     Case: 15-60639    Document: 00514218852     Page: 1   Date Filed: 10/31/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                    Fifth Circuit

                                                                          FILED
                                                                      October 31, 2017
                                  No. 15-60639
                                                                        Lyle W. Cayce
                                                                             Clerk
LEONARDO VILLEGAS-SARABIA, also known as Leonardo Villegas, Jr.,

             Petitioner
v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

             Respondent


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


                               Consolidated with

                                ________________

                                  No. 15-50993
                                ________________


LEONARDO VILLEGAS-SARABIA; LEONARDO VILLEGAS, JR.,

             Petitioners - Appellees
v.

ELAINE C. DUKE, ACTING SECRETARY, DEPARTMENT OF
HOMELAND SECURITY; ENRIQUE LUCERO, Field Office Director for
Immigration and Customs Enforcement; LEON RODRIGUEZ, Director,
United States Citizenship and Immigration Services; MARIO ORTIZ, San
Antonio District Director for United States Citizenship and Immigration
Services; REYNALDO CASTRO, Warden, South Texas Detention Center,

             Respondents - Appellants
    Case: 15-60639    Document: 00514218852      Page: 2   Date Filed: 10/31/2017



                          No. 15-60639 c/w 15-50993




                Appeal from the United States District Court
                     for the Western District of Texas



Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
WIENER, Circuit Judge.
      In the first of the cases consolidated in this appeal, Petitioners-Appellees
Leonardo Villegas-Sarabia (“Villegas-Sarabia”) and his father, Leonardo
Villegas, Jr. (“Villegas”), seek review of the order of the Board of Immigration
Appeals (“BIA”) holding that Villegas-Sarabia, a Mexican citizen, is
inadmissible to the United States and ineligible to adjust his citizenship status
because his conviction for misprision of a felony is a crime involving moral
turpitude. In the second case, the government appeals two aspects of the
district court’s decision: (1) that the differing physical presence requirements
for unmarried U.S.-citizen mothers and such fathers in 8 U.S.C. §§ 1401 and
1409(c) violates equal protection and (2) that the remedy of the constitutional
violation is extending citizenship to Villegas-Sarabia under 8 U.S.C. § 1409(c).
We affirm the BIA’s order in the first case and reverse the district court’s
judgment granting citizenship in the second case.
                              I. FACTS & PROCEEDINGS
      A.    Factual Background
      The facts of this case are not disputed by the parties. Leonardo Villegas-
Sarabia was born in Mexico on March 16, 1974. At the time of his birth, his
parents were not married, but Villegas, his father, was a United States citizen,
who lived in the United States from the time he was born in 1955 through
1960, and again from 1965 to the present. In 1974, when Villegas-Sarabia was

                                        2
     Case: 15-60639       Document: 00514218852          Page: 3     Date Filed: 10/31/2017



                               No. 15-60639 c/w 15-50993


born, Villegas was 18 years old and had only been present in the United States
for four years after he reached 14 years of age. 1 At the time of Villegas-
Sarabia’s birth, his mother was a citizen of Mexico.
       Villegas-Sarabia’s parents married when he was 13 years old. He has
lived in the United States continuously since he was a few months old, and in
July 1985, he became a lawful permanent resident of the United States.
       In November 2011, Villegas-Sarabia was indicted for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922. He pleaded guilty
in June 2012 and was sentenced to a thirty-month term of imprisonment in
June 2013. Between his plea and his sentencing, Villegas-Sarabia applied for
citizenship, claiming that he was a United States citizen by virtue of his
father’s citizenship. At the time of Villegas-Sarabia’s birth, his citizenship was
governed by the 1970 version of 8 U.S.C. § 1401(a)(7), which granted U.S.
citizenship to:
       a person born outside the geographical limits of the United States
       and its outlying possessions of parents one of whom is an alien,
       and the other a citizen of the United States, who, prior to the birth
       of such person, was physically present in the United States or its
       outlying possessions for a period or periods totaling not less than
       ten years, at least five of which were after attaining the age of
       fourteen years. 2
This provision applied expressly to married parents, but it was made
applicable to unmarried parents under § 1409(a). 3 Significant to this case,
§ 1409(c) granted an exception to unmarried mothers:



       1 At the time of Villegas-Sarabia’s birth, he would only have qualified for derivative
citizenship if his father had lived in the United States for a total of ten years, and at least
five years after reaching the age of 14. See 8 U.S.C. § 1401(a)(7) (1970).
       2 8 U.S.C. § 1401(a)(7) (1970). The relevant provisions of the 1970 statute were

originally codified in 1958. See 8 U.S.C. § 1409 (1958).
       3 8 U.S.C. § 1409(a) (1970).

