Patel v. Holder

United States Court of Appeals
For the First Circuit

No. 12-1349

NUPUR PATEL,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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

Before

Thompson, Stahl, and Lipez,
Circuit Judges.

Justin Conlon on brief for petitioner.
Laura Halliday Hickein, Trial Attorney, United States
Department of Justice, Office of Immigration Litigation, Stuart F.
Delery, Acting Assistant Attorney General, Civil Division, and
Russell J.E. Verby, Senior Litigation Counsel, Office of
Immigration Litigation, on brief for respondent.

February 1, 2013
 STAHL, Circuit Judge. In 2003, petitioner Nupur Patel

pled guilty to conspiracy-to-commit-larceny charges stemming from

a scheme in which he stole from the dorm rooms of his college

classmates. As a result, an Immigration Judge (IJ) and the Board

of Immigration Appeals (BIA) found that Patel, at the time a lawful

permanent resident, was removable from the United States because

his crimes involved "moral turpitude" within the meaning of the

Immigration and Nationality Act (INA). Patel now seeks our review

of that determination. Because the BIA's ruling does not find

adequate support in the record, we reverse.

I. Facts & Background

Patel is a twenty-eight-year-old native and citizen of

India who became a lawful permanent resident of the United States

in 1998. His parents and only sibling are naturalized U.S.

citizens, and many other relatives are either U.S. citizens or

permanent residents. After immigrating to the United States, Patel

attended high school in Connecticut and then enrolled at the

University of Connecticut. The incident that gave rise to this

case occurred near the end of his freshman year.

As recounted by the state prosecutor at Patel's plea

hearing, Patel and two acquaintances concocted a plan whereby they

would knock on doors in the university's dorms; if the resident

answered, they would say they were looking for someone else and

leave. If not, they would enter the room (if the door was

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unlocked) and take things. They executed the plan, taking clothes,

DVDs, and electronics, but residents soon noticed the missing items

and called the police. University police officers found a car

parked outside one of the dorms, in which they could plainly see

many of the items that had been reported missing. Patel and his

companions returned to the car, admitted their involvement, and

were arrested.

Patel was charged with six counts of conspiracy under

Conn. Gen. Stat. § 53a-48: three to commit misdemeanor larceny in

the fourth degree, id. § 53a-125, and three to commit misdemeanor

criminal trespass, id. § 53a-108. He pled guilty, receiving a

suspended sentence totaling four-and-a-half years and three years

of probation. Patel was also expelled from the University of

Connecticut, but continued his education elsewhere, eventually

earning a bachelor's and a master's degree. He successfully

completed the probation period and has had no other run-ins with

the law.

In March 2010, Patel returned to the United States from

a vacation abroad. Upon completion of Patel's reentry inspection,

the Department of Homeland Security (DHS) issued a Notice to Appear

charging him with removability on the ground that his convictions

were for "crime[s] involving moral turpitude" (CIMTs) under

8 U.S.C. § 1182(a)(2)(A)(i)(I), and placed him in custody.

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 Before the IJ, Patel disputed removability, arguing that

his offenses were not CIMTs because a theft offense qualifies as

such only if it involves an intent to permanently deprive the owner

of her property, and the record of his conviction did not establish

that intent. In the alternative, Patel sought a waiver of

inadmissibility under 8 U.S.C. § 1182(h). The IJ found Patel

removable, explaining that, under her reading of the plea

transcript, it was "clear that [Patel] intended to convert these

items for his own . . . benefit and permanently deprive" the owners

of their use. The IJ also found Patel ineligible for a waiver of

inadmissibility because his crimes qualified as aggravated felony

theft offenses under 8 U.S.C. § 1101(a)(43)(G).

On appeal, the BIA agreed that Patel was removable and

ineligible for a waiver. Patel petitioned for our review, but, at

the Government's unopposed request, we instead vacated the decision

and remanded to the BIA to consider an argument related to the

waiver-of-inadmissibility issue. Patel v. Holder, No. 11-1104 (1st

Cir. Sept. 6, 2011) (Judgment). On remand, the BIA again dismissed

Patel's appeal. The BIA explained that its CIMT cases do, as Patel

contended, distinguish between thefts involving an intent to

permanently deprive the owner of the property and those involving

only an intent to do so temporarily. Because the Connecticut

larceny statute covered both kinds of theft, the BIA applied the

modified categorical approach, under which it "look[s] to the

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record of conviction to discern the nature of the respondent's

conviction." Based on the prosecutor's description of Patel's

crimes at the plea hearing, the BIA concluded that Patel did indeed

intend a permanent deprivation of the purloined items. Thus, in

the BIA's view, his offenses were CIMTs, and he was removable. The

BIA also reiterated its conclusion that Patel was not eligible for

a waiver of inadmissibility. Patel now petitions for our review of

the BIA's decision.

