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PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-1379
EUGENIA BAUTISTA CHAVEZ,
Petitioner,
v.
PAMELA JO BONDI, Attorney General,
Respondent.
------------------------------
CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION, d/b/a Amica Center for Immigrant Rights,
Amicus Supporting Petitioner.
No. 23-2059
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CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION, d/b/a Amica Center for Immigrant Rights,
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: October 31, 2024 Decided: April 10, 2025
Before DIAZ, Chief Judge, and RICHARDSON and HEYTENS, Circuit Judges.
Petition denied by published opinion. Chief Judge Diaz wrote the opinion, in which Judge Richardson and Judge Heytens joined.
ARGUED: Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Rodolfo David Saenz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian Boynton, Principal Deputy Assistant Attorney General, Lindsay B. Glauner, Senior Litigation Counsel, Rebekah Nahas, Senior Litigation Counsel, Criminal Immigration Team, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. F. Evan Benz, Kendra Blandon, CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION, Washington, D.C., for Amicus Curiae.
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DIAZ, Chief Judge:
Eugenia Bautista Chavez, a native and citizen of Mexico, challenges the Board of
Immigration Appeals’ order of removal based on her 2011 conviction for petit larceny
under section 18.2-96 of the Virginia Code. The Board held—as had the Immigration
Judge—that petit larceny categorically qualified as a crime involving moral turpitude,
rendering Chavez ineligible for cancellation of removal.
On appeal, Chavez argues that a defendant in Virginia can be convicted of larceny
(of any kind) for taking property that he or she sincerely but unreasonably believes was
abandoned, which falls short of the requisite mental state for a crime involving moral
turpitude. That same defendant, says Chavez, can be convicted of petit larceny for taking
property of de minimis value (i.e., property worth less than a penny), which (in her view)
isn’t sufficiently reprehensible conduct to make out a crime involving moral turpitude.
These are issues of first impression for our court, and they reach us amid a sea
change in administrative law after the Supreme Court’s decision in Loper Bright
Enterprises v. Raimondo, 603 U.S. 369 (2024). But we nonetheless find solid ground to
deny Chavez’s application for cancellation of removal and her motion to reconsider that
decision.
I.
A.
Chavez entered the United States without inspection in 2000 and has lived here since
with her three children. In 2011, she was convicted of Virginia petit larceny. The
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Department of Homeland Security then began removal proceedings against Chavez based
on the larceny conviction. Chavez conceded that she was removable. But she requested
cancellation of removal based on the hardship that her removal would cause her children.
The Department moved to pretermit Chavez’s application for cancellation of
removal, arguing that she was ineligible for that relief because petit larceny under Va. Code
§ 18.2-96 is categorically a crime involving moral turpitude.
The Immigration Judge ruled for the government. The judge reasoned that he was
“required” to find that petit larceny was a crime involving moral turpitude under our
decision in Hernandez v. Holder, 783 F.3d 189 (4th Cir. 2015). 1 J.A. 117–18. See supra
n.1. As a result, Chavez couldn’t “qualify for cancellation of removal.” J.A. 118. 2
1 On that point, the Immigration Judge erred. In Hernandez, the petitioner conceded that Virginia petit larceny was a crime involving moral turpitude. 793 F.3d at 191. We therefore never answered the question Chavez now presents. 2 The Immigration Judge also found that Chavez wouldn’t be eligible for cancellation of removal even if her conviction qualified for the petty offense exception in 8 U.S.C. § 1182(a)(2)(A)(ii)(II), again relying on our Hernandez decision. See J.A. 111– 12 (citing Hernandez, 783 F.3d at 189). Under the petty offense exception, “a conviction for a crime involving moral turpitude does not render [a person] inadmissible if (1) the [person] has been convicted of a single crime; (2) the maximum penalty for the crime committed ‘does not exceed imprisonment for one year;’ and (3) the [person]‘is not sentenced to a term of imprisonment in excess of 6 months.’” Hernandez, 783 F.3d at 193 (cleaned up). While Chavez argues that her criminal conviction “was not one for which ‘a sentence of one year or longer may be imposed,’” she concedes that she “did not make this argument before the [Board] or in her opening brief.” Reply Br. at 26. So we decline to consider it on appeal.
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B.
Chavez appealed to the Board. She argued that Virginia petit larceny didn’t require
a culpable mental state because a defendant could commit larceny negligently, or by taking
property that she sincerely, but unreasonably, believed was abandoned. Chavez pointed to
Virginia’s so-called claim-of-right affirmative defense, which can negate a defendant’s
intent to steal. And she correctly contended that Hernandez wasn’t controlling because the
petitioner there conceded that Virginia petit larceny was a crime involving moral turpitude.
Chavez also argued that Virginia’s petit larceny statute doesn’t require
reprehensible conduct because it doesn’t set a minimum value for the stolen property,
meaning that a defendant may be convicted for stealing property worth less than a penny.