                                              3
     Case: 15-60639      Document: 00514218852        Page: 4     Date Filed: 10/31/2017



                             No. 15-60639 c/w 15-50993


      [N]otwithstanding the provision of subsection (a) of this section, a
      person born, on or after the effective date of this chapter, outside
      the United States and out of wedlock shall be held to have acquired
      at birth the nationality status of his mother, if the mother had the
      nationality of the United States at the time of such person’s birth,
      and if the mother had previously been physically present in the
      United States . . . for a continuous period of one year. 4
Applying these statutes, the United States Citizenship and Immigration
Services denied Villegas-Sarabia’s citizenship application, after determining
that his father did not satisfy the residency requirements under § 1401(a)(7).
      B.     Immigration Proceedings
      In January 2015, the Department of Homeland Security initiated
removal proceedings based on Villegas-Sarabia’s firearms conviction. In his
appearance before the immigration judge (“IJ”), Villegas-Sarabia conceded
that he was admitted to the United States as the child of a citizen and that he
had been convicted of illegal possession of a firearm, but he denied that he was
an alien or that he was subject to removal. 5 Villegas-Sarabia argued that,
because § 1409(c)’s discriminatory one-year exception covered only unmarried
U.S.-citizen mothers it violated equal protection. He insisted that, under a
constitutional reading of the statute, he was entitled to derivative citizenship.
      In April 2015, the IJ determined that Villegas-Sarabia was not a citizen
and sustained the removal charge. Villegas-Sarabia responded that he would
seek an adjustment of status. The IJ held that Villegas-Sarabia’s conviction for
misprision of a felony was a crime involving moral turpitude (“CIMT”), making
him inadmissible to the United States and ineligible for adjustment of his



      4  8 U.S.C. § 1409(c).
      5  During the hearing before the immigration judge, the Department of Homeland
Security submitted evidence of Villegas-Sarabia’s firearm conviction and a 1997 judgment of
conviction for misprision of a felony.
                                            4
     Case: 15-60639       Document: 00514218852         Page: 5     Date Filed: 10/31/2017



                              No. 15-60639 c/w 15-50993


status. 6 The IJ explained further that Villegas-Sarabia could only adjust his
immigration status if he could obtain a waiver of inadmissibility pursuant to 8
U.S.C. § 1182(h). Villegas-Sarabia’s firearm conviction was an aggravated
felony, however, statutorily barring him from seeking such a waiver. The IJ
pretermitted Villegas-Sarabia’s application for an adjustment of status,
holding that he had committed a CIMT and therefore could not attempt to
adjust his immigration status without a waiver. But Villegas-Sarabia’s
aggravated felony conviction barred him from seeking such a waiver. 7
       Villegas-Sarabia appealed the IJ’s decision to the BIA, challenging the
constitutionality of the disparate sex-based residency requirements of §§ 1401
and 1409(c). He argued in the alternative that, because misprision of a felony
is not a CIMT, he is not required to obtain a waiver of inadmissibility to adjust
his immigration status. In August 2015, a three-member panel of the BIA
dismissed Villegas-Sarabia’s appeal, holding that he was not a citizen under
the statutes that were in place at the time of his birth and that the BIA lacked
jurisdiction to address his constitutional challenge. The BIA also affirmed the
IJ’s holding that misprision of a felony is a CIMT. Villegas-Sarabia now seeks
our review of the BIA’s order holding that misprision of a felony is a CIMT.



       6   The IJ determined that misprision of a felony was indivisible, because the criminal
statute did not list potential offenses in the alternative. Consequently, the IJ applied the
categorical approach, which dictates that a court should evaluate the statutory definition
rather than the facts underlying a conviction when determining if the conviction qualifies as
a particular generic offense—such as a crime involving moral turpitude. See United States v.
Carrasco-Tercero, 745 F.3d 192, 195 (5th Cir. 2014).
         7 The IJ explained that if applicants have been convicted of a CIMT, they are

inadmissible to the United States. Even if an applicant is inadmissible, and thus ineligible
to adjust his status, he can seek a discretionary waiver of inadmissibility under 8 U.S.C. §
1182(h). However, 8 U.S.C. § 1182(h)(2) provides that “No waiver shall be granted under this
subsection in the case of an alien who has previously been admitted to the United States . . .
if . . . since the date of such admission the alien has been convicted of an aggravated
felony . . .” 8 U.S.C. § 1182.
                                              5
     Case: 15-60639       Document: 00514218852         Page: 6     Date Filed: 10/31/2017



