Carlos Gomez-Ruotolo v. Merrick Garland

96 F.4th 670

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 20, 2024
• Docket: 23-1238
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1238

CARLOS RAFAEL GOMEZ-RUOTOLO

Petitioner

v.

MERRICK B. GARLAND, Attorney General

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: January 23, 2024 Decided: March 20, 2024

Before WILKINSON, QUATTLEBAUM, and RUSHING, Circuit Judges.

Petition denied by published opinion. Judge Wilkinson wrote the opinion, in which Judge Quattlebaum and Judge Rushing joined.

ARGUED: Daniel Joseph Melo, CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION, Washington, D.C., for Petitioner. Tim Ramnitz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Peter Alfredson, Taylor Joseph, CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION, Washington, D.C., for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney General, Shelley R. Goad, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. USCA4 Appeal: 23-1238 Doc: 52 Filed: 03/20/2024 Pg: 2 of 22

WILKINSON, Circuit Judge:

Carlos Gomez-Ruotolo was deported after being found removable as a noncitizen

convicted of two or more crimes involving moral turpitude. After being denied relief by

the Board of Immigration Appeals, Gomez-Ruotolo petitioned this court for review. He

claims that the crimes for which he was convicted in state court—attempted sexual battery

and electronic solicitation of a minor—are not crimes involving moral turpitude. He also

contends that he should receive protection against removal under the Convention Against

Torture. For the reasons that follow, we reject these contentions and deny the petition.

I.

Gomez-Ruotolo is a native citizen of Venezuela. He was brought to the United

States by his parents in 2001, when he was ten years old. He and his family were admitted

as lawful permanent residents and settled in Northern Virginia, where Gomez-Ruotolo

attended school and resided as a young adult.

In 2009, law enforcement officers searched eighteen-year-old Gomez-Ruotolo’s

residence in Dumfries, Virginia pursuant to a federal search warrant. They discovered five

images that depicted children as young as four years old being sexually abused. Gomez-

Ruotolo was ultimately charged with “attempt[ing] to commit sexual battery on a minor

child under the age of fifteen years, against the will of said minor child, by force, threat or

intimidation or through the use of the child’s mental incapacity or physical helplessness,

in violation of Virginia Code Section 18.2-67.5(c).” J.A. 543. He pleaded guilty to this

charge and acknowledged the potential adverse immigration consequences of his

conviction. The Circuit Court of Prince William County, Virginia sentenced Gomez-

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Ruotolo to 180 days imprisonment, suspended in full on the condition that he register as a

sex offender and maintain good behavior. He served no time in prison.

Less than a decade later, Gomez-Ruotolo again found himself facing child sexual

abuse charges. In 2018, a now twenty-eight-year-old Gomez-Ruotolo posted on Craigslist

stating he desired to “get[] with someone younger, as young as it gets (barely legal).” J.A.

592. An undercover detective answered the advertisement posing as a fourteen-year-old

girl. Gomez-Ruotolo arranged a meeting with the supposed fourteen-year-old for the

express purpose of having sex with her. When he arrived at the designated meeting place

in anticipation of the sexual encounter, he was instead greeted by police officers and

promptly arrested. A Virginia grand jury indicted Gomez-Ruotolo with electronic

solicitation of a minor between seven and fourteen in violation of Virginia Code § 18.2-

374.3(c). Gomez-Ruotolo pleaded guilty and once again acknowledged the potential

adverse immigration consequences of his conviction. He was sentenced to the mandatory

minimum of five years’ imprisonment. A court-ordered psychological evaluation,

conducted as part of his sentencing, found that he had an “above average” risk of sexual

offense recidivism. J.A. 658.

In June 2022, upon completion of his prison sentence, Gomez-Ruotolo was served

with a Notice to Appear for removal proceedings, which charged him with removability

(1) as a noncitizen convicted of two or more crimes involving moral turpitude pursuant to

8 U.S.C. § 1227(a)(2)(A)(ii), and (2) as an aggravated felon pursuant to 8 U.S.C.

§§ 1101(a)(43)(A), 1227(a)(2)(A)(iii). With the assistance of counsel, Gomez-Ruotolo

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denied that he was removable and sought protection from removal under the Convention

Against Torture (CAT).

In August 2022, an immigration judge of the U.S. Department of Justice (DOJ)

found that Gomez-Ruotolo was not removable as an aggravated felon but that he was

removable as a noncitizen convicted of two or more crimes involving moral turpitude. The

immigration judge also denied Gomez-Ruotolo CAT protection. He was thus ordered to be

removed to Venezuela.

