UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT · 2019-02-27 · deprive as the lynchpin in...

No. 17-1301

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARICELA LEYVA MARTINEZ,

Petitioner,

v.

JEFFERSON B. SESSIONS III,

Respondent.

On Petition for Review of a Final Order

from the Board of Immigration Appeals

BRIEF OF

UNIVERSITY OF MARYLAND CAREY IMMIGRATION CLINIC

MARYLAND OFFICE OF THE PUBLIC DEFENDER

NATIONAL LAWYERS GUILD NATIONAL IMMIGRATION PROJECT

CAPITAL AREA IMMIGRANT RIGHTS COALITION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Sejal Zota

NATIONAL IMMIGRATION PROJECT OF THE

NATIONAL LAWYERS GUILD

14 Beacon Street, Suite 602

Boston, MA 02108

Telephone: (617) 227-9727

Email: [email protected]

Counsel for National Immigration Project

of the National Lawyers Guild

Adina Appelbaum

Claudia R. Cubas*

CAPITAL AREA IMMIGRANTS’ RIGHTS

(CAIR) COALITION

1612 K Street NW Suite 204

Washington, DC 20006

Telephone: 202-899-1412


Counsel for CAIR Coalition

Maureen A. Sweeney

UNIVERSITY OF MARYLAND CAREY IMMIGRATION

CLINIC

500 West Baltimore Street, Ste. 360

Baltimore, Maryland 21201

Telephone: (410) 706-3922


Counsel for University of Maryland Carey Immigration

Clinic

Nadine K. Wettstein

MARYLAND OFFICE OF THE PUBLIC DEFENDER

Maryland Office of the Public Defender

Immigration Program

Telephone: (301) 563-8936


Counsel for Maryland Office of the Public Defender

*not admitted for practice in the Fourth Circuit Court of Appeals

Appeal: 17-1301 Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 1 of 35

tel:(202)%20899-1412

i

TABLE OF CONTENTS

TABLE OF CONTENTS......................................................................................... i

TABLE OF AUTHORITIES.................................................................................. iii

STATEMENT REGARDING CONSENT.............................................................. 1

INTEREST OF AMICI CURIAE.............................................................................. 1

STANDARD OF REVIEW...................................................................................... 2

ARGUMENT ............................................................................................................. 3

I. TO QUALIFY AS A CRIME INVOLVING MORAL TURPITUDE,

THE LEAST CONDUCT PROHIBITED BY AN OFFENSE MUST

BOTH BE A REPREHENSIBLE ACT AND REQUIRE SOME FORM

OF SCIENTER. ......................................................................................... 3

II. MARYLAND’S CONSOLIDATED THEFT STATUTE IS

OVERBROAD AND INCLUDES VARIOUS TYPES OF CONDUCT

THAT DO NOT INVOLVE MORAL TURPITUDE .............................. 6

A. Maryland’s consolidated theft statute prohibits conduct that is neither

reprehensible nor vile, base or depraved. ........................................... 7

B. The scienter requirement for Md CR 7-104 is facially overbroad

compared to the Board’s CIMT definition and includes multiple

levels of mens rea that do not involve moral turpitude. .................... 9

1. The Board held in Matter of Diaz-Lizarraga that to be a CIMT,

a theft offense must include either an intent to permanently

deprive an owner of property or circumstances in which the

owner’s property interest is “substantially eroded.” ............... 9

2. The Maryland statute defines “deprive” more broadly than the

Board, to include withholding property temporarily with de

minimis or even no loss of the property’s value. ................... 11

3. Theft of services under 7-104(e) requires no specific intent to

deprive and no erosion of an owner’s property rights. ............ 13


ii

4. The scienter required for possession of stolen property under

§7-104(c) is broader than the definitions established in Diaz-

Lizarraga and the Board’s case law requiring knowledge that

the property was stolen. ......................................................... 15

C. §7-104 is non-divisible and is therefore categorically not a CIMT. .. 17

III. In the alternative, the Court should not defer to the Board’s Diaz-

Lizarraga decision and should apply the traditional definition to find the

Maryland statute non-turpitudinous because it does not require an intent

to permanently deprive an owner of property. ...................................... 20

A. The Court should not defer to the Board’s decision in Diaz-Lizarraga

because it is not the result of reasoned agency decision making

analogous to notice-and-comment rulemaking. ................................ 20

B. The Board’s announced definition for theft as a CIMT is

unreasonable because it does not satisfy the Board’s own standard for

moral turpitude. ................................................................................. 23

C. The Maryland statute sweeps more broadly than the Board’s

traditional definition of moral turpitude relating to theft offenses. .. 25

CONCLUSION ........................................................................................................ 25

CERTIFICATE OF COMPLIANCE...................................................................... 27

CERTIFICATE OF SERVICE............................................................................... 28


iii

TABLE OF AUTHORITIES

Cases

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) ..2, 21

Craddock v. State, 64 Md. App. 269 (1985) ............................................................18

Descamps v. United States, 133 S.Ct. 2276 (2013) ................................................... 4

Esquivel-Quintana v. Sessions, No. 16-54, -- U.S. --, 2017 WL 2322840 (May 30,

2017) ....................................................................................................................... 4

Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) ................................................... 3

Hobby v. State, 436 Md. 526 (2014) ........................................................................13

Jaghoori v. Holder, 772 F.3d 764 (4th Cir. 2014) ...................................................24

Johnson v. United States, 135 S.Ct. 2551 (2015) ....................................................23

Jones v. State, 303 Md. 323 (1985) .................................................................. 18, 19

Jupiter v. State, 328 Md. 635 (1992) ......................................................................... 7

Lee v. State, 474 A.2d 537 (Md. App. 1984) ...........................................................12

Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014) ..................................................... 2

Mathis v. United States, 136 S.Ct. 2243 (2016) ........................................................ 4

Matter of Clayton Hugh Anthony Stewart, A043 399 408 (BIA unpub., February

11, 2015) ...............................................................................................................19

