No UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. MARICELA LEYVA MARTINEZ, Petitioner, v. JEFFERSON B. SESSIONS III, Respondent.

Transcription

1 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 1 of 35 No 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 Telephone: (617) sejal@nipnlg.org 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 Telephone: adina@caircoalition.org Counsel for CAIR Coalition Maureen A. Sweeney UNIVERSITY OF MARYLAND CAREY IMMIGRATION CLINIC 500 West Baltimore Street, Ste. 360 Baltimore, Maryland Telephone: (410) msweeney@law.umaryland.edu 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) nwettstein@opd.state.md.us Counsel for Maryland Office of the Public Defender *not admitted for practice in the Fourth Circuit Court of Appeals

2 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 2 of 35 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 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 B. The scienter requirement for Md CR is facially overbroad compared to the Board s CIMT definition and includes multiple levels of mens rea that do not involve moral turpitude 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 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 Theft of services under 7-104(e) requires no specific intent to deprive and no erosion of an owner s property rights i

3 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 3 of 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 C is non-divisible and is therefore 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 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 C. The Maryland statute sweeps more broadly than the Board s traditional definition of moral turpitude relating to theft offenses CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ii

4 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 4 of 35 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 (2013)... 4 Esquivel-Quintana v. Sessions, No , -- U.S. --, 2017 WL (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 (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 (2016)... 4 Matter of Clayton Hugh Anthony Stewart, A (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 iii

5 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 5 of 35 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, A (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 (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 (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, (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 iv

6 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 6 of 35 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 (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 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 (3)...10 Regulations 8 CFR (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 v

7 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 7 of 35 Maryland State Case Documents State v. Adkins, District Court of Maryland for Prince George s County, Case No. 6E State v. Hughes, District Court of Maryland for Prince George s County, Case No. E State v. Mejia-Bella, District Court for Montgomery County, Case No. 3d State v. Smith, Circuit Court for Wicomico County, Case No. K Other Authorities Black's Law Dictionary, online version at Mary Holper, Deportation for a Sin: Why Moral Turpitude is Void for Vagueness, 90 Neb. L. Rev vi

8 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 8 of 35 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. 1

9 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 9 of 35 (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 (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 2

10 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 10 of 35 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 (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 3

11 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 11 of 35 not point to actual cases involving prosecutions for the covered conduct. See, e.g., Ramos v. Attorney General, 709 F.3d 1066, (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 , -- U.S. --, 2017 WL (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 ; 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 Courts look to state case law to determine the elements of an offense. See Mathis, 136 S.Ct. at 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 4

12 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 12 of 35 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: 5

13 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 13 of 35 [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 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 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. 6

14 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 14 of 35 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 7

15 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 15 of 35 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). 8

16 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 16 of 35 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 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 9

17 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 17 of 35 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 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 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 (A)(4)); and Matter of Obeya, 26 I&N Dec. 856, 858 (BIA 2016) (analyzing New York Penal Law (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

18 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 18 of 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 11

19 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 19 of 35 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. E 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). 12

20 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 20 of 35 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, (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. 13

21 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 21 of 35 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. ). 14

22 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 22 of 35 In one recent case, the State charged a defendant with theft of electrical service under 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. 6E 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 $ Attachment C, State v. Mejia-Bella, District Court for Montgomery County, Case No. 3d 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 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 15

23 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 23 of 35 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 (transcript from prosecution under 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 16

24 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 24 of 35 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, (4th Cir. 2016) (holding federal possession of stolen or embezzled property categorically not an aggravated felony because it was overbroad). C 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 17

25 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 25 of 35 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 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, (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 18

26 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 26 of 35 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 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 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

27 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 27 of 35 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, A (BIA unpub., March 22, 2017); and Attachment F, Matter of Clayton Hugh Anthony Stewart, A (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 20

28 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 28 of 35 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 (quoted in National Cable & Telecommunications Association, et 21

29 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 29 of 35 al. v. Brand X Internet Services, 545 U.S. 967, 981 (2005)); see also United States v. Mead Corp,533 U.S. 218, (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 (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- 22

30 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 30 of 35 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 (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 (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 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. 23

31 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 31 of 35 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, , (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 24

32 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 32 of 35 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 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). 25

33 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 33 of 35 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 Telephone: (617) sejal@nipnlg.org 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 Telephone: adina@caircoalition.org Counsel for CAIR Coalition Respectfully submitted, /s/ Maureen A. Sweeney Maureen A. Sweeney UNIVERSITY OF MARYLAND CAREY IMMIGRATION CLINIC 500 West Baltimore Street, Ste. 360 Baltimore, Maryland Telephone: (410) msweeney@law.umaryland.edu 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) nwettstein@opd.state.md.us Counsel for Maryland Office of the Public Defender *Not admitted to practice in the Fourth Circuit Court of Appeals 26

34 Appeal: Doc: 23-1 RESTRICTED Filed: 06/06/2017 Pg: 34 of 35 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 UNIVERSITY OF MARYLAND CAREY IMMIGRATION CLINIC 500 West Baltimore Street, Ste. 360 Baltimore, Maryland Telephone: (410) msweeney@law.umaryland.edu 27