Gomez-Ruotolo appealed this decision to the Board of Immigration Appeals (BIA)

in September 2022. He argued that attempted sexual battery was not a crime involving

moral turpitude as the minimum conduct to sustain a conviction was insufficiently

reprehensible. And he claimed that the electronic solicitation statute lacked the requisite

culpable mens rea to be a crime involving moral turpitude. Gomez-Ruotolo also challenged

the immigration judge’s denial of CAT protection, asserting that he was likely to be

tortured by the Maduro regime in Venezuela due to his lifelong ties to the United States.

In February 2023, the BIA affirmed the immigration judge in all respects and

dismissed Gomez-Ruotolo’s appeal. It explained that Virginia’s attempted sexual battery

offense is a crime involving moral turpitude as it is “defined in all instances” as

“sufficiently reprehensible conduct that is contrary to the accepted rules of morality.” J.A.

5. The BIA reasoned that Virginia’s offense of electronic solicitation of a minor between

seven and fourteen is likewise a crime involving moral turpitude because “statutes that

limit convictions to defendants who knew or had reason to believe that their intentional

sexual acts were directed at children—such as th[is] statute—categorically involve moral

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turpitude.” J.A. 6 (citing Matter of Silva-Trevino, 26 I. & N. Dec. 826, 834 (BIA 2016)).

The BIA also found Gomez-Ruotolo was not eligible for deferral of removal under CAT

because he did not show that he would probably be tortured in Venezuela. It adopted the

immigration judge’s findings that Gomez-Ruotolo had never been threatened, harmed, or

tortured by anyone in Venezuela since his departure more than twenty years ago, that he

was not an outspoken critic of the Venezuelan government, and that no one was waiting to

harm him upon his return. Having exhausted his administrative remedies, Gomez-Ruotolo

was deported to Venezuela. He petitioned this court for review.

II.

Gomez-Ruotolo’s primary contention on appeal is that the Virginia state offenses

for which he was convicted are not crimes involving moral turpitude. The Immigration and

Nationality Act (INA) provides that “[a]ny alien who at any time after admission is

convicted of two or more crimes involving moral turpitude, not arising out of a single

scheme of criminal misconduct . . . is deportable.” 8 U.S.C. § 1227(a)(2)(A)(ii). So, if

either of the two crimes for which Gomez-Ruotolo was convicted is not a crime involving

moral turpitude, he is not deportable under this provision of the INA.

A.

Whether a criminal offense constitutes a crime involving moral turpitude is a

question of law that we review de novo. Salazar v. Garland, 56 F.4th 374, 377 (4th Cir.

2023). This inquiry requires us to answer two questions. See id. First, what is the definition

of moral turpitude under the INA? Second, does the criminal offense at issue fit within this

definition?

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On the definition of moral turpitude, we naturally reference BIA decisions. We do

so because the agency has been delegated a regulatory and adjudicative role in this whole

area, and its experience in the field often renders its decisions persuasive.

However, we need not defer to the BIA’s determination of whether a state statute

categorically involves conduct that is morally turpitudinous, because such a question is

outside the BIA’s authority and expertise. Id. at 281. Instead, we start with the text of the

Virginia statutes at issue and consider “Virginia case law interpreting the[ir] provisions.”

Cabrera v. Barr, 930 F.3d 627, 639 n.7 (4th Cir. 2019); see also Salazar, 56 F.4th at 377

(finding that a state appellate court’s interpretation of the statute at issue “constrains our

analysis of the elements of state law”). The extent to which we credit the BIA’s assessment

of whether these state crimes involve moral turpitude “hinges on the thoroughness evident

in the BIA's consideration, the validity of its reasoning, its consistency with earlier and

later pronouncements, and all those factors which give it power to persuade.” Ramirez v.

Sessions, 887 F.3d 693, 703 (4th Cir. 2018) (internal quotations and alterations omitted).

B.

Our circuit has, with all due respect for the BIA, developed a sound definition of

moral turpitude. A crime involving moral turpitude is one involving “behavior that shocks

the public conscience as being inherently base, vile, or depraved.” Id. at 704 (internal

quotations omitted). Such a crime “requires two essential elements: a culpable mental state

and reprehensible conduct.” Solis-Flores v. Garland, 82 F.4th 264, 267 (4th Cir. 2023).