Matter of D- , 1 I & N Dec. 198 (BIA 1942) ............................................................. 5

Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016) ............................... passim

Matter of G-, 2 I. & N. Dec. 235 (BIA 1945) ............................................. 15, 16, 17

Matter of Grazley, 14 I&N Dec. 330 (BIA 1973) ...............................................9, 20

Matter of Obeya, 26 I&N Dec. 856 (BIA 2016) ......................................................10


iv

Matter of Ortega–Lopez, 26 I. & N. Dec. 99, 100 (BIA 2013) ................................. 5

Matter of P-, 2 I&N Dec. 864 (BIA 1947) ................................................................ 9

Matter of Salvail, 17 I. & N. Dec. 19 (BIA 1979) ...................................................16

Matter of Scarpulla, 15 I. & N. Dec. 139 (BIA 1974) ............................................24

Matter of Short, 20 I&N 136 (BIA 1989) ................................................................23

Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016) ............................. 3, 5, 9, 23

Matter of Vera Sama, A076 581 488 (BIA unpub., March 22, 2017) .....................19

Mena v. Lynch, 820 F.3d 114 (4th Cir. 2016) ..........................................................17

Mohamed v. Holder, 769 F.3d 885 (4th Cir. 2014) ...............................................3, 6

Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) ........................................................... 3

National Cable & Telecommunications Association, et al. v. Brand X Internet

Services, 545 U.S. 967, 981 (2005) ............................................................... 21, 22

Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004) ..................................................24

Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014) ............................................... 4

Padilla v. Kentucky, 130 S.Ct. 1473 (2010) ............................................................23

Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012) ................................................21

Putinski v. State, 223 Md. 1, 4 (1960) .....................................................................11

Ramos v. Attorney General, 709 F.3d 1066, 1071-72 (11th Cir. 2013) .................... 4

Rice v. State, 311 Md. 116 (1987) ...........................................................................18

Sotnikau v. Lynch, 846 F.3d 731 (4th Cir. 2017) ........................................ 3, 5, 9, 23

Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929) ..................................................20

U.S. v. Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014)..................................5, 17

United States v. Mead Corp,533 U.S. 218 (2001) ...................................................21


v

United States v. Vann, 660 F.3d 771 (4th Cir. 2011) ...............................................23

Yousefi v. USINS, 260 F.3d 318 (4th Cir. 2001) ........................................................ 3

Statutes

8 U.S.C. § 1227(a)(2)(A)(i) ....................................................................................... 2

Arizona Revised Statute §13-1801(A)(4) ................................................................10

Md. Code Ann. Crim. Law §7-101(c) .................................................... 8, 11, 22, 25

Md. Code Ann. Crim. Law §7-101(c)(2) .................................................................11

Md. Code Ann. Crim. Law §7-101(i) ........................................................................ 7

Md. Code Ann. Crim. Law §7-102(a) .....................................................................19

Md. Code Ann. Crim. Law §7-104 .................................................................. passim

Md. Code Ann. Crim. Law §7-104(c) .....................................................................16

Md. Code Ann. Crim. Law §7-104(d) ....................................................................... 8

Md. Code Ann. Crim. Law §7-104(e) .............................................................. 13, 14

Md. Code Ann. Crim. Law §7-108(a) .....................................................................19

New York Penal Law §155.00(3) ............................................................................10

Regulations

8 CFR §1003.1(g) ...................................................................................................... 2

Treatises

Maryland’s Consolidated Theft Law and Unauthorized Use (Maryland Institute for

Continuing Professional Education of Lawyers 2002) ........................................14

Rules

Fed. R. App. P. 29(c)(5) ............................................................................................. 1


vi

Maryland State Case Documents

State v. Adkins, District Court of Maryland for Prince George’s County, Case No.

6E00604162 ..........................................................................................................14

State v. Hughes, District Court of Maryland for Prince George’s County, Case No.

E00525287 ............................................................................................................12

State v. Mejia-Bella, District Court for Montgomery County, Case No.

3d00338264 ..........................................................................................................15

State v. Smith, Circuit Court for Wicomico County, Case No. K-22-14-000333 ...16

Other Authorities

Black's Law Dictionary, online version at http://thelawdictionary.org/substantial/10

https://www.justice.gov/eoir/amicus-briefs .............................................................22

Mary Holper, Deportation for a Sin: Why Moral Turpitude is Void for Vagueness,

90 Neb. L. Rev. 647 ..............................................................................................21


1

STATEMENT REGARDING CONSENT

Counsel contacted the parties to seek their position regarding Amici Curiae’s

participation. Petitioner consented, and the government takes no position.1

INTEREST OF AMICI CURIAE

The Immigration Clinic of the University of Maryland Carey School of Law

has the dual mission of educating future lawyers and of representing individuals in

removal and other immigration related proceedings free of charge. The Maryland

Office of the Public Defender is a statewide state agency providing representation

through all stages of criminal proceedings to indigent defendants, including

noncitizens, who cannot afford counsel. The National Immigration Project of the

National Lawyers Guild is a national nonprofit organization that provides legal and

technical support to attorneys, legal workers, immigrant communities, and

advocates seeking to advance the rights of noncitizens. The Capital Area

Immigrants’ Rights Coalition is a nonprofit, legal services organization providing

legal services to individuals detained by the Department of Homeland Security

1 Pursuant to Fed. R. App. P. 29(c)(5), Amici state that no party’s counsel authored

this brief in whole or in part; that no party or party’s counsel contributed money that

was intended to fund preparing or submitting the brief; and that no person other than

the Amici Curiae, their members, or their counsel contributed money that was

intended to fund preparing or submitting the brief.


2

(DHS) throughout Virginia and Maryland. Amici are all organizations that have a

strong interest in assuring that the rules governing classification of criminal

convictions for immigration purposes are fair, predictable, give noncitizen

defendants the benefit of their plea bargain, and are in accord with longstanding

precedent on which noncitizens, their lawyers, and the courts have relied for nearly

a century. Amici seek to provide the Court with context of the interpretation of

Maryland’s theft statute in the Maryland courts, as well as context on the agency’s

position, which is not supported by state law and is a departure from seven decades

of legal precedent which has until now always focused on the intent to permanently

deprive as the lynchpin in defining a theft offense for purposes of moral turpitude.