                              No. 15-60639 c/w 15-50993


       C.     District Court Proceedings
       In February 2015, Villegas and Villegas-Sarabia filed a joint complaint
and habeas corpus petition, claiming that Villegas-Sarabia is a United States
citizen and therefore not subject to detention and removal. 8 They also sought
a declaration that the disparate requirements of 8 U.S.C. §§ 1401 and 1409 are
unconstitutional. The government filed a motion to dismiss in response to
which the district court applied a heightened level of scrutiny and held that
“the different physical presence requirements [in §§ 1401 and 1409] violate the
Fifth Amendment’s guarantee of equal protection.” To remedy this
constitutional violation, the district court extended § 1409(c)’s one-year
continuous presence requirement applicable to unmarried U.S.-citizen mothers
to unmarried U.S.-citizen fathers, then held Villegas-Sarabia to be an United
States citizen. 9
       The government timely appealed and advanced two contentions: The
district court erred (1) in holding that the distinction between unmarried
mothers and unmarried fathers violated equal protection, and (2) in extending
the one-year continuous residency requirement to unmarried fathers.
                                      II. DISCUSSION
       These consolidated appeals seek review of the BIA’s order and the
district court’s ruling on the habeas petition. We address each in turn.




       8 Villegas-Sarabia later amended his pleading to dismiss his father from the habeas
petition. Villegas-Sarabia and his father filed a new lawsuit, alleging the same equal
protection theories, but seeking relief beyond the habeas petition. The district court later
consolidated these cases.
       9 The court explained that this decision did not grant Villegas-Sarabia new rights, but

merely confirmed his pre-existing citizenship. Villegas-Sarabia v. Johnson, 123 F. Supp. 3d
870, 895 (W.D. Tex. 2015).
                                              6
     Case: 15-60639      Document: 00514218852         Page: 7    Date Filed: 10/31/2017



                              No. 15-60639 c/w 15-50993


       A.     BIA Order
       Villegas-Sarabia contends that the BIA erred in ruling that misprision
of a felony is a CIMT, so that he should not be required to seek a waiver of
inadmissibility to adjust his status pursuant to 8 U.S.C. § 1182(h). The
government urges this court to defer to the BIA’s reasonable decision that
misprision of a felony is a CIMT.
                 i. Standard of Review
       “When considering a petition for review, this court has the authority to
review only the BIA’s decision, not the IJ’s decision, unless the IJ’s decision
has some impact on the BIA’s decision.” 10 If the BIA adopts the findings and
conclusions of the IJ, this court may review the IJ’s decision. 11 Here, the BIA
affirmed the IJ’s findings and conclusions, so we may review both decisions.
       We review the BIA’s legal conclusions de novo but give “considerable
deference to the BIA’s interpretation of the legislative scheme.” 12 In appeals
addressing whether a particular conviction is a CIMT, we give “Chevron
deference to the BIA’s interpretation of the term ‘moral turpitude’ and its
guidance on the general categories of offenses which constitute CIMTs;”
however, we review de novo the decisions of the BIA addressing whether a
particular crime is a CIMT. 13
                 ii. Subject-Matter Jurisdiction
       Pursuant to 8 U.S.C. § 1252, this court lacks jurisdiction to review “any
final order of removal against an alien who is removable by reason of having
committed a criminal offense covered in § 1182(a)(2) or 1227(a)(2)(A)(iii), (B),


       10 Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009) (citing Mikhael v. INS, 115 F.3d
299, 302 (5th Cir. 1997)).
       11 Id. (citing Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002)).
       12 Mercado v. Lynch, 823 F.3d 276, 278 (5th Cir. 2016).
       13 Esparza-Rodriguez v. Holder, 699 F.3d 821, 823 (5th Cir. 2012).

                                             7
     Case: 15-60639       Document: 00514218852          Page: 8     Date Filed: 10/31/2017



                               No. 15-60639 c/w 15-50993


(C), or (D) of this title, or any offense covered by § 1227(a)(2)(A)(ii) of this
title.” 14 However, this court retains jurisdiction to review colorable questions
of law and constitutional claims under 8 U.S.C. § 1252(a)(2)(D). Villegas-
Sarabia has raised a colorable question of law, so we have jurisdiction. 15
                iii. Analysis
                         1. Crimes Involving Moral Turpitude
       This court uses a categorical approach to determine whether a particular
crime meets the BIA’s definition of a CIMT. 16 Under such an approach, this
court “focuses on the inherent nature of the crime, as defined in the statute . . .
rather than the circumstances surrounding the particular transgression.” 17
“When applying the categorical approach, the statute must be read as the
minimum criminal conduct necessary to sustain a conviction under the
statute.” 18 Thus, for Villegas-Sarabia to have committed a CIMT, the minimum
conduct criminalized under 8 U.S.C. § 4 must constitute moral turpitude. 19
       The BIA, through its administrative decisions, has crafted the following
definition of “moral turpitude”:
       Moral turpitude refers generally to 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. Moral turpitude has been