For a crime “to meet the mens rea requirement” of culpability, “the crime must have, as an

element, an intent to achieve an immoral result or willful disregard of an inherent and

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substantial risk that an immoral act will occur.” Ramirez, 887 F.3d at 704; see also

Granados v. Garland, 17 F.4th 475, 481 (4th Cir. 2021). To meet the actus reus

requirement of reprehensible conduct, the crime “must involve conduct that not only

violates a statute but also independently violates a moral norm . . . and thus gives rise to

‘turpitude’—meaning the debasement of the norm or the value.” Mohamed v. Holder, 769

F.3d 885, 888 (4th Cir. 2014).

In assessing whether a particular offense is a crime involving moral turpitude, we

employ the categorical approach and examine whether the elements of the statute

necessarily involve moral turpitude. Salazar, 56 F.4th at 377; Pereida v. Wilkinson, 592

U.S. 224, 233 (2021). In doing so, we “consider only the statutory elements, not the facts

underlying the particular violation.” Mohamed, 769 F.3d at 888; see also Prudencio v.

Holder, 669 F.3d 472, 484 (4th Cir. 2012). If “those elements solely encompass behavior

that involves moral turpitude . . . the crime is categorically one involving moral turpitude.”

Sotnikau v. Lynch, 846 F.3d 731, 735 (4th Cir. 2017). But if the “minimum conduct that

has a realistic probability of being prosecuted under the statute” does not involve moral

turpitude, then the statutory offense is not categorically one involving moral turpitude.

Matter of Silva-Trevino, 26 I. & N. Dec. at 831; see also Larios-Reyes v. Lynch, 843 F.3d

146, 152 (4th Cir. 2016) (stating that the minimum conduct must have a “realistic

probability, not a theoretical possibility, of being prosecuted.”).

If a statute does not categorically fit the definition of a crime involving moral

turpitude under this test, we assess whether the “statute sets out multiple, alternative

elements of a crime, effectively creating several different crimes,” and is therefore

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divisible. Salazar, 56 F.4th at 378 (internal quotations omitted). This “modified categorical

approach” involves “determin[ing] which of the various forms of the offense was the

offense of conviction” by “consult[ing] a limited universe of documents” in the record of

conviction. Martinez v. Sessions, 892 F.3d 655, 659 (4th Cir. 2018) (citing Descamps v.

United States, 570 U.S. 254, 278 (2013)). When the conviction was based on a guilty plea,

as each of Gomez-Ruotolo’s was, “the record of conviction is composed of the charging

document, the plea agreement, the plea colloquy, and any explicit findings of fact made by

the trial judge.” Prudencio, 669 F.3d at 485 (citing Shepard v. United States, 544 U.S. 13,

15 (2005)). Once we determine the offense of conviction, we assess whether the portion of

the statute pertaining to that offense is a crime involving moral turpitude. See Larios-Reyes,

843 F.3d at 153–54; Martinez, 892 F.3d at 659.

With this framework in mind, we turn to Gomez-Ruotolo’s crimes of conviction to

determine whether they involve moral turpitude. First we take up his conviction for

attempted sexual battery. We then turn to his electronic solicitation of a minor conviction.

III.

Gomez-Ruotolo contends his 2010 conviction for attempted sexual battery was not

a crime involving moral turpitude. He was convicted under the 2007 version of the statute,

which read:

An accused is guilty of sexual battery if he sexually abuses, as defined in [Virginia Code] § 18.2–67.10,

(i) the complaining witness against the will of the complaining witness, by force, threat, intimidation, or ruse,

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(ii) an inmate who has been committed to jail or convicted and sentenced to confinement in a state or local correctional facility or regional jail, and the accused is an employee or contractual employee of, or a volunteer with, the state or local correctional facility or regional jail; is in a position of authority over the inmate; and knows that the inmate is under the jurisdiction of the state or local correctional facility or regional jail, or

(iii) a probationer, parolee, or a pretrial defendant or posttrial offender under the jurisdiction of the Department of Corrections, a local community-based probation program services agency, a pretrial services program agency, a local or regional jail for the purposes of imprisonment, a work program or any other parole/probationary or pretrial services program or agency and the accused is an employee or contractual employee of, or a volunteer with, the Department of Corrections, a local community-based probation program services agency, a pretrial services program agency or a local or regional jail; is in a position of authority over an offender; and knows that the offender is under the jurisdiction of the Department of Corrections, a local community-based probation program services agency, a pretrial services program agency or a local or regional jail.

