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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-12671
                        Non-Argument Calendar
                      ________________________

                       Agency No. A058-405-587



FREDY GABRIEL MACHADO-ZUNIGA,

                                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                       ________________________

                              (May 6, 2014)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Fredy Gabriel Machado-Zuniga seeks review of an order of the Board of

Immigration Appeals (BIA) finding him removable pursuant to Immigration and

Nationality Act (INA) § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i). The BIA

found that Machado-Zuniga’s 2007 conviction for transporting stolen goods in

violation of 18 U.S.C. § 2314 constituted a crime involving moral turpitude. On

appeal, Machado-Zuniga argues that the BIA applied the wrong legal framework

when it analyzed the prior conviction, and that under the proper framework the

conviction would not qualify as a crime involving moral turpitude. After careful

review, we deny Machado-Zuniga’s petition for review.

                                         I.

      Machado-Zuniga is a native and citizen of Honduras who was admitted to

the United States as a lawful permanent resident on April 8, 2006. On September

28, 2007, he pleaded guilty to transporting stolen goods in interstate commerce in

violation of 18 U.S.C. § 2314. Under the INA, an alien who, within five years of

admission, is convicted of a crime involving moral turpitude punishable by one

year or more of imprisonment is removable. INA § 237(a)(2)(A)(i), 8 U.S.C.

§ 1227(a)(2)(A)(i).

      The Department of Homeland Security initiated removal proceedings against

Machado-Zuniga pursuant to this crime-involving-moral-turpitude removal

provision. An Immigration Judge (IJ) found that Machado-Zuniga’s conviction


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was categorically a crime involving moral turpitude. The BIA affirmed the IJ’s

decision, but did not say that every conviction under § 2314 qualifies. Rather, the

BIA concluded that Machado-Zuniga’s “conviction is for a crime involving moral

turpitude” because the “portion of the statute” under which he was convicted

involves moral turpitude. It is this determination that Machado-Zuniga now

appeals. Because the BIA merely “agree[d]” with the result but did not “expressly

adopt[]” the IJ’s decision, our review is limited to the BIA’s order. See Ruiz v.

Gonzales, 

, 765 (11th Cir. 2007).

                                         II.

      The question we consider in this appeal is whether a violation of 18 U.S.C.

§ 2314 is a crime involving moral turpitude. Although we are mindful that

Congress has restricted appellate review of immigration proceedings, it is clear that

we retain jurisdiction over questions of law such as this one. 8 U.S.C.

§ 1252(a)(2)(D); Cano v. U.S. Attorney Gen., 

, 1053 (11th Cir.

2013) (“We have jurisdiction to review the constitutional claims or questions of

law raised upon petition for review, including the legal questions of whether an

alien’s conviction qualifies as a crime involving moral turpitude.” (quotation marks

and alterations omitted)). We review de novo questions of statutory interpretation,

but defer to the BIA’s interpretation if it is reasonable. 

.




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       In resolving whether a conviction involves moral turpitude, this Court

applies the categorical approach or the modified categorical approach, depending

on the statutory scheme. See Fajardo v. U.S. Attorney Gen., 

, 1305

(11th Cir. 2011). Under the categorical approach, a court must “confine its

consideration only to the fact of conviction and the statutory definition of the

offense,” asking only whether the statute of conviction on its face defines a crime

that categorically qualifies as a crime of moral turpitude. See Donawa v. U.S.

Attorney Gen., 

, 1280 (11th Cir. 2013).1

       In a “narrow range of cases,” courts may apply what is known as the

modified categorical approach. 

(quoting Descamps v. United States,

570 U.S. ___, 

, 2281 (2013)). The modified categorical approach

applies only when the statute of conviction is “divisible.” 

A divisible

statute is one that “sets out one or more elements of the offense in the alternative”

in such a way that conviction under one of the alternatives would be considered a

crime involving moral turpitude but conviction under another would not.

. Specifically, there are statutes that list elements in

the alternative in such a way that “renders opaque which element played a part in


1
  Donawa explains the categorical and modified categorical approaches in a case asking whether
a prior conviction was an aggravated 

–80. The general analytical
framework and underlying principles, however, apply with equal force in cases asking whether a
prior conviction is a crime involving moral turpitude. See 

–06 (relying
on precedent from other contexts in which the categorical and modified categorical approaches
apply in a case about whether a prior conviction qualified as a crime involving moral turpitude).
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the defendant’s conviction.” 

In such cases, “we expand our inquiry

beyond the fact of conviction and also look to the record of conviction” to decide

whether the alien was convicted under a subsection of the divisible statute that

qualifies as a crime involving moral turpitude. 