       14  8 U.S.C. § 1252. 8 U.S.C. § 1227(a)(2)(C) provides that “[a]ny alien who at any time
after admission is convicted under any law of . . . possessing . . . a firearm or destructive
device (as defined in section 921(a) of Title 18) in violation of any law is deportable.”
        15 8 U.S.C. § 1252(a)(2)(D); see Orosco v. Holder, 396 F. App’x 50, 52 (5th Cir. 2010).
        16 Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006); see Mathis v. United

States, 136 S. Ct. 2243, 2248 (2016).
        17 Amouzadeh, 467 F.3d at 455 (internal quotation marks omitted).
        18 Rodriguez–Castro v. Gonzales, 427 F.3d 316, 320 (5th Cir. 2005) (internal quotation

marks omitted).
        19 See Amouzadeh, 467 F.3d at 455. If a statute is divisible, the court will apply a

modified categorical approach. As 8 U.S.C. § 4 is not divisible, the modified categorical
approach is not applicable in this case.
                                              8
     Case: 15-60639       Document: 00514218852         Page: 9     Date Filed: 10/31/2017



                              No. 15-60639 c/w 15-50993


       defined as an act which is per se morally reprehensible and
       intrinsically wrong, or malum in se, so it is the nature of the act
       itself and not the statutory prohibition of it which renders a crime
       one of moral turpitude. Among the tests to determine if a crime
       involves moral turpitude is whether the act is accompanied by a
       vicious motive or a corrupt mind. 20
We have further explained that if a crime’s essential element “involves fraud
or deception,” 21 or “include[s] dishonesty or lying,” 22 it is a CIMT. 23
                         2. Misprision of a Felony
       The determinative question we must answer is whether Villegas-
Sarabia’s conviction for misprision of a felony under 18 U.S.C. § 4 is a CIMT.
The misprision of felony statute provides:
       Whoever, having knowledge of the actual commission of a felony
       cognizable by a court of the United States, conceals and does not
       as soon as possible make known the same to some judge or other
       person in civil or military authority under the United States, shall
       be fined under this title or imprisoned not more than three years,
       or both. 24
There is no binding precedent of this circuit establishing whether misprision
of a felony is a CIMT. Under our case law, however, deceit is an essential
element of misprision of a felony, and “this [c]ourt has repeatedly held that
crimes including an element of intentional deception are crimes involving
moral turpitude.” 25


       20  Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007) (internal quotation marks
omitted); see also Matter of Sejas, 24 I. & N. Dec. 236, 237 (BIA 2007) (“Generally, a crime
involves moral turpitude if it is inherently base, vile, or depraved, and contrary to accepted
rules of morality and the duties owed between persons or to society in general.”).
        21 Hyder, 506 F.3d at 391.
        22 Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir. 2002).
        23 Hyder, 506 F.3d at 391; Omagah, 288 F.3d at 260.
        24 18 U.S.C. § 4.
        25 Fuentes-Cruz v. Gonzales, 489 F.3d 724 (5th Cir. 2007); see Patel v. Mukasey, 526

F.3d 800 (5th Cir. 2008); see also Omagah, 288 F.3d at 260 (conspiracy to obtain, possess and
use illegal immigration documents is a crime involving moral turpitude); Pichardo v. INS,
                                              9
    Case: 15-60639       Document: 00514218852          Page: 10     Date Filed: 10/31/2017



                               No. 15-60639 c/w 15-50993


       Misprision of felony consists of the following elements: “(1) knowledge
that a felony was committed; (2) failure to notify the authorities of the felony;
and (3) an affirmative step to conceal the felony.” 26 “Mere failure to make
known does not suffice.” 27 In Patel v. Mukasey, a petitioner sought our review
of a BIA decision which held that misprision of a felony was an aggravated
felony under 8 U.S.C. § 1101(a)(43)(M)(i). 28 To qualify as an aggravated felony
under § 1101, the offense must “necessarily entail[] fraud or deceit” and involve
a loss of greater than $10,000. 29 We concluded that the final element of
misprision of a felony—that the defendant must commit some affirmative act
to conceal the felony—“necessarily entails the act of intentionally giving a false
impression, i.e., the false impression that the earlier felony never occurred.” 30
We explained that, because misprision of a felony requires assertive dishonest
conduct, it necessarily requires an intentional act of deceit. 31 Viewing Patel in
conjunction with this court’s repeated holdings that “crimes including an
element of intentional deception are crimes involving moral turpitude,”
necessarily leads to the conclusion that misprision of a felony is a CIMT. 32
       Two panels of this court, (in unpublished and thus non-precedential
opinions), have affirmed BIA decisions that reached the same conclusion. The


