.S. Att’y Gen., 26
F.4th 1196, 1199–1200 (11th Cir. 2022) (quoting Matter of Silva-
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6 Opinion of the Court 22-11896
Trevino, 26 I. & N. Dec. 826, 833 (BIA 2016)).1 We have recognized
that BIA precedent requires “two essential elements” to classify a
crime as one involving moral turpitude: “reprehensible conduct
and a culpable mental state.” Id. at 1200–01 (quoting Matter of
Silva-Trevino, 26 I. & N. Dec. at 834).
We defer to the BIA’s precedential opinions defining moral
turpitude and applying that definition. Id. at 1201; see also Choizilme
v. U.S. Att’y Gen., 886 F.3d 1016, 1022 (11th Cir. 2018) (“Where the
BIA has interpreted an ambiguous provision of the INA in a pub-
lished, precedential decision, we defer to the BIA’s interpretation
under Chevron[, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837
(1984)], as long as it reflects a permissible construction of the stat-
ute.”).
To determine whether a crime involves moral turpitude we
follow one of two approaches, depending on the structure of the
statute in question. If the statute of conviction is not divisible,
meaning that it lists alternative means of committing a single of-
fense, we use the categorical approach. See Lauture, 28 F.4th at
1172. If the statute of conviction is divisible and criminalizes
1 Much to the same effect, we have described a crime involving moral turpi-
tude as “an act of baseness, vileness, or depravity in the private and social du-
ties 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.”
Smith v. U.S. Att’y Gen., 983 F.3d 1206, 1210 (11th Cir. 2020) (quotation marks
omitted). In other words, the crime “must involve conduct that not only vi-
olates a statute but also independently violates a moral norm.” Zarate, 26 F.4th
at 1201 (quotation marks omitted).
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22-11896 Opinion of the Court 7
separate offenses, we use the modified categorial approach. See id.
at 1172–73.
The BIA applied the modified categorical approach to deter-
mine that Ferrer was convicted of receiving stolen goods and not
of buying or aiding in concealing them. Ferrer does not challenge
that determination. So we assume for purposes of Ferrer’s petition
that we apply the modified categorical approach and do not address
the divisibility of Va. Code Ann. § 18.2-108. See Daye v. U.S. Att’y
Gen., 38 F.4th 1355, 1361 (11th Cir. 2022).
Under the modified categorical approach, we look to the el-
ements of Ferrer’s actual crime of conviction (receiving stolen
goods) and consider whether those elements categorically match
the generic definition of the offense. See George v. U.S. Att’y Gen.,
953 F.3d 1300, 1304 (11th Cir. 2020); Zarate, 26 F.4th at 1199; see, e.g.,
Lauture, 28 F.4th at 1173–76; cf. Mathis v. United States, 579 U.S. 500,
504 (2016); Descamps v. United States, 570 U.S. 254, 257 (2013). To
obtain a receipt of stolen goods conviction under Va. Code Ann.
§ 18.2-108, the Commonwealth must prove the following elements:
(1) that the property was previously stolen by another; (2) that the
property was received by the defendant; (3) that at the time the de-
fendant received the property he knew it had been stolen; and
(4) that the defendant acted with dishonest intent. Whitehead v.
Commonwealth, 684 S.E.2d 577, 580 (Va. 2009).
Here, the BIA concluded that a conviction for receipt of sto-
len goods in violation of Va. Code Ann. § 18.2-108 involves moral
turpitude because it includes knowledge the property was stolen,
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8 Opinion of the Court 22-11896
and BIA precedent requires only that knowledge, not intent to per-
manently deprive. We agree with the BIA that its precedent does
not, as a rule, require for moral turpitude purposes that a receipt
of stolen goods conviction include the intent to permanently de-
prive. But the BIA’s analysis was incomplete because it failed to
address whether Ferrer’s conviction involved both a culpable men-
tal state (knowledge that the goods were stolen) and reprehensible
conduct (inherent baseness, vileness, or depravity). See Zarate, 26
F.4th at 1200–01, 1203.
A.
