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Villegas-Sarabia v. Sessions

United States Court of Appeals, Fifth Circuit

October 31, 2017

LEONARDO VILLEGAS-SARABIA, also known as Leonardo Villegas, Jr., Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL, Respondent

         Petition for Review of an Order of the Board of Immigration Appeals

         Appeal from the United States District Court for the Western District of Texas

          Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

          WIENER, CIRCUIT JUDGE.

         In the first of the cases consolidated in this appeal, Petitioners-Appellees Leonardo Villegas-Sarabia ("Villegas-Sarabia") and his father, Leonardo Villegas, Jr. ("Villegas"), seek review of the order of the Board of Immigration Appeals ("BIA") holding that Villegas-Sarabia, a Mexican citizen, is inadmissible to the United States and ineligible to adjust his citizenship status because his conviction for misprision of a felony is a crime involving moral turpitude. In the second case, the government appeals two aspects of the district court's decision: (1) that the differing physical presence requirements for unmarried U.S.-citizen mothers and such fathers in 8 U.S.C. §§ 1401 and 1409(c) violates equal protection and (2) that the remedy of the constitutional violation is extending citizenship to Villegas-Sarabia under 8 U.S.C. § 1409(c). We affirm the BIA's order in the first case and reverse the district court's judgment granting citizenship in the second case.

         I. Facts & Proceedings

         A. Factual Background

         The facts of this case are not disputed by the parties. Leonardo Villegas-Sarabia was born in Mexico on March 16, 1974. At the time of his birth, his parents were not married, but Villegas, his father, was a United States citizen, who lived in the United States from the time he was born in 1955 through 1960, and again from 1965 to the present. In 1974, when Villegas-Sarabia was born, Villegas was 18 years old and had only been present in the United States for four years after he reached 14 years of age.[1] At the time of Villegas-Sarabia's birth, his mother was a citizen of Mexico.

         Villegas-Sarabia's parents married when he was 13 years old. He has lived in the United States continuously since he was a few months old, and in July 1985, he became a lawful permanent resident of the United States.

         In November 2011, Villegas-Sarabia was indicted for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922. He pleaded guilty in June 2012 and was sentenced to a thirty-month term of imprisonment in June 2013. Between his plea and his sentencing, Villegas-Sarabia applied for citizenship, claiming that he was a United States citizen by virtue of his father's citizenship. At the time of Villegas-Sarabia's birth, his citizenship was governed by the 1970 version of 8 U.S.C. § 1401(a)(7), which granted U.S. citizenship to:

a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States, who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years.[2]

         This provision applied expressly to married parents, but it was made applicable to unmarried parents under § 1409(a).[3] Significant to this case, § 1409(c) granted an exception to unmarried mothers:

[N]otwithstanding the provision of subsection (a) of this section, a person born, on or after the effective date of this chapter, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the mother had previously been physically present in the United States . . . for a continuous period of one year.[4]

         Applying these statutes, the United States Citizenship and Immigration Services denied Villegas-Sarabia's citizenship application, after determining that his father did not satisfy the residency requirements under § 1401(a)(7).

         B. Immigration Proceedings

         In January 2015, the Department of Homeland Security initiated removal proceedings based on Villegas-Sarabia's firearms conviction. In his appearance before the immigration judge ("IJ"), Villegas-Sarabia conceded that he was admitted to the United States as the child of a citizen and that he had been convicted of illegal possession of a firearm, but he denied that he was an alien or that he was subject to removal.[5] Villegas-Sarabia argued that, because § 1409(c)'s discriminatory one-year exception covered only unmarried U.S.-citizen mothers it violated equal protection. He insisted that, under a constitutional reading of the statute, he was entitled to derivative citizenship.

