Roberto Belong v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 3, 2024
• Docket: 22-1141
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1141

ROBERTO MARIO BELONG,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted: November 17, 2023 Decided: January 3, 2024

Before DIAZ, Chief Judge, and WILKINSON and HEYTENS, Circuit Judges.

Petition for review granted, order vacated, and remanded with instructions by unpublished opinion. Judge Heytens wrote the opinion, in which Chief Judge Diaz joined. Judge Wilkinson wrote a dissenting opinion.

ON BRIEF: Eric H. Singer, LAW OFFICE OF ERIC SINGER, LLC, Washington, D.C.; Timothy W. Davis, LAW OFFICE OF TIMOTHY W. DAVIS, LLC, Baltimore, Maryland, for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney General, Daniel E. Goldman, Senior Litigation Counsel, Rebecca Hoffberg Phillips, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

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TOBY HEYTENS, Circuit Judge:

A provision of Delaware law—which we will call Section 907(1)—makes it a

misdemeanor to “impersonate[] another person and do[] an act in an assumed character

intending to obtain a benefit or to injure or defraud another person.” Del. Code Ann. tit. 11,

§ 907(1). The question here is whether that offense is a crime involving moral turpitude

under the Immigration and Nationality Act. Because under this Court’s precedent the

answer is no, we grant the petition for review, vacate the Board of Immigration Appeals’

order, and remand for further proceedings.

I.

Roberto Belong came to the United States from Suriname with his parents when he

was 10 years old. He entered on a visitor’s visa, which he admits has long since expired.

Belong now has three children of his own, all United States citizens.

In 2014, the Department of Homeland Security sent Belong a notice to appear,

alleging he overstayed his visa. Belong conceded he was removable and sought

cancellation of removal. The government moved to dismiss Belong’s application, arguing

he was ineligible for relief because he had been convicted of several crimes involving moral

turpitude. See 8 U.S.C. §§ 1227(a)(2)(A)(i), 1229b(b)(1)(C) (generally making the absence

of such convictions a requirement for cancellation of removal). The motion identified two

Delaware convictions for violating Section 907(1)—although it later became clear Belong

had been convicted under the statute four times—and a single conviction for violating a

Maryland trademark counterfeiting law.

An immigration judge granted the government’s motion, concluding both offenses

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were crimes involving moral turpitude. The Board of Immigration Appeals upheld that

ruling based solely on Belong’s Section 907(1) convictions. As a result, only the

Section 907(1) question is before us. See, e.g., Ngarurih v. Ashcroft, 371 F.3d 182, 188 (4th

Cir. 2004) (“Where, as here, the BIA did not adopt the IJ’s opinion but offered its own

reasons for denying relief, we review the BIA’s order rather than the IJ’s ruling.”).

II.

This appeal turns on a discrete question of statutory interpretation: Is a violation of

Section 907(1) a “crime involving moral turpitude” under 8 U.S.C. § 1227(a)(2)(A)(i)?

Under this Court’s binding precedent, the answer is no.

A.

We begin with our standard of review. Deciding whether a particular state-law

offense is a crime involving moral turpitude involves “two interpretive questions, one about

the Immigration and Nationality Act (INA) and one about [the] state criminal statute.”

Ramirez v. Sessions, 887 F.3d 693, 701 (4th Cir. 2018).

Question one: What does the term moral turpitude mean in the INA? See Ramirez,

887 F.3d at 702. On that issue, we grant Chevron deference “to the agency’s reasonable

construction of the term and definition of the types of conduct it encompasses.” Id.;

accord INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (holding Board decisions are

eligible for Chevron deference). The Board understands crimes involving moral turpitude

as having “two essential elements: a culpable mental state and reprehensible conduct.”