104 F.3d 756, 760 (5th Cir. 1997) (aggravated assault is a crime involving moral turpitude);
Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982) (bribery is a crime involving moral turpitude).
        26 Patel, 526 F.3d at 803; United States v. Davila, 698 F.2d 715, 717 (5th Cir. 1983)

(“Violation of the misprision statute additionally requires some positive act designed to
conceal from authorities the fact that a felony has been committed.”).
        27 Patel, 526 F.3d at 803 (quoting United States v. Adams, 961 F.2d 505, 508–09 (5th

Cir. 1992)) (internal citations omitted).
        28 Patel, 526 F.3d at 801–02. While Patel addressed the question whether misprision

of a felony was an aggravated felony—rather than a CIMT—the Court’s analysis of whether
misprision involves fraud or deceit is germane to the inquiry in this case.
        29 Id. at 804.
        30 Id. at 803.
        31 Id. (citing Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002)).
        32 See, e.g., Patel, 526 F.3d 800; Fuentes-Cruz v. Gonzales, 489 F.3d 724.

                                             10
    Case: 15-60639      Document: 00514218852         Page: 11     Date Filed: 10/31/2017



                             No. 15-60639 c/w 15-50993


panel in Ahmad v. Holder held that the BIA did not err in holding that a
defendant who was convicted of misprision of a felony had committed a
CIMT. 33 Similarly, the panel in Aguilar-Cortez v. Gonzales held that the BIA
did not err in holding that the petitioner was “ineligible for adjustment of
status because his conviction for misprision of felony was a conviction for a
crime of moral turpitude.” 34 Although this court has not yet held bindingly that
misprision of a felony is a CIMT, our case law lends support to the BIA’s
determination to that effect in this case.
      The question whether misprision of a felony is categorically a CIMT,
however, has led to a split among other circuits. 35 In Lugo v. Holder, the Second
Circuit provided a brief history of the existing circuit split. 36 The petitioner in
Lugo sought review of a BIA decision holding that misprision of a felony is a
CIMT. 37 The Second Circuit declined to rule on the issue, concluding instead
that the question would “best [be] addressed in the first instance by the Board
in a precedential opinion.” 38 The circuit court explained:
      Originally, in [1966], the Board held that misprision of felony was
      not a CIMT. The Eleventh Circuit then adopted the contrary rule
      in Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002), holding
      that misprision of felony is a categorical CIMT. The Board
      switched to the Eleventh Circuit’s view in Matter of Robles–Urrea,
      but the Board’s decision in that case was reversed by the Ninth
      Circuit. Robles–Urrea v. Holder, 678 F.3d 702, 711 (9th Cir. 2012)
      (holding that misprision of felony is not a CIMT). We are thus left
      to wonder whether, going forward, the Board wishes to adopt the
      Ninth Circuit’s rule or the Eleventh Circuit’s. We believe it is



      33 Ahmad v. Holder, 451 F. App’x 438, 440 (5th Cir. 2011).
      34 Aguilar-Cortez v. Gonzales, 186 F. App’x 515, 515–16 (5th Cir. 2006).
      35 See Lugo v. Holder, 783 F.3d 119, 120–21 (2d Cir. 2015).
      36 Id.
      37 Id. at 120.
      38 Id.

                                            11
    Case: 15-60639        Document: 00514218852          Page: 12      Date Filed: 10/31/2017



                               No. 15-60639 c/w 15-50993


       desirable for the Board to clarify this matter in a published
       opinion. 39

In an attempt to clarify this issue, the Second Circuit remanded the case for
further proceedings, but the BIA has yet to issue a precedential ruling in
response. 40
       Villegas-Sarabia urges us to follow the Ninth Circuit’s holding in Robles-
Urrea v. Holder, that misprision of a felony is not a CIMT. In reaching that
result, the Ninth Circuit explained that an offense does not involve moral
turpitude merely because it “contravenes societal duties.” 41 Instead, the court
returned to the original definition and explained that crimes of moral turpitude
must be “inherently base, vile, or depraved;” and ruled that the BIA had not
adequately discussed how misprision of a felony meets these requirements. 42
The appeals court stated that, because “the misprision of a felony statute will
encompass conduct that is not morally turpitudinous . . . misprision of a felony
is not categorically a crime involving moral turpitude.” 43




