Da Silva Neto v. Holder, Jr.

Filing

OPINION issued by Michael Boudin, Appellate Judge; David H. Souter, Associate Supreme Court Justice and Norman H. Stahl, Appellate Judge. Published. [11-1847]

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Date Filed: 05/10/2012

Entry ID: 5640332

United States Court of Appeals
For the First Circuit
No. 11-1847
JOAO PALMEIRA DA SILVA NETO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before
Boudin, Circuit Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.

Ilana Etkin Greenstein, Kaplan, Friedman & Associates, with
whom Harvey Kaplan and Jeremiah Friedman were on brief for
petitioner.
Dara S. Smith, Trial Attorney, United States Department of
Justice, Civil Division, Office of Immigration Litigation, with
whom Tony West, Assistant Attorney General, Civil Division, and
David V. Bernal, Assistant Director, Office of Immigration
Litigation, were on brief for respondent.

May 10, 2012

*

The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.

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STAHL, Circuit Judge.
question

of

whether

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Entry ID: 5640332

This appeal presents the discrete

malicious

destruction

of

property

under

Massachusetts law qualifies as a crime involving moral turpitude
(CIMT).

We conclude that it does and therefore deny the petition

for review.
I. Facts & Background
Joao Palmeira Da Silva Neto (Palmeira) is a native and
citizen of Brazil. He entered the United States without inspection
in 1994 with his wife, Maria, who is also a Brazilian citizen.
Together, the Palmeiras had two children, who are both United
States citizens.

Eventually, the Palmeiras separated.

On January

1, 2006, Maria invited Palmeira to a New Year's party at her house.
Despite the fact that Maria had a restraining order against him,
Palmeira attended the party.

He got drunk at the party and, after

initially leaving, quickly returned to Maria's house, wishing to
speak with her.

When his wife would not open the door, Palmeira

kicked it open; once inside the home, he broke some glass1 and
apparently threw some furniture.

Police officers were dispatched

to Maria's house for a report of a disturbance, and Palmeira was
arrested at the scene.

1

The police report states that the foyer and kitchen floor of
Maria's house were covered in glass when the arresting officers
arrived. During his removal hearing, Palmeira testified that he
"slapped" some glasses or bottles on a table, causing them to fall
and break, though the police report suggests that there was glass
in the door that shattered when Palmeira kicked it in.
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Palmeira

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admitted

to

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sufficient

facts

Entry ID: 5640332

to

support

a

finding of malicious destruction of property under Mass. Gen. Laws
ch. 266, § 127, with the (unfortunately incorrect) understanding
that doing so would not cause him immigration problems.

He was

sentenced to eleven months of probation and an anger management
program, both of which he completed.

On January 26, 2007, the

district court in Brockton, Massachusetts dismissed all charges
against

Palmeira.2

Nonetheless,

the

Department

of

Homeland

Security (DHS) took Palmeira into federal custody and instituted
removal proceedings against him.
Before the Immigration Court in Boston, Palmeira applied
for cancellation of removal, which "is a form of discretionary
relief,

the

granting

of

which

allows

a

non-resident

alien,

Ayeni v.

otherwise removable, to remain in the United States."

Holder, 617 F.3d 67, 70 (1st Cir. 2010); see also 8 U.S.C.
§

1229b(b).

The

Immigration

Judge

(IJ)

denied

Palmeira's

application, finding that he had not established that his removal
would cause "exceptional and extremely unusual hardship" to his
United States citizen children.

8 U.S.C. § 1229b(b)(1)(D).

Palmeira appealed to the Board of Immigration Appeals (BIA), which
granted

the

appeal

and

remanded

2

the

case

to

the

IJ

for

On April 21, 2010, Palmeira filed a motion with the state
court to vacate his conviction. Palmeira has not mentioned that
motion in his brief on appeal; we therefore can only assume that it
has not been granted.
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consideration of additional evidence that Palmeira had provided
regarding his wife's mental health and her ability to care for
their children in his absence.

The BIA also directed the IJ to

make a finding as to whether Palmeira could qualify as "a person of
good moral character" for purposes of cancellation of removal,
given his conviction for malicious destruction of property.

