PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 20

- 1273

__________

VICTOR SASAY , a/k/a Victor Sesay, a/k/a Hermes Herrera

Cuba,

Petitioner

v.

ATTORNEY GENERA L UNITED STATES OF

AMERICA

____________________________________

On Petition for Review of a Final Order of the Board of Immigration Appeals ( A058

- 985

- 272 ) Immigration Judge: Audra Behne

____________________________________

Argued September 22 , 2020

Before: SMITH, Chief Judge

, McKEE, and JORDAN Circuit Judges

(Opinion filed : September 10, 2021 )

___________

Benjamin J. Osorio, Esq. Murray Osorio 4103 Chain Bridge Road

Suite 300 Fairfax, VA 22030

Mar k A. Stevens, Esq. [ARGUED]

Clark Hill 1001 Pennsylva ni a Avenue N.W.2 Suite 1300 South Washington, DC 20004 Counsel for Petitioner

Joseph H. Hunt, Assistant Attorney General Cindy S. Ferrier, Assistant Director Joseph A. O'Connell, Esq. [ARGUED] United States Department of Justice Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station Washington, DC 20044 Counsel for Respondent

___________

OPINION

__________ _

McKEE, Circuit Judge.

Victor Sasay petitions for review of the Board of Immigration Appeals ’ ruling that his conviction for aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) is a crime involving moral turpitude ( “ CIMT ” )

, thus making h im

removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii)

. Sasay

asserts that aggravated identity theft is not a CIMT because it only criminalizes possession of another person’s identity

documents and does not require the use or the intent to use the

documents

. For the reasons that follow, we will d eny the petition for review.

I.

A. Fact ual and Procedural History

Victor Sasay is a native and citizen of Sierra Leone . He

was admitted to the United States as a lawful permanent

resident in 2007. In 2015, he was convicted of misdemeanor credit card fraud under Virginia law 1 and sentenced to 175 days ’ imprisonment

. 2 In 2018, he was convicted in South

1 Va. Code § 18.2

- 195(3)

. 2 Appx. at 5

– 6.3 Dakota of aiding and abet ting aggravated identity theft in

violation of 18 U.S.C. § 1028A(a)(1) and sentenced to 24

months ’ imprisonment. 3 Th at conviction is the one at the center of this dispute. It resulted from Sasay and his co

defendants purchas ing credit card numbers online and us ing counterfeit access devices to acquire hundreds of credit and

deb i t cards from multiple stores across the Midwest

. 4

A noncitizen, lawful permanent resident is removable

when she or he is convicted of “two or more crimes involving moral turpitude, not arising out of a single scheme of criminal

misconduct

. ” 5 The Department of Homeland Security concluded that both of Sasay’s convictions were CIMT s and that they arose from separate crimin al schemes. Accordingly,

DHS initiated removal proceedings. Sasay applied for several forms of relief including asylum, withholding of removal, protection under the C onvention Against Torture , and

cancellation of removal

. 6

3 Id. at 6. Although Sasay was convicted of aiding and abetting aggravated identity theft as opposed to aggravated identity theft, we treat the commission of those crimes the same when considering whether a cri minal offense is a

CIMT. See 18 U.S.C. § 2(a) (“Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal .”); Matter of F

- , 6 I. & N. Dec. 783, 785 (BIA 1955) (“While the legal distinction between principal and accessory remains, an accessory before the fact is punishable in the same fashion as the principle by reference to the definition of the substantive offense and the pe nalty so imposed by the statute.” (citations omitted)). We will therefore refer to Sasay’s conviction as one of aggravated identity theft.