Before the BIA came to recognize “reprehensible conduct
and a culpable mental state” as the two “essential elements” of a
crime involving moral turpitude, see Matter of Silva-Trevino, 26 I. &
N. Dec. at 834, it had held that a receipt of stolen goods conviction
involves moral turpitude so long as the statute of conviction re-
quires knowledge that the goods were stolen. See, e.g., Matter of
Serna, 20 I. & N. Dec. 579, 585 n.10 (BIA 1992) (noting that “pos-
session of stolen goods or mail, with the knowledge that they are
stolen, has been held to be a crime involving moral turpitude”);
Matter of Patel, 15 I. & N. Dec. 212, 213 (BIA 1975) (“The crime of
receiving stolen property involves moral turpitude, if knowledge
that the goods were stolen is an element of the offense.”), 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) (explaining that
a conviction for receiving stolen goods in violation of Connecticut
law “involves moral turpitude” where an essential element of the
offense was that the property was received “with the knowledge
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22-11896 Opinion of the Court 9
that it was stolen”); see also Matter of Salvail, 17 I. & N. Dec. 19, 20
(BIA 1979) (“Conviction under [a Canadian statute for possession
of stolen goods] is a conviction for a crime involving moral turpi-
tude, as it specifically requires knowledge of the stolen nature of
the goods.”).
Under that BIA precedent, a conviction for receipt of stolen
goods under Va. Code Ann. § 18.2-108 would seem to qualify as a
crime involving moral turpitude because the statute does require
knowledge that the goods were stolen. See Va. Code Ann. § 18.2-
108; Whitehead, 684 S.E.2d at 580.2
2 Ferrer contends that before those other cases were decided, the BIA ruled
that receipt of stolen property is a crime involving moral turpitude only if it
requires both knowledge that the property was stolen and the intent to per-
manently deprive. See Matter of K-, 2 I. & N. Dec. 90 (BIA 1944). We don’t
read Matter of K- to require the intent to permanently deprive.
In Matter of K- the BIA held that a German conviction for possession of stolen
property did not involve moral turpitude because the statute criminalized a
kind of negligent receipt of stolen property without knowledge that the prop-
erty was stolen, which differed from the BIA’s conception of the crime. See id.
at 91. The BIA commented that “[w]here property is acquired without
knowledge that it is stolen or without intent to deprive the rightful owner of
his possession, the offense does not involve moral turpitude.” Id. But that
comment that the intent to deprive is a required element was just that — a
comment. It was not necessary to the result in that case, so it was not part of
the BIA’s holding. See Castillo v. Fla., Sec’y of DOC, 722 F.3d 1281, 1290 (11th
Cir. 2013) (“[B]ecause those statements in [an earlier] opinion are not neces-
sary to the result in that case . . . they are not the holding of the decision.”);
United States v. Shamsid-Deen, 61 F.4th 935, 949 n.1 (11th Cir. 2023); (“Because
the statement . . . was not necessary to the result in that case, it was dicta.”);
Rambaran v. Sec’y, Dep’t of Corr., 821 F.3d 1325, 1333 (11th Cir. 2016) (“[T]he
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10 Opinion of the Court 22-11896
Most of our sister circuits have not held that BIA precedent
requires that in order to involve moral turpitude a conviction for
receipt or possession of stolen goods must include an intent to per-
manently deprive the owner of possession. See Solis-Flores v. Gar-
land, 82 F.4th 264, 270 (4th Cir. 2023) (holding that under BIA prec-
edent, receipt of stolen property in violation of Va. Code Ann.
§ 18.2-108 is a crime involving moral turpitude because knowledge
that the goods were stolen is an element of the offense, and adding
that the intent to permanently deprive is not required); De Leon v.
Lynch, 808 F.3d 1224, 1230 (10th Cir. 2015) (“[T]he weight of appo-
site caselaw from the BIA and our sister circuits supports the view
that knowing the goods to be stolen, alone, is sufficient to render
a[] [receipt or possession of stolen goods] offense a crime of moral
turpitude.”); Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000) (conclud-
ing that possession of stolen property in violation of New York law
is “morally turpitudinous because knowledge is a requisite ele-
ment” of the statute); De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 637
(3d Cir. 2002) (holding that a Pennsylvania conviction for posses-
sion of stolen property with knowledge that it was “probably” sto-
len is a crime involving moral turpitude); United States v. Castro, 26
F.3d 557, 558 n.1 (5th Cir. 1994) (noting that a conviction for receiv-
ing stolen property “with knowledge that such property is stolen”
is a crime of moral turpitude); Hashish v. Gonzales, 442 F.3d 572, 576
n.4 (7th Cir. 2006) (“[R]eceiving stolen property requires the same
statement is dicta because it was not necessary to the result in [the earlier
case].”).