II. Analysis

We review de novo the BIA's legal conclusions, Idy v.

Holder, 674 F.3d 111, 117 (1st Cir. 2012), including its

determination that a non-citizen's criminal conviction is grounds

for removal, Campbell v. Holder, 698 F.3d 29, 32 (1st Cir. 2012).

Where the Government asserts that a lawful permanent resident

returning from abroad has been convicted of a crime rendering him

removable, the government must so prove by clear and convincing

evidence. See In re Valenzuela-Felix, 26 I. & N. Dec. 53, 54 (BIA

2012); In re Rivens, 25 I. & N. Dec. 623, 625 (BIA 2011). We

afford deference to the BIA's reasonable interpretations of the

INA, including its construction of the term "moral turpitude," but

not to its reading of an underlying criminal statute (as to which

it has no expertise). Da Silva Neto v. Holder, 680 F.3d 25, 28 &

n.3 (1st Cir. 2012). Where, as here, "the BIA has rendered a

decision with its own analysis of the question at issue, our review

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focuses on the BIA's decision, not the IJ's." Vásquez v. Holder,

635 F.3d 563, 565 (1st Cir. 2011).

The term "moral turpitude" has a long history in federal

immigration law, but Congress has never defined it. See Da Silva

Neto, 680 F.3d at 28. Accordingly, 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.'" Id. at 29 (quoting Maghsoudi v. INS, 181

F.3d 8, 14 (1st Cir. 1999)); see also In re Silva-Trevino, 24

I. & N. Dec. 687, 689 n.1 (A.G. 2008) (a CIMT "must involve both

reprehensible conduct and some degree of scienter"). It is common

ground among the parties that theft offenses can meet this

definition, and that not all theft offenses do so. As noted above,

the BIA generally distinguishes between turpitudinous thefts and

their less depraved counterparts by asking whether the defendant

intended to permanently deprive the owner of the purloined

property. See In re Grazley, 14 I. & N. Dec. 330, 333 (BIA 1973).1

1
Pointing to language in another BIA opinion, see In re
Jurado-Delgado, 24 I. & N. Dec. 29, 33 (BIA 2006), the Government
suggests that "[w]hether the distinction between temporary and
permanent takings is a necessary one in the CIMT context remains an
open question." In this case, however, the BIA treated the
permanent-or-temporary-intent question as dispositive, and our
review is limited to the reasoning articulated below. Mihaylov v.
Ashcroft, 379 F.3d 15, 21 (1st Cir. 2004); see Wala v. Mukasey, 511
F.3d 102, 106 (2d Cir. 2007) (bypassing this issue where the BIA
"treated the [permanent intent] inquiry as determinative").

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 Here, the parties agree that the Connecticut larceny

statute under which Patel was convicted is "divisible," in that it

covers both permanent and temporary takings (and thus both

turpitudinous and non-turpitudinous conduct).2 Under the statute,

"[a] person commits larceny when, with intent to deprive another of

property or to appropriate the same . . . , he wrongfully takes,

obtains or withholds such property from an owner." Conn. Gen.

Stat. § 53a-119. In turn, "to appropriate" has two meanings: "(A)

to exercise control over it . . . [so] as to acquire the major

portion of its economic value or benefit"; or "(B) to dispose of

the property for the benefit of oneself or a third person." Id.

§ 53a-118(a)(4). The latter form of appropriation requires that

the defendant have acted without the intent to cause a permanent

deprivation, Connecticut v. Wieler, 660 A.2d 740, 742 (Conn. 1995),

whereas the other prongs of the statute require a permanent intent,

see Conn. Gen. Stat. §§ 53a-118(a)(4)(A), 53a-119. Therefore, the

question is whether Patel was convicted under subsection 53a-

118(a)(4)(B) (in which case his crimes were not CIMTs) or one of

the other provisions of the larceny statute, see id. §§ 53a-

118(a)(4)(A), 53a-119 (in which case they were).

2
Although Patel pled guilty to conspiracy to commit
larceny rather than larceny itself, the parties agree that larceny
is the crime that matters for CIMT purposes. See 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) (rendering inadmissible an alien convicted of
"a crime involving moral turpitude" or "conspiracy to commit such
a crime"); cf. Conteh v. Gonzales, 461 F.3d 45, 57 (1st Cir. 2006).
For convenience, we refer to Patel's crimes as larcenies.