STANDARD OF REVIEW

The question before the Court – whether Maryland’s theft statute is

categorically a crime involving moral turpitude, as that term is used in 8 U.S.C. §

1227(a)(2)(A)(i) – is a question of first impression. The decision of the Board of

Immigration Appeals (“Board”) below was issued by a single member of the Board

and is thus nonprecedential. 8 CFR §1003.1(g). As such, it is not to be accorded

deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837 (1984). Martinez v. Holder, 740 F.3d 902, 909 (4th Cir. 2014).

Furthermore, the Board is not accorded deference in its interpretation of

criminal statutes or its application of the categorical analysis of criminal


3

convictions. Whether a crime is one involving moral turpitude is a question of law

that this Court reviews de novo. Sotnikau v. Lynch, 846 F.3d 731, 735 (4th Cir.

2017), citing Mohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014).

ARGUMENT

I. TO QUALIFY AS A CRIME INVOLVING MORAL TURPITUDE, THE

LEAST CONDUCT PROHIBITED BY AN OFFENSE MUST BOTH

BE A REPREHENSIBLE ACT AND REQUIRE SOME FORM OF

SCIENTER.

The analysis for determining whether an offense triggers immigration

consequences because it is a crime involving moral turpitude (“CIMT”) is a

categorical one. Yousefi v. USINS, 260 F.3d 318, 326 (4th Cir. 2001); Matter of

Silva-Trevino, 26 I&N Dec. 826, 830 (BIA 2016) (“Silva-Trevino III”); Moncrieffe

v. Holder, 133 S. Ct. 1678, 1684 (2013). In other words, the offense is only a

CIMT if the least of the conduct it proscribes involves moral turpitude. Moncrieffe,

133 S.Ct. at 1684; Sotnikau v. Lynch, 846 F.3d at 735. There must also be a

“realistic probability” that conduct falling outside the categorical definition of

moral turpitude will be prosecuted under the criminal statute and that it is not just

the product of “legal imagination.” Moncrieffe, 133 S. Ct. at 1684–85 (quoting

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). Where a statute on its

face reaches conduct that may fall outside the generic offense, it requires no “legal

imagination” to determine that it is categorically overbroad, and a petitioner need


4

not point to actual cases involving prosecutions for the covered conduct. See, e.g.,

Ramos v. Attorney General, 709 F.3d 1066, 1071-72 (11th Cir. 2013) (holding that

noncitizen does not have to provide proof of prosecution where a statute is facially

overbroad). See also Esquivel-Quintana v. Sessions, No. 16-54, -- U.S. --, 2017

WL 2322840 (May 30, 2017) (finding conviction overbroad without pointing to

actual prosecutions).

If the state statute reaches conduct beyond the definition of moral turpitude,

it is overbroad and cannot serve as the basis for immigration consequences.

Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014); Descamps v. United

States, 133 S.Ct. 2276, 2283 (2013). A court may resort to a modified categorical

approach and review the record of conviction only when a statute’s listed

alternatives are alternative essential elements of different offenses and not when

they are mere alternative means of committing one offense. Omargharib, 775 F.3d

at 197-98; Descamps, 133 S.Ct. at 2285; Mathis v. United States, 136 S.Ct. 2243,

2248 (2016). For statutory alternatives to be considered elements that indicate that

a statute is divisible, a jury must be required to distinguish unanimously between

them. Omargharib, 775 F.3d at 198; Mathis, 136 S.Ct. at 2250. Courts look to

state case law to determine the elements of an offense. See Mathis, 136 S.Ct. at

2256. This Court has held that “[t]o the extent that the statutory definition of the

prior offense has been interpreted by the state's highest court, that interpretation


5

constrains [this Court’s] analysis of the elements of state law.” U.S. v. Aparicio-

Soria, 740 F.3d 152, 154 (4th Cir. 2014).

This Court has held that “moral turpitude” generally refers to “conduct that

shocks the public conscience as being inherently base, vile, or depraved.” Sotnikau

v. Lynch, 846 F.3d at 736. The Board has further characterized it as conduct

“contrary to the accepted rules of morality and the duties owed between persons or

to society in general.” Silva-Trevino III, 26 I&N Dec at 833. Both the Court and

the Board have emphasized the importance of mens rea in the determination: “To

involve moral turpitude, a crime requires two essential elements: a culpable mental

state and reprehensible conduct.” Sotnikau v. Lynch, 846 F.3d at 736, quoting

Matter of Ortega–Lopez, 26 I. & N. Dec. 99, 100 (BIA 2013).

To be a crime involving moral turpitude, an offense must prohibit conduct

that is more than simply illegal. Any crime is, to some extent, a breach of societal

expectations, but a CIMT must involve an act that is “reprehensible,” that is,

“inherently base, vile or depraved.” Silva-Trevino III, 26 I&N Dec at 833. The

immigration courts have long held that “[n]ot every offense contrary to good

morals involves moral turpitude.” Matter of D- , 1 I & N Dec. 198 (BIA 1942).

This Court has noted that moral turpitude requires something more than simple

illegality, or every crime would be a CIMT:


6

[B]y using the phrase “involving moral turpitude” to define a qualifying

crime, Congress meant to refer to more than simply the wrong inherent in

violating the statute. Otherwise, the requirement that moral turpitude be

involved would be superfluous. It follows, therefore, that a crime involving

moral turpitude must involve conduct that not only violates a statute but also

independently violates a moral norm.

Mohamed v. Holder, 769 F.3d at 888 (4th Cir. 2014).

II. MARYLAND’S CONSOLIDATED THEFT STATUTE IS OVERBROAD

AND INCLUDES VARIOUS TYPES OF CONDUCT THAT DO NOT

INVOLVE MORAL TURPITUDE.