Id.

§ 1229b(b)(1)(B); see also id. §§ 1101(f)(3), 1182(a)(2)(A)(i)(I).
On

remand,

the

IJ

focused

on

whether

Palmeira's

conviction for malicious destruction of property prevented him from
qualifying as a person of good moral character, finding that
question to be outcome-determinative. She concluded that malicious
destruction of property under Massachusetts law is a CIMT and that
Palmeira

was

therefore

statutorily

barred

eligibility for cancellation of removal.

from

establishing

Palmeira appealed to the

BIA, which issued an opinion agreeing with the IJ's conclusion but
offering its own reasoning.

Palmeira then filed a timely petition

for review with this court, challenging the BIA's determination
that malicious destruction of property under Mass. Gen. Laws ch.
266, § 127 qualifies as a CIMT.
II. Discussion
Though

we

lack

jurisdiction

to

review

the

agency's

discretionary or factual determinations regarding an individual's
application

for

cancellation

of

removal,

see

8

U.S.C.

§ 1252(a)(2)(B); Hasan v. Holder, 673 F.3d 26, 32 (1st Cir. 2012),

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we

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retain

jurisdiction

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to

review

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"constitutional

questions of law," 8 U.S.C. § 1252(a)(2)(D).

Entry ID: 5640332

claims

or

The parties agree

that Palmeira's petition for review raises a question of law that
falls within our jurisdiction.
Where, as here, "the BIA has rendered a decision with its
own analysis of the question at issue, our review focuses on the
BIA's decision, not the IJ's."
565 (1st Cir. 2011).

Vásquez v. Holder, 635 F.3d 563,

We review the BIA's legal conclusions de

novo, but we afford Chevron deference to the BIA's interpretation
of

the

Immigration

and

Nationality

Act

(INA),

including

its

determination that a particular crime qualifies as one of moral
turpitude, unless that interpretation is "arbitrary, capricious, or
clearly contrary to law."3

Idy v. Holder, 674 F.3d 111, 117 (1st

Cir. 2012); see also Maghsoudi v. INS, 181 F.3d 8, 14 (1st Cir.
1999).
We begin with an overview of the meaning and import of
the

phrase

"crime

involving

moral

turpitude."

In

order

to

establish eligibility for cancellation of removal, an applicant
must, among other things, have "been a person of good moral
character"

during

the

ten

years

3

immediately

preceding

his

To be clear, we defer to the BIA's construction of the
"ambiguous term 'moral turpitude,'" Hernandez-Cruz v. Holder, 651
F.3d 1094, 1106 (9th Cir. 2011), not to its interpretation of the
underlying criminal statute, since "[t]he BIA has no special
expertise in construing state and federal criminal statutes," id.
at 1105-06.
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application.4

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Date Filed: 05/10/2012

8 U.S.C. § 1229b(b)(1)(B).

Entry ID: 5640332

The applicant cannot

demonstrate good moral character if he was convicted5 of a CIMT
during

that

ten-year

period.

See

id.

§§

1101(f)(3),

1182(a)(2)(A)(i)(I).
The term "moral turpitude" first appeared in a federal
immigration statute in 1891.
Cir. 1994).

Cabral v. INS, 15 F.3d 193, 194 (1st

Congress has never defined the phrase, but we have

found that "[t]he legislative history leaves no doubt . . . that
Congress left the term 'crime involving moral turpitude' to future
administrative and judicial interpretation."

Id. at 195.

We have

adopted the BIA's definition of a CIMT as "conduct that shocks the
public conscience as being inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed
between persons or to society in general," or, in other words, "an
act which is per se morally reprehensible and intrinsically wrong"
and is "accompanied by a vicious motive or a corrupt mind."
Maghsoudi, 181 F.3d at 14 (citation and internal quotation marks
omitted); see also, e.g., Matter of Silva-Trevino, 24 I. & N. Dec.

