PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 20-1273

__________

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

 Petitioner

v.

ATTORNEY GENERAL 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

Mark A. Stevens, Esq. [ARGUED]

Clark Hill

1001 Pennsylvania 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 him 

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 deny the 

petition for review. 

I.

A. Factual 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 law1and 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 abetting aggravated identity theft in 

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

months’ imprisonment.3 That conviction is the one at the 

center of this dispute. It resulted from Sasay and his codefendants purchasing credit card numbers online and using

counterfeit access devices to acquire hundreds of credit and 

debit 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 CIMTs and 

that they arose from separate criminal schemes. Accordingly, 

DHS initiated removal proceedings. Sasay applied for several 

forms of relief including asylum, withholding of removal, 

protection under the Convention 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 criminal 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 penalty 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 the 

Immigration Judge’s denial of cancellation of removal to the 

BIA, but he did not raise cancellation before this Court. 

Appx. at 5 n.1; see also Petitioner’s Br. at 8.
4

Applying the 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 § 1028A(a)(1) satisfied

the definition of a CIMT because it requires one to act 

knowingly and it also requires one to act with fraudulent intent

or deceit.7

On appeal to the Board of Immigration Appeals, 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 categorically 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 decision that Sasay had 

committed 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 § 1028A(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 establishes that his conviction has as an 

element the commission of bank fraud, in violation of § 18 

U.S.C. § 1344. Because bank fraud categorically qualifies as a 

7 A.R. at 678.

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 We 

defer to the BIA’s definition of moral 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 immigration statute.”

12 However, 

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 Gen., 978 F.3d 62, 67 (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. § 

1227(a)(2)(A)(ii)). 
6

The Supreme Court has instructed that we must 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 approach, 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 conduct “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 qualify 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 the modified approach, we may “consult a 

limited class of documents . . . to determine which alternative 

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 254.
7

the elements of the crime of conviction (including the 

alternative element used in the case) with the 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 applies to § 1028A 

because it incorporates several felonies enumerated in 

subsection (c).28 Those felonies represent alternative elements 

26 Id. at 257.

27 Id. at 263.

28 A “felony violation enumerated in subsection (c)” includes 

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 acquisition 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) (relating 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 § 1028A(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 bank fraud—an undeniable CIMT and a crime specifically 

enumerated in § 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 requires fraudulent intent. The 

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. 

30A.R. at 755-56. A person is guilty of bank fraud 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 under the custody or control of, a 

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

31 Jordan v. De George, 341 U.S. 223, 232 (1951).
9

the phrase “crime involving moral turpitude.” The Court there 

held: “[t]he phrase ‘crime involving 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 possession 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. He then argues the minimum conduct 

criminalized by § 1028A(a)(1) is the mere possession of an 

unauthorized identity document, 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 an enumerated felony. It is therefore 

consequential that he admitted that his possession was 

fraudulent during his plea colloquy, and he also admitted to 

bank fraud.

A.

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

possession in conjuction with one of the eleven categories of

crimes listed in subsection (c). The enumerated offenses 

relevent to Sasay are included 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, the BIA found that possession of an

altered identity 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 statute is included in the offenses 

specified in subsection (c) as a predicate offense to violating § 

1028A(a)(1).

37

 However, the analogy ends there. As the BIA 

recognized, one can violate § 1546 simply by knowingly

possessing altered immigration documents and the 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 § 

1028A(a)(1) is different because it required 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 Appeals “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, possesses, 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 unlawfully 

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 passports and visas).
11

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

authorities he relies upon, like Matter of Serna, are all 

distinguishable for the reason we just explained. Essentially, 

Sasay’s argument requires that we read “during and in relation 

to any felony . . .” out of § 1028A. We refuse to do that. 

III. Conclusion

For the reasons set forth above, this petition for review 

must be resolved using the modified categorical approach. We 

therefore consider that Sasay pled guilty to violating §1028A 

with the predicate felony of bank fraud and therefore convicted

of a CIMT. Since this 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 

modified categorical approach); In re Zangwill, 18 I. & N. 

Dec. 22, 28 (BIA 1981) (finding passing 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 false 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 false identification to a 

police officer in violation of Minnesota state law to not be a 

CIMT when applying the modified categorical approach); 

Flores-Molina v. Sessions, 850 F.3d 1150, 1167–69 (10th Cir. 

2017) (finding giving 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 false statements – not 

amounting to perjury, on an immigrant registration 

application – is not a CIMT); and Rivera v. Lynch, 816 F.3d 

1064, 1079 (9th Cir. 2016) (finding written perjury 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 petition for 

review will be denied.