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 Because the larceny statute reaches both permanent and

temporary takings, the parties concur that we should apply the

modified categorical approach, under which "we may look to the

record of conviction -- the indictment, plea, verdict, and

sentence," Idy, 674 F.3d at 118, to determine which prong of the

statute Patel pled guilty to violating. In doing so, we must bear

in mind that "the facts underlying the conviction are relevant, if

at all, only to identify which crime is the crime of conviction

where . . . it is unclear which subsumed offense the defendant pled

to." Campbell, 698 F.3d at 33. For example, in Campbell, we

applied this methodology to hold that the Government had not shown

that the petitioner committed an aggravated felony under the INA,

where the smallest applicable subdivision of the statute he pled

guilty to violating covered both aggravated and non-aggravated

crimes (in that case, both sexual abuse and other types of offenses

against children). See 698 F.3d at 33, 35.3

Here, the only part of the record of conviction that

potentially illuminates this issue is the plea colloquy. At the

3
The modified categorical approach roughly aligns with the
middle phase of the three-step CIMT framework prescribed by the
Attorney General in Silva–Trevino, 24 I. & N. Dec. 687. Because
the parties agree that the modified categorical approach governs
here, we need not address the other two Silva–Trevino steps, see Da
Silva Neto, 680 F.3d at 29 nn.6-7, nor otherwise wade into the
debate about whether this approach is out of place in the CIMT
context, compare Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir.
2012), with id. at 491-92 (Shedd, J., dissenting).

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plea hearing, the state prosecutor described Patel's offenses this

way:

He had some friends visiting him . . . . In
their words they were bored and they were
looking for something to do and they came up
with a plan where they would go through the
dorm[s and] knock on fellow dorm residents'
doors. If somebody answered the door, they
would say they were looking for a certain
individual, close the door and then leave. If
nobody answered, they would then open that
door, if it was unlocked, go inside and find
things that they could take and steal for
their own benefit. They did this throughout
the many dorms on the . . . campus.

As described by the prosecutor, the items taken included a digital

camera, a cellular phone, video game consoles, DVDs, clothing, and

a laptop. The presiding judge asked Patel whether the prosecutor's

recitation of the facts was accurate, and Patel answered

affirmatively, without adding anything to the prosecutor's

description.4

The parties cross swords over the significance of the

particular words the prosecutor chose to describe Patel's scheme:

"they would . . . go inside and find things that they could take

and steal for their own benefit" (emphasis added). Patel

emphasizes the prosecutor's use of the phrase "for their own

benefit," which, he points out, mirrors the language of subsection

53a-118(a)(4)(B), the temporary-intent prong of the larceny

4
The Government is thus incorrect to assert, repeatedly,
that Patel "chose to use the term 'steal' during his plea
colloquy." He never used that word himself.

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statute. See Conn. Gen. Stat. § 53a-118(a)(4)(B) ("[T]o dispose of

the property for the benefit of oneself . . . ."). For its part,

the Government focuses on the word "steal," asserting, with some

support, that "steal" naturally suggests a permanent intent. E.g.,

Morissette v. United States, 342 U.S. 246, 271 (1952) (defining

"steal" to mean "to take away from one in lawful possession without

right with the intention to keep wrongfully" (citation and internal

quotation mark omitted)); Black's Law Dictionary (9th ed. 2009)

(similar).5

We think both parties' careful parsing of the

prosecutor's language puts more weight on a few isolated words than

they can bear. There is no indication that the prosecutor chose

his words with the goal of indicating anything about Patel's

intent, or with a specific statutory subsection in mind. Indeed,

precisely because Patel could be guilty of larceny regardless of

whether his intent was temporary or permanent, there was no reason

for the prosecutor to consider that issue. Cf. Connecticut v.

Spillane, 770 A.2d 898, 907 (Conn. 2001). As far as the record

reveals, he was simply explaining, in conversational language, what

5
Patel says that we cannot consider the Government's
argument regarding the word "steal" because the BIA did not rely on
this rationale below, making the Government's present position an
impermissible "post-hoc rationalization." Patel is right that our
review is limited to the reasoning articulated by the agency,
Mihaylov, 379 F.3d at 21, but we think the BIA may have considered
this language, which does appear in its opinion. Regardless, the
Government's argument does not carry the day.

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Patel and his fellow miscreants did; this description can only tell

us so much about what was in Patel's own mind during the crime.

Both parties' interpretations of the prosecutor's language are

tenable, but we do not believe his choice of words does much to

illuminate the issue before us.

Consequently, we turn to the prosecutor's description of

"the nature [of] and circumstances surrounding [Patel's] theft

offense[s]." In Re Jurado-Delgado, 24 I. & N. Dec. 29, 33 (BIA

2006). The BIA concluded, and the Government argues, that the

volume and character of the items taken (mostly expensive

electronics), and the fact that a security cable on the laptop was

broken, showed Patel's intent to cause a permanent deprivation.

Patel rejoins that the BIA's conclusion was based on inferences

that are beyond its power to draw when applying the modified

categorical approach. In support of this argument, he points to

the Second Circuit's decision in Wala v. Mukasey, 511 F.3d 102 (2d

Cir. 2007).

