                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-11-2002

De Leon-Reynoso v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 01-2774




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PRECEDENTIAL

       Filed June 11, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2774

LUIS ERASMO DE LEON-REYNOSO,
       Appellant

v.

JOHN ASHCROFT, ATTORNEY GENERAL; DORIS
MEISSNER, COMMISSIONER OF IMMIGRATION AND
NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE;
CHARLES ZEMSKI, DISTRICT DIRECTOR INS

Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 01-cv-00289
District Judge: Honorable Thomas N. O’Neill, Jr.

Argued: May 7, 2002

Before: NYGAARD, ALITO, and ROSENN, Circuit Ju dges

(Filed June 11, 2002)

       Martin A. Kascavage (Argued)
       Schoener & Kascavage
       400 Market Street, Suite 420
       Philadelphia, PA 19106

        Counsel for Appellant




       Joshua E. Braunstein (Argued)
       United States Department of Justice
       Office of Immigration Litigation
       P.O. Box 878
       Ben Franklin Station
       Washington, DC 20044

       Thankful T. Vanderstar
       Terri J. Scadron
       Suite 700S
       United States Department of Justice
       Office of Immigration Litigation
       1331 Pennsylvania Avenue, N.W.
       Washington, DC 20530

       Linda L. Bocchino
       Suite 1250
       Office of United States Attorney
       615 Chestnut Street
       Philadelphia, PA 19106
        Counsel for Appellees

OPINION OF THE COURT

ROSENN, Circuit Judge:

This appeal raises an important constitutional question
of first impression in this circuit. It pertains primarily to
the scope of Congressional authority over the nation’s
immigration and naturalization laws. Luis Erasmo De Leon-
Reynoso (De Leon) appeals the denial by the United States
District Court for the Eastern District of Pennsylvania of his
habeas corpus petition challenging his deportation.
Because the District Court did not err in holding 8 U.S.C.
S 1182(h) constitutional and finding De Leon deportable
based on his conviction of a crime of moral turpitude in the
Commonwealth of Pennsylvania, the District Court’s denial
of habeas relief will be affirmed.

I.

De Leon is a native and citizen of the Dominican
Republic, and has a spouse and child who are United

                                2


States citizens. He entered the United States as a lawful
permanent resident (LPR) on June 18, 1992. On June 12,
1997, De Leon was convicted in the Court of Common
Pleas, Northampton County, Pennsylvania, of receiving
stolen property. The court sentenced him to probation for
two years.

The Immigration and Nationality Act (INA), S 237
(a)(2)(A)(i), 8 U.S.C. S 1227(a)(2)(A)(i) provides for deportation
of an alien convicted within five years after admission into
the United States of a crime involving moral turpitude for
which a prison sentence of one year or longer may be
imposed. The Immigration Service initiated proceedings for
his deportation on the ground of the conviction and De
Leon appeared for a hearing before an immigration judge.
The judge found him deportable. The judge also found him
ineligible for adjustment of his status because he was
unable to qualify for a waiver under INA S 212(h), as
amended by Section 348(a) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, 8 U.S.C.
S 1182(h), because he had not been a legal immigrant in
the United States for seven years preceding the date the
removal proceedings were initiated. The immigration judge
also denied De Leon’s request for voluntary departure,
finding that he lacked the requisite good moral character.

The Board of Immigration Appeals (BIA) affirmed the
immigration judge’s decision and dismissed De Leon’s
appeal. The BIA did not address De Leon’s constitutional
challenge because it lacked the authority to hear it. On
January 19, 2001, De Leon filed a petition for habeas
corpus. The District Court denied the petition and De Leon
timely appealed to this Court.1 We exercise de novo review
of the District Court’s denial of habeas relief and its
interpretation of statutes. Gerbier v. Holmes , 280 F.3d 297,
302 (3d Cir. 2002). Likewise, we exercise de novo review
over De Leon’s constitutional challenge. DeSousa v. Reno,
190 F.3d 175, 180 (3d Cir. 1999).
_________________________________________________________________

1. We have appellate jurisdiction pursuant to 28 U.S.C. SS 1291 and
2253.

                                3


II.

A. Crime of Moral Turpitude

De Leon was convicted of receiving stolen property less
than a week under five years from the date he was admitted
to the United States. The Pennsylvania statute provides
that a person is guilty of theft if the person "intentionally
receives, retains, or disposes of movable property of another
knowing that it has been stolen, or believing that it has
probably been stolen." PA. CONS. STAT. ANN.S 3925(a).