The Board dismissed Chavez’s appeal. Though the Board agreed with the
Immigration Judge’s conclusion that Virginia petit larceny is a crime involving moral
turpitude, it didn’t adopt the judge’s reasoning. Instead, it concluded that the offense
required a culpable mental state because “[t]he availability of an affirmative defense based
on ‘reasonable’ belief in abandonment simply acknowledges that the defendant lacked the
requisite intent to permanently deprive the ‘owner’ of the goods—because the defendant
reasonably believed that the goods had no owner.” J.A. 42–43.
The Board likewise found that Virginia petit larceny required reprehensible conduct
because the offense “requires [the] taking to be of an item of some ‘intrinsic’ value,” so
“[o]nly money, goods, and chattels can be the subject of larceny.” J.A. 43.
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Chavez then moved the Board to reconsider its decision, asking specifically that it
reconsider whether petit larceny is a crime involving moral turpitude. A temporary Board
member denied Chavez’s motion.
This petition for review followed.
II.
Chavez contends that petit larceny under section 18.2-96 isn’t a crime involving
moral turpitude because it doesn’t require a sufficiently culpable mental state and doesn’t
involve reprehensible conduct. She also argues that the temporary Board member had no
authority to decide her reconsideration motion.
We disagree, and so deny her petition.
We first consider Chavez’s argument that petit larceny isn’t a crime involving moral
turpitude. That’s “a question of law that we review de novo.” Mohamed v. Holder, 769
F.3d 885, 888 (4th Cir. 2014).
Before the Supreme Court overruled the Chevron doctrine in Loper Bright, we
deferred to the Board’s reasonable interpretation of the (admittedly ambiguous) term
“crime involving moral turpitude,” as well as to the Board’s view on the “type of conduct
[that] involves moral turpitude.” Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir. 2012).
Loper Bright largely unwound that deference, instructing that courts—and not agencies,
such as the Board—resolve statutory ambiguities “by exercising independent legal
judgment.” 603 U.S. at 401.
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But although the Supreme Court declared “legal interpretation” “the province and
duty of the judicial department,” it didn’t “call into question prior cases that relied on the
Chevron framework.” Id. at 412 (internal quotations omitted). Those holdings, the Court
explained, “are still subject to statutory stare decisis despite our change in interpretative
methodology.” Id.
In other words, Loper Bright doesn’t wipe away the results of our prior decisions
deferring to the Board’s reasonable interpretations of what constitutes a crime involving
moral turpitude. But it does mean that any Board guidance serves only as persuasive
authority. See Lopez v. Garland, 116 F.4th 1032, 1036 (9th Cir. 2024) (“[W]e may look
to agency interpretations for guidance, but do not defer to the agency [after Loper-
Bright].”).
Fortunately, “[t]he question of whether a crime involves moral turpitude is not new,
either to the [Board] or to our court.” Ortega-Cordova v. Garland, 107 F.4th 407, 411 (4th
Cir. 2024). In answering that question for state offenses, we “apply the categorical
approach, which looks to the elements of the crime rather than the particular conduct
underlying the conviction.” Granados v. Garland, 17 F.4th 475, 481 (4th Cir. 2021)
(cleaned up). Only if “all permutations” of the alleged conduct involve moral turpitude
will we find that the offense categorically qualifies. Martinez v. Sessions, 892 F.3d 655,
658 (4th Cir. 2018).
Under this categorical framework, a crime involving moral turpitude “must involve
conduct that not only violates a statute but also independently violates a moral norm.”
Sotnikau v. Lynch, 846 F.3d 731, 735 (4th Cir. 2017) (cleaned up). “That is to say, to
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involve moral turpitude, a crime requires two essential elements: a culpable mental state
and reprehensible conduct.” Id. at 736 (cleaned up).
We turn to those elements now.
1.
Chavez maintains that Virginia’s claim-of-right defense means that petit larceny
doesn’t require a sufficiently culpable mental state to qualify as a crime involving moral
turpitude. 3 She argues—correctly—that “[t]o satisfy [the mental state] requirement, ‘the
crime must have, as an element, an intent to achieve an immoral result.’” Pet’r’s Br. at 19
(quoting Ramirez v. Sessions, 887 F.3d 693, 704 (4th Cir. 2018)). So “[c]riminally
negligent conduct” will not do. Sotnikau, 846 F.3d at 736; see also Nunez-Vasquez v. Barr,
965 F.3d 272, 283 (4th Cir. 2020).
According to Chavez, a defendant can be convicted of larceny in Virginia for
negligent conduct because she can raise the claim-of-right defense only if she mistakenly,
but reasonably, believed that the stolen property had been abandoned. By contrast, the
defense would fail if she mistakenly, but unreasonably, believed that the stolen property
had been abandoned. It’s this latter conduct—purportedly falling beyond the claim-of-
right defense—that Chavez claims is categorically negligent but still a ground to secure a
larceny conviction under Virginia law.
