           Case: 16-16764    Date Filed: 09/25/2017   Page: 1 of 9


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-16764
                        Non-Argument Calendar
                      ________________________

                       Agency No. A200-615-657



MAURICIO VILCHIZ-BELLO,

                                                                       Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                      ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                       ________________________

                            (September 25, 2017)

Before TJOFLAT, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Petitioner Mauricio Vilchiz-Bello, a native and citizen of Mexico, petitions

for review from the Board of Immigration Appeals’s (“BIA”) final order affirming

the decision of the Immigration Judge (“IJ”). On appeal, Petitioner argues that his

conviction for criminal use of personal identification information under Florida

Statute § 817.568(2)(a) does not categorically qualify as a crime involving moral

turpitude. After careful review, we deny the petition for review.

I.    BACKGROUND

      Petitioner first entered the United States without admission or inspection in

1998. He departed the United States voluntarily in October 2010, but later re-

entered in January 2011, again illegally, without being admitted or paroled. In

April 2011, Petitioner was convicted in Arizona of solicitation to commit

smuggling.

      The Department of Homeland Security (“DHS”) subsequently issued

Petitioner a notice to appear (“NTA”), charging him as removable (1) under

8 U.S.C. § 1182(a)(6)(A)(i), for being present in the United States without being

admitted or paroled, and (2) under 8 U.S.C. § 1182(a)(2)(A)(i)(I), because he was

convicted of a crime involving moral turpitude.

      At a hearing before the IJ, Petitioner conceded removability as an alien

present in the United States without admission or parole, but denied that he was

removable for having committed a crime involving moral turpitude. Specifically,


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he contended that solicitation to commit alien smuggling is not a crime of moral

turpitude. Petitioner later filed an application for withholding of removal. He also

filed an application for cancellation of removal, asserting that his removal would

cause exceptional hardship to his child, who is a United States citizen.

      In June 2014, and citing a second conviction, the DHS filed an additional

charge of removability, again alleging that Petitioner was inadmissible under

8 U.S.C. § 212(a)(2)(A)(i)(I), as an alien who had committed a crime involving

moral turpitude. In particular, the DHS alleged that Petitioner was convicted in

November 2013 of criminal use of personal identification information, in violation

of Florida Statute § 817.568(2), a third-degree felony. At a subsequent hearing

before the IJ, Petitioner admitted that he was convicted of the above charge, but he

contended that this conviction for criminal use of personal identification

information was, like his other conviction, not a crime involving moral turpitude.

      Following the parties’ briefing on the issue, the IJ issued a written order

sustaining the charge under § 1182(a)(2)(A)(i)(I), based on Petitioner’s conviction

for a crime involving moral turpitude. First, the IJ determined that Petitioner’s

Arizona conviction for solicitation to commit smuggling did not qualify as a crime

involving moral turpitude. Focusing next on Petitioner’s conviction for criminal

use of personal identification information, the IJ applied the categorical approach

and determined that the least culpable conduct required to sustain a conviction


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under § 817.568(2)(a) was possession with intent to fraudulently use another

person’s identification information without the person’s authorization or prior

consent. This conduct required a culpable mental state—the specific intent to

“fraudulently use” the identification information—and was reprehensible because

it involved possessing items with an accompanying intent to use them

fraudulently—conduct that necessarily involves moral turpitude. Therefore, the IJ

held that Petitioner’s conviction under § 817.568(2)(a) was a crime involving

moral turpitude and sustained the charge under § 1182(a)(2)(A)(i)(I).

      In a separate oral decision, the IJ denied Petitioner’s application for

cancellation for removal, concluding that he was statutorily ineligible based on his

conviction for a crime involving moral turpitude. The IJ also denied Petitioner’s

application for withholding of removal.

      Petitioner appealed to the BIA, arguing in relevant part that he was eligible

for cancellation of removal because his conviction for criminal use of personal

identification information was not a crime involving moral turpitude. He

acknowledged that offenses involving fraud ordinarily qualified as crimes

involving moral turpitude, but argued that the Florida statute required more of an

intent to deceive than an intent to defraud. He also challenged the denial of his

application for withholding of removal.




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       The BIA dismissed Petitioner’s appeal and affirmed the IJ’s determination

that Petitioner was removable under § 1182(a)(2)(A)(i)(I) and ineligible for

cancellation of removal because his conviction for criminal use of personal

identification information was a crime involving moral turpitude. The BIA

explained that the Florida statute was not divisible and that the offense was

categorically a crime involving moral turpitude because the full range of conduct

under the statute was inherently fraudulent. The BIA also denied Petitioner’s

application for withholding of removal.

II.    DISCUSSION

       A.     Standard of Review

       We review the BIA’s decision as the final judgment, except to the extent the

BIA expressly adopted the IJ’s decision. Lopez v. U.S. Att’y Gen., 504 F.3d 1341,

1344 (11th Cir. 2007). Where the BIA agrees with the IJ’s reasoning, we also

review the decision of the IJ to the extent of that agreement. See Kazemzadeh v.

U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). We review de novo

whether an alien’s conviction qualifies as a crime involving moral turpitude.1

Gelin v. U.S. Att’y Gen., 837 F.3d 1236, 1240 (11th Cir. 2016).


