Cancellation of removal doomed by conviction

Where the Board of Immigration Appeals determined a native and citizen of Mexico was ineligible for cancelling his removal because he had been convicted of identity theft under Virginia law, and that was a crime of moral turpitude, it did not err. The statute explicitly requires an “intent to defraud,” and crimes that require intent to defraud are crimes involving moral turpitude.

Background

José Rafael Salazar, a native and citizen of Mexico, seeks review of the denial of his petition for cancellation of removal. The Board of Immigration Appeals determined that Salazar was ineligible because he was convicted of a crime involving moral turpitude: identity theft under Virginia law, which explicitly includes “intent to defraud” as an element. On appeal, Salazar contends the statute could be — and in his case, was — applied to crimes that don’t involve moral turpitude.

Moral turpitude

Salazar was convicted in a bench trial of violating Va. Code Ann. § 18.2- 186.3(A)(2), the state’s identity-theft statute, which at the relevant time provided: “It shall be unlawful for any person, without the authorization or permission of the person or persons who are the subjects of the identifying information, with the intent to defraud, for his own use or the use of a third person, to … [o]btain goods or services through the use of identifying information of such other person.” This court is thus tasked with determining whether all the conduct prohibited by subsection (A)(2), including the least culpable conduct, is morally turpitudinous.

The Board has defined a crime involving moral turpitude as one involving conduct that “shocks the public conscience as being inherently base, vile, or depraved.” This definition has two parts: a morally culpable mental state and morally reprehensible conduct. The Board held that subsection (A)(2) met both requirements because it explicitly requires an “intent to defraud,” and “[c]rimes that require intent to defraud are also crimes involving moral turpitude.”

Salazar doesn’t dispute that “intent to defraud” is an element of the statute. But he argues that Virginia courts have interpreted the element more broadly than the Board, pointing to his own state appellate court case as a prime example. In his case, he contends, the Court of Appeals interpreted “intent to defraud” — which involves an intent to “cheat or deprive a person of his property” — as something more akin to “intent to deceive,” which involves an intent to merely lie to the victim. He claims that because the court didn’t consider whether Salazar “intended to deprive the bank of the money it lent him,” it at most found that he intended to deceive Wells Fargo.

The court disagrees that the Virginia courts’ interpretation of “intent to defraud” diverges from the Board’s. Salazar didn’t intend to “merely lie” to Wells Fargo: His misrepresentation had the material end of obtaining a loan. Even if Salazar planned to make his loan payments, he still meant to “deprive” the bank of the loan funds by way of deception. So the appellate court’s interpretation of “intent to defraud” in Salazar tracks the Board’s understanding of the term: The court found that Salazar intended to use deceit to deprive Wells Fargo of loan funds.

Salazar’s citations to three 1960s Board decisions are unpersuasive. And while Salazar offers several further arguments that the least of the acts criminalized by subsection (A)(2) doesn’t involve moral turpitude, none are availing. Because the Board didn’t err in finding that Salazar’s conviction for Va. Code Ann. § 18.2-186.3(A)(2) is categorically a crime involving moral turpitude, this court denies his petition for review as to this issue.

Panel

Salazar argues that the Board erred by failing to refer his case to a three-member panel. A case “may only be assigned for review” by a panel if it presents at least one of seven circumstances. Salazar argues that his case implicates one of those circumstances: “The need to resolve a complex, novel, unusual, or recurring issue of law or fact.”

This court finds no abuse of discretion in the Board’s decision to assign this case to a single-member panel. The issue was not “complex, novel, or unusual”: It was squarely resolved by the Board’s precedent for crimes with “intent to defraud” as an element. The Board considered (and was unpersuaded) by the argument that Salazar’s offense was “more akin to deception than fraud,” this court agrees with its conclusion. Nor is there evidence that the relatively narrow issue of whether subsection (A)(2) of the Virginia statute involved moral turpitude is a “recurring” question before the Board.

Petition denied.

Salazar v. Garland, Case No. 21-1967, Jan. 3, 2023. 4th Cir. (Diaz), from Board of Immigration Appeals. Benjamin Ross Winograd for Petitioner. Robbin Kinmonth Blaya for Respondent. VLW 023-2-002. 13 pp.