3 The government counters that we’ve “already recognized that ‘affirmative defenses are not considered under the categorical approach.’” Resp’t’s Br. at 34 (quoting Granados, 17 F.4th at 483). That’s wrong. We can consider affirmative defenses that negate an element of the crime because the government retains the burden of proof to show such defenses don’t apply. See Smith v. United States, 568 U.S. 106, 110 (2013).
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There’s much to unpack in Chavez’s argument, so we’ll begin with the Virginia
statute and, by extension, Virginia common law.
2.
At the time of Chavez’s conviction, Va. Code. § 18.2-96(2) provided that any person
who “[c]ommits simple larceny not from the person of another of goods and chattels of
value of less than $200 . . . shall be deemed guilty of petit larceny.” 4 The statute, however,
doesn’t define the crime of “larceny.” Instead, Virginia courts rely on the crime’s common-
law definition. See Carter v. Commonwealth, 694 S.E.2d 590, 593 (Va. 2010) (“In
Virginia, larceny is a common law crime.”).
Virginia’s common law, in turn, defines larceny as “the wrongful or fraudulent
taking of personal goods of some intrinsic value, belonging to another, without his assent,
and with the intention to deprive the owner thereof permanently.” Welch v.
Commonwealth, 896 S.E.2d 867, 870 (Va. Ct. App. 2024) (emphasis added) (quoting
Brown v. Commonwealth, 826 S.E.2d 883, 887 (Va. 2019). And Virginia courts recognize
that larceny requires a specific intent. See e.g., Saunders v. Commonwealth, 447 S.E.2d
526, 528 (Va. Ct. App. 1994).
There are several consequences to larceny’s status as a specific-intent crime. The
first is the state’s burden of proof. “It is elementary that where . . . the statute makes an
offense consist of an act combined with a particular intent, proof of such intent is as
necessary as proof of the act itself and must be established as a matter of fact.” Ridley v.
4 Subsequent amendments have raised the dollar figure to $1000.
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Commonwealth, 252 S.E.2d 313, 314 (Va. 1979). Naturally then, if the state fails to prove
intent to permanently deprive, the defendant can’t be convicted of larceny. Welch, 896
S.E.2d at 871. Given this, “[t]here can be no larceny if an accused, in good faith, believes
that the property taken belongs to him, since the essential element of intent is absent in that
circumstance.” Stanley v. Webber, 531 S.E.2d 311, 315 (Va. 2000).
Enter the claim-of-right defense, which turns on whether the accused took the
property “under a bona fide claim of right.” Butts v. Commonwealth, 133 S.E. 764, 768
(Va. 1926). Under that defense, 5 “a defendant charged with larceny may assert an ‘honest
belief’ that the property she is charged with stealing was abandoned, so long as the evidence
establishes a reasonable basis for her to have such a belief.” Welch, 896 S.E.2d at 870.
This “mistaken belief must be sincere, and not a dishonest pretense.” Id. at 870–71
(cleaned up).
Chavez latches onto the “reasonable basis” language to argue that Virginia will
convict a defendant who honestly but unreasonably believed the taken property was
abandoned. Chavez directs us to four cases for that proposition (which we’ll address in
due course), and she asserts that other states in which larceny is a common-law crime, by
contrast, “adhere[] to ‘the long-established principle that an honest belief need not be
5 Virginia has often referred to the claim-of-right defense as a “case-in-chief defense” under which the prosecution retains the burden to “prove some essential element of the charged offense.” Calokoh v. Commonwealth, 883 S.E.2d 674, 681 (Va. Ct. App. 2023) (cleaned up).
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objectively reasonable to negate the specific intent required for larceny.’” Pet’r’s Br. at
22 (quoting Commonwealth v. Liebenow (Liebenow II), 20 N.E.3d 242, 250 (Mass. 2014)).
We’ll take a closer look at Liebenow because its procedural history in arriving at
that principle is instructive.
3.
In Liebenow, the defendant took pieces of metal from a construction site, even
though the pieces were on private property with several “no trespassing” signs.
Commonwealth v. Liebenow (Liebenow I), 997 N.E.2d 109, 111 (Mass. App. Ct. 2013),
vacated, 20 N.E.3d 242 (Mass. 2014). The defendant was charged with larceny under
$250. At a bench trial, he “claimed as an affirmative defense that he lacked the requisite
specific intent to steal because he honestly believed that the metal property was
abandoned.” Id. at 110.
The trial judge found the defendant guilty, commenting that “[a]s far as [he was]
concerned, the presence of the no trespassing signs puts you on notice that the property
was not for you to take. Your honest belief at that point would not be relevant.” Id. at 111
(emphasis added).