4

A cancellation of removal applicant must also establish
that: (1) he has been physically present in the United States for
a continuous period of not less than ten years; (2) he has not been
convicted of certain enumerated crimes; and (3) his removal would
result in exceptional and extremely unusual hardship to a
qualifying family member. See 8 U.S.C. § 1229b(b)(1).
5

Palmeira concedes that his admission to sufficient facts to
sustain a guilty finding, coupled with his probation sentence,
constitutes a "conviction" within the meaning of 8 U.S.C.
§ 1101(a)(48)(A).
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687, 706 (A.G. 2008) ("A finding of moral turpitude under the [INA]
requires that a perpetrator have committed the reprehensible act
with some form of scienter.").
The relatively amorphous nature of the moral turpitude
definition has led to "a patchwork of different approaches" to the
CIMT analysis among the circuit courts.

Silva-Trevino, 24 I. & N.

Dec. at 688. In Silva-Trevino, the Attorney General (AG) responded
to that patchwork by attempting "to establish a uniform framework
for ensuring that the [INA's] moral turpitude provisions are fairly
and accurately applied."

Id.

Under the first step of the AG's

three-part framework, the adjudicator must determine whether the
crime at issue categorically involves moral turpitude by examining
"whether there is a 'realistic probability, not a theoretical
possibility,'" that the criminal statute "would be applied to reach
conduct that does not involve moral turpitude."

Id. at 690

(quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). If
that

"categorical"

approach

does

not

resolve

the

issue,

the

adjudicator must then apply a "modified categorical" approach, by
examining

whether

it

"evidences a crime that in fact involved moral turpitude." Id.

If

the

the

modified

record

of

categorical

conviction

approach

to

is

determine

not

conclusive,

under

Silva-Trevino, an adjudicator should proceed to a third step, which

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involves

examining

conviction."6

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"evidence

Date Filed: 05/10/2012

beyond

the

formal

Entry ID: 5640332

record

of

Id.

Our approach to the CIMT analysis has been generally
consistent with the first two steps of the Silva-Trevino framework,
though we have not specifically applied the "realistic probability"
test.7

We have begun by looking "to the inherent nature of the

crime of conviction, as defined in the criminal statute," to
determine whether it fits the CIMT definition.

Idy, 674 F.3d at

118 (citation and internal quotation marks omitted).
we have said that "our inquiry may end there."
"the

face

of

the

statute

is

insufficient

Id.
for

us

If it does,
If, however,
to

make

a

moral-turpitude determination (e.g., if the statute contains both
crimes that involve moral turpitude and crimes that do not) then we

6

We need not decide today whether we will follow the third
step of the AG's framework, which has proven controversial. The
Third, Fourth, Eighth, and Eleventh Circuits have rejected SilvaTrevino for its suggestion that adjudicators can look beyond the
record of conviction and examine the specific facts of the offense
at issue. See Prudencio v. Holder, 669 F.3d 472, 480-84 (4th Cir.
2012); Fajardo v. U.S. Att'y Gen., 659 F.3d 1303, 1307-10 (11th
Cir. 2011); Guardado-Garcia v. Holder, 615 F.3d 900, 902 (8th Cir.
2010); Jean-Louis v. Att'y Gen. of U.S., 582 F.3d 462, 470-80 (3d
Cir. 2009). Only the Seventh Circuit has thus far adopted SilvaTrevino's third prong. See Mata-Guerrero v. Holder, 627 F.3d 256,
260-61 (7th Cir. 2010).
7

Because the parties have not briefed the issue, and it
therefore is not properly before us, we will leave for another day
the question of whether to adopt the "realistic probability" test,
as the Seventh, Ninth, and Tenth Circuits have done.
See
Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir. 2011);
Mata-Guerrero, 627 F.3d at 260; Nunez v. Holder, 594 F.3d 1124,
1129 (9th Cir. 2010).
-8-

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may look to the record of conviction — the indictment, plea,
verdict, and sentence."

Id.

