                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1230
                        ___________________________

                                    Amela Dolic

                             lllllllllllllllllllllPetitioner

                                           v.

             William P. Barr,1 Attorney General of the United States

                            lllllllllllllllllllllRespondent
                                    ____________

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

                           Submitted: January 15, 2019
                            Filed: February 20, 2019
                                 ____________

Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
                       ____________

GRUENDER, Circuit Judge.

      Amela Dolic petitions for review of the Board of Immigration Appeals (“BIA”)
decision affirming the immigration judge’s (“IJ”) denial of her motion to terminate
removal proceedings. We deny the petition.

      1
       Pursuant to Federal Rule of Appellate Procedure 43(c)(2), William P. Barr has
been automatically substituted as a party.
      Dolic, a native and citizen of Bosnia-Herzegovina, was admitted to the United
States in 2006 as a conditional resident, and in 2009 her status changed to lawful
permanent resident. In March of 2017, a Missouri state court convicted Dolic of three
counts of receiving stolen property and four counts of passing a bad check.

       An alien convicted of “two or more crimes involving moral turpitude, not
arising out of a single scheme of criminal misconduct” is removable under the
Immigration and Nationality Act (“INA”). See 8 U.S.C. § 1227(a)(2)(A)(ii); see also
Gomez-Gutierrez v. Lynch, 811 F.3d 1053, 1057 (8th Cir. 2016). Based on Dolic’s
convictions for receiving stolen property and passing bad checks, the Department of
Homeland Security (“DHS”) charged her with removability. Dolic filed a motion to
terminate removal proceedings and alleged that DHS had not demonstrated that her
convictions qualified as crimes involving moral turpitude. The IJ denied the petition,
finding that Dolic’s convictions were for crimes involving moral turpitude, and the
BIA affirmed. On appeal, Dolic does not contest the fact of these convictions or that
they arose out of multiple schemes of criminal misconduct, but only whether they
were for crimes involving moral turpitude.

       Whether a conviction qualifies as a crime involving moral turpitude (“CIMT”)
is a legal question, subject to de novo review. See Gomez, 811 F.3d at 1058. “In
analyzing that question, we afford substantial deference to the [BIA’s] interpretation
of ambiguous statutory language in the INA and will uphold its construction if it is
reasonable.” Id. “In the absence of a statutory definition,” the BIA has defined a
CIMT as one “which is inherently base, vile, or depraved, and contrary to the
accepted rules of morality and the duties owed between persons or to society in
general.” Alonzo v. Lynch, 821 F.3d 951, 958 (8th Cir. 2016). The Supreme Court
has also established that a crime in which fraud is an element meets the definition of
a CIMT. See Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir. 2012) (citing
Jordan v. De George, 341 U.S. 223, 229 (1951)).



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       We do not look to Dolic’s particular conduct to determine if it involved moral
turpitude because the INA asks whether the crime of conviction fits a certain category
(“crimes involving moral turpitude”), not whether an alien’s acts fit that category.
See Bobadilla, 679 F.3d at 1054-55. Under this categorical approach, “[a]n alien’s
actual conduct is irrelevant . . . [and] the adjudicator must presume that the conviction
rested upon nothing more than the least of the acts criminalized under the state
statute.” Alonzo, 821 F.3d at 960 (internal quotation marks omitted).

       When “a statute defines only a single crime with a single set of elements,”
Mathis v. United States, 136 S. Ct. 2243, 2245 (2016), we ask whether the crime
“necessarily involved . . . facts equating to” the definition of a CIMT, see Moncrieffe
v. Holder, 569 U.S. 184, 190 (internal quotation marks omitted). If so, that statute
qualifies as a CIMT. Id. But, if there is a “realistic probability . . . that the State
would apply its statute to conduct that falls outside” the definition of a CIMT, that
statute is overbroad and fails to qualify. Id. at 206.

      Mo. Rev. Stat § 570.120 governs the crime of passing bad checks. It states, in
pertinent part:

      1. A person commits the offense of passing a bad check when he or she:

             (1) With the purpose to defraud, . . . passes a check . . . knowing that it
             will not be paid by the drawee, or that there is no such drawee; or

             (2) . . . passes a check . . . knowing that there are insufficient funds in or
             on deposit with that account for the payment of such check . . . in full
             . . . upon such funds then outstanding, or that there is no such account
             or no drawee and fails to pay the check . . . within ten days after
             receiving actual notice in writing that it has not been paid because of
             insufficient funds or credit with the drawee or because there is no such
             drawee.