Maryland’s consolidated theft offense is found at Md. Code Ann. Crim. Law

§7-104. The statute includes subsections (a) through (e) that describe different

means of committing theft, including theft by unauthorized taking and by

deception, possession of stolen property, control of lost or misdelivered property,

and theft of services.2 Md. Code Ann. Crim. Law §7-104. The statute also details

a variety of levels of knowledge or intent that can be sufficient for a conviction of

theft in different circumstances. These provisions cover a broad range of conduct

and scienter, some of which involves moral turpitude under the Board’s definitions

and some of which does not. The statute itself describes these provisions in terms

clear enough so that no “legal imagination” is necessary to see that there is a

2 Though the statute details these different possible means of commission, it

creates – by legislative design and as confirmed by the state’s highest court – a

single offense of “theft” that is nondivisible for purposes of the categorical

approach. See infra, Section II.C.


7

realistic probability that the State would apply its statute to conduct outside the

definition of moral turpitude, but as will be demonstrated below, case law also

provides examples of such prosecutions.

A. Maryland’s consolidated theft statute prohibits conduct that is

neither reprehensible nor vile, base or depraved.

The Maryland consolidated theft statute prohibits acts that, while

constituting theft under state law, cannot be considered reprehensible or base, vile

or depraved. The statute prohibits takings that result in de minimis loss to the

owner of property and, in some cases, even no loss at all. It also includes acts that

do not implicate the same level of culpability as an unauthorized taking (the usual

understanding of theft), such as failure to return misdelivered property to its

rightful owner.

First, the property or service that is the object of a theft in Maryland can

have minimal value. The statute defines property as “anything of value,” including

food, water, electricity, and information. Md. Code Ann. Crim. Law §7-101(i).

The Court of Appeals, the state’s highest court, has explained that “[a] theft must

have as its object something of value. Quantifying the value is not important to

whether a theft was committed. Nevertheless, it is essential that the thing taken

have some value.” Jupiter v. State, 328 Md. 635, 640 (1992) (emphasis in original).

The case in which the court made this statement upheld the theft conviction of a


8

drunk man who took and paid for a $4.00 six-pack of beer when the proprietor

refused to sell it to him because he was intoxicated. Id.

Another part of Maryland’s consolidated statute criminalizes the possession

of property that has been lost or misdelivered, if the finder comes to know who the

rightful owner is and fails to take sufficient steps to return the property, eventually

developing the intention of keeping it. Md. Code Ann. Crim. Law §7-104(d).

Though this scenario does involve a series of events in which a person eventually

decides to keep something that does not belong to her, it does not involve any

affirmative “taking” of property from another, but merely the failure to go to the

trouble to return something that was wrongly delivered. This action (or lack of

action), while sanctionable under Maryland’s statute, does not involve the same

level of culpability as a traditional theft act of unauthorized taking of another’s

property.

Lastly, as discussed more fully below, the statute includes both a definition

of “deprive” that includes temporary takings and a provision describing theft of

services that require no intent to deprive the owner and that result in de minimis or

even no loss at all of value or property rights for the owner. Md. Code Ann. Crim.

Law §7-101(c); see infra, Section II.B.2 (citing cases charged as theft for the

unauthorized use of a bulldozer, the charging of a cell phone and failure to pay for

a $3.00 Metro ride).


9

While each of these cases involves conduct that is a violation of Maryland

law, they certainly do not constitute “reprehensible” or “inherently vile” conduct

that “shocks the conscience.” Sotnikau v. Lynch, 846 F.3d at 736; Silva-Trevino

III, 26 I&N Dec at 833. As such, they do not meet the Board’s or this Court’s

standard for moral turpitude.

B. The scienter requirement for Maryland’s §7-104 is facially

overbroad compared to the Board’s CIMT definition and includes

multiple levels of mens rea that do not involve moral turpitude.

Maryland’s consolidated theft statute includes multiple variants of mens rea,

and a number of them do not meet the scienter standards that the Board has set for

theft related CIMTs.

1. The Board held in Matter of Diaz-Lizarraga that to be a

CIMT, a theft offense must include either an intent to

permanently deprive an owner of property or

circumstances in which the owner’s property interest is

“substantially eroded.”

For seven decades, the Board and courts held that a theft offense

categorically involved moral turpitude “if – and only if – it [wa]s committed with

the intent to permanently deprive an owner of property.” Matter of Diaz-

Lizarraga, 26 I&N Dec. 847, 849 (BIA 2016), citing Matter of Grazley, 14 I&N

Dec. 330, 333 (BIA 1973). Theft offenses that included mere temporary takings of

property were regularly held to fall outside the definition of a CIMT. See, e.g.,

Matter of P-, 2 I&N Dec. 864 (BIA 1947) (holding that the Canadian statute of


10

conviction did not require an intent to permanently deprive the owner and therefore

was not a CIMT).

In 2016, the Board changed course and rewrote the definition, overturning

its prior case law in Matter of Diaz-Lizarraga. 26 I&N Dec. at 854-55. The Board

established a new standard for moral turpitude in theft offenses, requiring that an

offense include either an intent to permanently deprive an owner of property or

“circumstances where the owner’s property rights are substantially eroded.” Id. at

853. The Board did not define “substantially,” but Black’s Law Dictionary defines

“substantial” as “being significant or large and having substance.” See

http://thelawdictionary.org/substantial/. The statutes that the Board analyzed in

Diaz-Lizarraga and its companion case both contained a definition of “deprive”

that required either an intent to withhold property permanently or for so extended a

period that “a substantial portion” or “the major portion” of the property’s value or

usefulness is lost. Diaz-Lizarraga 26 I&N Dec. at 848 (analyzing Arizona Revised

Statute §13-1801(A)(4)); and Matter of Obeya, 26 I&N Dec. 856, 858 (BIA 2016)

(analyzing New York Penal Law §155.00(3)). The Board’s discussion seemed to

indicate concern that turpitude be found in more serious offenses, indicating that

“it is appropriate to distinguish between substantial and de minimis takings when

evaluating whether theft offenses involve moral turpitude.” Diaz-Lizarraga, 26

I&N Dec. at 851.


