Da Silva Neto v. Holder

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.
 STAHL, Circuit Judge. This appeal presents the discrete

question of whether 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 admitted to sufficient facts 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,

otherwise removable, to remain in the United States." Ayeni v.

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 the case to the IJ for

2
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 from establishing

eligibility for cancellation of removal. 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 retain jurisdiction to review "constitutional claims or

questions of law," 8 U.S.C. § 1252(a)(2)(D). 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." Vásquez v. Holder, 635 F.3d 563,

565 (1st Cir. 2011). 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 immediately preceding his

3
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 8 U.S.C. § 1229b(b)(1)(B). 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. Cabral v. INS, 15 F.3d 193, 194 (1st

Cir. 1994). 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 the record of conviction to determine whether it

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

the modified categorical approach is not conclusive, under

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

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involves examining "evidence beyond the formal record of

conviction."6 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). If it does,

we have said that "our inquiry may end there." Id. If, however,

"the face of the statute is insufficient for us 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 Silva-
Trevino 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 Silva-
Trevino'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).

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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." 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). Willful "means intentional and by

design." 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. Id. at 466.

As we review the BIA's conclusion that malicious

destruction of property under Massachusetts law is a CIMT, we have

no case law directly on point to guide us.8 The government points

8
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 is not enough to render a crime morally

turpitudinous. Massachusetts case law, however, directly

contradicts Palmeira's claim. The Massachusetts 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 that "the defendant's

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destructive acts . . . were hostile to the owner 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. See Idy, 674 F.3d at 119

(reckless conduct under New 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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