4 A.R. at 755. For the reasons we discuss below, we can

consider his plea agreement

. 5 INA § 237(a)(2)(A)( ii ), 8 U.S. C. § 1227(a)(2)(A)(ii). See Smith v. Att’y Gen. , 983 F.3d 1206 (11th Cir. 2020)

. 6 Sasay did not appeal the denial of asylum, withholding of removal, or protection under the Convention Against Torture to the Board of Immigration Appeals. Sasay appealed th e Immigration Judge’s denial of cance l lation of removal to the

BIA

, but he did not raise cancel l ation before this Court. Appx. at 5 n.1; see also Petitioner’s Br. at 8.4 A ppl y i ng th e so

- called “categorical approach

, ” the Immigration Judge concluded that both of Sasay’s convictions

were disqualifying CIMTs which did not arise from a single

scheme. The IJ reasoned that Sasay’s conviction for aggravated identity theft in violation of § 1 028A(a)(1) satisfie d the definition of a CIMT because it requires one to act knowingly and it also requires one to act with fraud ulent intent

or deceit. 7

On appeal to the B oard of I mmigration A ppeals

, Sasay conceded that his Virginia conviction constituted a CIMT and that his two convictions did not arise from a single scheme. However, he argued that his conviction for violating 18 U.S.C. § 1028A(a)(1) did not constitute a CIMT because the statute “is catego rically overbroad and indivisible, as the minimum conduct required for a conviction under the statute is the mere possession of someone else ’ s documents without lawful authority.” 8

The BIA affirmed the IJ’s decisio n that Sasay had

com m itted two qualifying CIMTs. The BIA concluded that § 1028A(a)(1) “ require [d] that the possession be ‘ during and in relation to any felony violation enumerated in subsection (c)

, ’ such that there must be proof of an intent to use the identification unlawfully (and, indeed, feloniously)

. ” 9 It held

that “ all conduct criminalized by this statute necessarily

involved dishonesty as an essential element. ” 10 This petition

for review followed. Although we reject the BIA’s interpretation of § 1028 A (a)(1), we will deny the petition and hold that Sasay ’ s aggavated identify theft conviction is a CIMT. In doing so, we apply the modified categorical approach, consulting his plea agreement to ascertain which

alternative element

— or here, which alternative felony

violation

— formed the basis of his conviction. Sasay’s plea agreement readily establish es that his conviction has as an element the commission of bank fraud, in violation of § 18 U.S.C. § 1344. Because bank fraud ca tegorically qualifies as a

7 A.R. at 67 8

. 8 Appx. at 6 (internal citations and quotations omitted)

. 9 Id

. (quoting 18 U.S.C. § 1028A(a)(1)).

10 Id.5 CIMT, so too must Sasay’s aggravated identity theft

conviction

.

B. Jurisdiction and Standard of Review

We have jurisdiction to review the BIA ’s final removal

order pursuant to 8 U.S.C. § 1252(a). There are statutory exceptions to our jurisdiction to review final removal orders of people convicted of a CIMT under § 1252(a)(2)(C) . However, they do not apply here because Sasay raises a question of law

under the § 1252(a)(2)(D) exception to (a)(2)(C)

.

When “ the BIA issues a written decision on the merits,

we review its decision and not the decision of the IJ

. ” 11 W e defer to the BIA’s definition of mo ral turpitude and whether a crime can be categorized as a CIMT

, as long as its

determination is reasonable and “ based on a permissible interpretation of the immigrat i on statu t e

. ” 12 H owever, unpublished , non

- precedential

, BIA decisions issued by a single member panel are not entitled to such deference. 13 Our

review of the BIA ’s interpretation of criminal statutes is de

novo

. 14

II. DISCUSSION

“ A noncitizen is removable from the United States if he

has been ‘ convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal

misconduct. ’” 15 Sasay concedes that his conviction under Virginia law qualifies but argues that his conviction under 18

U.S.C. § 1028A(a)(1) does not.

11 Hernandez

- Cruz v. Att’y Gen. , 764 F.3d 281, 284 (3d Cir. 2014) (quoting Bautista v. Att’y Gen. , 744 F.3d 54, 57 (3d Cir. 2014)).

12 Larios v. Att ’y Ge n. , 978 F.3d 62, 6 7 (3d Cir. 2020) (quoting Mehboob v. Att’y Gen. , 549 F.3d 272, 275 (3d Cir. 2008) (internal quotations omitted)).