11

2. The Maryland statute defines “deprive” more broadly

than the Board, to include withholding property

temporarily with de minimis or even no loss of the

property’s value.

The Maryland statute includes a definition of “deprive” that differs in

important respects from the Board’s with regard to the scienter required to commit

the offense of theft. Section 7-101(c) provides:

“Deprive” means to withhold property of another:

(1) permanently;

(2) for a period that results in the appropriation of a part of the property's

value;

(3) with the purpose to restore it only on payment of a reward or other

compensation; or

(4) to dispose of the property or use or deal with the property in a manner

that makes it unlikely that the owner will recover it.

Md. Code Ann. Crim. Law §7-101(c) (emphasis added). It is plain from the text of

the statute that the Maryland standard is broader than the Diaz-Lizarraga

definition. For one thing, Maryland’s statute goes beyond circumstances where an

owner’s property rights are “substantially eroded” and includes temporary takings

that result in the appropriation of any “part” of the property’s value, even if it is de

minimis. Id. at §7-101(c)(2). There is no requirement under the Maryland statute

that the lost property rights be substantial or even significant in any way.3

3 Furthermore, it is clear from §7-101(c)(4) that the Maryland statute will support a

conviction for theft where the defendant has no intent to permanently deprive the

owner of the property, but uses or disposes of it in a way that makes it unlikely the

owner will recover it, even if the owner does recover the property and experiences


12

The Statement of Charges from State v. Hughes, attached as Attachment A,

is a perfect example of a prosecution under the Maryland statute that involved a

temporary taking and no meaningful appropriation of the value of the property.

Attachment A, State v. Hughes, District Court of Maryland for Prince George’s

County, Case No. E00525287. The defendant in that case was prosecuted for

stealing a construction bulldozer, having a value of $48,000.00, when he snuck the

bulldozer out at night and used it for his own purposes, returning it the next

morning before the workday began “with wear and tear consistent with

construction rubble.” That wear and tear was what is normally associated with use

of a bulldozer and represented at most a de minimis loss of value in the property.

But the defendant was nonetheless charged with “theft under $100,000” pursuant

to Md. Code Ann. Crim. Law §7-104, for the temporary deprivation of the

bulldozer during the night hours.

In Lee v. State, a case that arose under a prior version of the statute, the

state’s second highest court upheld the theft conviction of an individual who

temporarily concealed two bottles of liquor in his clothing while in a store but

returned them and fled without ever taking them from the store. The court found

no loss. See, e.g., Putinski v. State, 223 Md. 1, 4 (1960) (holding deprivation was

sufficient where defendant pawned his roommates’ belongings so that they were

unlikely to recover them).


13

that the temporary concealment of the bottles in the store was sufficient to support

a theft conviction, despite the fact that the owner suffered no loss of property rights

after the bottles were returned. Lee v. State, 474 A.2d 537, 544-45 (Md. App.

1984). In the case of Hobby v. State, Maryland’s highest court recently upheld a

conviction for “theft of house” where the defendant and his family temporarily

occupied a house that had been abandoned to foreclosure. Hobby v. State, 436 Md.

526 (2014). The family eventually vacated the house, leaving it in essentially the

same condition in which they found it, so that there was no loss of value in the

house. The Court of Appeals specifically held that there was no need to show any

loss in value in the house to sustain the theft charge. Id. at 549.

It is clear from these examples that Maryland’s theft statute includes

temporary takings in circumstances in which the owner’s property rights are not

“substantially eroded” as required by Diaz-Lizarraga. Its scienter requirement is

overbroad in relation to the Board’s definition for CIMT theft offenses.

3. Theft of services under §7-104(e) requires no specific

intent to deprive and no erosion of an owner’s property

rights.

Section 7-104(e) describes one of the ways of committing Maryland’s

consolidated offense as theft of services. It provides, in part, that an individual

“may not obtain services available only for compensation … (2) with knowledge

that the services are provided without the consent of the person providing them.”


14

This provision does not require any specific intent whatsoever, much less an intent

to permanently deprive anyone of anything. The Honorable Charles E. Moylan,

Jr., an expert on Maryland’s theft statute, says this about the mens rea requirement

for theft of services:

Unlike the other modalities of theft, [theft of services] involves no specific

intent…. [V]oluntary intoxication, at a severe enough level, could erode a

specific intent and pose … a defense to [the other means of committing

theft]. It would not, however, constitute a defense to [theft of services].”

Maryland’s Consolidated Theft Law and Unauthorized Use (Maryland Institute for

Continuing Professional Education of Lawyers 2002), at 63. Section 7-104(e) is

thus missing the intent to deprive requirement that is the first prong of the Diaz-

Lizarraga scienter definition.

Furthermore, there is no requirement of any erosion of property rights under

a theory of theft of services in Maryland, so it does not fulfill the second Diaz-

Lizarraga prong either. And the state of Maryland, in fact, regularly prosecutes

cases involving de minimis loss of services and no erosion of property rights

whatsoever. These de minimis prosecutions are significant given the Board’s

emphasis in Diaz-Lizarraga on the need to distinguish between substantial

(“reprehensible”) takings and de minimis ones for purposes of evaluating moral

turpitude. Diaz-Lizarraga, 26 I&N Dec. at 851 (“We continue to believe that it is

appropriate to distinguish between substantial and de minimis takings when

evaluating whether theft offenses involve moral turpitude.”).


15

In one recent case, the State charged a defendant with theft of electrical

service under §7-104 for charging his cell phone at an outdoor outlet. See

Attachment B, State v. Adkins, District Court of Maryland for Prince George’s

County, Case No. 6E00604162. In another, the State prosecuted a defendant for

theft of a Metro ride, valued at $3.00, with no allegation of specific intent to

deprive and do any erosion in the property interest of the service provider.

Nevertheless, the case was successfully prosecuted to conviction and a 90-day

sentence was imposed, the maximum sentence for theft under $100.00.