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No party disputes that § 570.120.1 is overbroad, because § 570.120.1(2) allows for
a conviction without “a culpable mental state and reprehensible conduct.” Alonzo,
821 F.3d at 958 (8th Cir. 2016). Therefore, we cannot apply the categorical approach.

       But this analysis is not dispositive. Some overbroad statutes define “multiple
crimes” and so are “divisible.” Mathis, 136 S. Ct. at 2249. Where a statute is
divisible, we apply the modified categorical approach to determine whether a
defendant was convicted pursuant to a “discrete subsection” of the overbroad statute
defining a separate crime that “necessarily involved . . . facts equating to” the
definition of a CIMT. See Alonzo, 821 F.3d at 960, 963 (quoting Moncrieffe, 569
U.S. at 190). If so, the crime of conviction still qualifies as a CIMT. See Id. at 962.

        Thus, whether we can apply the modified categorical approach hinges on
whether § 570.120.1 is divisible. See United States v. Lamb, 847 F.3d 928, 931 (8th
Cir. 2017), cert. denied, 138 S. Ct. 1438 (2018). Section 570.120.1 is divisible only
if it “effectively creates several different . . . crimes,” Descamps v. United States, 570
U.S. 254, 264 (2013) (internal quotation marks omitted), by listing alternative
elements, not means, Mathis, 136 S. Ct. at 2254-55. Elements are “the things the
prosecution must prove to sustain a conviction.” Id. at 2248 (internal quotation marks
omitted). Means or “brute facts” are “[h]ow a given defendant actually perpetrated
the crime.” Id. at 2251. To distinguish between elements and means, we may
consider “authoritative sources of state law” and the statute’s text. Id. at 2256. If
necessary, we may also “peek” at the record of the prior conviction, but only to
determine if the statutory alternatives are elements or means. Id. at 2257.

       Here, we conclude that § 570.120.1 lists alternative elements and so is
divisible. The text contains two subsections that “set forth alternative ways in which
one may violate the statute.” See Alonzo, 821 F.3d at 962 (“The hallmark of
divisibility is the enumeration of alternative bases for conviction separated by the
disjunctive ‘or.’”). Missouri state court decisions treat § 570.120.1’s alternative

                                           -4-
paragraphs (1) and (2) as creating independent offenses that are charged separately.
See State v. Carroll, 41 S.W.3d 878, 882 (Mo. 2001) (en banc) (finding that “[u]nder
section 570.120.1(1)” the “crime of passing a bad check is proven by evidence
establishing that an accused passed a check with the purpose to defraud, knowing it
would not be paid by the drawee” and that “the evidence is sufficient to establish
those elements” (emphasis added)); State v. Williams, 469 S.W.3d 6, 9 (Mo. Ct. App.
2015) (“By electing to charge Defendant with a violation of § 570.120.1(2), one of
the elements that the State had the burden to prove was that Defendant failed to pay
the check ‘within ten days . . . .’” (emphasis added)). These state court decisions
match the approved jury instructions enacted by the Missouri Supreme Court, which
establish that § 570.120.1 contains multiple possible offenses with distinct elements
that the “prosecution must prove to sustain a conviction.” Mathis, 136 S. Ct. at 2256.
Three instructions apply to § 570.120.1(1) (all containing “purpose to defraud” as an
element) and one instruction applies to § 570.120.1(2) (entitled “Ten Day Notice” and
containing no “purpose to defraud” element). See MAI-CR 3d 324.30.1-4.

      In sum, the text of the statute and Missouri state court authority establish that
§ 570.120.1(2) is a distinct crime from § 570.120.1(1), which necessarily includes
“purpose to defraud” as an element, see Carroll, 41 S.W.3d at 882, and so is
categorically a CIMT, see Bobadilla, 679 F.3d at 1057.

      Applying the modified categorical approach, we may look “to a limited class
of documents (for example, the indictment, jury instructions, or plea agreement and
colloquy) to determine what crime, with what elements, a defendant was convicted
of.” Mathis, 136 S. Ct. at 2249. Here, the record shows that Dolic pleaded guilty to
four charges of passing a bad check pursuant to § 570.120, without specifying a
subparagraph. But each of her charging documents contains language that tracks the
language of § 570.120.1(1) and includes the element “with the purpose to defraud.”




                                         -5-
Therefore, we conclude that § 570.120.1(1) was in fact Dolic’s crime of conviction
in each instance.

      Because Dolic’s four Missouri convictions for passing a bad check qualify as
crimes involving moral turpitude, we need not consider whether her convictions
pursuant to Mo. Rev. Stat § 570.080 also qualify.

      We deny Dolic’s petition.

                      ______________________________




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