Matter of Ortega-Lopez, 26 I. & N. Dec. 99, 100 (B.I.A. 2013). This Court has deferred to

that definition. See Ramirez, 887 F.3d at 704. “To meet the mens rea requirement, the crime

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must have, as an element, an intent to achieve an immoral result or willful disregard of an

inherent and substantial risk that an immoral act will occur.” Id. (citing Matter of Perez-

Contreras, 20 I. & N. Dec. 615, 619 (B.I.A. 1992)). “To meet the actus reus requirement,

the crime must involve conduct that not only violates a statute but also independently

violates a moral norm.” Id. (quotation marks removed). And because the question is

whether a particular offense—rather than a defendant’s conduct—is a crime involving

moral turpitude, the statute at issue must “exclusively criminalize knowing or intentional

acts that violate a moral norm.” Id.

“The second interpretive question is whether the state statute of conviction

necessarily involve[s] the type of conduct defined to be morally turpitudinous.” Ramirez,

887 F.3d at 702. Because the Board has neither been charged with nor has any special

expertise in interpreting state statutes, “we do not owe any deference to the” Board on this

front. Id. Instead, we ask whether “the minimum conduct needed to violate” Section 907(1)

inherently involves “moral turpitude” as that term has been understood by the Board and

this Court. Id. at 704. “To answer this question, we apply the categorical approach, which

examines only the statutory elements of the prior offense, not the particular conduct

underlying the conviction.” Id. at 703.

B.

The parties agree the relevant prior offense here is a violation of Section 907(1).

That statute says:

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A person is guilty of criminal impersonation when the person:

(1) Impersonates another person and does an act in an assumed character intending to obtain a benefit or to injure or defraud another person[.]

Del. Code Ann. tit. 11, § 907(1).

We hold this statute does not create a crime involving moral turpitude. Even if

Section 907(1) satisfies the mens rea requirement, it reaches conduct this Court has held is

insufficiently “morally reprehensible” to satisfy the actus reus requirement. Ramirez,

887 F.3d at 704.

This Court’s decision in Nunez-Vasquez v. Barr, 965 F.3d 272 (4th Cir. 2020),

controls this case. Nunez-Vasquez involved a Virginia statute making it “unlawful for any

person to use identification documents or identifying information of another person,

whether that person is dead, or alive, or of a false or fictitious person, to avoid summons,

arrest, prosecution, or to impede a criminal investigation.” Id. at 284 (quoting Va. Code

Ann. § 18.2-186.3(B1)). This Court held that statute was not a crime involving moral

turpitude because “[t]he least culpable conduct” it “criminalized” was “not morally

reprehensible.” Id. The Court gave two reasons for this conclusion: because someone could

violate the statute by “misleading a private person” and because the statute did “not require

a perpetrator to use the name of an actual”—rather than a fictitious—“person.” Id.

The text of Section 907(1) closely tracks the Virginia statute at issue in Nunez-

Vasquez. To “use identification documents or identifying information of another person,”

Va. Code Ann. § 18.2-186.3(B1), is to “[i]mpersonate[] another person and do[] an act in

an assumed character,” Del. Code Ann. tit. 11, § 907(1). And having the intent “to avoid

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. . . arrest,” Va. Code Ann. § 18.2-186.3(B1), satisfies Section 907(1)’s requirement of

acting with an intent “to obtain a benefit.” See Evans v. State, 212 A.3d 308, 313 (Del.

Super. Ct. 2019) (stating an intent of “avoiding arrest on outstanding warrants” has “long

been understood as sufficient” to satisfy the statute’s “to obtain a benefit” element).

The government offers two arguments why Nunez-Vasquez does not control here.

Neither is persuasive.

First, the government insists that, unlike the law at issue in Nunez-Vasquez,

Section 907(1) requires proof of “fraudulent intent.” U.S. Br. 28. But the government

ignores that Section 907(1) “speaks in the disjunctive.” Carolina Youth Action Project v.