13 Mahn v. Att’y Gen. , 767 F.3d 170, 173 (3d Cir. 2014).

14 Hernandez

- Cruz , 764 F.3d at 284

. 15 Smith

, 983 F.3d at 1210 ( quoting 8 U.S.C. §

12 27(a)(2)(A)(ii) ).6 The Supreme Court has instructed that we m ust apply

the so

- called “categorical approach” to determine if a given

crime is a CIMT. That approach requires that we ignore a petitioner’s actual conduct and instead “focus [] on the legal question of what a conviction necessarily establishe [ s ] .” 16 This approach is , the Court has said, “[r]ooted in Congress’ specification of conviction, not conduct, as the trigger for immigration consequences, [and] is [therefore] suited to the realities of the [immigration] system.” 17

To apply the categorical app roach, we first review “elements of the statute forming the basis of the defendant’s conviction,” 18 in order “ to ascertain the least culpable conduct hypothetically necessary to sustain a conviction under the

statute.” 19 We then consider whether that condu ct “fall[s] within the scope of the ‘crime involving moral turpitude’

offense.” 20 Sometimes, however, “ [t]he simple fact of conviction may not provide enough information to determine

whether” a defendant’s conviction is a CIMT. 21 Specifically, when a statute is divisible, meaning it “sets out one or more elements of the offense in the alternative,” 22 that statute effectively creates several different crimes. 23 And if some but not all of the divisible statute’s alternative crimes q ualify as a CIMT, then “a court must determine which crime formed the basis of the defendant’s conviction” using the modified categorical approach. 24

Under th e modified approach, we may “consult a

limited class of documents

. . . to determine which altern ative

formed the basis of the defendant’s . . . conviction.” 25 “ [ We ] can then do what the categorical approach demands: compare

16 Mellouli v. Lynch , 575 U.S. 798, 806 (2015) (emphasis in original).

17 Id.

18 Descamps v. United States , 570 U.S. 254, 257 (2013).

19 Jean

- Louis v. Att’y Gen. , 582 F.3d 462, 471 (3d Cir. 2009).

20 Id. at 482 (citation omitted).

21 United States v. Gibbs , 656 F.3d 180, 186 (3d Cir. 2011).

22 Descamps , 570 U.S. at 257.

23 Id. at 263

- 64.

24 Id. at 263; see also Gibbs , 656 F.3d at 187.

25 Descamps , 570 U.S. at 2 54

.7 the elements of the crime of conviction (including the alternative element used in the case) with th e generic ”

definition of the removable offense. 26 When properly applied, this modified categorical approach “acts not as an exception,

but instead a tool.” 27

The modified approach clearly appli e s to § 1028A

because it incorporates several felonies enumerated in subsection (c). 28 Those felonies represent alternative elements

26 Id. at 257.

27 Id. at 26 3.

28 A “ fel ony violation enumerated in subsection (c)” include s any offense in violation of

-- (1) section 641 (relating to theft of public

money, property, or re[co]rds ), section

656 (relating to theft, embezzlement, or misapplication by bank officer or employee),

or section 664 (relating to theft from employee benefit plans); (2) section 911 (relating to false personation of citizenship); (3) section 922(a)(6) (relating to false

statements in connection with the ac quisition of a firearm); (4) any provision contained in this chapter (relating to fraud and false statements), other

than this section or section 1028(a)(7) ; (5) any provision contained in chapter 63 (relating to mail, bank, and wire fraud); (6) any provision contained in chapter 69 (relating to nationality and citizenship); (7) any provision contained in chapter 75 (relating to passports and visas); (8) section 523 of the Gramm

- Leach

- Bliley Act ( 15 U.S.C. 6823 ) (relatin g to obtaining customer information by false pretenses); (9) section 243 or 266 of the Immigration and Nationality Act ( 8 U.S.C. 1253 and 1306 ) (relating to willfully failing to leave the United States after deportation and creating a

counterfeit alien registration card);8 for an aggravated identity theft conviction because a jury could not convict a defendant under § 1028 A (a)(1) without finding each element of the underlying felony violation and unanimously agreeing on that violation as the predicate felony for an aggravated identify theft conviction. 29 Accordingly, §

1028A is divisible and we must use the modified categorical approach.