Title 8 U.S.C. S 1227(a)(2)(A)(i) provides for the
deportation of aliens convicted of crimes that involve moral
turpitude, that are punishable by a year or more in prison,
and that are committed within five years of the date of
admission to the United States.

Whether an alien’s crime is one involving moral turpitude
is determined by the statute and record of conviction rather
than the alien’s specific act. See Alleyne v. INS, 879 F.2d
1177, 1185 (3d Cir. 1989) ("[T]he nature of an alien’s crime
is determined by the statute and record of conviction, not
from the specific acts surrounding the conviction."). Thus,
merely examining De Leon’s act to determine whether he
committed a crime of moral turpitude is insufficient; we
instead must look to the Pennsylvania statute.

The term "moral turpitude" defies a precise definition. 6
CHARLES GORDON, ET AL., IMMIGRATION LAW AND PROCEDURE
S 71.05(1)(d)(i). Black’s Law Dictionary notes an "honesty"
component in its definition of moral turpitude, which
includes: "[c]onduct that is contrary to justice, honesty, or
morality." BLACK’S LAW DICTIONARY 1026 (7th ed. 1999); see
also 37 Op. Att’y Gen. 293, 294 (1933) ("A good and
comprehensive statement concerning ‘moral turpitude’ [is]
. . . . anything done contrary to justice, honesty, principle,
or good morals."); In re Serna, 20 I. & N. Dec. 579, 582 (BIA
1992) (citing Attorney General’s definition with approval).

Courts have held that knowingly receiving stolen property
is a crime of moral turpitude. See, e.g., Michel v. INS, 206
F.3d 253, 262-63 (2d Cir. 2000) (applying Chevron
deference in concluding BIA reasonably determined

                                4
knowing possession of stolen property is crime of moral
turpitude); United States v. Castro, 26 F.3d 557, 558 n.1
(5th Cir. 1994) (noting conviction for knowingly receiving
stolen property is crime of moral turpitude); see also 6
CHARLES GORDON, ET AL., IMMIGRATION LAW AND PROCEDURE
S 71.05(1)(d)(iii). Indeed, De Leon conceded at oral argument
that a person who knowingly receives stolen property has
committed a crime of moral turpitude.

De Leon argues, however, that the Pennsylvania statute
not only criminalizes knowing possession of stolen property,
but that it also includes an objective component that
criminalizes possession of stolen property if one should
have known it was stolen. De Leon therefore claims that his
crime was not one of moral turpitude and leans heavily on
In Re K, 2 I. & N. Dec. 90 (BIA 1944), as support for his
position.

In re K involved a German statute providing criminal
liability for, inter alia, any person concealing the purchase
of goods "which he knows or must assume on the basis of
the given conditions . . . have been acquired by means of
any criminal act." Id. at 91. The BIA, focusing on the
language "or must assume," determined that a"conviction
may be founded upon the negligent receipt of property by a
person acting in good faith," and that such a crime was not
one of moral turpitude. Id. De Leon asserts that the
Pennsylvania statute, which not only criminalizes knowing
possession of stolen property, but also possession of stolen
property when one "believ[es] that it has probably been
stolen," is analogous to the German statute.

De Leon is incorrect; the Pennsylvania statute is purely
subjective and lacks the objective component found in the
German statute. The language in the Pennsylvania statute
referring to a belief that the property probably has been
stolen speaks to the specific defendant’s belief and not the
hypothetical reasonable person. The German statute, on the
other hand, criminalized possession of stolen property if
one "must assume on the basis of the given conditions"
that the property was stolen. "Must assume" is objective; it
does not require that the defendant assume theft of the
property, but merely that he should assume it so. The
objective component of the German statute is why the BIA

                                5


held it not to be a crime of moral turpitude. The
Pennsylvania statute is, in contrast, subjective, and thus In
re K is not apposite.

De Leon also argues that the Pennsylvania statute has
been interpreted by the Pennsylvania courts as having an
objective element. First, he cites Commonwealth v.
Matthews, 632 A.2d 570, 573 n.2 (Pa. Super. Ct. 1993), for
support. Matthews noted that it is permissible to infer
guilty knowledge by the unexplained possession of stolen
property. Id. However, and contrary to De Leon’s assertion,
Matthews did not hold that there is an objective component
to the statute. Inferring guilty knowledge does not mean
that a reasonable person would have had such knowledge,
but rather that the jury could infer from the circumstances
that the defendant actually had such knowledge. As Judge
Alito observed at oral argument in this case, "subjective
intent is generally inferred from objective facts." The second
case De Leon cites, Commonwealth v. Williams, 362 A.2d
244, 248-49 (Pa. 1976), stands for the same proposition as
Matthews. Neither case injected an objective element into
the Pennsylvania statute.