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22-11896 Opinion of the Court 11
state of mind, ‘knowingly,’ as other crimes of theft, and has been
recognized as a crime of moral turpitude.”); Okoroha v. INS, 715
F.2d 380, 382 (8th Cir. 1983) (deferring to the BIA’s determination
that “possession of stolen mail was a crime of moral turpitude be-
cause knowledge that the article of mail had been stolen was an
essential element of the offense”).
Only the Ninth Circuit has held that a conviction for receipt
of stolen goods is not a crime involving moral turpitude if the stat-
ute of conviction does not require an intent to permanently de-
prive. Castillo-Cruz v. Holder, 581 F.3d 1154, 1161 (9th Cir. 2009). It
concluded that without the intent to permanently deprive, the re-
ceipt of stolen property is not “inherently base, vile, or depraved,”
so it cannot involve moral turpitude. Id. at 1160 (quotation marks
omitted).
By focusing on whether the crime could be considered “in-
herently base, vile, or depraved,” the Ninth Circuit based its hold-
ing on what the BIA has called the reprehensible conduct element
for moral turpitude. See Matter of Silva-Trevino, 26 I. & N. Dec. at
833–34; Zarate, 26 F.4th at 1207. As we will discuss next, the BIA
did not decide whether Ferrer’s receipt of stolen goods conviction
under Virginia law involved reprehensible conduct, so we need not
reach that question. We simply recognize that BIA precedent gen-
erally does not require a receipt of stolen goods conviction to in-
clude the intent to permanently deprive in order for it to be deemed
a crime involving moral turpitude.
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12 Opinion of the Court 22-11896
B.
As we’ve said before, “the BIA’s two-pronged moral turpi-
tude standard requires not just a culpable mental state, but also
conduct that is reprehensible, i.e., inherently base, vile, or de-
praved.” Zarate, 26 F.4th at 1207; see Matter of Silva-Trevino, 26 I. &
N. Dec. at 833–34. We recently explained that while the culpable
mental state element can inform whether conduct is reprehensible,
unless the crime of conviction involves fraud it is “inappropriate to
conflate the BIA’s two requirements . . . so that one (a culpable
mental state) automatically satisfies the other (moral reprehensibil-
ity).” Zarate, 26 F.4th at 1207.
Here, the BIA ruled that receiving stolen property in viola-
tion of Va. Code. Ann. § 18.2-108 involves moral turpitude because
the statute requires knowledge that the goods were stolen. But the
BIA did not distinguish in this case between the culpable mental
state element and reprehensible conduct element for moral turpi-
tude and did not say whether a conviction under that statute in-
volves inherent baseness, vileness, or depravity.
The government contends that both requirements are satis-
fied by the statute’s knowledge element, arguing that it is morally
reprehensible to receive goods knowing that they were stolen.
That may be true, but we are bound by our precedent to hold that
the BIA abused its discretion when it “collaps[ed] the two require-
ments of moral turpitude into one” and did not separately analyze
whether receipt of stolen goods in violation of Va. Code Ann.
§ 18.2-108 involves both a culpable mental state and reprehensible
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22-11896 Opinion of the Court 13
conduct. See Zarate, 26 F.4th at 1208. If the BIA is going to rule
that a receipt of stolen goods conviction under Va. Code Ann.
§ 18.2-108 is a crime involving moral turpitude it must “do what it
has so far failed to do in [Ferrer’s] case” and “apply its two-pronged
moral turpitude standard in toto.” Id.