Attachment C, State v. Mejia-Bella, District Court for Montgomery County, Case

No. 3d00338264.

These prosecutions involve neither an allegation of intent to deprive nor a

substantial erosion of property rights. They demonstrate that the requirements for

conviction under this manner of committing Maryland theft do not comport with

the scienter requirements of Diaz-Lizarraga, nor with its implication that de

minimis takings should not be seen as involving moral turpitude. Diaz-Lizarraga,

26 I&N Dec. at 851.

4. The scienter required for possession of stolen property

under §7-104(c) is broader than the definitions

established in Diaz-Lizarraga and the Board’s case law

requiring knowledge that the property was stolen.

The Board has a separate line of case law addressing offenses of receiving or

being in possession of stolen property, in which it has held that these offenses are


16

CIMTs only where they necessarily involve both moral turpitude in the original

taking and knowledge by the defendant that the goods were stolen. See Matter of

G-, 2 I. & N. Dec. 235, 238 (BIA 1945) (“Moral turpitude was, therefore, involved

in the original theft and the appellant's retention of the goods with knowledge that

it had been so obtained likewise involves moral turpitude.”); and Matter of Salvail,

17 I. & N. Dec. 19, 20 (BIA 1979) (“Conviction under this statute is a conviction

for a crime involving moral turpitude, as it specifically requires knowledge of the

stolen nature of the goods.”).

Maryland’s consolidated theft statute can also be violated by being in

possession of recently stolen property, as described in §7-104(c). The

requirements for conviction in Maryland under this manner of committing theft

satisfy neither the scienter requirements of Diaz-Lizarraga not those of the Board’s

cases on possession of stolen property. Section 7-104(c) allows for conviction

where a defendant either had knowledge that goods were stolen or had a

(presumably less certain) “belief” that they were “probably stolen.” Md. Code

Ann. Crim. Law §7-104(c). See Attachment D, State v. Smith, Circuit Court for

Wicomico County, Case No. K-22-14-000333 (transcript from prosecution under

§7-104 for possession of a recently stolen driver’s license and baseball cap valued

at $5-$10). This mens rea is facially broader than the “knowledge” required by

Matter of G- and Matter of Salvail. The Maryland statute requires less certainty


17

about the history of the goods, and thus a conviction can be had with far less proof

of a culpable mental state than required by the BIA for a CIMT. Furthermore, this

subsection also employs the definition of “deprive” discussed above, which is

broader than that established in Diaz-Lizarraga because it includes cases with

temporary takings and de minimis erosion of property rights. See supra, Section

III.B.2. And finally, for a finding that possession of stolen property involves moral

turpitude, the Board requires that the original taking necessarily also involve

turpitude, a standard that is not met by Maryland’s consolidated theft statute, for all

the reasons detailed here. See Matter of G-, 2 I. & N. Dec. at 238.

In short, Maryland’s consolidated theft statute, on its face, includes myriad

forms of conduct and levels of permissible mens rea that sweep more broadly than

the Board’s definition of moral turpitude. Under the categorical approach, it is

overbroad with regard to moral turpitude and is therefore not a CIMT. C.f. Mena

v. Lynch, 820 F.3d 114, 117–18 (4th Cir. 2016) (holding federal possession of

stolen or embezzled property categorically not an aggravated felony because it was

overbroad).

C. §7-104 is non-divisible and is therefore categorically not a CIMT.

Though Maryland’s theft statute details numerous ways that the crime of

theft can be committed and appears at first glance to be divisible, the state’s

highest court has explicitly held it to be a single offense, and it is not divisible into


18

separate offenses for purposes of the categorical approach. Where a state court has

interpreted the elements of a state offense, this Court is bound by that

interpretation. U.S. v. Aparicio-Soria, 740 F.3d at 154.

The Maryland Court of Appeals has held directly that the consolidated theft

statute created a single offense of “theft” in Maryland and that a jury need not

unanimously agree on the method by which a theft was committed in order to

convict a defendant. In Rice v. State, the Court of Appeals held that a conviction

for theft under §7-104 would be sustainable where “six jurors may think the

defendant guilty of violating [section (a)] and six guilty of violating [section (c)];

but on neither (a) nor (c) do all twelve agree.” Rice v. State, 311 Md. 116, 125-26

(1987). See also Craddock v. State, 64 Md. App. 269, 278 (1985) (“[T]he statute

sets forth various acts that constitute the crime of theft. As long as jurors

unanimously agree that theft in some form was committed, nothing more is

required.”).

The legislative history and the text of the statute, including its pattern

charging language, reflect that this consolidated structure was what the legislature

intended. In 1978, the Maryland General Assembly passed the current,

consolidated theft statute with the express purpose “to create a single statutory

crime encompassing various common law theft-type offenses in order to eliminate

the confusing and fine-line common law distinctions between particular forms of


19

larceny.” Jones v. State, 303 Md. 323, 333 (1985). The statute “consolidated

various common law larceny related offenses into a single offense designated as

‘theft’” and identified a non-exclusive list of “five different methods” of

committing theft. Id. at 343, 341.

The text of the statute confirms this history and the intent to consolidate

different technical forms of larceny into one statutory offense. The statute

provides:

Conduct described as theft in this part constitutes a single crime and

includes the separate crimes formerly known as (1) larceny; (2) larceny by

trick; (3) larceny after trust; (4) embezzlement; (5) false pretenses; (6)

shoplifting; and (7) receiving stolen property.

Md. Code Ann. Crim. Law §7-102(a) (emphasis added). The statute likewise

provides that to properly charge an individual with any form of theft under § 7-

104, a prosecutor need only state: “(name of defendant) … stole (property or

services stolen) of (name of victim) having a value of … in violation of § 7-104 of

the Criminal Law Article ….” Md. Code Ann. Crim. Law §7-108(a). This

charging language “allege[s] the essential elements of the offense charged.” Jones,

303 Md. at 336-37. As the Maryland Court of Appeals stated in Jones: “It is

readily evident from the language of the consolidated theft statute, and from its

underlying history, that the legislature made ‘stealing’ property or services of

another . . . a single criminal offense.” 303 Md. at 339.