On appeal, the question was whether the trial court erred in ignoring the defendant’s
professed honest (though mistaken) belief that the property was abandoned because that
belief wasn’t objectively reasonable. A divided panel of the Massachusetts Appeals Court
affirmed the conviction by recognizing (erroneously, it seems) that Massachusetts had long
imposed a “dual requirement of subjective honesty and objective reasonableness” for a
defendant to assert an abandonment affirmative defense. Id. at 113 (emphasis added).
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The dissent disagreed, opining that the dual requirement in the trial court’s
explanation of its guilty verdict and in the majority’s view “rest[ed] on a contrary view of
the law.” Id. at 117 (Milkey, J., dissenting). Instead, Judge Milkey reasoned that “one
cannot consciously intend to steal property that he honestly believed he had a legal right to
take,” so “[a]llowing a larceny conviction even where the defendant honestly believed that
the property had been abandoned would be tantamount to substituting mere negligence for
specific intent.” Id. at 122–23; see also id. at 124 (“[T]here is no such thing in the common
law as larceny by negligence.” (cleaned up)).
Because larceny is a specific intent crime, Judge Milkey insisted that “where a
defendant puts at issue his belief that the property he took had been abandoned,” “the [state]
must prove that the defendant ‘knew that he had no right to the property taken,’” and “not
merely that a reasonable person in the defendant’s position would have known.” Id. at 125
Judge Milkey emphasized that he was not “suggest[ing] that the objective
unreasonableness of a defendant’s professed belief would be beside the point.” Id. Rather,
“a fact finder would remain free to consider the reasonableness of a defendant’s claims,
and indicia of unreasonableness might well provide convincing evidence that a defendant’s
professed belief was not in fact honestly held.” Id.
The Massachusetts Supreme Judicial Court granted the defendant’s petition for
further appellate review in Liebenow II—the decision that Chavez cites. There, the court
largely adopted Judge Milkey’s position, holding that the trial court erred by “view[ing]
the [abandonment] affirmative defense as requiring proof that the defendant’s belief was
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objectively reasonable.” Liebenow II, 20 N.E.2d at 244. Instead, said the court, a jury
must acquit a defendant of larceny if it finds “that a defendant held an honest, albeit
mistaken, belief that he was entitled to the property he took.” Id. at 248.
The court noted, as had Judge Milkey, that “[e]vidence of reasonableness may,
however, be considered by the jury to assist in their determination whether to credit a
defendant’s honest belief.” Id. at 250. After all, “[n]either juries nor judges are required
to divorce themselves of common sense, but rather should apply to facts which they find
proven such reasonable inferences as are justified in the light of their experience as to the
natural inclinations of human beings.” Id. at 250–51 (cleaned up).
With this guidance in mind, we return to Virginia.
4.
Chavez cites four Virginia decisions that she says show that the Commonwealth has
adopted a dual requirement that a defendant’s good-faith belief in her claim of right to
property must also be objectively reasonable. Two of those cases are unpublished and,
along with a third, involve challenges to a trial court’s refusal to grant a jury instruction on
the claim-of-right defense. The fourth arises from a bench trial (like Liebenow) and is the
most recent published case on the defense. We’ll begin and end there, and because the
Supreme Court of Virginia hasn’t weighed in on this specific claim-of-right issue, we
predict how it would rule. See Sines v. Hill, 106 F.4th 341, 351 (4th Cir. 2024).
In Welch v. Commonwealth, the Virginia Court of Appeals considered whether the
trial court erred in finding Welch guilty of petit larceny after she took a computer tablet
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from a convenience store. 896 S.E.2d at 869–70. 6 Raising the claim-of-right defense,
Welch argued that she thought the tablet was lost or abandoned so “she lacked the requisite
intent for a [larceny] conviction.” Id. at 869. But the evidence also showed that Welch
had “concealed the device underneath a layer of napkins” as she left the store. Id. at 871.
The trial court rejected Welch’s claim-of-right argument, noting that under its
“understanding of the law,” the abandonment defense required two things: that “the
defendant [had] a subjectively honest belief,” and that there was “an objectively reasonable
belief that the item was, in fact, abandoned.” Transcript of Bench Trial at 41–42,
Commonwealth v. Welch, No. CR21000316 (Va. Cir. Ct. Sept. 27, 2022) (“Welch Trial
Transcript”). The court concluded that Welch “failed to establish an honest, good faith
belief that the property was lost or abandoned,” or a “reasonable basis that would support
such a belief.” 896 S.E.2d at 871.
The trial court doubted that Welch “had an honest belief that the item was, in fact,
abandoned.” Welch Trial Transcript at 42. It concluded that such a belief wasn’t “even
subjectively reasonable,” id., so it found Welch “guilty of petit larceny,” id. at 43.