Va. Code § 18.2-67.4(A) (2007).

Gomez-Ruotolo raises three primary challenges to the BIA’s determination that this

offense constitutes a crime involving moral turpitude. He first claims that parts (ii) and (iii)

of the statute encompass conduct that is not reprehensible, and therefore the statute fails

the categorical approach. He next asserts that, even if the modified categorical approach

applies, the minimum conduct covered by part (i) of the statute is still not sufficiently

reprehensible to be turpitudinous. He lastly posits that, even if sexual battery is a crime

involving moral turpitude, attempted sexual battery—the crime for which he was

convicted—is not. We address contention each in turn.

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Gomez-Ruotolo first notes that the Virginia Code defined sexual abuse, in relevant

part, to be “an act committed with the intent to sexually molest, arouse, or gratify any

person, where: (a) The accused intentionally touches the complaining witness’s intimate

parts or material directly covering such intimate parts.” Va. Code § 18.2–67.10(6)(a)

(2004). He points out that this definition does not require that the touching be

nonconsensual. Thus, he claims, sexual abuse of a prisoner or parolee by a person in a

position of authority, as proscribed by parts (ii) and (iii) of Virginia’s sexual battery statute,

is not categorically a crime involving moral turpitude because it prohibits consensual

sexual acts. See id. § 18.2-67.4(A)(ii-iii).

Maybe so. But we need not reach that question because we find the sexual battery

statute is divisible. We thus apply the modified categorical approach to determine under

which part of the statute Gomez-Ruotolo was convicted, and then examine whether that

part constitutes a crime involving moral turpitude.

As discussed, a statute is divisible if it “sets out multiple, alternative elements of a

crime, effectively creating several different crimes.” Salazar, 56 F.4th at 378 (internal

quotations omitted). That is exactly what the provision at hand does. See Va. Code § 18.2-

67.4(A). It codifies distinct offenses with distinct elements. Unlike parts (ii) and (iii), part

(i) of the statute requires the sexual conduct to be “against the will” of the victim and be

conducted “by force, threat, intimidation, or ruse.” See id. And unlike part (i), parts (ii) and

(iii) are limited to victims who are subject to the criminal justice system, and they require

proof that the defendant was in a position of authority over the victim. See id.; see also Va.

Model Jury Instr. – Crim. §§ 48.640, 48.650 (setting out separate model jury instructions

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for part (i) versus parts (ii) and (iii)). Because the Commonwealth must “prove a unique

element” under these distinct parts of the statute, it is divisible into what are effectively

distinct crimes. United States v. Jackson, 32 F.4th 278, 285 (4th Cir. 2022); see also

Salazar, 56 F.4th at 378.

Because the statute is divisible, we apply the modified categorical approach to

determine under which part of the statute Gomez-Ruotolo was convicted. See Salazar, 56

F.4th at 378; Mathis v. United States, 579 U.S. 500, 513 (2016). In consulting the “limited

universe of documents” in the record of conviction, Martinez, 892 F.3d at 659, it is clear

that he was convicted under part (i). The amended indictment—which we are permitted to

consider under Prudencio, 669 F.3d at 485 and Shepard, 544 U.S. at 15—charged Gomez-

Ruotolo with attempting “to commit sexual battery on a minor child under the age of fifteen

years, against the will of said minor child, by force, threat or intimidation or through the

use of the child’s mental incapacity or physical helplessness.” J.A. 549. The inclusion of

the terms “against the will” and “by force, threat or intimidation” in the indictment make

plain that Gomez-Ruotolo was charged under part (i) of the Virginia sexual battery statute,

as it is the only part where those terms appear. See Va. Code § 18.2-67.4(A). Thus, Gomez-

Ruotolo’s cause is not helped by his argument that the offenses in parts (ii) and (iii) of the

statute are not categorically crimes involving moral turpitude.

Gomez-Ruotolo claims that, under this modified categorical approach, part (i) of the

Virginia sexual battery statute prohibits conduct that is insufficiently reprehensible to

constitute a crime involving moral turpitude. He faces an uphill battle. We have said it is

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self-evident that “sexual battery on another person” under Virginia Code § 18.2-67.4

“involves moral turpitude.” Mohamed, 769 F.3d at 888; see also Rivers v. Holder, 496 F.