At a minimum, De Leon was convicted of possessing
stolen property that he believed probably was stolen, a
crime that is barely removed from possessing stolen
property with knowledge that it is stolen. Both crimes
speak with equal force to the honesty of a person. If
knowingly possessing stolen goods is a crime of moral
turpitude, it follows that possessing stolen goods that one
believes probably are stolen is such a crime, too. It cannot
reasonably be argued that a person willing to possess goods
believing they were probably stolen exhibits less moral
turpitude than a person who actually knows such goods
are stolen. Accordingly, the District Court did not err in
holding that De Leon committed a crime of moral turpitude
subjecting him to deportation pursuant to 8 U.S.C.
S 1227(a)(2)(A)(i).

B. Equal Protection

Deportable aliens who are married to United States
citizens can seek relief from deportation by applying to

                                6


adjust their status to that of a permanent resident based
on marriage. 8 U.S.C. S 1255. De Leon has a spouse who is
a United States citizen. Under the statute, the Attorney
General may, in his discretion, adjust the status of an alien
in removal proceedings to that of an alien lawfully admitted
for permanent residence if: (1) the alien makes an
application for the adjustment; (2) the alien is eligible to
receive an immigrant visa and is admissible to the United
States for permanent residence; and (3) an immigrant visa
is immediately available to him at the filing of the
application. Id. S 1255(a).

An alien, however, is inadmissible to the United States if
he has been convicted of a crime of moral turpitude. Id.
S 1182(a)(2)(A)(I)(I). Thus, such an alien cannot satisfy the
second requirement of S 1255(a). Because of De Leon’s
conviction, he had to apply for a waiver of the moral
turpitude ground of inadmissibility under one of the waiver
provisions in 8 U.S.C. S 1182(h) to be eligible for an
adjustment of status.

Under S 1182(h), the Attorney General in his discretion
may waive an alien’s inadmissibility for a crime of moral
turpitude if the alien is a spouse, parent, or child of a
United States citizen or permanent resident alien and can
show that denial of admission would cause extreme
hardship to the citizen or permanent resident alien. Id.
S 1182(h)(1)(B). Congress amended this waiver provision in
1996 to prohibit eligibility if an alien previously has been
admitted as a permanent resident and has then either (a)
been convicted of an aggravated felony, or (b) not resided in
the United States for seven continuous years. Id. S 1182(h).2
_________________________________________________________________

2. The statute provides, in pertinent part:

       No waiver shall be granted . . . in the case of an alien who has
       previously been admitted to the United States as an alien lawfully
       admitted for permanent residence if either since the date of such
       admission the alien has been convicted of an aggravated felony or
       the alien has not lawfully resided continuously in the United States
       for a period of not less than 7 years immediately preceding the date
       of initiation of proceedings to remove the alien from the United
       States.

8 U.S.C. S 1182(h).

                                7


Because De Leon had not resided in the United States for
seven years, the immigration judge found him ineligible to
adjust his status.

De Leon argues that S 1182(h) violates the equal
protection component of the Fifth Amendment’s Due
Process clause by making an impermissible distinction
between two categories of aliens who are not permitted to
reside in the United States: those who have not previously
been lawfully admitted to the United States (i.e., non-LPRs)
and those who have been previously admitted to the United
States but have not resided in the United States for seven
consecutive years before removal proceedings are initiated
(LPRs). See In re Michel, 21 I & N Dec. 1101, 1104 (BIA
1998) ("Section [1182(h)] . . . while specifically precluding
waiver eligibility for a lawful permanent resident who has
been convicted of an aggravated felony, imposes no such
restriction on one who has not been admitted previously as
an [LPR]."). De Leon asserts that this distinction allows a
criminal alien who has never had permanent resident
status in the United States, never acquired equities or
familial ties, to secure a waiver, while those who have
previously been admitted as lawful permanent residents,
but with less than the seven years required residence, will
be deported. Thus, he argues, the amendatory 1996
legislation is unconstitutional.