         In April 2015, the IJ determined that Villegas-Sarabia was not a citizen and sustained the removal charge. Villegas-Sarabia responded that he would seek an adjustment of status. The IJ held that Villegas-Sarabia's conviction for misprision of a felony was a crime involving moral turpitude ("CIMT"), making him inadmissible to the United States and ineligible for adjustment of his status.[6] The IJ explained further that Villegas-Sarabia could only adjust his immigration status if he could obtain a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(h). Villegas-Sarabia's firearm conviction was an aggravated felony, however, statutorily barring him from seeking such a waiver. The IJ pretermitted Villegas-Sarabia's application for an adjustment of status, holding that he had committed a CIMT and therefore could not attempt to adjust his immigration status without a waiver. But Villegas-Sarabia's aggravated felony conviction barred him from seeking such a waiver.[7]

         Villegas-Sarabia appealed the IJ's decision to the BIA, challenging the constitutionality of the disparate sex-based residency requirements of §§ 1401 and 1409(c). He argued in the alternative that, because misprision of a felony is not a CIMT, he is not required to obtain a waiver of inadmissibility to adjust his immigration status. In August 2015, a three-member panel of the BIA dismissed Villegas-Sarabia's appeal, holding that he was not a citizen under the statutes that were in place at the time of his birth and that the BIA lacked jurisdiction to address his constitutional challenge. The BIA also affirmed the IJ's holding that misprision of a felony is a CIMT. Villegas-Sarabia now seeks our review of the BIA's order holding that misprision of a felony is a CIMT.

         C. District Court Proceedings

         In February 2015, Villegas and Villegas-Sarabia filed a joint complaint and habeas corpus petition, claiming that Villegas-Sarabia is a United States citizen and therefore not subject to detention and removal.[8] They also sought a declaration that the disparate requirements of 8 U.S.C. §§ 1401 and 1409 are unconstitutional. The government filed a motion to dismiss in response to which the district court applied a heightened level of scrutiny and held that "the different physical presence requirements [in §§ 1401 and 1409] violate the Fifth Amendment's guarantee of equal protection." To remedy this constitutional violation, the district court extended § 1409(c)'s one-year continuous presence requirement applicable to unmarried U.S.-citizen mothers to unmarried U.S.-citizen fathers, then held Villegas-Sarabia to be an United States citizen.[9]

         The government timely appealed and advanced two contentions: The district court erred (1) in holding that the distinction between unmarried mothers and unmarried fathers violated equal protection, and (2) in extending the one-year continuous residency requirement to unmarried fathers.

         II. Discussion

         These consolidated appeals seek review of the BIA's order and the district court's ruling on the habeas petition. We address each in turn.

         A. BIA Order

         Villegas-Sarabia contends that the BIA erred in ruling that misprision of a felony is a CIMT, so that he should not be required to seek a waiver of inadmissibility to adjust his status pursuant to 8 U.S.C. § 1182(h). The government urges this court to defer to the BIA's reasonable decision that misprision of a felony is a CIMT.

         i. Standard of Review

         "When considering a petition for review, this court has the authority to review only the BIA's decision, not the IJ's decision, unless the IJ's decision has some impact on the BIA's decision."[10] If the BIA adopts the findings and conclusions of the IJ, this court may review the IJ's decision.[11] Here, the BIA affirmed the IJ's findings and conclusions, so we may review both decisions.

         We review the BIA's legal conclusions de novo but give "considerable deference to the BIA's interpretation of the legislative scheme."[12] In appeals addressing whether a particular conviction is a CIMT, we give "Chevron deference to the BIA's interpretation of the term 'moral turpitude' and its guidance on the general categories of offenses which constitute CIMTs;" however, we review de novo the decisions of the BIA addressing whether a particular crime is a CIMT.[13]

         ii. Subject-Matter Jurisdiction

         Pursuant to 8 U.S.C. § 1252, this court lacks jurisdiction to review "any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in § 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by § 1227(a)(2)(A)(ii) of this title."[14] However, this court retains jurisdiction to review colorable questions of law and constitutional claims under 8 U.S.C. § 1252(a)(2)(D). Villegas-Sarabia has raised a colorable question of law, so we have jurisdiction.[15]

         iii. Analysis

         1. Crimes Involving Moral Turpitude

         This court uses a categorical approach to determine whether a particular crime meets the BIA's definition of a CIMT.[16] Under such an approach, this court "focuses on the inherent nature of the crime, as defined in the statute . . . rather than the circumstances surrounding the particular transgression."[17]"When applying the categorical approach, the statute must be read as the minimum criminal conduct necessary to sustain a conviction under the statute."[18] Thus, for Villegas-Sarabia to have committed a CIMT, the minimum conduct criminalized under 8 U.S.C. § 4 must constitute moral turpitude.[19]