Wilson, 60 F.4th 770, 786 (4th Cir. 2023). Under Section 907(1), the government can

prevail by showing the defendant “intend[ed] to obtain a benefit or to injure or defraud

another person.” Del. Code Ann. tit. 11, § 907(1) (emphasis added). We see no reason to

doubt that here—as usual—“or” really means “or.” And that brings us right back to Nunez-

Vasquez: Because intent to “avoid[ ] arrest” qualifies as intent to “obtain a benefit” under

Section 907(1), see Evans, 212 A.3d at 313, a violation can be shown via proof of the same

intent required to sustain a conviction under the Virginia statute in Nunez-Vasquez,

see 965 F.3d at 284 n.6.

Second, the government asserts Section 907(1) differs materially from the Virginia

statute in Nunez-Vasquez because a person cannot violate Section 907(1) without assuming

the identity of a real person. To be sure, the Nunez-Vasquez Court said one reason the

Virginia statute reached insufficiently reprehensible conduct is because it did “not require

a perpetrator to use the name of an actual person.” 965 F.3d at 284. But it is unclear whether

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that fact was necessary to the outcome in Nunez-Vasquez. And regardless of the answer to

that question, we cannot say with any confidence the same fact is not present here.

To begin, it is uncertain whether the lack of a real-person requirement was essential

to Nunez-Vasquez’s holding. As noted earlier, Nunez-Vasquez identified two reasons for

concluding “[t]he least culpable conduct” reached by the Virginia statute was “not morally

reprehensible”—the first of which was that “an individual [could] violate the statute by

misleading a private person.” 965 F.3d at 284. This Court has acknowledged that deceiving

a private person can sometimes be a crime of moral turpitude. See, e.g., Salazar v. Garland,

56 F.4th 374, 379 (4th Cir. 2023). But Nunez-Vasquez explained such crimes must involve

“harm to others” to qualify, and it concluded that deceiving a private person with the intent

to evade arrest did not involve the requisite degree of harm. 965 F.3d at 284 n.8.

Section 907(1) requires no greater showing of harm than the Virginia statute in

Nunez-Vasquez. True, most Section 907(1) charges seem to stem from interactions with law

enforcement. See, e.g., Carney v. State, No. 47-2007, 2007 WL 2254543, at *1 (Del. Aug.

7, 2007). But nothing in the statutory text excludes those who mislead private individuals,

and the government never denies Section 907(1) can be violated by deceiving a private

person. See, e.g., Lloyd v. State, No. 207-1996, 1996 WL 608456, at *1 (Del. Oct. 15, 1996)

(defendant used another person’s credit card and signed the victim’s name). And, as with

the Virginia statute, even deception motivated by an intent to evade arrest violates the

Delaware law.

The Nunez-Vasquez Court never said whether the two features it identified—the

ability to violate the Virginia statute by deceiving a private person and the lack of a real-

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person requirement—were both necessary to its holding. But we need not resolve that

question because we conclude that, at least at the time of Belong’s convictions, there was

a “realistic probability” a person could be convicted of violating Section 907(1) without

misappropriating a real person’s identity. Nunez-Vasquez, 965 F.3d at 283.

The government disputes this point, citing a 2019 decision of the Delaware Superior

Court holding that Section 907(1) requires proof the defendant impersonated an actual

person. See Evans, 212 A.3d at 310–11. But that decision post-dates Belong’s last

Section 907(1) conviction by more than seven years, and the Evans court acknowledged

that “Delaware practitioners and jurists” had long “assumed that the State need only prove

that one gave a false name to be convicted.” Id. at 310. * Indeed, the limited pre-Evans

authority we have been able to locate suggests that Section 907(1) has—in fact—been

applied to defendants who impersonated fictitious people. See, e.g., Crosby v. State, 824

A.2d 894, 896 (Del. 2003) (per curiam) (defendant named Chris Crosby used name “John

Crosby”); Jackson v. State, No. 287-2004, 2004 WL 68803, at *1 (Del. Jan. 13, 2004)

(defendant named St. Clair Jackson used name “St. Clair Parsons”).

The Delaware courts, of course, have “the final word about what a state law means.”

Colorado Bankers Life Ins. Co. v. Academy Fin. Assets, LLC, 60 F.4th 148, 153 (4th Cir.

