Mauricio Vilchiz-Bello v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Mauricio Vilchiz-Bello. Decision: Affirmed. Petition Denied. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 09/25/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16764
Non-Argument Calendar
________________________
Agency No. A200-615-657

MAURICIO VILCHIZ-BELLO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 25, 2017)
Before TJOFLAT, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.
PER CURIAM:

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Petitioner Mauricio Vilchiz-Bello, a native and citizen of Mexico, petitions
for review from the Board of Immigration Appeals’s (“BIA”) final order affirming
the decision of the Immigration Judge (“IJ”). On appeal, Petitioner argues that his
conviction for criminal use of personal identification information under Florida
Statute § 817.568(2)(a) does not categorically qualify as a crime involving moral
turpitude. After careful review, we deny the petition for review.
I.

BACKGROUND
Petitioner first entered the United States without admission or inspection in

1998. He departed the United States voluntarily in October 2010, but later reentered in January 2011, again illegally, without being admitted or paroled. In
April 2011, Petitioner was convicted in Arizona of solicitation to commit
smuggling.
The Department of Homeland Security (“DHS”) subsequently issued
Petitioner a notice to appear (“NTA”), charging him as removable (1) under
8 U.S.C. § 1182(a)(6)(A)(i), for being present in the United States without being
admitted or paroled, and (2) under 8 U.S.C. § 1182(a)(2)(A)(i)(I), because he was
convicted of a crime involving moral turpitude.
At a hearing before the IJ, Petitioner conceded removability as an alien
present in the United States without admission or parole, but denied that he was
removable for having committed a crime involving moral turpitude. Specifically,
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he contended that solicitation to commit alien smuggling is not a crime of moral
turpitude. Petitioner later filed an application for withholding of removal. He also
filed an application for cancellation of removal, asserting that his removal would
cause exceptional hardship to his child, who is a United States citizen.
In June 2014, and citing a second conviction, the DHS filed an additional
charge of removability, again alleging that Petitioner was inadmissible under
8 U.S.C. § 212(a)(2)(A)(i)(I), as an alien who had committed a crime involving
moral turpitude. In particular, the DHS alleged that Petitioner was convicted in
November 2013 of criminal use of personal identification information, in violation
of Florida Statute § 817.568(2), a third-degree felony. At a subsequent hearing
before the IJ, Petitioner admitted that he was convicted of the above charge, but he
contended that this conviction for criminal use of personal identification
information was, like his other conviction, not a crime involving moral turpitude.
Following the parties’ briefing on the issue, the IJ issued a written order
sustaining the charge under § 1182(a)(2)(A)(i)(I), based on Petitioner’s conviction
for a crime involving moral turpitude. First, the IJ determined that Petitioner’s
Arizona conviction for solicitation to commit smuggling did not qualify as a crime
involving moral turpitude. Focusing next on Petitioner’s conviction for criminal
use of personal identification information, the IJ applied the categorical approach
and determined that the least culpable conduct required to sustain a conviction
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under § 817.568(2)(a) was possession with intent to fraudulently use another
person’s identification information without the person’s authorization or prior
consent. This conduct required a culpable mental state—the specific intent to
“fraudulently use” the identification information—and was reprehensible because
it involved possessing items with an accompanying intent to use them
fraudulently—conduct that necessarily involves moral turpitude. Therefore, the IJ
held that Petitioner’s conviction under § 817.568(2)(a) was a crime involving
moral turpitude and sustained the charge under § 1182(a)(2)(A)(i)(I).
In a separate oral decision, the IJ denied Petitioner’s application for
cancellation for removal, concluding that he was statutorily ineligible based on his
conviction for a crime involving moral turpitude. The IJ also denied Petitioner’s
application for withholding of removal.
Petitioner appealed to the BIA, arguing in relevant part that he was eligible
for cancellation of removal because his conviction for criminal use of personal
identification information was not a crime involving moral turpitude. He
acknowledged that offenses involving fraud ordinarily qualified as crimes
involving moral turpitude, but argued that the Florida statute required more of an
intent to deceive than an intent to defraud. He also challenged the denial of his
application for withholding of removal.

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The BIA dismissed Petitioner’s appeal and affirmed the IJ’s determination
that Petitioner was removable under § 1182(a)(2)(A)(i)(I) and ineligible for
cancellation of removal because his conviction for criminal use of personal
identification information was a crime involving moral turpitude. The BIA
explained that the Florida statute was not divisible and that the offense was
categorically a crime involving moral turpitude because the full range of conduct
under the statute was inherently fraudulent. The BIA also denied Petitioner’s
application for withholding of removal.
II.

DISCUSSION
A.

Standard of Review

We review the BIA’s decision as the final judgment, except to the extent the
BIA expressly adopted the IJ’s decision. Lopez v. U.S. Att’y Gen., 504 F.3d 1341,
1344 (11th Cir. 2007). Where the BIA agrees with the IJ’s reasoning, we also
review the decision of the IJ to the extent of that agreement. See Kazemzadeh v.
U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). We review de novo
whether an alien’s conviction qualifies as a crime involving moral turpitude.1
Gelin v. U.S. Att’y Gen., 837 F.3d 1236, 1240 (11th Cir. 2016).
1

Our jurisdiction is limited to questions of law and constitutional claims when an alien, who
was convicted of a crime involving moral turpitude, seeks review of his removal order. See 8
U.S.C. § 1252(a)(2)(C), (a)(2)(D). We retain jurisdiction over the legal question of whether
Petitioner’s conviction qualifies as a crime involving moral turpitude. See Cano v. U.S. Att’y
Gen., 709 F.3d 1052, 1053 (11th Cir. 2013).
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B.

