Lopez v. Garland
116 F.4th 1032 (2024)
Rule of Law:
A theft offense constitutes a crime involving moral turpitude (CIMT) if it includes an intent to deprive either permanently or under circumstances where the owner’s property rights are substantially eroded; and the unavailability of a pardon for a conviction does not preclude its use as a basis for removal under the Immigration and Nationality Act (INA).
Facts:
- Christian Lopez was brought to the United States by his mother, Yadira, from Mexico when he was approximately two years old, due to domestic violence perpetrated by his father, Rodrigo.
- Yadira and Lopez lived without lawful immigration status in the U.S. for about thirteen years, never filing for asylum.
- In 2013, Lopez became eligible for T-5 nonimmigrant status as a family beneficiary through a relative.
- In 2017, when Lopez was 19 years old, he inadvertently allowed his T-5 status to expire.
- In July 2019, Lopez was arrested while driving a friend's borrowed car that had been reported as stolen and was charged with numerous offenses.
- In September 2021, Lopez pleaded guilty to a felony weapons charge and four municipal charges of petit larceny under Reno Municipal Code (RMC) § 8.10.040, for offenses occurring on May 14, May 17, May 21, and May 28, 2019.
- After serving 14 months for the weapons charge, Lopez was released from prison in January 2021 and placed directly in the custody of the Department of Homeland Security (DHS).
Procedural Posture:
- On January 22, 2021, the Department of Homeland Security (DHS) initiated removal proceedings against Christian Lopez by serving him with a notice to appear (NTA), charging him as removable for having been convicted of two or more crimes involving moral turpitude (CIMTs) not arising out of a single scheme of criminal misconduct, specifically referencing four counts of petit larceny.
- Lopez argued before an immigration judge (IJ) that his municipal charges did not constitute a valid basis for removal because the Reno Municipal Code (RMC) did not "categorically" describe a CIMT and his convictions arose from a "single scheme of criminal misconduct."
- On March 30, 2021, the IJ rejected Lopez's arguments in a written decision, and the Board of Immigration Appeals (BIA) declined to consider Lopez's interlocutory appeal.
- Lopez subsequently filed a motion presenting a third argument for terminating removal, based on the unavailability of a pardon for his municipal offenses.
- Concurrently, in May 2021, Lopez filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), acknowledging it was filed more than one year after his T status lapsed, but arguing for an exception due to changed or extraordinary circumstances, citing lack of legal advice and disabilities.
- On October 5, 2021, the IJ found Lopez removable under 8 U.S.C. § 1227(a)(2)(A)(ii) and denied his application for asylum (as untimely, rejecting his arguments for exceptions), withholding of removal (for lack of nexus to a protected ground), and CAT relief.
- Lopez timely appealed the IJ's decision to the Board of Immigration Appeals (BIA).
- On May 3, 2023, the BIA issued its decision affirming the IJ's decision on all counts and dismissing Lopez's appeal, concluding that Lopez's municipal convictions involved CIMTs (construing RMC in accordance with Nevada state larceny statute) and affirming the denial of asylum and withholding/CAT relief.
- Lopez timely petitioned for review before the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does a conviction for petit larceny under a municipal ordinance that does not explicitly define "deprive" as permanent or substantially eroding property rights, and for which a pardon is unavailable, constitute a crime involving moral turpitude (CIMT) for purposes of removability under 8 U.S.C. § 1227(a)(2)(A)(ii)?
Opinions:
Majority - Sidney R. Thomas
No, Lopez's convictions for petit larceny under the Reno Municipal Code do constitute crimes involving moral turpitude, and the unavailability of a pardon for these municipal offenses does not preclude their use as a basis for removal. The court, applying an independent evaluation under Skidmore v. Swift & Co. following Loper Bright Enterprises v. Raimondo, afforded "due respect" to the Board of Immigration Appeals' (BIA) interpretation in Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016). That decision defined a theft CIMT as an offense requiring an intent to deprive either permanently or under circumstances where the owner's property rights are substantially eroded. The court found Diaz-Lizarraga thorough, well-reasoned, consistent with the longstanding distinction between substantial and de minimis takings, and aligned with definitions from the Model Penal Code and the Supreme Court. Applying this definition to RMC § 8.10.040, the court noted that the ordinance does not define "deprive" but instructs to construe terms according to "approved usage." Consulting the Model Penal Code and Nevada state law, which define "deprive" as a withholding that is permanent or for so long that a substantial portion of value is lost, the court concluded that the RMC ordinance categorically defines a CIMT. Regarding the pardon waiver, the court independently interpreted 8 U.S.C. § 1227(a)(2)(A)(vi) to mean that relief is available only when a pardon "has been granted" by the President or a Governor, not simply when one is unavailable, aligning with Matter of Nolan, 19 I. & N. Dec. 539 (BIA 1988). Finally, the court held that Lopez's four larceny convictions, occurring on separate dates, constituted "complete, individual, and distinct" crimes and thus did not arise from a "single scheme of criminal misconduct" under Szonyi v. Whitaker, 915 F.3d 1228 (9th Cir. 2019). The court also affirmed the denial of Lopez's asylum application as untimely, finding his arguments of youth, ignorance of the law, or disabilities did not constitute "extraordinary circumstances," and affirmed the denial of withholding of removal, concluding that the record did not compel a finding of past persecution (in utero) or a likelihood of future persecution.
Partial concurrence and partial dissent - Gabriel P. Sanchez
No, Lopez's convictions for petit larceny under the Reno Municipal Code do not categorically constitute crimes involving moral turpitude. Judge Sanchez concurred with the majority's application of Loper Bright Enterprises and its determination that Diaz-Lizarraga is entitled to Skidmore deference. However, he disagreed that Lopez's specific petit larceny convictions were a categorical match. The Reno Municipal Code ordinance (RMC § 8.10.040) simply uses the term "intent to deprive" without defining its scope to mean either a permanent deprivation or a substantial erosion of property rights. The majority erred by importing definitions from the Model Penal Code and Nevada state law, especially given that the RMC explicitly states that state law references are not intended to have any legal effect. In the absence of specific limiting language in the ordinance itself or clear guidance from a Nevada state court, the ordinance could potentially apply to de minimis temporary takings, which are not considered CIMTs. Under Moncrieffe v. Holder, ambiguities in immigration statutes must be construed in favor of the noncitizen. Since there is a "realistic probability" that the ordinance could be applied to non-turpitudinous conduct, Lopez's convictions should not be deemed categorical CIMTs. Judge Sanchez would grant Lopez's petition.
Analysis:
This case significantly applies Loper Bright Enterprises v. Raimondo, confirming that federal courts now exercise independent judgment in evaluating agency interpretations, affording Skidmore deference based on persuasiveness rather than binding Chevron deference. It clarifies the Ninth Circuit's understanding of a theft crime involving moral turpitude (CIMT), aligning with the BIA's Diaz-Lizarraga standard, which broadens the scope of such offenses to include the substantial erosion of an owner's property rights, not solely permanent deprivation. Furthermore, the decision reinforces a strict construction of the pardon waiver provision in immigration law, emphasizing that relief is conditioned on the actual granting of a pardon, irrespective of whether a pardon mechanism is available for a particular type of offense or conviction.