App'x 264, 265 (4th Cir. 2012) (per curiam) (holding that Virginia sexual battery under

§ 18.2–67.4 “is categorically a crime involving moral turpitude”). The BIA, too, has long

considered nonconsensual sexual conduct to be morally reprehensible. See e.g., In the

Matter of S-, 5 I. & N. Dec. 686, 687 (BIA 1954); Matter of Z-, 7 I. & N. Dec. 253, 255

(BIA 1956). And Virginia appellate courts interpreting the statute have found, even when

nonconsensual touching does not meet the statute’s requirement of being done “by force,

threat, intimidation, or ruse,” it is “outrageously offensive,” Woodard v. Commonwealth,

499 S.E.2d 557, 559 (Va. App. 1998), and “reprehensible.” Wilson v. Commonwealth, No.

2636-96-2, 1997 WL 679820, at *2 (Va. Ct. App. Nov. 4, 1997); see also Robinson v.

Commonwealth, 828 S.E.2d 269, 273 (2019) (O’Brien, J., dissenting) (disagreeing that the

defendant’s nonconsensual touching violated § 18.2-67.4, yet finding it was “reprehensible

and offensive”). Notwithstanding petitioner’s claim that our statement in Mohamed was on

an issue not briefed by the parties, we now take this opportunity to affirm the obvious:

section 18.2-67.4(A)(i) categorically constitutes a crime involving moral turpitude.

Gomez-Ruotolo protests that Virginia defines the sexual abuse proscribed by part

(i) to include the touching of “material directly covering such intimate parts,” including the

clothing covering a buttocks, which he refers to as de minimis conduct that is not inherently

base, vile, or depraved. Va. Code § 18.2–67.10(6)(a). Thus, he contends, subsection (i)

cannot categorically qualify as a crime involving moral turpitude. See § 18.2-67.4(A).

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This argument oversimplifies the statute. Part (i) only criminalizes nonconsensual

conduct that is “against the will” of the victim. Id. What’s more, part (i) requires that the

sexual conduct occur “by force, threat, intimidation, or ruse.” Id. We have little trouble in

concluding that nonconsensual sexual acts are “inherently base, vile, or depraved” when

done by force, threat, intimidation, or ruse. See Ramirez, 887 F.3d at 704.

Start with force. At the time of Gomez-Ruotolo’s conviction in 2010, the “force”

necessary to sustain a conviction under this statute required more than “mere

nonconsensual touching of the intimate parts.” Johnson v. Commonwealth, 365 S.E.2d 237,

240 (Va. App. 1988), overruled by Robinson v. Commonwealth, 828 S.E.2d 269, 272 (Va.

App. 2019) (en banc). Rather, a defendant needed to have used force sufficient “to

overcome the will” of the victim. Id.; see Wactor v. Commonwealth, 564 S.E. 2d 160, 163

(Va. App. 2002) (stating “force must be sufficient to overcome [the victim’s] resistance”).

The realistic probability is that no prosecution would be brought for anything less. See e.g.,

Robinson, 828 S.E.2d at 272–73 (finding element of force met when defendant held child

victim down and pushed him against bed when he tried to escape). The very word “force”

in the statute means applying enough pressure to overpower a victim’s rejection of

unwanted sexual advances. That is undoubtedly reprehensible conduct that is “inherently

base, vile, or depraved.” Ramirez, 887 F.3d at 704.

So too is sexual battery by threat or intimidation. Virginia’s model jury instructions

define “threat” in the sexual battery context to require “expression of an intention to do

bodily harm or use force.” Va. Model Jury Instr. – Crim. § 48.670. The model jury

instructions likewise state that sexual battery by intimidation requires the defendant to

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“put[] a victim in fear of bodily harm by exercising such domination and control of [him;

her] as to overcome [his; her] mind and overbear [his; her] will.” Id. § 48.675 (brackets in

original). This definition of intimidation in the Virginia sexual battery context has been

repeatedly affirmed by the state’s appellate courts. See Woodard v. Commonwealth, 499

S.E.2d at 559; Clark v. Commonwealth, 408 S.E.2d 564, 565–66 (Va. App. 1991). As

should be clear, striking fear in the heart of a victim so that he or she submits to unwanted

sexual touching is a morally reprehensible act.