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Crime Involving Moral Turpitude

Petitioner argues here, as he did before the agency, that his conviction for
criminal use of personal identification information under Florida Statute
§ 817.568(2)(a) is not a crime involving moral turpitude. Because his conviction is
not a crime involving moral turpitude, he asserts that he is not statutorily barred
from cancellation of removal.
An alien convicted of an act which constitutes the essential elements of a
crime involving moral turpitude is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(I).
For cancellation of removal of nonpermanent residents, an alien is statutorily
ineligible if he has been convicted of certain offenses, including a crime involving
moral turpitude. See 8 U.S.C. § 1229b(b)(1)(C); 8 U.S.C. § 1182(a)(2)(A)(i)(I).
The term “moral turpitude” is not defined by statute, but we have defined a
crime involving moral turpitude to mean an “act of baseness, vileness, or depravity
in the private and social duties which a man owes to his fellow men, or to society
in general, contrary to the accepted and customary rule of right and duty between
man and man.” Cano v. U.S. Att’y Gen., 709 F.3d 1052, 1053 (11th Cir. 2013)
(quotation omitted). “Generally, a crime involving dishonesty or false statement is
considered to be one involving moral turpitude.” Walker v. U.S. Att’y Gen., 783
F.3d 1226, 1229 (11th Cir. 2015) (quotations and alteration omitted) (holding that
uttering a forged instrument is a crime involving moral turpitude because it
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involves deceit); Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002) (holding
that misprision of a felony is a crime involving moral turpitude because it
“necessarily involves an affirmative act of concealment or participation in a felony,
behavior that runs contrary to accepted societal duties and involves dishonest or
fraudulent activity”).
To determine whether a conviction qualifies as a crime involving moral
turpitude, we generally apply the categorical approach. Gelin, 837 F.3d at 1241.
Under this approach, we consider only the statutory definition of the offense, not
the specific facts underlying the conviction. Id. “In doing so, we ask ‘whether the
least culpable conduct necessary to sustain a conviction under the statute meets the
standard of a crime involving moral turpitude.’” Id. (quotation omitted).
The statute at issue here is the Florida criminal use of personal identification
information statute, Florida Statute § 817.568(2)(a). 2 That statute provides that:
“Any person who willfully and without authorization fraudulently uses, or
possesses with intent to fraudulently use, personal identification information
concerning another person without first obtaining that person’s consent, commits

2

To the extent Petitioner argues that it is not clear which subsection of § 817.568 he was
convicted of, as the BIA noted, Petitioner did not challenge the IJ’s determination that he was
convicted under subsection (2)(a). Further, Petitioner admitted that he was convicted of criminal
use of personal identification information in the third degree, which corresponds to subsection
(2)(a). See Fla. Stat. § 817.568(2)(a).
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the offense of fraudulent use of personal identification information.” Fla. Stat.
§ 817.568(2)(a).
Here, we agree with the BIA’s and IJ’s determination that a conviction for
criminal use of personal identification information under Florida Statute
§ 817.568(2)(a) categorically qualifies as a crime involving moral turpitude.
Applying the categorical approach, the least culpable conduct prohibited by
§ 817.568(2)(a)—possession with intent to fraudulently use another person’s
personal identification without that person’s consent—obviously meets the
standard of a crime involving moral turpitude. See Gelin, 837 F.3d at 1241.
Because the least culpable conduct under § 817.568(2)(a) involves the specific
intent to possess personal information with intent to defraud, the BIA reasonably
concluded that Petitioner’s offense involves moral turpitude. See Walker, 783 F.3d
at 1229; Itani, 298 F.3d at 1216.
We are not persuaded by Petitioner’s argument that the Florida statute is
overbroad because the definition of fraud does not include detriment to the victim.
Petitioner has not cited to, nor have we found, any precedent holding that an
offense must have an element of detriment or pecuniary loss to the victim in order
to constitute a crime involving moral turpitude. Further, the Florida jury
instructions define the term “fraudulently” as “purposely or intentionally
suppressing the truth or perpetrating a deception or both.” In re Standard Jury
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Instructions in Criminal Cases—Report 2016–03, 202 So. 3d 830, 833 (Fla. 2016).
Based on this definition, the statute includes, at the very least, dishonesty, which
we have consistently held to involve moral turpitude. Fla. Stat. § 817.568(2)(a);
Walker, 783 F.3d at 1229. Therefore, the least culpable conduct necessary to
sustain a conviction under § 817.568(2) meets the standard of moral turpitude. See
Gelin, 837 F.3d at 1241.
Accordingly, the BIA and IJ properly concluded that Petitioner’s conviction
for criminal use of personal identification information categorically qualifies as a
crime involving moral turpitude and renders him removable under
§ 1182(a)(2)(A)(i)(I) and statutorily ineligible for cancellation of removal.
PETITION DENIED. 3

3

In his brief, Petitioner expressly states that he is not challenging the BIA’s denial of his
application for withholding of removal. He has therefore abandoned this argument on appeal.
See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (explaining that
issues not raised in an appellate brief are abandoned).
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