The criminal statute at issue here reads as follows:
Whoever destroys or injures the personal
property, dwelling house or building of
another in any manner or by any means not
particularly described or mentioned in this
chapter shall, if such destruction or injury
is wilful and malicious, be punished by
imprisonment in the state prison for not more
than ten years or by a fine of three thousand
dollars or three times the value of the
property so destroyed or injured, whichever is
greater and imprisonment in jail for not more
than two and one-half years; or if such
destruction or injury is wanton, shall be
punished by a fine of fifteen hundred dollars
or three times the value of the property so
destroyed or injured, whichever is greater, or
by imprisonment for not more than two and
one-half years; if the value of the property
so destroyed or injured is not alleged to
exceed two hundred and fifty dollars, the
punishment shall be by a fine of three times
the value of the damage or injury to such
property or by imprisonment for not more than
two and one-half months; provided, however,
that where a fine is levied pursuant to the
value of the property destroyed or injured,
the court shall, after conviction, conduct an
evidentiary hearing to ascertain the value of
the property so destroyed or injured. The
words "personal property", as used in this
section, shall also include electronically
processed or stored data, either tangible or
intangible, and data while in transit.
Mass. Gen. Laws ch. 266, § 127.

The statute punishes both wanton

destruction of property and malicious destruction of property.
Under Massachusetts law, wanton destruction of property "requires
only a showing that the actor's conduct was indifferent to, or in

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disregard of, probable consequences."

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Commonwealth v. Armand, 580

N.E.2d 1019, 1022 (Mass. 1991). Malicious destruction of property,
on the other hand, consists of conduct that is both willful and
malicious.

See, e.g., Commonwealth v. Morris M., 876 N.E.2d 462,

465 (Mass. App. Ct. 2007).
design."

Willful "means intentional and by

Id. (citation and internal quotation marks omitted).

Malicious means that the "intentional acts were done out of
cruelty, hostility, or revenge" toward the owner of the property,
even if the defendant did not know who the owner was.
As

we

review

the

BIA's

conclusion

Id. at 466.

that

malicious

destruction of property under Massachusetts law is a CIMT, we have
no case law directly on point to guide us.8

8

The government points

Palmeira has cited three cases involving property crimes
that the BIA has concluded are not CIMTs. Each of those cases is
distinguishable because the underlying statute encompassed conduct
less severe than the willful and malicious conduct required by
Mass. Gen. Laws ch. 266, § 127. See, e.g., In the Matter of B, 2
I. & N. Dec. 867, 868 (BIA 1947) (willfully damaging mailboxes and
other property under Canadian law "may or may not involve moral
turpitude dependent upon the degree of negligence manifested"); In
the Matter of C, 2 I. & N. Dec. 716, 719 (BIA 1947) (damaging
private property under Canadian law is not a CIMT because "[t]here
is no malice involved"); Matter of M, 2 I. & N. Dec. 686, 691 (BIA
1946) (unlawful destruction of railway telegraph property under
Canadian law is not a CIMT because "the statute does not require
that the proscribed act be accompanied by a vicious or corrupt
intent").
Also distinguishable, though the parties have failed to cite
it, is the Ninth Circuit's decision in Rodriguez-Herrera v. INS, 52
F.3d 238 (9th Cir. 1995), holding that second-degree malicious
mischief under Washington law is not a CIMT. In that case, the
state statute provided that a person was guilty of malicious
mischief if he "knowingly and maliciously . . . cause[d] physical
damage to the property of another in an amount exceeding two
hundred fifty dollars."
Id. at 239 (citation and internal
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to In the Matter of M, 3 I. & N. Dec. 272 (BIA 1948), in which the
BIA found that a conviction for malicious destruction of property
under Oregon law qualified as a CIMT. In that case, the petitioner
had slaughtered another man's hogs with an axe.

Id. at 273.

The

BIA emphasized that the Oregon statute "require[d] a motive . . .
manifested by the elements of malice and wantonness." Id. at 274.
Drawing on that language, the government reads Matter of M as
standing for the broad principle that destruction of property is
always a CIMT where a showing of malicious intent is required. But
Matter of M

predated the categorical approach; the BIA thus

ultimately looked at the particular facts of the petitioner's crime
and determined that it was base, vile, and depraved.

Id.

Today,

under the categorical approach, we must examine only the inherent
nature of the criminal statute; "the particular circumstances of
[the defendant's] acts and convictions" are off-limits. Maghsoudi,
181 F.3d at 14.

