Jose Salazar v. Merrick Garland

Citation: Not availableDocket: 21-1967

Court: Court of Appeals for the Fourth Circuit; January 2, 2023; Federal Appellate Court

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José Rafael Salazar, a native of Mexico, sought judicial review of the Board of Immigration Appeals' decision denying his petition for cancellation of removal. The Board found Salazar ineligible due to his conviction for identity theft under Virginia law, which includes "intent to defraud" as a necessary element, categorizing it as a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii). Salazar argued that the statute could be applied to non-turpitude offenses and maintained that his case did not meet this criterion. 

The court upheld the Board's decision, affirming that Salazar's actions—specifically, using a fabricated social security number to secure a loan—constituted intent to defraud, thus satisfying the moral turpitude requirement. Salazar's claim that Wells Fargo did not rely on the false social security number was rejected as the statute does not necessitate such reliance. Following his conviction, the Department of Homeland Security initiated removal proceedings, to which Salazar conceded removability but contested the characterization of his crime. Ultimately, the court denied Salazar's petition for review, confirming the Board's discretion in its ruling.

Salazar testified at an immigration hearing that he fabricated a social security number and expressed fear for his safety and his family's in Mexico due to a prior kidnapping of his sister. The immigration judge (IJ) pretermitted his application for cancellation of removal, concluding that Salazar's identity-theft conviction constituted a crime involving moral turpitude, based on Board precedent that considers fraud crimes as inherently morally turpitudinous. This determination was based on his conviction under Va. Code Ann. 18.2-186.3, which the IJ found to involve moral turpitude, specifically referencing a precedent case, Nunez-Vasquez v. Barr, which held that certain offenses under a different subsection of the same statute did not involve moral turpitude. The Board affirmed the IJ's decision, ruling that Salazar's conviction fell under subsection (A)(2), which explicitly requires intent to defraud, thereby confirming it as morally reprehensible conduct. Salazar's argument that his offense was more akin to deception was rejected. The Board's decision, which did not adopt the IJ’s reasoning, is the focus for review, and the legal determinations are analyzed de novo. Salazar contends that the statute criminalizes some non-morally turpitudinous conduct and that the Board failed to follow its own regulations by not referring his case to a three-member panel, but the reviewing authority disagrees with his claims. The review involves interpreting the meaning of "moral turpitude" within the Immigration and Nationality Act and assessing whether the Virginia statute necessarily involves morally turpitudinous conduct.

The categorical approach is employed to assess whether a state offense constitutes a crime involving moral turpitude, focusing on the statutory elements rather than the specific actions of the noncitizen. An offense qualifies as such if its elements are the same or narrower than those of a generic offense. Interpretations by a state's appellate courts shape this analysis. Divisible statutes, which outline multiple alternative elements of a crime, allow for a review of additional documents to identify the offense that underlies the conviction, although the examination remains strictly on the offense's elements.

Salazar’s conviction stems from an earlier version of Virginia's identity-theft statute, which encompasses various unlawful actions, including obtaining identification documents under false pretenses. This statute is identified as divisible, and Salazar was convicted under subsection (A)(2), a point he does not contest. The inquiry then centers on whether the conduct outlined in subsection (A)(2) is inherently morally turpitudinous.

The Immigration and Nationality Act lacks a definition for "crimes involving moral turpitude," prompting reliance on the Board's interpretation. The Board defines such crimes as those that "shock the public conscience" and require both a morally culpable mental state and morally reprehensible conduct. Specifically, the crime must involve intent to achieve an immoral result or willful disregard of substantial risk, alongside violating a moral norm.

Subsection (A)(2) of the Virginia statute satisfies these criteria because it necessitates an "intent to defraud," which the Board recognizes as indicative of moral turpitude. Salazar acknowledges this intent requirement but claims that Virginia courts interpret it more broadly, suggesting that "intent to defraud" has been construed more as "intent to deceive," which he believes dilutes the moral culpability associated with the offense.

Salazar argues that the court failed to assess whether he intended to deprive the bank of the loan funds, suggesting that the court only found he intended to deceive Wells Fargo. However, the appellate court asserts that the Virginia courts' interpretation of "intent to defraud" aligns with the Board’s understanding. Salazar's misrepresentation aimed at securing a loan constitutes intent to deprive Wells Fargo, regardless of any plans he had to make repayments. Relevant case law supports that intentions to repay do not negate fraud guilt.

Salazar's references to three 1960s Board decisions are deemed unpersuasive. The Matter of Bailie clarified that “intent to defraud” in a Kansas statute referred only to the act of drawing a check with insufficient funds, not to an intent to cheat. In Matter of Colbourne, the statute did not require “intent to defraud,” making it distinguishable. Furthermore, the Board's suggestion in Matter of Kinney that obtaining goods under false pretenses may not involve moral turpitude is questioned, as current precedent indicates that fraud is inherently linked to moral turpitude.

The Virginia appellate court's interpretation of "intent to defraud" is consistent with the Board’s view, confirming that the Virginia statute's explicit requirement of intent to defraud qualifies it as a crime involving moral turpitude. Salazar’s additional arguments, including that misleading a private individual is less severe than defrauding the government, and that he did not intend harm to others, do not undermine the court's findings. The court concluded that Salazar’s intent to defraud Wells Fargo was sufficient to affirm the moral turpitude classification, regardless of his intentions towards other parties.

Salazar's conviction under Virginia Code Ann. § 18.2-186.3(A)(2) is categorized as a crime involving moral turpitude, as it reflects intended harm to others, unlike the case of Nunez-Vasquez. The statute does not require the recipient of the identifying information to rely on it or suffer harm for the defendant's intent to defraud to be established. The focus is on the defendant’s culpable mental state rather than the victim's actions. Salazar's argument that a prior version of the statute could apply to fraudulent job applications was undermined by his conviction under a version that did not reference "money," and he failed to demonstrate a realistic probability that the statute applies in such a context. The Board's decision to deny Salazar's petition for review was upheld. Additionally, Salazar contended that the Board erred in not referring his case to a three-member panel. However, the Board's decision to streamline the case was not found to be arbitrary or capricious, as the issues presented were neither complex nor novel, and there was no evidence indicating that the moral turpitude question was recurring. Consequently, Salazar's petition was denied in its entirety.