This approach permits us to consult Sasay’s plea

agreement to ascertain which alternative element of a crime he

committed . It is clear from that agreement that this plea

includes admission to conduct constituting the predicate felony

of b ank f raud

— an undeniable CIMT and a crime specifically

enumerated i n § 1028A(c)(5). 30 That, by itself is sufficient to support the BIA’s ruling that Sasay’s 1028A(a)(1) conviction

constituted a CIMT because it require s fraudulent intent. Th e Supreme Court’s pronouncement more than half a century ago

that “ [f] raud is the touchstone by which this case should be judged” 31 ends our inquiry. Although the Court was there addressing a different statute, it was nevertheless intepreting

(10) any provision contained in chapter 8 of title II of the Immigration and Nationality Act ( 8

U.S.C. 1321 et seq. ) (relating to various immigration offenses); or (11) section 208, 811, 1107(b), 1128B(a), or

1632 of the Social Security Act ( 42 U.S.C.

408

, 1011

, 1307(b)

, 1320a

- 7b(a) , and 1383a ) (relating to false statements relating to programs under the Act)

. 29 See Richardson v. United States , 526 U.S. 813, 817

- 22 (1999) (“A ‘violation’ is not simply an act or conduct; it is an

act or conduct that is contrary to law. That circumstance is significant because the criminal law ordinarily entrusts a jury with determining whether alleged conduct ‘violates’ the law.” (citation omitted)); see also Gibbs , 656 F.3d at 186

- 88.

30 A.R. at 755

- 56

. A person is guilty of b ank f raud if he:

“ knowingly executes, or attempts to execute, a scheme or

artifice

-- (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or unde r the custody or control of, a

financial institution.” 18 U.S.C. § 1344.

31 Jordan v. De George , 341 U.S. 223, 23 2 (1951).9 the phrase “crime involving moral turpitude.” The Court there held: “[t]he phrase ‘crime inv olving moral turpitude’ has without exception been constructed to embrace fraudulent

conduct.” 32

As noted earlier, Sasay claims his conviction does not amount to a CIMT because under the broad reach of § 1028A(a)(1), he could be convicted of “mere possess ion of

someone else ’ s identity document without lawful authority.” 33 According to him, a statute that criminalizes mere

unauthorized possession of documents cannot be morally turpitudinous

. The argument lacks even superficial appeal

.

The statute does not criminalize mere possession of certain items. His argument to the contrary ignores that the more exacting statutory language requires that such

unauthorized possession be “during and in relation to any felony” enumerated in subsection (c) of the statute. That means that Sasay ’s unauthorized possession of documents

aided and abetted certain felonies specifically listed in subsection (c) by possessing the documents

.

Sasay argues that we must ignore his specific conduct

because this statute is indivisible and therefore the categorical approach applies . H e then argues the minimum conduct criminalized by § 1028 A (a)(1) is the mere possession of an unauthorized identity documen t

, which cannot be a CIMT

. As we have just explained, the statute does not criminalize “mere” possession or transfer. Rather, the possession and transfer

must be in relation to a n enumerated felony. It is therefore consequential that h e admitted that his possession was fraudulent during his plea colloqu y , and he also admitted to

bank fraud

. A.

Section 1028A(a)(1) criminalizes transfer, use, or possession in con

juc tion with one of the eleven categories of

crimes list ed in subsection (c). The enumerated offenses

relevent to Sasay are inclu d ed in (c)(5) and (c)(7)

, which refer

to offenses in violation of “ (5) any provision contained in

32 Id.

33 Petitioner Br. at 8.10 chapter 63 (relating to mail, bank, and wire fraud ) ;

. . . [and] (7) any provision contained in chapter 75 (relating to passports and visas)