On appeal, the Welch court recounted the basics of the claim-of-right defense in
Virginia: that it “requires a predicate showing of good faith, [or] a bona fide belief by the
6 The Welch court mentioned the three other cases that Chavez cites. Id. at 871 n.2 (citing Habahbih v. Commonwealth, No. 1289-12-4, 2013 WL 3833259, at *2 (Va. Ct. App. July 23, 2013), Hinnant v. Commonwealth, No. 0909-95-4, 1996 WL 227508, at *3 (Va. Ct. App. May 7, 1996), and Northcraft v. Commonwealth, 892 S.E.2d 351 (Va. Ct. App. 2023)). All three involved a challenge to a trial court’s refusal to grant a jury instruction on the claim-of-right defense. And none move the needle in the direction that Chavez wants us to go.
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taking party that she has some legal right to the property taken.” 896 S.E.2d at 871 (cleaned
up). To be “good faith” or “bona fide,” a belief must be “honest” and based on “evidence
[that] establishes a reasonable basis . . . to have such a belief.” Id. at 870 (cleaned up). By
that, the court explained that “[t]he mistaken belief must be ‘sincere,’ and not a dishonest
pretense,” or “imaginary.” Id. at 870–71 (cleaned up). “Whether asserted in good faith or
as a ‘mere pretext,’ a claim-of-right defense relies heavily on factfinding.” Id. at 871
The court of appeals concluded that “[t]he facts in this case . . . do not support
Welch’s argument that she had a good faith belief that the tablet was abandoned.” Id. But
it did so with a careful eye towards “Welch’s intent to steal,” rather than by imposing an
additional objective reasonableness requirement. Id.
To be sure, the court cited “Welch’s concealment of the tablet” as a fact supporting
“her lack of a reasonable basis to believe the device was abandoned.” Id. But it
emphasized that “the critical finding under our case law is whether the taking party had a
good faith belief that she had some legal right to take the property.’” Id. at 872 n.3 (cleaned
up) (emphases added).
5.
Chavez asserts that the “reasonable basis” language found in Virginia cases means
that “Virginia courts only permit defendants to raise a claim-of-right defense when they
had an objectively reasonable belief that they had a right to take the property in question.”
Pet’r’s Br. at 26. The government counters that Virginia courts use the “reasonable basis”
language as a threshold determination as to “whether there is sufficient evidence to allow
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an instruction on abandonment to go to the jury.” Resp’t’s Br. at 38 (quoting Welch, 896
S.E.2d at 871 n.3).
We think the government has the better of the arguments.
Agreeing with Chavez would improperly transform a recognized specific intent
crime into one that could be committed negligently. Applying a coextensive subjective
and objective inquiry, as Chavez would have us do, would cut against the published
authority from Virginia’s courts, which have reliably embraced a subjective standard. And
doing so would conflate a threshold finding for a jury instruction with the elements required
for a conviction. 7
Take Welch. Had the Virginia Court of Appeals intended to impose an objective
and subjective standard for the claim-of-right defense—or if it thought Virginia law
imposed such a standard—then it could have done so, just as the Liebenow I court did.
Instead, the Welch court emphasized that the claim-of-right defense’s center of gravity and
its “critical finding” is “whether the taking party had a good faith belief that she had some
legal right to take the property.” 896 S.E.2d at 872 n.3 (cleaned up). And the court
affirmed because the trial court made this “critical finding” that “Welch lacked a ‘good
faith belief’ that the tablet was abandoned.” Id. at 873.
7 Virginia’s model jury instruction on the claim-of-right defense doesn’t impose an objective standard or require a showing of objective reasonableness. 1 Va. Model Jury Instrs., Crim. Instr. No. 52.200 (2024) (instructing that a defendant must be found not guilty if he took the property “under a belief that he had a good faith claim of right” to take it “even though his belief was mistaken”).
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At bottom, the inquiry is a subjective one, 8 even if the trial court may look to the
reasonableness of a defendant’s subjective belief to gauge whether that belief was honestly
held. See id. at 871.
6.
Chavez next directs us to cases addressing general intent crimes that she says also
show that larceny in Virginia can be committed negligently. For example, she cites United
States v. Martin, 753 F.3d 485 (4th Cir. 2014), where we held that subsection (a) of
Maryland’s fourth-degree burglary statute—which is violated when a person “break[s] and
enter[s] the dwelling of another,” id. at 488 (quoting Md. Code Ann., Crim. Law § 6-
0295(a))—doesn’t qualify as a “crime of violence” because a “conviction under [the
statute] may be based on negligent rather than intentional conduct.” Id. at 493.
We premised that holding in part on Maryland’s defense to the burglary statute,
which requires that the perpetrator “reasonably believe[] that the owner of the premises
8 In a case that Chavez cites only glancingly, the Supreme Court of Virginia affirmed a lower court’s refusal to instruct the jury on the claim-of-right defense even though the defendant “may have subjectively believed” that the money he recovered had first been stolen from him. Pena Pinedo v. Commonwealth, 860 S.E.2d 53, 57 (Va. 2021). The high court did so because “the stolen money was itself a derivative form of contraband” from a drug sale, so, as a matter of law and policy, “[t]he record [did] not contain more than a scintilla of evidence to establish that [the defendant] had a good faith or bona fide claim of right to the stolen money.” Id. (emphasis added).