       39  Id. at 120–21; cf. Ortiz–Franco v. Holder, 782 F.3d 81, 93 (2d Cir. 2015) (Lohier, J.,
concurring) (noting an analogous circuit split, and stating “[t]his is not a sustainable way to
administer uniform justice in the area of immigration”).
        40 Lugo, 783 F.3d at 120–21.
        41 Robles-Urrea v. Holder, 678 F.3d 702, 705 (9th Cir. 2012) (internal quotation marks

omitted).
        42 Id. at 708.
        43 Id. at 711. In Robles-Urrea, the Ninth Circuit stated that misprision is different

than other CIMTs because it “requires not a specific intent to conceal or obstruct justice, but
only knowledge of the felony.” Id. at 710. That court, however, also recognized that knowledge
alone is insufficient, as misprision requires “‘both knowledge of a crime and some affirmative
act of concealment or participation.’” Id. at 709 (quoting Branzburg v. Hayes, 408 U.S. 665,
696 n.36 (1972)). Even thought that court acknowledged that this definition fails to include
an additional element, viz., that the crime “involve some level of depravity or baseness,”
Branzburg conclusively establishes that misprision requires knowledge of a felony and an
affirmative act to conceal. This two-part definition accords with the elements of misprision
we set out in Patel. See Patel, 526 F.3d at 803.
                                              12
    Case: 15-60639      Document: 00514218852          Page: 13      Date Filed: 10/31/2017



                              No. 15-60639 c/w 15-50993


      The government responds here that Robles-Urrea is unpersuasive
because it failed to consider fully the BIA’s reasoning that misprision involves
dishonest activity and that dishonest activity is what makes an offense a
CIMT. The government urges this court to adopt the Eleventh Circuit’s rule in
Itani, that misprision of a felony under 8 U.S.C. § 4 is a CIMT. 44
      The petitioner in Itani sought review of a BIA order holding that
misprision of a felony is a CIMT. 45 Relying on this court’s precedent, the
Eleventh Circuit explained that moral turpitude involves:
      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. Generally, a crime involving dishonesty or
      false statement is considered to be one involving moral turpitude. 46
Based on this reasoning, the Eleventh Circuit ruled that, because misprision
of a felony requires an affirmative act to conceal a crime, misprision of a felony
is a CIMT. 47
      Our court has not expressly adopted Itani, but some of our panels have
cited it favorably. We explained in Patel that if “an affirmative step to conceal
the felony,” is an element of a crime, that crime “necessarily entails fraud or
deceit.” 48 Citing Itani, the panel in Patel reasoned that such conduct
“necessarily entails the act of intentionally giving a false impression” and thus
requires deceitful conduct. 49




      44 Itani, 298 F.3d at 1216.
      45 Id. at 1215.
      46 Id. (quoting United States v. Gloria, 494 F.2d 477, 481 (5th Cir. 1974)).
      47 Id. at 1216.
      48 Patel, 526 F.3d at 803.
      49 Id. (citing Itani, 298 F.3d at 1216).

                                             13
    Case: 15-60639       Document: 00514218852         Page: 14     Date Filed: 10/31/2017



                              No. 15-60639 c/w 15-50993


       Another panel of this court cited Itani in support of its holding that
making a false statement to the Federal Aviation Administration was a
CIMT. 50 And yet another panel of this court relied on Itani’s reasoning that
deceit is a “behavior that runs contrary to accepted societal duties and involves
dishonest or fraudulent activity’” as “strong support” for holding that “crimes
involving the intentional concealment of illegal drug activity are intrinsically
wrong and, therefore, turpitudinous.” 51
       We are satisfied that, in light of this court’s favorable treatment of Itani,
as well as its decisions in Patel and Fuentes, the BIA did not err in holding that
misprision of a felony is a CIMT. This court’s precedent firmly establishes that
“[c]rimes including dishonesty or lying as an essential element involve moral
turpitude.” 52 Misprision of a felony “necessarily entails deceit.” 53 We therefore
affirm the BIA’s order and deny Villegas-Sarabia’s petition for review.
       B. District Court Decision
                  i. Standard of Review
       When considering a district court’s ruling on a request for habeas relief,
this court reviews that court’s findings of fact for clear error and its conclusions
of law de novo. 54 We review claims of constitutional violations, including equal
protection under the Fifth Amendment, de novo. 55


       50  Martinez-Castelan v. Gonzales, 188 F. App’x 246, 247 (5th Cir. 2006) (“Crimes
including dishonesty or lying as an essential element involve moral turpitude.”); see Padilla
v. Gonzales, 397 F.3d 1016, 1020 (7th Cir. 2005); Itani, 298 F.3d at 1215.
        51 Smalley v. Ashcroft, 354 F.3d 332, 339 (5th Cir. 2003) (quoting Itani, 298 F.3d at

1216). As Villegas-Sarabia argues, Smalley is not controlling, as it involved the intentional
concealment of illegal drug activity. Nonetheless, it demonstrates the favorable treatment
Itani has received from this court.
        52 Hyder, 506 F.3d at 391 (quoting Omagah, 288 F.3d at 260); Fuentes–Cruz, 489 F.3d

at 726.
        53 Patel, 526 F.3d at 803.
        54 Richards v. Thaler, 710 F.3d 573, 575 (5th Cir. 2013).
        55 See De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004).