There is a "limited scope of judicial inquiry into
immigration legislation." Fiallo v. Bell, 430 U.S. 787, 792
(1977). " ‘[O]ver no conceivable subject is the legislative
power of Congress more complete than it is over’ the
admission of aliens." Id. (quoting Oceanic Navigation Co. v.
Stranahan, 214 U.S. 320, 339 (1909)). The Supreme Court
has noted that its "cases ‘have long recognized the power to
expel or exclude aliens as a fundamental sovereign
attribute exercised by the Government’s political
departments largely immune from judicial control.’ " Id.
(quoting Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953)).
In exercising its broad powers over immigration and
naturalization, " ‘Congress regularly makes rules that would
be unacceptable if applied to citizens.’ " Id. (quoting
Mathews v. Diaz, 426 U.S. 67, 80 (1976)). The" ‘power over
aliens is of a political character and therefore subject only

                                8


to narrow judicial review.’ " Id. (quoting Hampton v. Mow
Sun Wong, 426 U.S. 88, 101 n.21 (1976) (citing Fong Yue
Ting v. United States, 149 U.S. 698, 713 (1893)).

This Court applies rational basis review to equal
protection challenges in the area of admission or removal of
aliens. Pinho v. INS, 249 F.3d 183, 190 (3d Cir. 2001).
Rational basis review does not empower "courts to judge
the wisdom, fairness, or logic of legislative choices," and
legislation subject to rational basis review has a strong
presumption of validity. Heller v. Doe, 509 U.S. 312, 319
(1993) (quoting FCC v. Beach Communications, Inc., 508
U.S. 307, 313 (1993)). Legislation is constitutional if there
is a rational relationship between the disparate treatment
and some legitimate governmental purpose. Id. at 320.
Moreover, Congress need not justify the purpose or
reasoning to support its classification. Id. The legislation
must be sustained if any reasonably conceivable state of
facts provide a rational basis for the classification. Id.

In Song v. INS, 82 F. Supp. 2d 1121 (C.D. Cal. 2000), the
District Court addressed the equal protection argument
with respect to S 1182(h) in a context where the alien’s
aggravated felony rendered him ineligible for a waiver.3 The
Court found S 1182(h)’s distinction between legal and illegal
aliens irrational and therefore unconstitutional. Id. at 1133.

Song found that the legislation creates an incentive for
one to be a non-LPR rather than an LPR and punishes
those with closer ties to the United States. Id. The Court
held that it is irrational to punish aliens more severely for
merely having closer ties to the United States. Id. The Court
also found that the section rewards those who are guilty of
two crimes (i.e., non-LPRs who have committed either a
crime of moral turpitude or an aggravated felony are also
committing a crime by their very presence in this country)
by giving them greater consideration than LPRs who are
_________________________________________________________________

3. Although most of the cases applying equal protection analysis to
S 1182(h) have arisen in the context of waiver ineligibility due to an alien
having committed an aggravated felony, the analyses equally apply in
situations where alien ineligibility is due to the commission of a crime of
moral turpitude.

                                9
guilty only of an aggravated felony or a crime of moral
turpitude. Id.

Song further rejected the Government’s argument that
with the greater privileges bestowed upon LPRs comes a
commensurately greater duty to follow the law. Id. The
Court ruled that it is irrational to argue that one of the
greater duties on LPRs is to abide by the law because all
persons in the United States have such a duty, regardless
of their status. Id. at 1133-34.

In contrast to Song, the Courts of Appeals addressing the
issue have held that S 1182(h) is constitutional. In Lara-
Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001), the Court of
Appeals noted several rational bases for S 1182(h)’s
distinction. First, it stated that "[o]ne of Congress’ purposes
in enacting reforms . . . was to expedite the removal of
criminal aliens from the United States." Id. at 947. The
Court held that

       [w]hile it might have been wiser, fairer, and more
       efficacious for Congress to have eliminated . . . relief for
       non-LPR aggravated felons as well, the step taken by
       Congress was a rational first step toward achieving the
       legitimate goal of quickly removing aliens who commit
       certain serious crimes from the country, and as such
       it should be upheld.

Id.

The Court also noted that LPRs have rights and privileges
based on their status that are not shared by non-LPRs, and
that LPRs have closer ties to the United States through
work and family. Id. "Therefore, Congress may rationally
have concluded that LPRs who commit serious crimes
despite these factors are uniquely poor candidates for . . .
waiver of inadmissibility." Id.