Lastly, sexual battery by ruse is also turpitudinous conduct. Crimes that have fraud

as an element are categorically crimes involving moral turpitude. Salazar, 56 F.4th at 379

(citing Jordan v. De George, 341 U.S. 223, 227–29 (1951)); see also Ramirez, 887 F.3d at

698. Moreover, as we recognized in Ramirez, the BIA has held “that conduct involving

‘deceit, graft, trickery, or dishonest means’ is morally turpitudinous.” 887 F.3d at 703

(quoting Matter of Jurado–Delgado, 24 I. & N. Dec. 29, 35 (BIA 2006)). And we have

found that the reprehensible element of a crime involving moral turpitude is met by “acts

of subterfuge.” Uribe v. Sessions, 855 F.3d 622, 627 (4th Cir. 2017) (finding that Maryland

third degree burglary, which includes gaining entry to a dwelling “by artifice, fraud,

conspiracy, or threat,” categorically qualifies as a crime involving moral turpitude). We

thus hold that unwanted sexual touching by “ruse” involves moral turpitude because it

requires fraud, deception, trickery, or subterfuge.

Because all crimes encompassed by Virginia Code § 18.2-67.4(A)(i) are

reprehensible and morally turpitudinous, we hold that Gomez-Ruotolo’s conviction for

attempted sexual battery is a crime involving moral turpitude.

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C.

Gomez-Ruotolo, however, claims that this is an impermissible inferential leap. He

emphasizes that he was convicted for merely attempting to commit sexual battery and

insists that an inchoate version of an offense is not necessarily a crime involving moral

turpitude just because the underlying substantive offense is. Even if the underlying crime

of sexual battery involves moral turpitude, he posits, attempted sexual battery falls below

the turpitudinous threshold.

Not so. Federal courts uniformly use the underlying substantive offense to

determine whether an associated inchoate offense involves moral turpitude. See Daye v.

U.S. Att'y Gen., 38 F.4th 1355, 1362 n.5 (11th Cir. 2022) (stating that “in immigration

proceedings inchoate offenses such as conspiracy qualify as a CIMT if the underlying

substantive offense qualifies as a CIMT”); Barragan-Lopez v. Mukasey, 508 F.3d 899, 903

(9th Cir. 2007) (examining underlying crime to determine whether solicitation offense was

one involving moral turpitude); United States ex rel. Meyer v. Day, 54 F.2d 336, 337 (2d

Cir. 1931) (“There is no substance in the appellant’s contention that there is a distinction

in respect to moral turpitude between the commission of the substantive crime of grand

larceny and an attempt to commit it.”). The BIA has long taken the same approach, finding

“no meaningful distinction between an inchoate offense and the completed crime” in

determining moral turpitude. Matter of Gonzalez Romo, 26 I. & N. Dec. 743, 746 (BIA

2016); see also Matter of Vo, 25 I&N Dec. 426, 428 (BIA 2011); Matter of Bronsztejn, 15

I. & N. Dec. 281, 282–83 (BIA 1974) (“We have held repeatedly that a person who is found

deportable if convicted of a substantive offense would be deportable if convicted of an

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attempt to commit that offense.”). Thus, because we found sexual battery under Virginia

Code § 18.2-67.4(A)(i) is a crime involving moral turpitude, we likewise hold that

attempted sexual battery is a crime involving moral turpitude.

IV.

Gomez-Ruotolo next claims electronic solicitation of a minor under Virginia Code

§ 18.2-374.3(c) is not a crime involving moral turpitude. The statute reads:

It is unlawful for any person 18 years of age or older to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting, with lascivious intent, any person he knows or has reason to believe is a child younger than 15 years of age to knowingly and intentionally:

1. Expose his sexual or genital parts to any child to whom he is not legally married or propose that any such child expose his sexual or genital parts to such person;

2. Propose that any such child feel or fondle his own sexual or genital parts or the sexual or genital parts of such person or propose that such person feel or fondle the sexual or genital parts of any such child;

3. Propose to such child the performance of an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or any act constituting an offense under § 18.2-361; or

4. Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place, for any purposes set forth in the preceding subdivisions.

Va. Code § 18.2-374.3(c) (emphasis added).

Gomez-Ruotolo concedes that sexual solicitation of a minor under fifteen years old

is reprehensible conduct sufficient to satisfy the actus reus element of a crime involving

moral turpitude. But he claims the statute’s inclusion of the phrase “has reason to believe”

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renders its mens rea insufficient for the statute to qualify as a crime involving moral

turpitude. That is because, in his view, this phrase permits conviction of a defendant with

a negligent mens rea, and “[c]rimes involving criminal negligence . . . are generally

excluded from the category of crimes that involve moral turpitude.” Sotnikau, 846 F.3d at

737.

