07-1114-ag
Mendez v. Mukasey

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                       August Term, 2008
Argued: September 3, 2008                                           Decided: November 6, 2008

                                    Docket No. 07-1114-ag
                              ______________________________

                                     TAMARA MENDEZ,

                                                          Petitioner,

                                                v.

                    MICHAEL B. MUKASEY, ATTORNEY GENERAL,*

                                                          Defendant-Appellant.

                              ______________________________

                                             Before:

                                   SACK and KATZMANN,
                                      Circuit Judges,
                                       and RAKOFF,
                                      District Judge.**

         Petition for review of a February 21, 2007 order of the Board of Immigration Appeals
dismissing appeal from the immigration judge’s decision ordering petitioner’s removal. We hold
that first degree larceny in the form of “defrauding a public community” in violation of
Connecticut General Statutes §§ 53a-122(a)(4) and 53a-119(6) is a crime involving moral
turpitude for the purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(I). Accordingly, the petition for review
is denied.




       *
        Michael B. Mukasey is automatically substituted as the respondent in this case pursuant
to Federal Rule of Appellate Procedure 43(c)(2).
       **
       The Honorable Jed S. Rakoff, United States District Judge for the Southern District of
New York, sitting by designation.
                                              JUSTIN CONLON , Law Offices of Michael Boyle,
                                              North Haven, Connecticut, for Petitioner,

                                           ALEX GORING (Jeffrey S. Bucholtz, Michelle
                                           Gorden Latour, Joseph A. O’Connell, of counsel),
                                           Office of Immigration Litigation, United States
                                           Department of Justice, Washington, D.C., for
                                           Respondent.
                               _____________________________


KATZMANN , Circuit Judge:

       On review of an order of the Board of Immigration Appeals (BIA) dismissing petitioner’s

appeal, we are called on to determine whether first degree larceny in the form of “defrauding a

public community,” in violation of Connecticut General Statutes §§ 53a-122(a)(4) and 53a-

119(6), is a crime involving moral turpitude for the purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(I).

We hold that it is and deny the petition for review.

                                          BACKGROUND

       The petitioner, Tamara Mendez, a native and citizen of the Dominican Republic, became

a lawful permanent resident of the United States in 1990. On February 17, 2000, Mendez was

convicted after pleading guilty to larceny in the first degree in violation of Connecticut General

Statutes § 53a-122. She received a five-year suspended sentence and five years of probation and

she was ordered to pay $7000 in restitution. Her plea colloquy reflects that she pled guilty to the

subsection of Connecticut’s larceny statute that prohibits “defrauding a public community.” See

Conn. Gen. Stat. §§ 53a-122(a)(4), 53a-119(6).

       Mendez was placed in removal proceedings in February 2005 after reentering the country

from a trip abroad. The notice to appear alleged that she was inadmissible under 8 U.S.C.



                                                 -2-
§ 1182(a)(2)(A)(i)(I) as an alien convicted of a “crime involving moral turpitude.” Mendez

moved to terminate the removal proceedings, arguing that defrauding a public community was

not a crime involving moral turpitude because it did not require proof of intent to obtain

government benefits to which she was not entitled. The immigration judge, however, denied the

motion and ordered her removed.

          Mendez appealed to the BIA. The BIA dismissed her appeal, finding that Connecticut’s

first degree larceny statute does, indeed, require proof of “intent to deprive another of property”

and therefore is a crime involving moral turpitude. In re Mendez, No. A29-039-030 (B.I.A. Feb

21, 2007). This petition followed.

                                             DISCUSSION

          Simply put, our task is to address Mendez’ argument that first degree larceny in

Connecticut, in the form of “defrauding a public community,” is not a crime involving moral

turpitude because (1) it does not require proof of materiality, and (2) it does not require proof of

intent.

                                       A. Standard of Review

          Where, as here, “the BIA issues an opinion, the opinion becomes the basis for judicial

review of the decision of which the alien is complaining.” Chen v. Gonzales, 417 F.3d 268, 271

(2d Cir. 2005) (internal quotation marks omitted). We afford Chevron deference to the BIA’s

interpretation of the undefined statutory term “moral turpitude,” but we owe no deference to the

BIA’s construction of state criminal statutes. Gill v. INS, 420 F.3d 82, 89 (2d Cir. 2005).