Finally, the Court stated that in making LPRs ineligible
for waiver, "Congress might well have found it significant
that . . . such aliens have already demonstrated that closer
ties to the United States and all of the benefits attending
LPR status were insufficient to deter them from committing
serious crimes." Id. at 948. Thus, it concluded that LPRs
were a higher risk for recidivism and less deserving of a
second chance than non-LPRs.

                                10


Both the Eighth and Eleventh Circuit Courts of Appeals,
when deciding the issue, reached the same conclusion as
the Seventh Circuit Court of Appeals. Lukowski v. INS, 279
F.3d 644, 647 (8th Cir. 2002) ("[Section] 1182(h) easily
passes equal protection muster."); Moore v. Ashcroft, 251
F.3d 919, 925 (11th Cir. 2001). The Second Circuit Court
of Appeals, although finding equal protection analysis
inapplicable, likewise held that S 1982(h) is constitutional.
Jankowski-Burczyk v. INS, No. 01-2353 (2d Cir. May 29,
2002).

In addition to adopting much of the Court’s reasoning in
Lara-Ruiz, Moore also suggested that waiver eligibility only
is theoretically available to illegal aliens. "Because illegal
aliens are assumably removable at any time regardless of
whether they have committed aggravated felonies in this
country or not, Congress simply may have seen no need to
emphasize in the statute that this class of individuals could
not seek a waiver." 251 F.3d at 925. Although relief is
theoretically available to non-LPRs, the Court held that it
could not conclude that Congress acted arbitrarily or
unreasonably in barring LPRs who commit aggravated
felonies from seeking discretionary relief. Id. at 926.

Because Congress conceivably had good reasons to create
the S 1182(h) distinction, we hold that the distinction
survives rational basis scrutiny. Although Song was correct
in stating that all persons have an equivalent obligation to
lead lives within the confines of the law, Lara-Ruiz
suggested at least two additional rationales for the
S 1182(h) distinction.

First, Congress could have concluded that LPRs who
commit crimes of moral turpitude, despite rights and
privileges based on their status that illegal aliens do not
share, are "uniquely poor candidates" for waiver. Second,
LPRs with employment and family ties to the United States,
who are still willing to commit serious crimes, are a higher
risk for recidivism than non-LPRs who commit serious
crimes but lack ties to the United States. Although these
two rationales do not command enthusiasm, they form a
plausible justification for the distinction made by Congress.
In legislation aimed at the legitimate government interest of
expediting the deportation of immigrants who commit

                                11


serious crimes in this country, we cannot say that the
distinction between the two classes of aliens is irrational.

Moore’s focus on the theoretical nature of illegal alien
waiver eligibility is also cogent. Non-LPRs may always be
excluded from the United States, regardless of whether they
have committed serious crimes. Moreover, non-LPRs
presumably lack the ties to obtain a relative to petition the
Attorney General for adjustment of status. Accordingly,
Congress may have seen no risk in excluding non-LPRs
from the statutory class of persons eligible for waiver. This
belief, that non-LPR waiver eligibility is more theoretical
than real, is also rational, and could have led Congress to
omit non-LPRs in S 1182(h).

Our holding that the S 1182(h) distinction survives
rational basis scrutiny should not be mistaken for an
endorsement of the policy. We urge Congress to reconsider
the ramifications of entirely eliminating the Attorney
General’s discretion in this area. At times, pathetic, heart-
wrenching pain for families and burdensome consequences
for employers and taxpayers accompany removal
proceedings. De Leon’s wife and child, who are United
States citizens, will now become a single-parent family.
Whether they can sustain themselves or will be a burden to
society remains to be seen. Furthermore, the
Commonwealth of Pennsylvania did not believe that De
Leon’s criminal act warranted incarceration; the court
sentenced him to two years of probation.

Although Congress’s goal of expediting the removal of
criminal aliens is understandable and even praiseworthy,
denying the Attorney General of the United States the
discretionary power to adjust the status of a lawful
permanent alien who has committed a crime of moral
turpitude, regardless of the circumstances of the crime and
his familial conditions, can be harsh, self-defeating, and
unwise.4
_________________________________________________________________

4. Judge Alito does not join the final two paragraphs of Part II of this
opinion. Having concluded that the challenged statutory provision is
constitutional, he expresses no view regarding its wisdom.

                                12


III.

In summary, the District Court did not err in concluding
that De Leon committed a crime of moral turpitude. The
Court also committed no error in determining that 8 U.S.C.
S 1182(h) does not violate the equal protection component
of the Fifth Amendment’s Due Process clause. The order of
the District Court will be affirmed. Each side to bear its
own costs.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                13