                                             14
    Case: 15-60639       Document: 00514218852          Page: 15     Date Filed: 10/31/2017



                              No. 15-60639 c/w 15-50993


                 ii. Analysis
       First, although the government argued in its brief that the district court
erred in holding that the disparate residency requirements applicable to
unwed U.S.-citizen mothers vis-à-vis fathers violated equal protection, it now
acknowledges that this issue is controlled by the Supreme Court’s recent
decision in Sessions v. Morales-Santana. 56 In that case, Morales-Santana
claimed United States citizenship based on the citizenship of his father, José
Morales. 57 Morales is a United States citizen who was unable to satisfy
§ 1401(a)(7)’s requirement that, at the time of his son’s birth, he must have
resided in the United States for five years after reaching the age of 14. 58 An IJ
held that José Morales’s son, Morales-Santana, was therefore an alien and
ordered his deportation. 59 Morales-Santana argued that the disparate
residency requirements for mothers and fathers under §§ 1401 and 1409
violated equal protection so that, under a constitutional reading of the statutes,
he derived citizenship from his father at the time of his birth. 60
       Addressing the equal protection challenge, the Court reasoned that the
exception provided to mothers under § 1409(c) was a sex-based differential,
and therefore “must substantially serve an important governmental interest”
to justify its discrimination. 61 The Court concluded that the government had
failed to demonstrate an “exceedingly persuasive justification for § 1409(a) and


       56  Sessions v. Morales-Santana, 137 S. Ct. 1678, 1686 (2017).
       57  Id. at 1687.
        58 Id. In 1986, Congress reduced the residency requirement to five years, two of which

must occur after the parent reaches age 14. Morales-Santana, 137 S. Ct. at 1687 (citing
§ 1401(g). However, as both Villegas-Sarabia and Morales-Santana were born before 1986,
their citizenship is governed by the previous version of the statute.
        59 Id. Like Villegas-Sarabia’s in this case, Morales-Santana’s deportation order was

based on criminal activity.
        60 Id.
        61 Id. at 1690.

                                             15
    Case: 15-60639      Document: 00514218852         Page: 16     Date Filed: 10/31/2017



                             No. 15-60639 c/w 15-50993


(c)’s gender-based and gender-biased disparity.” 62 The Court therefore held
that the exception provided to unwed U.S.-citizen mothers under 8 U.S.C.
§ 1409(c) violated the Fifth Amendment’s requirement that all persons are
entitled to equal protection under the law. 63 Applying the Court’s holding to
the instant case, we affirm this facet of the district court’s decision.
      The second issue that the government raises on appeal is whether the
district court exceeded its constitutional and statutory authority when it
rewrote § 1409(c) to extend the one-year residency exception to unwed fathers.
This issue is also governed by Morales-Santana. 64
      After concluding that the statutory scheme in §§ 1401 and 1409 violated
equal protection, the Court explained that, when a statute violates equal
protection, the Court may remedy the deficiency “by withdrawal of benefits
from the favored class as well as by extension of benefits to the excluded
class.” 65 The choice between withdrawal or extension, said the Court, must be
guided by the legislative intent behind the statute. 66
      The Court next recognized that, generally, “extension, rather than
nullification, is the proper course” when rectifying equal protection violations.
But it went on to note that, in that case, “the discriminatory exception consists
of favorable treatment for a discrete group.” 67 Convinced that Congress
established the residency requirements to ensure that unmarried parents had
an adequate connection to the United States before their children were granted
citizenship, the Court determined that expanding the one-year exception to



      62 Id. (internal citations and quotation marks omitted).
      63 Id.
      64 Id. at 1701.
      65 Id. (quoting Heckler v. Mathews, 465 U.S. 728, 740 (1984)).
      66 Id. at 1699.
      67 Id. (quoting Califano v. Westcott, 443 U.S. 76, 89 (1979)).