20

The Board has held at least twice in unpublished decisions that Maryland’s

statute is non-divisible for purposes of the categorical approach, relying on

Maryland state court interpretations. See Attachment E, Matter of Vera Sama,

A076 581 488 (BIA unpub., March 22, 2017); and Attachment F, Matter of

Clayton Hugh Anthony Stewart, A043 399 408 (BIA unpub., February 11, 2015).

Because Maryland’s theft statute is non-divisible and covers a broader swath

of conduct than the Board’s definition of moral turpitude for theft offenses, it is

categorically not a CIMT.

III. In the alternative, the Court should not defer to the Board’s Diaz-

Lizarraga decision and should apply the traditional definition to find the

Maryland statute non-turpitudinous because it does not require an

intent to permanently deprive an owner of property.

A. The Court should not defer to the Board’s decision in Diaz-

Lizarraga because it is not the result of reasoned agency decision

making analogous to notice-and-comment rulemaking.

In Diaz-Lizarraga, the Board overturned over seven decades of agency

precedent to significantly expand the definition of turpitudinous theft offenses

without seeking or considering the input or perspectives of interested parties.

Matter of Diaz-Lizarraga, 26 I&N Dec. at 847. As noted, supra, in Section II.B.1,

until recently, the Board had consistently held that a theft offense could be a CIMT

only if it included an intent to permanently deprive an owner of property. Id., 26

I&N Dec. at 849, citing Matter of Grazley, 14 I&N Dec. at 333. This requirement

was accepted and followed without controversy in federal circuit courts around the


21

country. See, e.g., Tillinghast v. Edmead, 31 F.2d 81, 83 (1st Cir. 1929). In fact,

in her 2012 article on the vagueness of “moral turpitude” as a legal standard –

which pre-dated Diaz-Lizarraga – Professor Mary Holper recognized theft with an

intent to permanently deprive as one of the few “clear cases” on which litigants

could rely in applying the standard. Mary Holper, Deportation for a Sin: Why

Moral Turpitude is Void for Vagueness, 90 Neb. L. Rev. 647, 665. This Court

likewise recognized the importance of the “long history” of judicial interpretation

in giving substance to the phrase “moral turpitude.” Prudencio v. Holder, 669

F.3d 472, 482, 483 (4th Cir. 2012).

Last fall, in Diaz-Lizarraga, the Board took it upon itself to unilaterally

overturn that long history of interpretation and settled expectations developed over

nearly a century to expand the definition of moral turpitude relating to theft

offenses. While it is true that Chevron and Brand X permit an agency to continue

to test and adapt its policies and process, the framework of these cases anticipates

that the agency will do so in a reasoned manner, which properly includes input

from affected parties representing differing perspectives, in a manner analogous to

notice-and-comment rulemaking. As the Supreme Court acknowledged in

Chevron, “[T]he agency, to engage in informed rulemaking, must consider varying

interpretations and the wisdom of its policy on a continuing basis.” Chevron, 467

U.S. at 863–64 (quoted in National Cable & Telecommunications Association, et


22

al. v. Brand X Internet Services, 545 U.S. 967, 981 (2005)); see also United States

v. Mead Corp,533 U.S. 218, 233-34 (2001) (declining to afford Chevron deference

where agency process did not indicate the agency was using its full rulemaking

authority). Such a process allows for consideration of multiple perspectives and of

the potential broader legal and policy ramifications of a decision made in an

individual case.

The Board failed to engage in this kind of in-depth, deliberative rulemaking

process in Diaz-Lizarraga. It did not give notice that it intended to change this

fundamental and longstanding interpretation, nor did it seek the input of amici

curiae, despite an established Board process for doing so. See

https://www.justice.gov/eoir/amicus-briefs (showing no request for amicus curiae

participation on this issue) (last accessed 6/5/2017). The resulting weakness of the

decision is illustrated in just one instance by the fact that the Board counted

Maryland as a state that adopted the Model Penal Code definition of deprivation

“more or less verbatim,” despite the salient difference that the Maryland statute

does not require that a temporary taking appropriate “a major part” of the

property’s value, as does the Model Penal Code. Compare Diaz-Lizarraga, 26

I&N Dec. at 851, n. 4; with Md. Code Ann. Crim. Law §7-101(c). See, supra,

Section II.B.2. The Board’s failure to seek comment or input and to carefully

consider the perspectives of various affected parties before overturning such well-


23

established and longstanding precedent is one indication that the sudden expansion

of its definition is not deserving of Brand X deference.4

B. The Board’s announced definition for theft as a CIMT is

unreasonable because it does not satisfy the Board’s own standard for

moral turpitude.

The expansion of the Board’s CIMT definition in Diaz-Lizarraga is not

deserving of deference and it ultimately fails because it does not include any form

of scienter and thus does not meet its own or this Court’s broader definition of

moral turpitude. For an offense to be a crime involving moral turpitude, both this

Court and the Board require the “essential elements” of a reprehensible act and

4 The ease with which the Board redefined moral turpitude as it relates to theft

offenses in Diaz-Lizarraga also gives rise to concerns about the vagueness of

“moral turpitude” as a legal standard. If the interpretation of the “nebulous

concept” of turpitude, Matter of Short, 20 I&N 136, 139 (BIA 1989), can change

so radically with no forewarning, it fails to provide notice to noncitizens of what

falls within the category and what, for instance, may be a safer plea in their

criminal case. See Padilla v. Kentucky, 130 S.Ct. 1473 (2010) (duty of criminal

defense attorney to advise noncitizen of potential immigration consequences of a

conviction).

This raises the specter that the standard may be void for vagueness. See

Johnson v. United States, 135 SCt. 2551 (2015).. A standard that is not facially

void may later be found to be so where subsequent decisions fail to “impart the

predictability that the earlier opinion forecast.” Id. at 2562. Where a longstanding

failure to create a usable standard creates “a black hole of confusion and

uncertainty” in a line of interpretation, a court must consider whether the standard

may be fatally vague. United States v. Vann, 660 F.3d 771, 787 (4th Cir. 2011)

(Agee concurr.).