Because the BIA's holding in Matter of M was

quotation marks omitted).
"Maliciously" was defined under
Washington law as "import[ing] an evil intent, wish, or design to
vex, annoy, or injure another person." Id. (citation and internal
quotation marks omitted). Importantly, however, malice could also
"be inferred if the act [was] merely wrongfully done without just
cause or excuse," id. at 240 (citation and internal quotation marks
omitted), which led the Ninth Circuit to conclude that the statute
might apply to "pranksters with poor judgment," id. That is not
the case here. The Massachusetts courts have explicitly held, with
regard to violations of Mass. Gen. Laws ch. 266, § 127, that malice
cannot be "inferred from the wilful commission of an unlawful act
without excuse." Morris M., 876 N.E.2d at 465. "In addition to
the intent to inflict injury to property, the crime requires a
state of mind infused with cruelty, hostility or revenge."
Commonwealth v. Redmond, 757 N.E.2d 249, 252 (Mass. App. Ct. 2001).
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dependent upon the facts of that case, and the BIA was not
purporting

to

decide

that

malicious

destruction

of

property

categorically involves moral turpitude, we find Matter of M to be
of limited value.
Against that backdrop, we turn to the BIA's decision in
this case.

The BIA began by applying the categorical approach and

determined that Mass. Gen. Laws ch. 266, § 127 is a divisible
statute, because it punishes both malicious and wanton destruction
of property.

The BIA found that wanton destruction of property is

not categorically a CIMT, because it may be done with indifference
or recklessly.

The BIA then moved to the modified categorical

approach, examined Palmeira's record of conviction, and determined
that his conviction was of the malicious variety (a finding that
Palmeira does not contest).

Because, under Massachusetts law, a

malicious act must be done with "a state of mind of cruelty,
hostility or revenge," Morris M., 876 N.E.2d at 465 (citation and
internal quotation marks omitted), the BIA agreed with the IJ that
malicious destruction of property is a CIMT.

The BIA cited two of

its cases standing for the proposition that "an analysis of an
alien's intent is critical to a determination regarding moral
turpitude."

In re Fualaau, 21 I. & N. Dec. 475, 478 (BIA 1996);

see also Matter of Franklin, 20 I. & N. Dec. 867, 868 (BIA 1994)
("Among the tests to determine if a crime involves moral turpitude

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is whether the act is accompanied by a vicious motive or a corrupt
mind.").
The

BIA's

analysis

could

certainly

have

been

more

thorough, but the agency did not reach an unreasonable conclusion.
Idy, 674 F.3d at 117.

Palmeira's primary argument on appeal is

that "there is no requirement [under Mass. Gen. Laws ch. 266,
§ 127] that [the defendant] have malice toward the owner of the
property nor toward any other person," and hostility toward an
inanimate

object

turpitudinous.
contradicts

is

not

enough

Massachusetts

Palmeira's

claim.

to

case
The

render
law,

a

crime

however,

Massachusetts

morally
directly

courts

have

required evidence of an act "by design hostile to the owner (even
if unknown) of the property," meaning that the defendant need not
know the owner's identity but must be motivated by "cruelty,
hostility, or revenge" toward an individual, not just an inanimate
object.

Morris M., 876 N.E.2d at 466 (finding insufficient

evidence

to

establish

that

the

defendant

was

"motivated

by

hostility, cruelty, or vengeance toward [the property's] owner");
see also, e.g., Commonwealth v. Tawfik, No. 04-P-1411, 2005 WL
2400286, at *2 (Mass. App. Ct. Sept. 29, 2005) (finding that the
defendant's charged acts were "committed with the requisite malice"
because they "were motivated by hostility toward the [property
owner]"); Commonwealth v. McGovern, 494 N.E.2d 1298, 1301 (Mass.
1986)

(finding

sufficient

evidence

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that

"the

defendant's

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destructive

acts

.

.

.

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were

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hostile

to

the

owner

Entry ID: 5640332

of

the

[property]"). A mindset of "cruelty, hostility, or revenge" toward
an individual satisfies the "vicious motive or . . . corrupt mind"
requirement of the CIMT definition.