2023); see generally Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). But that power belongs

* We reject the government’s assertion that Belong failed to exhaust an argument about Evans’s timing. The exhaustion requirement applies to “bases for relief ” and “general issues” that were not raised below, but not to “specific, subsidiary legal arguments” or “arguments by extension” to those already made. Ramirez, 887 F.3d at 700. Belong asked the Board to hold he was eligible for cancellation of removal because Section 907(1) was not a crime involving moral turpitude. Nothing more was required. 8 USCA4 Appeal: 22-1141 Doc: 55 Filed: 01/03/2024 Pg: 9 of 14

exclusively to the highest court of a state, see Commissioner of Internal Revenue v. Estate

of Bosch, 387 U.S. 456, 465 (1967), and the Delaware Supreme Court has not spoken on

this question. We thus need not decide how we would proceed if the state’s highest court

issued a decision altering the prevailing understanding of the statute’s elements after

Belong’s convictions but before his removal proceedings. Cf. United States v. Cornette,

932 F.3d 204, 214–15 (4th Cir. 2019) (analyzing similar question under the Armed Career

Criminal Act and suggesting the intervening decision should not be considered); Matter of

Velasquez-Rios, 27 I. & N. Dec. 470, 474 (B.I.A. 2018) (looking to the pre-amendment

version of a state statute when the statute had been amended between the time of the

defendant’s conviction and later removal proceedings). We hold only that—under the

specific circumstances here—there is a “realistic probability” that Section 907(1) could

have been applied to conduct Nunez-Vasquez holds is not enough to constitute a crime

involving moral turpitude. 965 F.3d at 283.

We acknowledge the Third Circuit concluded in an unpublished opinion that

Section 907(1) “falls well within the recognized definition of crimes involving moral

turpitude” because, “in each instance [the defendant] intentionally engages in dishonest or

fraudulent conduct.” Perez-Cobon v. Attorney Gen. U.S., 816 Fed. Appx. 718, 722 (3d Cir.

2020) (alterations and quotation marks removed). But the Third Circuit did not elaborate

on the basis for that conclusion, and, in any event, that panel was not bound by this Court’s

published decision in Nunez-Vasquez. We try to avoid reaching a different conclusion than

our sister circuits whenever possible. At the same time, we are bound by the rule that “one

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panel cannot overrule another,” McMellon v. United States, 387 F.3d 329, 333 (4th Cir.

2004) (en banc), and we follow that mandate here.

* * *

Belong may well be the sort of person Congress wanted to disqualify from eligibility

for cancellation of removal. But under this Court’s well-established approach to these

matters, we cannot consider Belong’s individual conduct. Because Section 907(1) reaches

the type of conduct this Court held was insufficient in Nunez-Vasquez, that statute does not

qualify as a crime involving moral turpitude either. The petition for review is granted, the

order of the Board of Immigration Appeals is vacated, and the case is remanded for further

proceedings consistent with this opinion.

SO ORDERED

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WILKINSON, Circuit Judge, dissenting:

My distinguished friends in the majority note that petitioner “may well be the sort

of person Congress wanted to disqualify from eligibility for cancellation of removal.” What

a deft piece of understatement. The petitioner here has shown a penchant for using false

identification in violation of Delaware’s law against criminal impersonation. He now seeks

to cancel his removal from the United States. But those who have committed crimes

involving moral turpitude are not permitted to stay. Delaware criminal impersonation is

categorically just such a crime, and so I would deny the petition for cancellation.

Petitioner was convicted four times under Title 11, § 907(1) of the Delaware Code,

which makes it a crime to “[i]mpersonate[] another person and . . . act in an assumed

character intending to obtain a benefit or to injure or defraud another person.” The least

culpable conduct—impersonating another to obtain a benefit—involves the requisite

reprehensible conduct to qualify as a crime involving moral turpitude because fraud is

inherent in the offense. And “crimes in which fraud [is] an ingredient have always been

regarded as involving moral turpitude.” Kporlor v. Holder, 597 F.3d 222, 225 (4th Cir.