Rather than articulating a new standard for the claim-of-right defense, it appears the Supreme Court carved out a narrow (and potentially one-off) exception to the defense under which “an individual cannot have a good faith or bona fide claim of right regarding contraband, money earned from the sale of contraband, or other ‘fruits of a crime.’” Id. (cleaned up).
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would have licensed him to enter.” Id. (quotation omitted). But we explained that
“[b]ecause the defense requires a reasonable belief of permission to enter the dwelling, a
defendant who unreasonably believed that he had permission to enter would be guilty under
[the statute].” Id.
Chavez faces two problems. The first is that, unlike Virginia larceny, Maryland
fourth-degree burglary—at least in subsection (a)—isn’t a specific intent crime. Instead,
it turns on a defendant’s “general criminal intent to break and enter the dwelling.” Id.
(cleaned up). 9 And it’s “clear” that a defendant may commit fourth-degree burglary
negligently because Maryland courts have held that the statute “includes within its scope a
variety of acts, including some that are reckless or negligent.” Id. at 493–94 (emphasis
added) (quoting Bane v. State, 533 A.2d 309, 317 (Md. Ct. Spec. App. 1987)).
Put differently, Maryland courts have done for fourth-degree burglary what Virginia
courts have never done for larceny: recognized that a conviction “may be based on
negligent rather than intentional conduct.” Id. at 493. Chavez identifies no case in which
a Virginia court has held or hinted that a larceny conviction can rest on anything less than
a defendant’s intent to permanently deprive an owner of her property.
Chavez’s second problem is that Maryland’s burglary defense distinguishes only
between a reasonable and an unreasonable belief, with no inquiry into whether those beliefs
9 Other subsections in Maryland’s fourth-degree burglary statute appear to encompass specific intent crimes. See id. at 488 (describing that subsection (b) criminalizes “being in a dwelling or storehouse of another . . . with the intent to commit theft,” and that subsection (d) criminalizes “possessing burglar’s tools with intent to use”).
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are honestly held. As we’ve discussed, a Virginia fact finder may consider the
reasonableness of a defendant’s belief as evidence of whether that belief is honestly held
without transforming a specific intent crime into a criminally negligent one.
But Maryland would have no need to make such a distinction because a fourth-
degree burglary conviction doesn’t depend on evidence of the defendant’s intent. “All that
must be shown is that the perpetrator broke and entered a dwelling place of another.” Bane,
533 A.2d at 317. By extension then, the relevant question in applying the defense is simply
whether the perpetrator’s belief upon entering the premises was reasonable.
So Martin’s holding carries little water, as does Chavez’s citation to Nunez-Vasquez
v. Barr. There, we held that the defendant’s conviction for leaving the scene of an accident
wasn’t a crime involving moral turpitude because a defendant could be convicted where
she “should have known that the property was damaged by the accident.” 965 F.3d at 283
(quoting Clarke v. Galdamez, 789 S.E.2d 106, 109–10 (Va. 2016)). This “knew or should
have known standard” “suggest[ed] that a conviction under this statute would be possible
because of a defendant’s criminal negligence.” Id.
But once more, the statute underlying Nunez-Vasquez’s conviction doesn’t “require
any showing of intent, nor has the Virginia Supreme Court read an element of intent into
the statute.” Id. at 282. Thus, we explained that the statute “cannot have the required
culpable mental state to qualify as a [crime involving moral turpitude].” Id.
The circumstances here are different: larceny in Virginia does require that the state
prove a defendant’s intent to permanently deprive the owner of her property, whether the
defendant successfully raises the claim-of-right defense or not. Thus, if anything, Nunez-
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Vasquez supports that larceny’s intent element satisfies the culpable mental state required
to qualify as a crime involving moral turpitude.
7.
To sum up, Virginia has long held that “there can be no larceny of the property taken
if it, in fact, is the property of the taker, or if he, in good faith, believes it is his, for there is
lacking the criminal intent which is an essential element of larceny.” Pena Pinedo v.
Commonwealth, 860 S.E.2d 53, 56 (Va. 2021) (quoting Butts, 133 S.E. 764). None of the
cases Chavez cites change that larceny requires an intent to permanently deprive and that
this criminal intent may be negated by a good faith claim of right.
While it’s true that a fact finder in Virginia need not unreservedly accept that a
defendant’s subjective belief is held in good faith, it’s another long-held principle that a
subjective belief “must be sincere and not merely a dishonest pretext.” Id. And Virginia
courts may ensure that a defendant’s subjective belief meets this threshold showing without
transforming larceny from a specific intent crime or into a criminally negligent one.