1
  Our jurisdiction is limited to questions of law and constitutional claims when an alien, who
was convicted of a crime involving moral turpitude, seeks review of his removal order. See 8
U.S.C. § 1252(a)(2)(C), (a)(2)(D). We retain jurisdiction over the legal question of whether
Petitioner’s conviction qualifies as a crime involving moral turpitude. See Cano v. U.S. Att’y
Gen., 709 F.3d 1052, 1053 (11th Cir. 2013).


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      B.     Crime Involving Moral Turpitude

      Petitioner argues here, as he did before the agency, that his conviction for

criminal use of personal identification information under Florida Statute

§ 817.568(2)(a) is not a crime involving moral turpitude. Because his conviction is

not a crime involving moral turpitude, he asserts that he is not statutorily barred

from cancellation of removal.

      An alien convicted of an act which constitutes the essential elements of a

crime involving moral turpitude is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(I).

For cancellation of removal of nonpermanent residents, an alien is statutorily

ineligible if he has been convicted of certain offenses, including a crime involving

moral turpitude. See 8 U.S.C. § 1229b(b)(1)(C); 8 U.S.C. § 1182(a)(2)(A)(i)(I).

      The term “moral turpitude” is not defined by statute, but we have defined a

crime involving moral turpitude to mean an “act of baseness, vileness, or depravity

in the private and social duties which a man owes to his fellow men, or to society

in general, contrary to the accepted and customary rule of right and duty between

man and man.” Cano v. U.S. Att’y Gen., 709 F.3d 1052, 1053 (11th Cir. 2013)

(quotation omitted). “Generally, a crime involving dishonesty or false statement is

considered to be one involving moral turpitude.” Walker v. U.S. Att’y Gen., 783

F.3d 1226, 1229 (11th Cir. 2015) (quotations and alteration omitted) (holding that

uttering a forged instrument is a crime involving moral turpitude because it


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involves deceit); Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002) (holding

that misprision of a felony is a crime involving moral turpitude because it

“necessarily involves an affirmative act of concealment or participation in a felony,

behavior that runs contrary to accepted societal duties and involves dishonest or

fraudulent activity”).

       To determine whether a conviction qualifies as a crime involving moral

turpitude, we generally apply the categorical approach. Gelin, 837 F.3d at 1241.

Under this approach, we consider only the statutory definition of the offense, not

the specific facts underlying the conviction. Id. “In doing so, we ask ‘whether the

least culpable conduct necessary to sustain a conviction under the statute meets the

standard of a crime involving moral turpitude.’” Id. (quotation omitted).

       The statute at issue here is the Florida criminal use of personal identification

information statute, Florida Statute § 817.568(2)(a). 2 That statute provides that:

“Any person who willfully and without authorization fraudulently uses, or

possesses with intent to fraudulently use, personal identification information

concerning another person without first obtaining that person’s consent, commits




2
  To the extent Petitioner argues that it is not clear which subsection of § 817.568 he was
convicted of, as the BIA noted, Petitioner did not challenge the IJ’s determination that he was
convicted under subsection (2)(a). Further, Petitioner admitted that he was convicted of criminal
use of personal identification information in the third degree, which corresponds to subsection
(2)(a). See Fla. Stat. § 817.568(2)(a).


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the offense of fraudulent use of personal identification information.” Fla. Stat.

§ 817.568(2)(a).

      Here, we agree with the BIA’s and IJ’s determination that a conviction for

criminal use of personal identification information under Florida Statute

§ 817.568(2)(a) categorically qualifies as a crime involving moral turpitude.

Applying the categorical approach, the least culpable conduct prohibited by

§ 817.568(2)(a)—possession with intent to fraudulently use another person’s

personal identification without that person’s consent—obviously meets the

standard of a crime involving moral turpitude. See Gelin, 837 F.3d at 1241.

Because the least culpable conduct under § 817.568(2)(a) involves the specific

intent to possess personal information with intent to defraud, the BIA reasonably

concluded that Petitioner’s offense involves moral turpitude. See Walker, 783 F.3d

at 1229; Itani, 298 F.3d at 1216.

      We are not persuaded by Petitioner’s argument that the Florida statute is

overbroad because the definition of fraud does not include detriment to the victim.

Petitioner has not cited to, nor have we found, any precedent holding that an

offense must have an element of detriment or pecuniary loss to the victim in order

to constitute a crime involving moral turpitude. Further, the Florida jury

instructions define the term “fraudulently” as “purposely or intentionally

suppressing the truth or perpetrating a deception or both.” In re Standard Jury


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Instructions in Criminal Cases—Report 2016–03, 202 So. 3d 830, 833 (Fla. 2016).

Based on this definition, the statute includes, at the very least, dishonesty, which

we have consistently held to involve moral turpitude. Fla. Stat. § 817.568(2)(a);

Walker, 783 F.3d at 1229. Therefore, the least culpable conduct necessary to

sustain a conviction under § 817.568(2) meets the standard of moral turpitude. See

Gelin, 837 F.3d at 1241.

       Accordingly, the BIA and IJ properly concluded that Petitioner’s conviction

for criminal use of personal identification information categorically qualifies as a

crime involving moral turpitude and renders him removable under

§ 1182(a)(2)(A)(i)(I) and statutorily ineligible for cancellation of removal.

       PETITION DENIED. 3




3
  In his brief, Petitioner expressly states that he is not challenging the BIA’s denial of his
application for withholding of removal. He has therefore abandoned this argument on appeal.
See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (explaining that
issues not raised in an appellate brief are abandoned).


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