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Dolic v. Barr

United States Court of Appeals, Eighth Circuit

February 20, 2019

Amela Dolic Petitioner
v.
William P. Barr,[1] Attorney General of the United States Respondent

          Submitted: January 15, 2019

          Petition for Review of an Order of the Board of Immigration Appeals

          Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.

          GRUENDER, Circuit Judge.

         Amela Dolic petitions for review of the Board of Immigration Appeals ("BIA") decision affirming the immigration judge's ("IJ") denial of her motion to terminate removal proceedings. We deny the petition.

         Dolic, a native and citizen of Bosnia-Herzegovina, was admitted to the United States in 2006 as a conditional resident, and in 2009 her status changed to lawful permanent resident. In March of 2017, a Missouri state court convicted Dolic of three counts of receiving stolen property and four counts of passing a bad check.

         An alien convicted of "two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct" is removable under the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1227(a)(2)(A)(ii); see also Gomez-Gutierrez v. Lynch, 811 F.3d 1053, 1057 (8th Cir. 2016). Based on Dolic's convictions for receiving stolen property and passing bad checks, the Department of Homeland Security ("DHS") charged her with removability. Dolic filed a motion to terminate removal proceedings and alleged that DHS had not demonstrated that her convictions qualified as crimes involving moral turpitude. The IJ denied the petition, finding that Dolic's convictions were for crimes involving moral turpitude, and the BIA affirmed. On appeal, Dolic does not contest the fact of these convictions or that they arose out of multiple schemes of criminal misconduct, but only whether they were for crimes involving moral turpitude.

         Whether a conviction qualifies as a crime involving moral turpitude ("CIMT") is a legal question, subject to de novo review. See Gomez, 811 F.3d at 1058. "In analyzing that question, we afford substantial deference to the [BIA's] interpretation of ambiguous statutory language in the INA and will uphold its construction if it is reasonable." Id. "In the absence of a statutory definition," the BIA has defined a CIMT as one "which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general." Alonzo v. Lynch, 821 F.3d 951, 958 (8th Cir. 2016). The Supreme Court has also established that a crime in which fraud is an element meets the definition of a CIMT. See Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir. 2012) (citing Jordan v. De George, 341 U.S. 223, 229 (1951)).

         We do not look to Dolic's particular conduct to determine if it involved moral turpitude because the INA asks whether the crime of conviction fits a certain category ("crimes involving moral turpitude"), not whether an alien's acts fit that category. See Bobadilla, 679 F.3d at 1054-55. Under this categorical approach, "[a]n alien's actual conduct is irrelevant . . . [and] the adjudicator must presume that the conviction rested upon nothing more than the least of the acts criminalized under the state statute." Alonzo, 821 F.3d at 960 (internal quotation marks omitted).

         When "a statute defines only a single crime with a single set of elements," Mathis v. United States, 136 S.Ct. 2243, 2245 (2016), we ask whether the crime "necessarily involved . . . facts equating to" the definition of a CIMT, see Moncrieffe v. Holder, 569 U.S. 184, 190 (internal quotation marks omitted). If so, that statute qualifies as a CIMT. Id. But, if there is a "realistic probability . . . that the State would apply its statute to conduct that falls outside" the definition of a CIMT, that statute is overbroad and fails to qualify. Id. at 206.

         Mo. Rev. Stat § 570.120 governs the crime of passing bad checks. It states, in pertinent part:

1. A person commits the offense of passing a bad check when he or she:
(1) With the purpose to defraud, . . . passes a check . . . knowing that it will not be paid by the drawee, or that there is no such drawee; or
(2) . . . passes a check . . . knowing that there are insufficient funds in or on deposit with that account for the payment of such check . . . in full . . . upon such funds then outstanding, or that there is no such account or no drawee and fails to pay the check . . . within ten days after receiving actual notice in writing that it has not been paid ...

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