Maghsoudi, 181 F.3d at 14.

Of course, in order to qualify as a CIMT, malicious
destruction of property must also involve an act that is "per se
morally reprehensible and intrinsically wrong." Id. This statute,
unlike others we have examined in the CIMT context, does not
require any risk of physical harm to another person, which can
render conduct inherently reprehensible.
(reckless

conduct

under

New

See Idy, 674 F.3d at 119

Hampshire

law

"is

necessarily

reprehensible because its definition includes an aggravating factor
— 'serious bodily injury'"); Nguyen v. Reno, 211 F.3d 692, 695 (1st
Cir. 2000) (assault in the second degree under Connecticut law is
a

CIMT

because

it

requires

"serious

physical

injury");

cf.

Maghsoudi, 181 F.3d at 14-15 (indecent assault under Massachusetts
law is a CIMT); Cabral, 15 F.3d at 195-97 (being an accessory after
the fact to voluntary murder under Massachusetts law is a CIMT).
Nor does the crime involve fraudulent conduct.

See Jordan v. De

George, 341 U.S. 223, 232 (1951) ("The phrase 'crime involving
moral turpitude' has without exception been construed to embrace
fraudulent conduct.").

But Palmeira has given us no reason to

doubt the BIA's conclusion that an intentional, destructive act
committed with malice (that is to say, out of cruelty, hostility,

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or revenge) toward an individual is necessarily "reprehensible" and
thus satisfies the CIMT definition.

Maghsoudi, 181 F.3d at 14.

Indeed, the cases Palmeira has cited as involving acts
that do not, in his opinion, rise to the level of a CIMT only
underscore the reasonableness of the BIA's decision.

In McGovern,

the defendant broke into a parking lot booth, was observed "tearing
it apart," and caused extensive damage, including breaking a
window, knocking in a door, pulling electrical wiring off the
ceiling of the booth, and throwing various items onto the street.
494 N.E.2d at 1299.

In Commonwealth v. Cimino, 611 N.E.2d 738

(Mass. App. Ct. 1993), the defendant went on a "shooting round,"
during which he and a group of his friends took turns shooting a BB
gun at (and thereby breaking) the windows of seventeen parked cars,
id.

at

740.

Because

the

defendant

and

his

accomplices

had

deliberately "aimed the BB pistol and hit their targets," the court
found the crime "wilful and malicious."

Id. at 741.

The conduct

at issue in McGovern and Cimino could reasonably be classified as
"morally reprehensible and intrinsically wrong."

Maghsoudi, 181

F.3d at 14; see also Idy, 674 F.3d at 117.
One can certainly argue that destroying property, even
with an evil mindset, is not necessarily "base, vile, or depraved"
behavior, or the sort of crime that should render an individual
deportable.

But that determination is not ours to make on a de

novo basis; we must defer to the BIA's conclusion that a crime

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involves moral turpitude if that conclusion "is neither arbitrary
nor contrary to law." Idy, 674 F.3d at 119. Malicious destruction
of

property

in

Massachusetts

requires

"gratuitous,

excessive

violence purposefully designed to intimidate and overpower, or
destructive acts that were by design and hostile to the owner of
the property, whoever that may have been."

Commonwealth

v.

Redmond, 757 N.E.2d 249, 253 (Mass. App. Ct. 2001) (internal
citation and quotation marks omitted).

That is a high bar; the

BIA's conclusion that such conduct necessarily implicates moral
turpitude was "neither arbitrary nor contrary to law."

Idy, 674

F.3d at 119.
III. Conclusion
We find no particular satisfaction in our conclusion
today.

It is unfortunate that Palmeira admitted to sufficient

facts to support a finding of malicious destruction of property
under the misapprehension that doing so would allow him to avoid
the very immigration consequences that he now faces.

There is

also, as the BIA recognized, a real potential for hardship in this
case, given that Palmeira has two United States citizen children
who may soon be separated from their father. But because the BIA's
conclusion was a reasonable interpretation of the INA, we deny
Palmeira's petition for review.

Id.

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