Accordingly, we review de novo the BIA’s determination that a particular state crime falls within

the definition of moral turpitude. Id.


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                     B. Definition of a Crime Involving Moral Turpitude

       The BIA has defined moral turpitude generally to encompass “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.” Rodriguez v.

Gonzales, 451 F.3d 60, 63 (2d Cir. 2006) (per curiam) (internal quotation marks omitted); see In

re Fualaau, 21 I. & N. Dec. 475, 477 (B.I.A. 1996). Whether a crime is one involving moral

turpitude depends on “the offender’s evil intent or corruption of the mind.” In re Serna, 20 I. &

N. Dec. 579, 581 (B.I.A. 1992).

“[C]rimes in which fraud was an ingredient have always been regarded as involving moral

turpitude.” Jordan v. De George, 341 U.S. 223, 232, 71 S.Ct. 703, 95 L.Ed. 886 (1951); see also

Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir. 2002) (“In the wake of Jordan, the courts of

appeals have interpreted ‘moral turpitude’ as including a wide variety of crimes that involve

some fraud or deceit.”); United States ex rel. Berlandi v. Reimer, 113 F.2d 429, 431 (2d Cir.

1940) (“An intent to steal or defraud . . . has repeatedly been held to render an offense one which

involves moral turpitude.”). And generally, where intent is not an element of a crime, that crime

is not one involving moral turpitude. See, e.g., In re Serna, 20 I. & N. Dec. at 586 (possession of

forged immigration documents is not a crime involving moral turpitude because the statute

requires only knowledge that they were forged, not any intent to use them unlawfully); In re

Balao, 20 I. & N. Dec. 440, 443-44 (B.I.A. 1992) (knowingly passing bad checks is not a crime

involving moral turpitude where there is no need to prove an intent to defraud); In re Di Filippo,

10 I. & N. Dec. 76, 77-78 (B.I.A. 1962) (making false statements to an unemployment agency is

not a crime involving moral turpitude where there is no need to prove an intent to mislead).


                                                -4-
        An offense may involve moral turpitude even if it does not contain every element of

common law fraud. See, e.g., Rodriguez, 451 F.3d at 64 (noting that materiality may not be an

element of a violation of 8 U.S.C. § 1542 and concluding that “[a]lthough section 1542 may not

contain every element of common law fraud, it certainly involves deceit and an intent to impair

the efficiency and lawful functioning of the government. This alone is sufficient to categorize a

crime as a [crime involving moral turpitude].”); In re Jurado-Delgado, 24 I. & N. Dec. 29, 34-35

(B.I.A. 2006) (concluding that the offense of making unsworn falsifications to authorities is a

crime involving moral turpitude even though the offense did not require falsification be

material). Nonetheless, Mendez argues that an offense involving false statements to the

government “is not a crime involving moral turpitude if the underlying statute does not

require . . . the false information [to] be material to the applicant’s eligibility for the benefits

sought.” This argument is premised on a misreading of the BIA’s decision in Matter of Di

Filippo and is unpersuasive. In Di Filippo, the BIA summarized the special inquiry officer’s

conclusion “that moral turpitude was not involved because the section [at issue] does not require

a false statement to be material,” but it did not adopt this rationale. See 10 I. & N. Dec. at 77.

Instead, the BIA concluded that the offense at issue did not involve moral turpitude because the

statute did not require “proof that the false statement was made for the purpose of obtaining

benefits.” Id. at 78. The statute in Di Filippo did not constitute a crime involving moral

turpitude because it lacked an intent element, not because it lacked a materiality element.