Because of what is referred to as the ordinary remand rule,
we cannot apply in the first instance the BIA’s two-pronged moral
turpitude standard. “The Supreme Court has explained that, in
cases on appeal where the BIA has not addressed a particular issue
that a petitioner put before it, ‘the proper course, except in rare
circumstances, is to remand to the agency for additional investiga-
tion or explanation.’” Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1329
(11th Cir. 2007) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002)); see
Gonzales v. Thomas, 547 U.S. 183, 187 (2006); Calcutt v. Fed. Deposit
Ins. Corp., 598 U.S. 623, 628–30 (2023); see also Talamantes-Enriquez
v. U.S. Att’y Gen., 12 F.4th 1340, 1348–49 (11th Cir. 2021).
Finding no special circumstance that might justify our deter-
mination of whether Ferrer’s conviction meets both “essential ele-
ments” for a crime involving moral turpitude, we remand to the
BIA to decide the question in the first instance. See Gonzales, 547
U.S. at 187; Calcutt, 598 U.S. at 630; see also Ruiz v. U.S. Att’y Gen., 73
F.4th 852, 860 (11th Cir. 2023) (remanding to the BIA for an initial
application of the proper statutory standard for evaluating a re-
quest for cancellation of removal).
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14 Opinion of the Court 22-11896
IV. Conclusion
We grant Ferrer’s petition, vacate the BIA’s decision, and re-
mand to the BIA for it to decide whether receipt of stolen goods in
violation of Va. Code Ann. § 18.2-108 involves both a culpable
mental state and conduct that is reprehensible. Our remand is
without any implication as to what the result should be.3
3 Ferrer also contends that the phrase “crime involving moral turpitude” is
unconstitutionally vague as applied to non-fraud offenses, relying on the Su-
preme Court’s decisions in Johnson v. United States, 576 U.S. 591 (2015), and
Sessions v. Dimaya, 584 U.S. ----, 138 S. Ct. 1204 (2018). His thoughts about the
abstract, nebulous nature of the term “moral turpitude” are not his alone. See
generally Zarate, 26 F.4th at 1200 & n.2 (explaining why the dissenting justices
in Jordan v. De George, 341 U.S. 223, 232 (1951) (Jackson, J., dissenting), “got it
right” when they wrote that the phrase “crime involving moral turpitude”
“has no sufficiently definite meaning to be a constitutional standard for depor-
tation”); Arias v. Lynch, 834 F.3d 823, 830 (7th Cir. 2016) (Posner, J., concurring
in the judgment) (lamenting that the “stale, antiquated, and worse, meaning-
less” concept of moral turpitude “should continue to be a part of American
law”). But the De George dissenters lost the vote count, and Ferrer’s vagueness
challenge is foreclosed by precedent.
In De George the Supreme Court held that the term “moral turpitude” is not
unconstitutionally vague. 341 U.S. at 232 (majority opinion). Although De
George involved a “crime[] in which fraud was an ingredient,” id., we recently
applied De George in a non-fraud context and rejected the same vagueness chal-
lenge that Ferrer now makes. See Daye v. U.S. Att’y Gen., 38 F.4th 1355, 1364
(11th Cir. 2022) (explaining that “Johnson and Dimaya addressed different fed-
eral statutes with different statutory phrases and therefore do not permit this
Court to deviate from De George”). Whatever our concerns about the ambi-
guity of the phrase “moral turpitude,” we are bound by De George and Daye.
Priva v. U.S. Att’y Gen., 34 F.4th 946, 954–55 (11th Cir. 2022) (“[U]nder this
Court’s prior-panel-precedent rule, a prior panel’s holding is binding on all
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22-11896 Opinion of the Court 15
PETITION GRANTED.
subsequent panels unless and until it is overruled or undermined to the point
of abrogation by the Supreme Court or by this court sitting en banc.”) (quota-
tion marks omitted). If Daye got De George wrong, that doesn’t alter Daye’s
force as binding precedent. See United States v. Fritts, 841 F.3d 937, 942 (11th
Cir. 2016) (“Under this Court’s prior panel precedent rule, there is never an
exception carved out for overlooked or misinterpreted Supreme Court prece-
dent.”); Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (“[W]e cate-
gorically reject any exception to the prior panel precedent rule based upon a
perceived defect in the prior panel’s reasoning or analysis as it relates to the
law in existence at the time.”).
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