This argument is unpersuasive for several reasons. First, BIA precedent undermines

it. The BIA has held that “a crime involving intentional sexual conduct by an adult with a

child involves moral turpitude as long as the perpetrator knew or should have known that

the victim was a minor.” Matter of Silva-Trevino, 26 I. & N. Dec. at 834. The DOJ—the

agency responsible for interpreting and applying the provision of the INA at issue—was

“clear and consistent” in articulating this rule during the decade leading up to Gomez-

Ruotolo’s conviction. See Jimenez-Cedillo v. Sessions, 885 F.3d 292, 295–96 (4th Cir.

2018) (citing Matter of Silva-Trevino, 26 I. & N. Dec. at 834; Matter of Silva-Trevino, 26

I. & N. Dec. 550 (A.G. 2015); Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008),

vacated on other grounds by Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014)). Given

that we respect BIA precedent defining “the types of conduct” that the term moral turpitude

includes, Nunez-Vazquez v. Barr, 965 F.3d 272, 279 (4th Cir. 2020), this court has noted

that a sexual offense against a child categorically involves moral turpitude when the

perpetrator “should have known that the victim was a minor.” Jimenez-Cedillo v. Sessions,

885 F.3d at 294.

Having established that the requisite mens rea is satisfied by a “should have known”

standard for child sex crimes, the conclusion that Virginia electronic solicitation of a minor

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is a crime involving moral turpitude follows naturally. A “person 18 years of age or older”

who “use[s] . . . electronic means, for the purposes of soliciting, with lascivious intent, any

person he . . . has reason to believe is a child younger than 15 years of age” is functionally

equivalent to an adult who should have known that the person he sexually solicited was a

minor. Va. Code § 18.2-374.3(c). The language may not be identical, but, as Gomez-

Ruotolo conceded in his opening brief, the import is the same. Appellant’s Br. 23 (stating

a different “statute’s ‘should have known’ language closely tracks the ‘reason to believe’

language” at issue). Thus, well-established BIA precedent counsels us to hold that

Virginia’s electronic solicitation of a minor offense is a crime involving moral turpitude. ∗

Moreover, Virginia’s electronic solicitation statute does not stop with the mens rea

requirement that a perpetrator should have known of the victim’s age. The statute requires

the perpetrator’s use of electronic means “to knowingly and intentionally” subject “any

child to whom he is not legally married” to enumerated sexual acts. Va. Code § 18.2-

374.3(c). Therefore, to be convicted under this statute, an adult must not only use electronic

means to solicit with lascivious intent someone he knew or had reason to believe was a

child under fifteen, but he must do so to knowingly and intentionally subject an actual child

∗ The BIA has since lowered the mens rea requirement for child sex offenses to involve moral turpitude by holding that “sexual solicitation of young teenagers and children is a crime involving moral turpitude, even if knowledge of the age of the child is a strict liability finding.” Matter of Jimenez-Cedillo, 27 I. & N. Dec. 782, 791 (BIA 2020). We do not use this holding in our analysis of Gomez-Ruotolo’s 2019 conviction for electronic solicitation of a minor, as the BIA explicitly stated its decision applied only prospectively in the Fourth Circuit. See id. at 784. But, if we did, the BIA’s new rule would only further undermine Gomez-Ruotolo’s argument that the Virginia statute lacked a sufficient mens rea to constitute a crime involving moral turpitude.

18 USCA4 Appeal: 23-1238 Doc: 52 Filed: 03/20/2024 Pg: 19 of 22

to sexual acts. Id. The requirement that the adult perpetrator intentionally seek sexual

activity with a child helps establish that the crime at issue in all cases requires “an intent to

achieve an immoral result or willful disregard of an inherent and substantial risk that an

immoral act will occur.” Salazar, 56 F.4th at 378. The text of Virginia Code § 18.2-

374.3(c), read as a whole, thus contradicts Gomez-Ruotolo’s claim that this crime does not

categorically involve moral turpitude.

Finally, the Supreme Court of Virginia’s interpretation of this statute further

undercuts Gomez-Ruotolo’s contention that the statute lacks the requisite mens rea to

qualify as a crime involving moral turpitude. In upholding the statute against a vagueness

and overbreadth challenge that focused on its “reason to believe” language, the Supreme

Court of Virginia rejected the notion that a defendant could be convicted of the offense

with a negligent mens rea. Stoltz v. Commonwealth, 831 S.E.2d 164, 168–69 (Va. 2019)

(analyzing Va. Code § 18.2-374.3(c)). The court emphasized that “the act of using a

communications system is the actus reus of the crime, while the purpose of soliciting the

child is the mens rea.” Id. at 171. In doing so, the court referenced Gorin v. United States,

312 U.S. 19 (1941), which held that the use of “reason to believe” in a criminal statute

required “those prosecuted to have acted in bad faith” and that “scienter [be] established.”