        In determining whether a crime is a crime involving moral turpitude, we apply either a

“categorical” or a “modified categorical” approach. Under the categorical approach, we look

only to the minimum criminal conduct necessary to satisfy the essential elements of the crime,


                                                   -5-
not the particular circumstances of the defendant’s conduct. See Gill, 420 F.3d at 89-90. “When

the criminal statute at issue encompasses some classes of criminal acts that fall within the federal

definition of aggravated felony and some classes that do not fall within the definition, the statute

is considered ‘divisible.’” Abimbola v. Ashcroft, 378 F.3d 173, 177 (2d Cir. 2004) (citing Dalton

v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 2001)). If a statute is divisible a court, proceeding under

the modified categorical approach, may refer to the “record of conviction” to determine “whether

a petitioner’s conviction was under the branch of the statute that proscribes removable offenses.

The record of conviction includes, inter alia, the charging document, a plea agreement, a verdict

or judgment of conviction, a record of the sentence, or a plea colloquy transcript.” Wala v.

Mukasey, 511 F.3d 102, 107-08 (2d Cir. 2007) (citation and internal quotation marks omitted).

       In this case, Mendez’s record of conviction makes clear that she was convicted of first

degree larceny by “defrauding a public community.” Mendez concedes this fact. Thus, we may

assume for purposes of this case that the statute is divisible and proceed to evaluate whether

Mendez’s record of conviction, by evidencing a conviction for larceny by defrauding a public

community, necessarily admits facts establishing the elements of a crime involving moral

turpitude.

                                B. Relevant Connecticut Statutes

       Mendez argues that first degree larceny in Connecticut, in the form of “defrauding a

public community,” is not a crime involving moral turpitude because the state need not prove an

intent to defraud in order to obtain a conviction under that particular subsection of the larceny

statute. We find this argument unpersuasive.

       Connecticut General Statutes § 53a-122(a) provides in relevant part: “A person is guilty


                                                 -6-
of larceny in the first degree when he commits larceny, as defined in section 53a-119,

and: . . . (4) the property is obtained by defrauding a public community, and the value of such

property exceeds two thousand dollars.” Pursuant to § 53a-119, “[a] person commits larceny

when, with intent to deprive another of property or to appropriate the same to himself or a third

person, he wrongfully takes, obtains or withholds such property from an owner.” The statute

then provides a non-exhaustive list of examples of larceny, including the subsection at issue here:

       (6) Defrauding of public community. A person is guilty of defrauding a public
       community who (A) authorizes, certifies, attests or files a claim for benefits or
       reimbursement from a local, state or federal agency which he knows is false; or
       (B) knowingly accepts the benefits from a claim he knows is false; or (C) as an
       officer or agent of any public community, with intent to prejudice it, appropriates
       its property to the use of any person or draws any order upon its treasury or
       presents or aids in procuring to be allowed any fraudulent claim against such
       community. For purposes of this subdivision such order or claim shall be deemed
       to be property.

Conn. Gen. Stat. § 53a-119(6).

       Despite the clear prefatory language in § 53a-119 defining larceny as “wrongfully

tak[ing]” property from another “with intent to deprive” that person of the property, Mendez

contends that a person can be convicted of defrauding a public community in violation of

subsection six “without either an intent to defraud or prejudice the government.” She argues that

the prefatory language is just that--prefatory--and thus a “larceny can be committed by an act

meeting the elements listed in an individual subsection even when the act does not meet the

elements listed in the prefatory language.”

       We had occasion to consider Connecticut’s larceny statute in Abimbola. In Abimbola, we

held that third degree larceny, in violation of § 53a-124, is an “aggravated felony” because it is a

“theft offense” within the meaning of 8 U.S.C. § 1101(a)(43)(G). 378 F.3d at 179. Whether


                                                 -7-
third degree larceny was a “theft offense” turned on whether the statute contained an “intent to

deprive” element. Like § 53a-122 concerning first degree larceny, § 53a-124 incorporates

§ 53a-119’s definition of “larceny.” We concluded that the “intent to deprive” element contained

in the prefatory language of § 53a-119 is mandatory throughout its subsections,1 rejecting

Abimbola’s argument to the contrary. 378 F.3d at 180. And we noted that the Connecticut

Supreme Court has held that “‘a specific intent to deprive’ is an ‘essential element of larceny,’

which ‘must be proved beyond a reasonable doubt.’” Id. at 179 (quoting State v. Calonico, 256

Conn. 135, 770 A.2d 454, 470 (2001)). Mendez here presses the very argument we rejected in

Abimbola.