In Wala, the petitioner pled guilty to two counts of

third-degree burglary under Connecticut law as a result of his

entry into, and theft from, the house of a woman he was working

for; with two accomplices, he took two rings, other jewelry, a

credit card, and two watches. Id. at 103. Because the Connecticut

burglary statute criminalizes unlawful entry with the intent to

commit a crime, and the intended crime in question was larceny, the

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Wala court was called upon to answer essentially the same question

presented here: whether the record of conviction established that

the petitioner had been convicted under one of the permanent-

deprivation prongs of the larceny statute. See id. at 107.

Writing for the court, then-Judge Sotomayor answered that

question in the negative. She explained:

In his plea colloquy, . . . Wala "actually
admitted" to facts establishing that he was
convicted of a burglary with the intent to
commit a larceny. Wala did not admit,
however, to taking these items with the intent
to appropriate them permanently. Wala,
moreover, was not charged with committing a
permanent taking; the charging document does
not specifically name the intended crime
associated with his burglary conviction
. . . . However improbable, Wala could have
been taking the jewelry with the intent to
loan it to his girlfriend for one "night on
the town" and then return it. Or, he could
have been taking the credit cards with the
intent to use them for a one-time
identification purpose. The point is that
either would have been sufficient to sustain
Wala's guilty plea and conviction . . . .

Id. at 109 (citation omitted). The Wala court's bottom-line

conclusion was that, "although it may have been reasonable for the

BIA to infer that Wala intended permanently to keep the items he

admitted taking, the modified categorical approach does not permit

the BIA to draw inferences of this kind." Id.; accord Akinsade v.

Holder, 678 F.3d 138, 146 (2d Cir. 2012); cf. Renteria-Morales v.

Mukasey, 551 F.3d 1076, 1085 (9th Cir. 2008) (inferences drawn from

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the record of conviction must be "necessary," not merely

"reasonable").

Wala's holding was based on the broader principle that

"the BIA cannot adjudicate the facts in a criminal case to

determine whether, standing alone, they suggest that the petitioner

committed a removable offense." 511 F.3d at 109 (citing Sui v.

INS, 250 F.3d 105, 119 (2d Cir. 2001)). Our cases likewise

emphasize that, "as a general rule, 'the BIA may not adjudicate

guilt' and 'must base removal orders on convictions, not on conduct

alone.'" Campbell, 698 F.3d at 32 (quoting Conteh, 461 F.3d at

56). And we agree with the Wala court's application of this

principle. As in Wala, there may be some reason to think that

Patel intended to cause a permanent deprivation, but the facts

revealed by the plea colloquy are not sufficient to "identify which

crime" -- subsection 53a-118(a)(4)(B), or another prong of the

larceny statute -- "is the crime of conviction." Campbell, 698

F.3d at 33 (emphasis omitted). It is true that, as the Government

points out, Wala's plea colloquy used the word "took" whereas

Patel's used the word "steal," but, for the reasons given above, we

do not see this as a dispositive distinction (and there is no

indication that the Wala court considered the use of "took" to be

decisive). And we do not think it any more "improbable" that Patel

was engaged in a foolish collegiate prank than that Wala took "the

jewelry with the intent to loan it to his girlfriend." Wala, 511

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F.3d at 109.6 Ultimately, although the inferences drawn by the BIA

here are not unreasonable, they impermissibly bridge the "gap

between the 'offense' and the actual conduct" involved, Campbell,

698 F.3d at 35, because "there is no statement in [Patel]'s plea

colloquy admitting an intent to commit a permanent taking," Wala,

511 F.3d at 110; see Akinsade, 678 F.3d at 144 ("[T]he BIA may only

consider facts to which a defendant actually and necessarily

pleaded in order to establish the elements of the offense . . . ."

(citation and internal quotation mark omitted)). Consequently, we

hold that the BIA erred in finding Patel removable, and need not

decide whether he would be eligible for a waiver.

This result may seem strange, but that is a not-uncommon

side effect of the modified categorical approach. "Sometimes th[is

approach] hurts the alien . . . . Other times, as in this case,

the alien . . . comes out ahead. This is hardly the most jarring

example." Campbell, 698 F.3d at 36.

III. Conclusion

For the foregoing reasons, Patel's petition for review is

granted, the BIA's order dismissing Patel's appeal is vacated, and

the matter is remanded to the BIA for further proceedings

consistent with this decision.

6
We do not agree with the BIA that the fact that an item
was damaged necessarily places this escapade beyond the realm of
the prank. Cf. Rodriguez-Herrera v. INS, 52 F.3d 238, 240 (9th
Cir. 1995) (conviction under property-damage law that reached
"pranksters with poor judgment" was not categorically a CIMT).

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