Our job isn’t quite done. Next, we turn to Chavez’s argument that petit larceny
doesn’t require reprehensible conduct. Conduct is reprehensible if it “independently
violates a moral norm and shock[s] the public conscience as being inherently base, vile, or
depraved.” Granados, 17 F.4th at 484 (cleaned up).
Chavez contends that petit larceny doesn’t meet this test for two reasons. First, she
argues that the Board’s position that “petit larceny is reprehensible is inconsistent with
[Board] precedent” governing related crimes. Pet’r’s Br. at 30. Second, Chavez asserts
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that “Virginia petit larceny prohibits the taking of property of de minimis value—including
property worth less than a penny, . . . and society does not regard as reprehensible the
stealing of property worth a fraction of a cent.” Id. at 31 (cleaned up).
In both instances, Chavez asks that we define a larceny crime’s moral turpitude
based on the monetary value of the item taken rather than on the act of taking. We decline
to do so.
To begin, we note that petty theft offenses—like petit larceny—have consistently
been recognized as crimes involving moral turpitude. For more than eighty years, the
Board has held that theft offenses constitute a crime involving moral turpitude if the taking
includes an intent to permanently deprive. See, e.g., Matter of Diaz-Lizarraga, 26 I. & N.
Dec. 847, 849 (B.I.A 2016); Matter of Serna, 20 I. & N. Dec. 579, 582 (B.I.A 1992); Matter
of Scarpulla, 15 I. & N. Dec. 139, 140–41 (B.I.A 1974); Matter of D-, 1 I. & N. Dec. 143,
145–46 (B.I.A 1941).
And federal courts (including this one) have either found or assumed the same for
petit larceny. See e.g., Lopez, 116 F.4th at 1038; Ferreiras Veloz v. Garland, 26 F.4th 129,
131–32 (2d Cir. 2022); Granados, 17 F.4th at 478 (assuming petit larceny categorically
involves moral turpitude); Ramirez, 887 F.3d at 699 (same); Hernandez, 783 F.3d at 191
(same). What’s more, Virginia’s high court has counted petit larceny as a crime involving
moral turpitude for purposes of impeaching a witness, opining that “larceny, either grand
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or petit, is shot through with moral turpitude.” Bell v. Commonwealth, 189 S.E. 441, 443–
44 (Va. 1937). 10
After Loper Bright, we no longer defer to the Board’s reasonable interpretations in
this uninterrupted line of precedent. But we use them as a guide as we turn to Chavez’s
arguments. See Lopez, 116 F.4th at 1036; see also Loper Bright, 603 U.S. at 402.
Chavez contends that the Board’s cases on larceny crimes are logically inconsistent
because they don’t distinguish grand and petit larceny (or substantial and de minimis
takings) “from a monetary standpoint.” Pet’r’s Br. at 32. Yet, says Chavez, for other theft
crimes, the Board does “distinguish between substantial and de minimis takings from a
temporal standpoint,” holding that only permanent takings are crimes involving moral
turpitude. Id. Chavez’s description of the cases is correct, but her argument based on them
isn’t persuasive.
In this case, the Board relied on its precedent in Diaz-Lizarraga to find that “a theft
offense is categorically a crime involving moral turpitude ‘if it involves a taking or exercise
of control over another’s property without consent and with an intent to deprive the owner
of his property . . . permanently.’” J.A. 42 (citing Diaz-Lizarraga, 26 I. & N. Dec. at 853).
10 The Bell court defined a crime involving moral turpitude as “an infamous crime[,] . . . which works infamy in the person who commits it.” 189 S.E. at 444 (quotation omitted). In a later decision applying Bell, a Virginia appeals court defined “‘moral turpitude’ as ‘an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow man, or to society in general.” Chrisman v. Commonwealth, 348 S.E.2d 399, 404 (Va. Ct. App. 1986) (cleaned up).
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Even “[i]n the absence of Chevron deference,” Ramirez, 887 F.3d at 703, because Diaz-
Lizarraga is precedential, we may give the Board’s interpretation “due respect” where
appropriate, Lopez, 116 F.4th at 1039 (affording “due respect” to Diaz-Lizarraga under
Skidmore v. Swift & Co., 323 U.S. 132 (1944)). “[T]he weight given to a [Board] decision
hinges on the thoroughness evident in the [Board’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, 887 F.3d at 703 (cleaned up).
Like our Ninth Circuit colleagues, we think the Board’s interpretation in Diaz-
Lizarraga on the moral turpitude of theft “is entitled to respect.” Lopez, 116 F.4th at 1038.