. . . . ” 34

In Matter of Serna , th e BIA found that possession of an

altered i d en t ity document in violation of 18 U.S.C. § 1546 (a

crime also enumerated in subsection (c)(7) ) was not a CIMT

. 35 Sasay seizes on that here, just as he did before the BIA. The

BIA properly distinguished Matter of Serna . The asylum petitioner there had been convicted of possession of an altered immigration document in violation of § 1546, 36 and Sasay correctly notes that that statu t e is included in the offenses specified in subsection (c) as a predicate offense to violating §

1028 A (a)(1)

. 37 However, the analogy ends there. As the BIA recognized, one can violate § 1546 simpl y by knowing ly possessi ng altered immigration documents and t he statute does not require that possession be accompanied by the intent to defraud or another crime involving moral turpitude . As we have already explained, Sasay’s conviction under §

1028 A (a)(1) is different because it require d that his possession was during and in relation to the predicate felony of bank fraud

. Sasay also points to several other BIA decisions as well as decisions by other Circuit Courts of Appeal s “involving

34 18 U.S.C. § 1028A(c).

35 Matter of Serna , 20 I. & N. Dec. 579 (BIA 1992).

36 The relevant part of the statute states:

Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or utters, uses,

attempts to use, possesse s, obtains, accepts, or receives any such visa, permit, or document, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfu lly obtained ... [s]hall be fined not more than $2,000 or imprisoned not more than five years, or both.

18 U.S.C. § 1546

. See Matter of Serna , 20 I&N Dec. at 853

. 37 Section 1546 falls in to § 1028A(c)(7) as a provision of chapter 75 (relating to passport s and visas).11 dishonesty

, ” which were found not to be CIMTs. 38 The

authorit ies he rel ies upon, like Matter of Serna, are all distinguishable for the reason we just explained. Essentially,

Sa s a y’s argument requires that we read “ during and in relation to any felony . . . ” out of § 1028 A

. W e refuse to do that.

III. Conclusion

For the reasons set forth above, this petition for review must be resolved using the modified categorical appr oa ch. We

therefore consider that Sasay ple d guilty to violating §1028A

with the predicate felony of b ank f raud and therefore convicted

of a CIMT

. Since t his conviction is Sasay’s second CIMT

, the

38 Petitioner’s Br. at 24

. See Notash v. Gonzales , 427 F.3d 693, 696

- 700 (9th Cir. 2005) (finding Petitioner’s conviction in violation of 18 U.S.C. § 542 was not a categorical CIMT and the government failed to establish a CIMT under the

modifi ed categorical approach); In re Zangwill , 18 I. & N. Dec. 22, 28 (BIA 1981) ( finding p assing bad checks with knowledge of insufficient funds in violation of Florida state law to not be a CIMT because conviction does not require showing intent to defraud ); Beltran

- Tirado v. INS , 213 F.3d 1179, 1183

- 85 (9th Cir. 2000) ( finding fa lse attestation on an

I

- 9 form in violation of 18 U.S.C. 1546(b)(3) and use of a false social security number in violation of 42 U.S.C. 408(a)(7)(B) to not be CIMTs and not inherently wrong acts) ; Bobadilla v. Holder , 679 F.3d 1052, 1058 (8th Cir. 2012) ( finding the petitioner’s conviction of f alse identification to a police officer in violation of Minnesota state law to not be a

CIMT when applying the modified categorical approach );

F lores

- Molina v. Sessions , 850 F.3d 1150, 1167

– 69 (10th Cir. 2017) ( finding g iving false information to an official during an investigation in violation of a city ordinance to not be a

CIMT because the statement does not have to be material nor

does it have to be given with the intent to cause harm or

obtain benefit ); Matter of S

- , 2 I&N Dec. 353 (BIA , A.G. 1945) ( finding knowingly making f alse statements

– not amounting to perjury, on an immigrant registration application

– is not a CIMT ); and Rivera v. Ly nch , 816 F.3d 1064, 1079 (9th Cir. 2016) ( finding written p erjury in violation of California law is not a CIMT applying the modified categorical approach ).12 BIA did not err in concluding that he is removable under 8 U.S.C. § 1227 (a)(2)(A)(ii)

.

For the reasons we have discussed, Sasay’s petiti on for

review will be denied

.