                                            16
    Case: 15-60639       Document: 00514218852        Page: 17     Date Filed: 10/31/2017



                              No. 15-60639 c/w 15-50993


include unmarried fathers would undermine the legislative intent. 68 It
therefore held that, prospectively, § 1401’s general residency requirement
should apply to children born to unwed U.S.-citizens, both mothers and
fathers. 69
       Applying the rule in Morales-Santana to the instant case, the district
court erred in extending the one-year exception provided in § 1409(c) to
fathers. Instead, the general rule in § 1401 should apply to unwed U.S.-citizen
parents—regardless of sex—until Congress addresses the issue. 70 We therefore
reverse this aspect of the district court’s decision.
       During oral argument, counsel for Villegas-Sarabia contended that,
under Morales-Santana, Villegas-Sarabia’s citizenship is governed by the
current version of 8 U.S.C. § 1401(g), which provides that a child born to an
unwed U.S.-citizen father will receive derivative citizenship if his father has
lived in the United States for five years, at least two of which were after he
reached the age of fourteen. 71 The success of this argument hinges on the
following portion of the Supreme Court’s decision: “In the interim, as the
Government suggests, § 1401(a)(7)’s now-five-year requirement should apply,
prospectively, to children born to unwed U.S.-citizen mothers.” 72 The
government insists that this rule applies to children born after the date of that
decision; Villegas-Santana contends that, now, any child whose U.S.-citizen



       68 Id.
       69 Id. at 1701.
       70 Id.
       71 8 U.S.C. § 1401(g) (2012); see also Morales-Santana, 137 S. Ct. at 1701 (“In the

interim, as the Government suggests, § 1401(a)(7)’s now-five-year requirement should apply,
prospectively, to children born to unwed U.S.-citizen mothers.”)).
       72 Morales-Santana, 137 S. Ct. at 1701. Under the current version of the statute, the

residency requirements are codified under § 1401(g), rather than § 1401(a)(7). 8 U.S.C.
§ 1401 (g).
                                            17
    Case: 15-60639      Document: 00514218852         Page: 18    Date Filed: 10/31/2017



                             No. 15-60639 c/w 15-50993


mother or father satisfies the new five-year rule qualifies for derivative
citizenship as the proper interim solution until Congress remedies the equal
protection violation created by § 1409(c).
       Based on the record in this case, Villegas-Sarabia would be a citizen if
his derivative citizenship were to be determined by the current residency
requirements of § 1401. Villegas-Sarabia acknowledges that this is a different
statutory requirement than the one which was in place at the time of his birth,
but he nevertheless contends that applying the current rule retroactively
would be the proper way to cure the constitutional deficiency until Congress
addresses the issue. The government disagrees, maintaining that Morales-
Santana invalidated the one-year exception provided only to mothers in §
1409(c), but did not otherwise modify the statutory regime.
       Villegas-Sarabia is correct that the Court remanded Morales-Santana
for further proceedings consistent with the opinion, but there is no indication
that the Court intended to replace the ten-year rule in effect at the time of
Morales-Santana’s birth with the subsequently revised five-year rule. 73 First,
the Court emphasized that it had two—but only two—options for remedying
such a constitutional deficiency: (1) extend the one-year exception to mothers
and fathers, or (2) eliminate the discriminatory benefit. 74 The Court cited
substantial case law to support its decision that eliminating rather than
extending the exception was the correct course to remedy the equal protection
violation in that case. 75




       73 Morales-Santana, 137 S. Ct. at 1687. (“Congress has since reduced the duration
requirement to five years, two after age 14.”).
       74 Id. at 1698–99.
       75 See id.

                                            18
    Case: 15-60639       Document: 00514218852        Page: 19     Date Filed: 10/31/2017



                              No. 15-60639 c/w 15-50993


       Other than eliminating the discriminatory benefit to mothers, the Court
did not rewrite the previous statutory regime or apply the “now-five-year” rule
retroactively. 76 Instead, the Court emphasized that its decision would affect
future rights only. 77 Villegas-Sarabia’s citizenship is therefore governed by the
statutes in place at the time of his birth, which required an unwed U.S.-citizen
father to live in the United States for ten years, at least five of which were after
he reached 14 years of age, before he could pass derivative citizenship to his
child. Because Villegas did not satisfy this requirement, Villegas-Sarabia
cannot acquire derivative citizenship. 78 We therefore reverse this facet of the
district court’s decision.
                                    III. CONCLUSION
       We affirm the BIA’s ruling that misprision of a felony is a crime involving
moral turpitude and its denial of Villegas-Sarabia’s petition for review.
Although the district court correctly held that the residency requirements of
§§ 1401 and 1409 violate equal protection, we reverse its judgment that
Villegas-Sarabia is a United States citizen under a constitutional reading of
those statutes in light of the limited remedy the Supreme Court announced for
that violation. We therefore affirm the BIA’s determination that Villegas-
Sarabia is not a United States citizen. 79




       76 Id. at 1686, 1700 (explaining that this holding will impact rights “going forward”
and the new rule will apply “prospectively.”).
       77 Id.
       78 See 8 U.S.C. § 1401(a)(7)(1970).
       79 Respondents-Appellants motions to sever the petition for review from the appeal

and for summary reversal of the judgment of the district court in appeal no. 15-50993
previously carried with the case are DENIED.
                                            19