As the Lopez court explained, in Diaz-Lizarraga, the Board, in interpreting a
shoplifting offense, issued a “thorough and well-reasoned” decision that is “consistent with
judicial precedent.” Id. at 1040. The Board reviewed developments in state criminal law
in all fifty states as well as “the ‘mainstream, contemporary understanding of theft’
reflected in the Model Penal Code.” Id. (cleaned up). In doing so, the Board reaffirmed
the long-accepted principle “that a theft offense categorically involves moral turpitude if
. . . it is committed with the intent to permanently deprive an owner of property.” Diaz-
Lizarraga, 26 I. & N. Dec. at 849.
Chavez complains that the Board distinguishes between substantial (or permanent)
takings and de minimis (or temporary) ones yet doesn’t do the same based on the value of
the property taken. But that would require courts to draw an artificial line on what
monetary amount is enough to trigger a finding of moral turpitude despite precedent
holding that “a taking or exercise of control over another’s property without consent is
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itself a potentially reprehensible act that is inherently base and contrary to the moral duties
owed between persons and to society in general.” Id. at 852–53.
We find no support for such line drawing, especially because neither the Board nor
federal courts have held that the value of the property taken is relevant when assessing
reprehensibility. See, e.g., Matter of Grazley, 14 I. & N. Dec. 330, 333 (B.I.A. 1973) (“The
fact that the theft may have been petty is immaterial to the question of whether or not it
involved moral turpitude.”); Soetarto v. INS, 516 F.2d 778, 780 (7th Cir. 1975) (“Theft has
always been held to involve moral turpitude, regardless of the sentence imposed or the
amount stolen.”). The Supreme Court in Loper Bright may have instructed us to review
agency interpretation with a keener eye, but it didn’t write off respect for settled, consistent,
and persuasive precedents.
We also don’t find it material that the Board may treat larceny crimes differently
from other theft crimes like joyriding or destruction of property. Even assuming that to be
true, the Board and federal courts can address these crimes again after Loper Bright without
having them control the outcome here.
In sum, while “determining whether a particular crime is . . . a ‘crime involving
moral turpitude’ is not an easy task,” Padilla v. Kentucky, 559 U.S. 356, 378 (2010) (Alito,
J., concurring), we’re satisfied, based on precedent from the Board as well as federal and
Virginia courts, that larceny crimes constitute reprehensible conduct regardless of the value
of the property taken.
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Chavez next argues that society no longer views petit larceny as reprehensible, and
that cases holding otherwise are based on outdated norms. To illustrate these evolved
societal values, Chavez provides several hypotheticals and actual examples involving
“tolerate[d]” de minimis takings (including from an episode of “The Simpsons”), Pet’r’s
Br. at 42 & n.8. And an amicus brief cites public surveys, ballot initiatives, and specific
prosecutions as evidence that petit larceny is often driven by poverty, mental illness, or
addiction rather than any evil intent, see Brief of Capital Area Immigrants’ Rights Coalition
as Amicus Curiae in Support of Petitioner, Chavez v. Bondi, No. 23-1379, at 7–23.
But the categorical approach requires us to look at a crime’s elements, not at “the
potential justifications for engaging in prohibited conduct.” Ortega-Cordova, 107 F.4th at
413. Moreover, these stray examples and even Chavez’s “argument[s] based on the robust
debate about the decriminalization of [petit larceny] do[] not indicate that the broad societal
consensus as to the immorality of [petit larceny] has been materially eroded.” Id.
As the Supreme Court reminded us in Loper Bright, our “special competence [is] in
resolving statutory ambiguities” by “exercising [our] independent legal judgment.” 603
U.S. at 400–01. Although parsing through moral standards today may be relevant in
understanding what constitutes a morally-turpitudinous crime, see Ortega-Cordova, 107
F.4th at 412–13, our fidelity is to the law as it exists. To recognize and give credit to such
an alleged normative shift in how society now views de minimis takings, we would need
clearer and more objective evidence than this record presents.
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Accordingly, we agree with the Board that Chavez’s prior conviction for petit
larceny in violation of Va. Code § 18.2-96 was for a crime involving moral turpitude.
C.
Finally, Chavez contends that the Board erred in denying her reconsideration motion
because the temporary board member who decided the motion remained in office beyond
the six-month term he could serve under federal regulations. 11 We dispose of that
challenge quickly.
In Salomon-Guillen v. Garland, 123 F.4th 709 (4th Cir. 2024), we addressed—and
rejected—a nearly identical argument against the same federal regulation. Id. at 714. In
so doing, we upheld the validity of consecutive appointments of temporary Board members
by the Attorney General. Id. at 719. That holding forecloses Chavez’s challenge and
precludes remand.
PETITION DENIED
11 The federal regulation Chavez challenges has “been amended to (1) clarify that the Attorney General appoints temporary Board members, and (2) reflect that such members are appointed for renewable terms not to exceed six months.” Salomon-Guillen v. Garland, 123 F.4th 709, 714 n.2 (4th Cir. 2024) (cleaned up).