       Although we agree with Mendez that our holding in Abimbola does not control this case

because third degree larceny is not a lesser included offense of first or second degree larceny,2 we

do find our prior decision instructive. Indeed, in Abimbola we recognized in dicta that § 53a-

119’s intent to deprive requirement applies in the same manner to first and second degree larceny

as it does to third degree larceny. 378 F.3d at 179 (“Accepting Abimbola’s position [that third

degree larceny does not require proof of intent] would require a conclusion that intent to deprive

is not a requirement of first- and second-degree larceny in Connecticut.”).

       Nevertheless, Mendez argues that defrauding a public community “does not require any


       1
        We did note one exception, not relevant to this case, for subsection eight’s prohibition
against knowingly receiving stolen property, which the Connecticut Supreme Court has held does
not require proof of “specific intent,” but rather only of “guilty knowledge or criminal intent.”
Abimbola, 378 F.3d at 179-80 (citing State v. Gabriel, 192 Conn. 405, 414, 473 A.2d 300, 305-
06 (1984)).
       2
        Defrauding a public community can be a form of first or second degree larceny, but it
cannot be a form of third degree larceny. See State v. Kitt, 8 Conn. App. 478, 513 A.2d 731, 736
(Conn. App. Ct. 1986).

                                                -8-
intent on behalf of the defendant other than knowledge that information in an application for

public benefits is false.” To support this countertextual argument, Mendez relies on a footnote in

the Connecticut Appellate Court’s decision in State v. Robins, 34 Conn. App. 694, 643 A.2d 881,

887 n.12 (Conn. App. Ct. 1994), aff’d, 233 Conn. 527, 660 A.2d 738 (1995), which upheld a

conviction for defrauding a public community. In the footnote, the appellate court noted “that

the trial court improperly instructed the jury that it was necessary for them to find that the

defendant intended to prejudice the town when he filed the fraudulent claim.” Id. The argument

that this footnote somehow vitiates the statutory requirement of intent is belied by the first

footnote in that decision, which includes “intent to deprive another of property” by wrongful

taking in the list of essential elements of first degree larceny. Id. at 882 n.1. (That footnote was

repeated almost verbatim in the Connecticut Supreme Court’s opinion affirming the appellate

court’s decision. See 660 A.2d at 738 n.1.)

       Robins in fact stands for a much narrower proposition. The defendant in Robins included

false information about his assets in an application for welfare assistance and was convicted of

defrauding a public community, even though he may have been eligible for benefits had he

truthfully disclosed the full extent of those assets. 643 A.2d at 883. In affirming his conviction,

the Connecticut courts rejected the argument that the state had to prove that the defendant would

have been ineligible for assistance absent the false statements and held that actual loss or

prejudice to the government was not an element of § 53a-119(6)(A). Robins, 643 A.2d at 884;

see also Robins, 660 A.2d at 739. We see nothing in Robins to indicate that the Connecticut

courts have rejected the plain meaning of the larceny statute. Nor did the court in Robins hold

that fraudulent intent is not an essential element of defrauding a public community. Robins


                                                 -9-
merely made clear that the state need not prove that a person making a fraudulent claim

otherwise would not be entitled to the benefits in order to establish first degree larceny.

       Furthermore, while an offense under the Connecticut larceny statute does not necessarily

constitute a crime involving moral turpitude, see, e.g., Wala, 511 F.3d at 110, defrauding a public

community does. In Wala, we considered whether larceny, as defined by § 53a-119, is a crime

involving moral turpitude3 in light of the BIA’s view that “‘[o]rdinarily, a conviction for theft is

considered to involve moral turpitude only when a permanent taking is intended.’”4 Wala, 511

F.3d at 106 (quoting Matter of Grazley, 14 I. & N. Dec. 330, 333 (B.I.A. 1973)). We concluded

that the “larceny statute . . . does not distinguish between permanent and temporary takings,”