         The BIA, through its administrative decisions, has crafted the following definition of "moral turpitude":

Moral turpitude refers generally to 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. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.[20]

         We have further explained that if a crime's essential element "involves fraud or deception, "[21] or "include[s] dishonesty or lying, "[22] it is a CIMT.[23]

         2. Misprision of a Felony

         The determinative question we must answer is whether Villegas-Sarabia's conviction for misprision of a felony under 18 U.S.C. § 4 is a CIMT. The misprision of felony statute provides:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.[24]

         There is no binding precedent of this circuit establishing whether misprision of a felony is a CIMT. Under our case law, however, deceit is an essential element of misprision of a felony, and "this [c]ourt has repeatedly held that crimes including an element of intentional deception are crimes involving moral turpitude."[25]

         Misprision of felony consists of the following elements: "(1) knowledge that a felony was committed; (2) failure to notify the authorities of the felony; and (3) an affirmative step to conceal the felony."[26] "Mere failure to make known does not suffice."[27] In Patel v. Mukasey, a petitioner sought our review of a BIA decision which held that misprision of a felony was an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i).[28] To qualify as an aggravated felony under § 1101, the offense must "necessarily entail[] fraud or deceit" and involve a loss of greater than $10, 000.[29] We concluded that the final element of misprision of a felony-that the defendant must commit some affirmative act to conceal the felony-"necessarily entails the act of intentionally giving a false impression, i.e., the false impression that the earlier felony never occurred."[30]We explained that, because misprision of a felony requires assertive dishonest conduct, it necessarily requires an intentional act of deceit.[31] Viewing Patel in conjunction with this court's repeated holdings that "crimes including an element of intentional deception are crimes involving moral turpitude, " necessarily leads to the conclusion that misprision of a felony is a CIMT.[32]

         Two panels of this court, (in unpublished and thus non-precedential opinions), have affirmed BIA decisions that reached the same conclusion. The panel in Ahmad v. Holder held that the BIA did not err in holding that a defendant who was convicted of misprision of a felony had committed a CIMT.[33] Similarly, the panel in Aguilar-Cortez v. Gonzales held that the BIA did not err in holding that the petitioner was "ineligible for adjustment of status because his conviction for misprision of felony was a conviction for a crime of moral turpitude."[34] Although this court has not yet held bindingly that misprision of a felony is a CIMT, our case law lends support to the BIA's determination to that effect in this case.

         The question whether misprision of a felony is categorically a CIMT, however, has led to a split among other circuits.[35] In Lugo v. Holder, the Second Circuit provided a brief history of the existing circuit split.[36] The petitioner in Lugo sought review of a BIA decision holding that misprision of a felony is a CIMT.[37] The Second Circuit declined to rule on the issue, concluding instead that the question would "best [be] addressed in the first instance by the Board in a precedential opinion."[38] The circuit court explained:

Originally, in [1966], the Board held that misprision of felony was not a CIMT. The Eleventh Circuit then adopted the contrary rule in Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002), holding that misprision of felony is a categorical CIMT. The Board switched to the Eleventh Circuit's view in Matter of Robles-Urrea, but the Board's decision in that case was reversed by the Ninth Circuit. Robles-Urrea v. Holder, 678 F.3d 702, 711 (9th Cir. 2012) (holding that misprision of felony is not a CIMT). We are thus left to wonder whether, going forward, the Board wishes to adopt the Ninth Circuit's rule or the Eleventh Circuit's. We believe it is desirable for the Board to clarify this matter in a published opinion.[39]

         In an attempt to clarify this issue, the Second Circuit remanded the case for further proceedings, but the BIA has yet to ...


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