2010).

That criminal impersonation involves fraud is breathtakingly clear. Indeed, the

statute is even found under a subpart titled, “Other Frauds and Cheats.” And to violate the

statute, the petitioner not only had to assume the identity of another person, see Evans v.

State, 212 A.3d 308, 310–11 (Del. Super. Ct. 2019), he had to do so for the purpose of

obtaining a benefit. Contrary to the majority’s position, this deplorable conduct involves

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fraud just as assuming a person’s identity to injure or defraud someone invariably does.

See Perez-Cobon v. Att’y Gen., 816 F. App’x 718, 721 (3d Cir. 2020).

Petitioner’s reliance on Nunez-Vasquez v. Barr, 965 F.3d 272 (4th Cir. 2020), is

misplaced. He argues that our recognition that the use of false identification there was not

enough to find moral turpitude means that a violation of § 907(1) is insufficient to preclude

cancellation of his own removal. But we have also recognized that, as here, such “fraud

can provide the basis for a finding of moral turpitude.” Salazar v. Garland, 56 F.4th 374,

379 (4th Cir. 2023) (distinguishing Nunez-Vasquez to find that Virginia identity theft was a

crime involving moral turpitude because “crimes in which fraud was an ingredient have

always been regarded as involving moral turpitude”). And all violations of § 907(1)

inherently involve fraud.

The Supreme Court has noted that courts have, “without exception,” included fraud

crimes as “within the scope of moral turpitude.” Jordan v. De George, 341 U.S. 223, 229,

(1951). And we have done the same. Kporlor, 597 F.3d at 225 (“[C]rimes in which fraud

was an ingredient have always been regarded as involving moral turpitude.”) (quoting

Jordan, 341 U.S. at 232); Lasri v. Barr, 764 F. App’x 382, 383 (4th Cir. 2019) (per curiam)

(same); Babafunmi v. United States, 210 F.3d 360, *1 (4th Cir. 2000) (table decision)

(“Crimes of fraud have generally been held to involve moral turpitude.”); see also Ramirez

v. Sessions, 887 F.3d 693, 698 (4th Cir. 2018), as amended (June 7, 2018) (“[O]bstruction

of justice . . . is not a [crime involving moral turpitude] because it may be committed

without fraud, deception, or any other aggravating element that shocks the public

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conscience.”). I do not think the majority is free to ignore this long line of consistent

precedent.

Indeed, the Third Circuit—which has jurisdiction over the State of Delaware—has

already determined that § 907(1) constitutes a crime involving fraud, and hence, moral

turpitude. See Perez-Cobon, 816 F. App’x at 721. That’s because, “[w]hether a person

impersonates another to ‘obtain a benefit,’ ‘injure,’ or ‘defraud,’ in each instance that

person intentionally engages in dishonest or fraudulent conduct.” Id. Petitioner criticized

the Third Circuit’s lack of explanation for its moral-turpitude finding, but no great

explanation was needed when the answer is so obvious. The Tenth Circuit has held that

Colorado’s similar impersonation statute was a crime involving fraud, and hence, moral

turpitude for the same reason. Beltran-Rubio v. Holder, 565 F. App’x 704 (10th Cir. 2014).

The majority thus creates a clear circuit conflict. But uniformity in immigration law

has always been important. Uniformity ensures that all individuals unlawfully residing in

the United States are treated the same way and avoids favoring immigrants living in some

regions of America over immigrants living in others. Yet the majority stakes out a position

of disunity in a field that veritably cries out for accord.

We are one country, and removal from its sovereign borders should be governed by

one law. The law here is as straightforward as it is longstanding. Crimes that involve

fraudulent conduct likewise involve moral turpitude. Petitioner was convicted not once,

not twice, but four times for criminal impersonation. If this is not fraudulent and

turpitudinous, then I cannot fathom what is.

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With all respect to two fine colleagues, I would uphold the Board and deny the

petition.