Id. at 28. This holding echoed earlier reasoning by the Court that “reason to believe”

requires a showing of culpability greater than negligence. See e.g., Shaw v. Merchants’

Nat. Bank, 101 U.S. 557, 566 (1879). In light of Stoltz and the cases it built upon, we cannot

say that a merely negligent person has a “realistic probability . . . of being prosecuted”

under Virginia’s electronic solicitation of a minor provision. Nunez-Vasquez, 965 F.3d at

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282. Therefore, Gomez-Ruotolo’s conviction for electronic solicitation of a minor under

§ 18.2-374.3(c) was a conviction for a crime involving moral turpitude.

In sum, the two crimes for which Gomez-Ruotolo was convicted are both crimes

involving moral turpitude. We therefore reject his challenge and affirm the BIA’s

determination that he was deportable under 8 U.S.C. § 1227(a)(2)(A)(ii).

Gomez-Ruotolo also challenges the BIA’s refusal to grant him protection under the

Convention Against Torture. To receive CAT protection, an applicant must prove that “it

is more likely than not that he or she would be tortured if removed to the proposed country

of removal,” 8 C.F.R. § 1208.16(c)(2), and that “this torture will occur at the hands of

government or with the consent or acquiescence of government,” Turkson v. Holder, 667

F.3d 523, 526 (4th Cir. 2012). “Torture” is defined by the implementing regulations, in

relevant part, as “any act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person.” 8 C.F.R. § 1208.18(a)(1). In assessing a claim for CAT

protection, the DOJ shall consider “all evidence relevant to the possibility of future

torture,” including “[e]vidence of past torture,” “[e]vidence that the applicant could

relocate to a part of the country of removal where he or she is not likely to be tortured,”

and “[e]vidence of gross, flagrant, or mass violations of human rights in the country of

removal.” See id. § 1208.16(c)(3). We assess the aggregate risk of torture from all sources

when determining whether a CAT applicant is more likely than not to be tortured in a

particular country of removal, and require the agency to do the same. Rodriguez-Arias v.

Whitaker, 915 F.3d 968, 972–73 (4th Cir. 2019).

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We review the agency’s factual determination that an applicant failed to establish a

clear probability of torture for substantial evidence. Id. at 972. This standard of review, as

applied in the CAT protection context, means that “administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.” Id. (internal quotations omitted).

Substantial evidence supported the immigration judge’s finding, and the BIA’s

affirmance, that Gomez-Ruotolo did not qualify for CAT protection. The immigration

judge considered and properly rejected Gomez-Ruotolo’s claim that he was more likely

than not to face torture in Venezuela due to his American identity. The judge credited

Gomez-Ruotolo’s own testimony that no one in Venezuela had sought to harm him in the

past two decades and that no one was planning to harm him upon his return. The judge also

found that Gomez-Ruotolo was not an outspoken critic of the Venezuelan government.

Having made such factual findings, it was eminently reasonable for the immigration judge

to conclude that Gomez-Ruotolo was not likely to be tortured upon removal to Venezuela.

Gomez-Ruotolo claims his particular circumstances increase the likelihood he will

be tortured in Venezuela because he has few local ties, has long resided in America, and

primarily speaks English. While the evidence he presented on conditions in Venezuela

suggest that living there may be fraught for those with close ties to America, Gomez-

Ruotolo did not come close to showing that someone with his background is more likely

than not to be tortured. As we have repeatedly held, the “mere existence of a pattern of

human rights violations in a particular country does not constitute a sufficient ground for

finding that a particular person would more likely than not be tortured.” Herrera-Martinez

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v. Garland, 22 F.4th 173, 187 (4th Cir. 2022); Nolasco v. Garland, 7 F.4th 180, 191 (4th

Cir. 2021); Singh v. Holder, 699 F.3d 321, 334 (4th Cir. 2012).

The immigration judge and BIA had substantial evidence for their conclusion that

Gomez-Ruotolo was not likely to be tortured if deported to Venezuela. We therefore hold

the agency properly denied him CAT protection.

VI.

We have reviewed with care petitioner’s challenges to his removal and find them

unavailing. For the foregoing reasons, the petition for review is denied.

PETITION DENIED