Wala, 511 F.3d at 107 (citing State v. Wieler, 233 Conn. 552, 660 A.2d 740, 741-42 (1995)), and

that larceny, therefore, does not necessarily constitute a crime involving moral turpitude. But

although the BIA at times has suggested that a theft is a crime of moral turpitude only if a

permanent taking was intended, see Wala, 511 F.3d at 106, it has not applied this distinction to

offenses involving an intent to defraud. See Matter of P-, 3 I. & N. Dec. 56, 65 (B.I.A. 1948)

(rejecting suggestion that a fraud involves moral turpitude only if the taking is permanent); see

also Grazley, 14 I. & N. Dec. at 332 (concluding that offenses constitute crimes involving moral



       3
        The ultimate question was whether Wala’s conviction for burglary in the third degree, in
violation of § 53a-103, was a crime involving moral turpitude. But this question turned on
whether the crime he intended to commit upon entry into the victim’s house--larceny--was itself
a crime involving moral turpitude. Wala, 511 F.3d at 106.
       4
        We applied this interpretation because the BIA order “expressly referenced Wala’s
alleged permanent taking, making it clear that the BIA treated the inquiry as determinative of
whether Wala committed a removable offense.” Wala, 511 F.3d at 106. But we noted
specifically that it is unclear whether the BIA continues to draw a distinction between a
permanent and a temporary taking. Id.

                                                -10-
turpitude because offenses included an element of fraud); Matter of T-, 2 I. & N. Dec. 22, 42

(A.G. 1944) (distinguishing theft involving a temporary taking from theft involving a permanent

taking after rejecting the BIA’s conclusion that the statute defines theft to require fraud). The

distinction between permanent and temporary takings is not relevant here because this case

involves defrauding a public community.

       In the context of defrauding a public community, Abimbola’s conclusion that the

prefatory language of § 53a-119 requires an “intent to deprive” is persuasive and is consistent

with Wala. In Wala, we also read the larceny statute as requiring an “intent to deprive” but

concluded that it did not require an intent to deprive permanently. In Abimbola, we were not

called upon to decide whether the “intent to deprive” language required an intent to deprive

permanently5 because “[t]he BIA interprets ‘theft offense’ to include the taking of property

‘whenever there is a criminal intent to deprive the owner of the rights and benefits of ownership,

even if such deprivation is less than total or permanent.’”6 Abimbola, 378 F.3d at 176 (quoting

In re V-Z-S-, 22 I. & N. Dec. 1338, 1346 (B.I.A. 2000)).


       5
         Thus, our observation in Abimbola that “‘Connecticut’s larceny provisions, . . . require
proof of the existence of a felonious intent to deprive the owner of the property permanently,’”
378 F.3d at 179 (quoting Calonico, 770 A.2d at 469 (second emphasis added)), was not
necessary to resolve the appeal. In consequence, to the extent Wala construed Connecticut law
differently, see Wala, 511 F.3d at 107 (citing Wieler, 660 A.2d at 741-42), we need not resolve
the conflict in this case.
       6
         We recognize that under this interpretation, read in conjunction with Wala’s
interpretation of crimes involving moral turpitude, an offense involving the intent to commit a
non-permanent taking might constitute a theft offense (and, thus, an aggravated felony), but not a
crime involving moral turpitude. Indeed, the BIA acknowledged this possibility when it
provided this interpretation of “theft offense.” See In re V-Z-S-, 22 I. & N. Dec. at 1350 n.12
(“An offense involving the taking of property need not be a crime involving moral turpitude in
order to be considered a ‘theft’ offense.”). But we need not address whether Congress intended
such a result to resolve this case.

                                                -11-
       Because the text of the larceny statute, the Connecticut cases interpreting it, and our

precedent all indicate that a conviction for defrauding a public community requires proof of an

intent to wrongfully deprive another of property by making a knowingly false claim for benefits,

we hold that first degree larceny in the form of defrauding a public community, in violation of

Connecticut General Statutes §§ 53a-122(a)(4) and 53a-119(6), is a crime involving moral

turpitude within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I). Accordingly, the petition for

review is hereby DENIED.




                                               -12-