The Court does not need to address this question in this case should it agree

that the Maryland statute at issue is broader than the Board’s current published

CIMT definition for theft offenses.


24

some form of scienter. Sotnikau v. Lynch, 846 F.3d at 736; Silva-Trevino III, 26

I&N Dec at 834. By contrast, the Diaz-Lizarraga formulation includes offenses

that do not require scienter in any form but only “circumstances” in which an

owner’s property interests are substantially eroded. 26 I&N Dec. at 853. These

circumstances reflect the effect of an individual’s action, not her state of mind at

the time she took the action, which has always been the relevant inquiry under the

Board’s moral turpitude standard.

The Diaz-Lizarraga decision conflates the two “essential elements” of

turpitude and eviscerates the Board’s requirement of “some form” of scienter,

trading it off for a circumstantial consideration of loss, a factor that more properly

goes to the question of the seriousness or potentially “reprehensible” nature of the

taking. Furthermore, the Board has long held that even petty theft involves

turpitude, if is accompanied by an intent to permanently deprive the owner, so the

Board’s own case law does not support the logic of Diaz-Lizarraga. See, e.g.,

Matter of Scarpulla, 15 I. & N. Dec. 139, 140–41, (BIA 1974) (“It is well settled

that theft or larceny, whether grand or petty, has always been held to involve moral

turpitude.”).

For these reasons, the Court should not defer to the Board’s Diaz-Lizarraga

decision, even under a Skidmore standard, and should apply the longstanding


25

definition of moral turpitude for theft offenses that requires scienter in the form of

an intent to permanently deprive an owner of property.5

C. The Maryland statute sweeps more broadly than the Board’s

traditional definition of moral turpitude relating to theft offenses.

With regard to the Board’s traditional definition of CIMT for theft offenses,

the Maryland statute is facially overbroad, as its definition of “deprive” does not

require an intent to permanently deprive an owner of property and includes

temporary takings where a “part” of the owner’s interest is appropriated. Md.

Code Ann. Crim. Law §7-101(c). As such, under the categorical approach and

applying the traditional definition of moral turpitude, Maryland’s theft statute is

categorically not a crime involving moral turpitude.

CONCLUSION

In short, under either the Board’s traditional definition of moral turpitude or

under the definition it recently revised in Diaz-Lizarraga, Maryland’s §7-104 is

overbroad and categorically not a crime involving moral turpitude.

For these reasons, the Petition should be granted; the Court should hold that

Maryland’s consolidated theft statute, Md. Code Ann. Crim. Law §7-104, is

5 Should the Court uphold the agency’s reversal of longstanding precedent in Diaz-

Lizarraga, it should not retroactively apply the decision to acts committed prior to

its issuance. This Court strongly disfavors retroactive application of the laws. See

Jaghoori v. Holder, 772 F.3d 764 (4th Cir. 2014); Olatunji v. Ashcroft, 387 F.3d

383 (4th Cir. 2004).


26

categorically not a crime involving moral turpitude; and the Court should remand

to the agency so that Petitioner may pursue her application for relief from removal.

June 6, 2017

/s/ Sejal Zota

Sejal Zota

NATIONAL IMMIGRATION PROJECT

OF THE NATIONAL LAWYERS

GUILD

14 Beacon Street, Suite 602

Boston, MA 02108

Telephone: (617) 227-9727


Counsel for National

Immigration Project of the

National Lawyers Guild

/s/ Adina Appelbaum

Adina Appelbaum

Claudia R. Cubas*

CAPITAL AREA IMMIGRANTS’

RIGHTS (CAIR) COALITION

1612 K Street NW Suite 204

Washington, DC 20006

Telephone: 202-899-1412


Counsel for CAIR Coalition

*Not admitted to practice in the

Fourth Circuit Court of Appeals

Respectfully submitted,

/s/ Maureen A. Sweeney

Maureen A. Sweeney

UNIVERSITY OF MARYLAND CAREY

IMMIGRATION CLINIC



Telephone: (410) 706-3922


Counsel for University of Maryland Carey

Immigration Clinic

/s/ Nadine K. Wettstein

Nadine K. Wettstein

MARYLAND OFFICE OF THE PUBLIC

DEFENDER

Maryland Office of the Public Defender

Immigration Program

Telephone: (301) 563-8936


Counsel for Maryland Office of the Public

Defender


tel:(202)%20899-1412

27

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 29(d) and Fed. R. App. P. 32(a)(7)(C), I certify

that this brief complies with the type-volume limitation because this brief contains

6332 words. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5)(A) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Word

in Times New Roman size 14.

Date: June 6, 2017 /s/ Maureen A. Sweeney

Maureen A. Sweeney


IMMIGRATION CLINIC



Telephone: (410) 706-3922

Email:[email protected]


28

CERTIFICATE OF SERVICE

I hereby certify that on this 6th day of June 2017, a true and correct copy of

the foregoing Brief of University of Maryland Carey Immigration Clinic, Maryland

Office of the Public Defender, National Lawyers Guild National Immigration

Project, Capital Area Immigrant Rights Coalition as Amici Curiae In Support of

Petitioner was served on all counsel of record in this appeal via CM/ECF.

I further certify that on June 7, 2017, I will cause one (1) copy of the

foregoing Brief of University of Maryland Carey Immigration Clinic, Maryland

Office of the Public Defender, National Lawyers Guild National Immigration

Project, Capital Area Immigrant Rights Coalition as Amicus Curiae to be delivered

via first class mail to the Clerk of the United States Court of Appeals for the Fourth

Circuit.

Date: June 6, 2017 /s/ Maureen A. Sweeney

Maureen A. Sweeney


IMMIGRATION CLINIC



Telephone: (410) 706-3922

Email:[email protected]


UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT · 2019-02-27 · deprive as the lynchpin in...

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