(quotation mark omitted). This approach “retains the categorical approach’s

central feature: a focus on the elements, rather than the facts, of a crime.”

; see also Moncrieffe v. Holder, 569 U.S. ___, 133 S.

Ct. 1678, 1690 (2013) (noting that the modified categorical approach must not be

used to engage in “the sort of post hoc investigation into the facts of predicate

offenses that we have long deemed undesirable”).2

                                              III.

       Machado-Zuniga argues that the BIA erred because it should have applied

the modified categorical approach but failed to do so. But this position

misapprehends the BIA’s decision. Rather than finding that a violation of § 2314

is categorically a crime of violence, the BIA applied the modified categorical

approach, analyzing the “portion of the statute” under which Machado-Zuniga was

convicted. Of course, Machado-Zuniga also disagrees with the BIA’s application

of the modified categorical approach, insofar as he argues that the paragraph under
2
 Machado-Zuniga urges us to remand for precisely this sort of forbidden post-hoc investigation
into the particular facts of his conduct, arguing that the modified categorical approach would
require “an evidentiary hearing wherein [Machado-Zuniga] could reveal when he learned the
stolen nature of the goods.” This reflects a misunderstanding of the modified categorical
approach’s purpose and application.
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which he was convicted is not necessarily a crime involving moral turpitude

because a person can be convicted under it even if he only learns that the property

was stolen after he receives the property and begins the transportation process.

Under our precedent, the BIA’s determination was correct.

      It is clear from the indictment underlying Machado-Zuniga’s conviction and

the pattern jury instructions for 18 U.S.C. § 2314 that the statute effectively creates

several different offenses, as it includes six different paragraphs that define an

alternative way the statute can be violated. As evidenced by Machado-Zuniga’s

indictment, the prosecutor selects one of the six alternatives when charging the

defendant and the jury must find each element of that alternative beyond a

reasonable doubt. See 

, 2284; see also 

n.2

(noting that in determining whether a statute is divisible, courts may look to the

indictment and jury instructions). So long as at least one of the six alternatives

covers conduct that is not a crime involving moral turpitude, the statute is divisible

and the BIA and Machado-Zuniga’s reliance on the modified categorical approach

is appropriate. See 

. The parties briefed us only on

the one paragraph of the statute which formed the basis of Machado-Zuniga’s

conviction. For that reason, and because it makes no difference, we will assume

that at least one of the other five paragraphs covers conduct that does not involve

moral turpitude. Given this assumption, we focus, as the BIA did, on the particular


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paragraph that formed the basis of Machado-Zuniga’s conviction and ask whether

it qualifies as a crime involving moral turpitude.

      Machado-Zuniga was convicted under the first paragraph of § 2314, which

provides that “[w]hoever transports, transmits, or transfers in interstate or foreign

commerce any goods, wares, merchandise, securities or money, of the value of

$5,000 or more, knowing the same to have been stolen, converted or taken by

fraud” has violated the section. A person violates this paragraph whenever he

transports property he knows to be stolen, even if he learns that it is stolen only

after he has received the property and begun the transportation process. United

States v. Turner, 

, 1578–79 (11th Cir. 1989).

      Although the term “moral turpitude” is not defined by either statute or

implementing regulation, this Court has offered some guidance. We have

recognized that an act of moral turpitude involves an act of “baseness, vileness, or

depravity in the private and social duties which a man owes to his fellow men, or

to society in general, contrary to the accepted and customary rule of right and duty

between a man and man.” Itani v. Ashcroft, 

, 1215 (11th Cir. 2002).

We have also noted that “[g]enerally, a crime involving dishonesty . . . is

considered to be one involving moral turpitude.” Id.; see also 

(finding

misprision of a felony to be a crime involving moral turpitude in part because it

“involves dishonest or fraudulent activity”).


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      Using this definition, Machado-Zuniga’s conviction for transporting stolen

property is necessarily a crime involving moral turpitude. Regardless of when a

person learns that property is stolen in the process of transporting it, the act of

continuing to transport it once he knows it is stolen is an affirmative act of

dishonest behavior that “runs contrary to accepted societal duties.” Id.; cf. Savail,

17 I. & N. Dec. 19, 20 (BIA 1979) (finding that possession of stolen goods with

the knowledge that they are stolen is a crime involving moral turpitude).

      The BIA thus correctly determined that the conduct criminalized by the

portion of § 2314 under which Machado-Zuniga was convicted is a crime

involving moral turpitude. For this reason, we DENY Machado-Zuniga’s petition.

      PETITION DENIED.




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