22-6243
Giron-Molina v. Garland

              United States Court of Appeals
                  for the Second Circuit

                             August Term 2022
                          Submitted: April 21, 2023
                           Decided: June 20, 2023

                                No. 22-6243


                   MARIA MONSERRAT GIRON-MOLINA,
                             Petitioner,
                                     v.
                          MERRICK B. GARLAND,
                      United States Attorney General
                                Respondent.


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




Before: WALKER, PARKER, and BIANCO, Circuit Judges.

      Petitioner Maria Monserrat Giron-Molina seeks review of a
decision of the Board of Immigration Appeals (“BIA”) dismissing her
appeal, ordering her removed, and denying her application for
cancellation of removal. The BIA ordered that she be removed under

(a)(2)(A)(i)(I) for having been convicted of a crime
involving moral turpitude (“CIMT”). See 

(a)(2)(C)–(D).
Specifically, the BIA and Immigration Judge (“IJ”) determined that a
conviction under Arkansas Code Annotated (“ACA”) § 5-60-101 is
categorically a CIMT.
      We REVERSE. We conclude that a conviction under ACA § 5-
60-101 is not categorically a CIMT because the statute criminalizes
conduct that is not “inherently base, vile, or depraved.” Mota v. Barr,

 (2d Cir. 2020).



            Lara Nochomovitz, Chagrin Falls, OH, for Petitioner.

            Brian Boynton, Principal Deputy Assistant Attorney
            General; Anthony P. Nicastro, Assistant Director; Kristen
            H. Blosser, Trial Attorney, Office of Immigration
            Litigation, United States Department of Justice,
            Washington, DC, for Respondent.




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PER CURIAM:

      Petitioner Maria Monserrat Giron-Molina, a native and citizen
of Mexico, seeks review of an April 20, 2022, decision of the Board of
Immigration Appeals (“BIA”) affirming an August 30, 2021, decision
of an Immigration Judge (“IJ”) ordering her removed and denying her
application for cancellation of removal after determining she had
been convicted of a crime involving moral turpitude (“CIMT”). In re
Maria Monserrat Giron-Molina, No. A207 175 824 (B.I.A. Apr. 20, 2022),
aff’g No. A207 175 824 (Immig. Ct. Buffalo Aug. 30, 2021). That
conviction, for abuse of a corpse in violation of Arkansas Code
Annotated (“ACA”) § 5-60-101, stemmed from Giron-Molina’s
concealing her child’s body in a closet after he was murdered by Tyler
Hobbs.

      In her petition for review, Giron-Molina argues that the BIA
and IJ erred because her conviction under ACA § 5-60-101 is not
categorically a CIMT. Applying the modified categorical approach to
the Arkansas statute, we agree and we therefore REVERSE the
decision of the BIA and remand for further proceedings consistent
with this opinion.

                            DISCUSSION

      When “the BIA adopts and affirms the IJ’s decision, we review
the two decisions in tandem.” Ojo v. Garland, 

 (2d Cir.
2022) (alteration marks omitted). Our jurisdiction is limited to
constitutional claims and questions of law given that Giron-Molina
was ordered removed under 

(a)(2)(A)(i)(I) for having
been convicted of a crime involving moral turpitude (“CIMT”). See

(a)(2)(C)–(D). We review de novo an agency’s
determination that a crime falls within the definition of a CIMT. See
Mota v. Barr, 

 (2d Cir. 2020); Gill v. INS, 

, 89

                                    3
(2d Cir. 2005).

      The dispositive issue in this case is whether a conviction under
ACA § 5-60-101 is categorically a CIMT. The BIA has stated that “[t]o
involve moral turpitude, a crime requires two essential elements:
reprehensible conduct and a culpable mental state.” 1 Mota, 

 (quoting Matter of Silva-Trevino, 

, 834 (B.I.A.
2016)). “A crime involves reprehensible conduct if that conduct 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.’” 

 (quoting Mendez v. Barr, 

 (2d Cir. 2020)).

      In determining whether a state conviction is for a CIMT, we
employ a “categorical approach.” Under that approach, we “look not
to the facts of the particular prior case, but instead to whether the state
statute defining the crime of conviction categorically fits within the
generic federal definition.” Williams v. Barr, 

 (2d Cir.
2020) (quoting Moncrieffe v. Holder, 

 (2013)). A crime
qualifies as a CIMT only if “by definition, and in all instances, [it]
contain[s] . . . those elements that constitute a CIMT.” Mota, 

 (quoting Mendez, 

) (alterations in original). In other
words, “[a] state offense makes a categorical match with a generic
federal offense only if a conviction of the state offense necessarily
involved facts equating to the generic federal offense.” Williams, 

 (internal quotation marks omitted). In undertaking this
analysis, “only the minimum criminal conduct necessary to sustain a
conviction under a given statute is relevant.” 

 at 73 (quoting Pascual
v. Holder, 

 (2d Cir. 2013)). “Whether the noncitizen’s


1 Because we conclude that ACA § 5-60-101 does not categorically involve
reprehensible conduct, we do not address whether it requires a culpable
mental state.

                                    4
actual conduct involved such facts” is not relevant. Moncrieffe, 

.

      We apply a modified version of this approach if a statute is
divisible. A statute is divisible if it “sets out one or more elements of
the offense in the alternative” and thereby defines multiple crimes.
Descamps v. United States, 

 (2013); see United States v.
Pastore, 

, 428 (2d Cir. 2022). Under this “modified
categorical approach,” we determine which of the alternative
elements the defendant was convicted of violating and then evaluate
whether those elements are categorically a CIMT. See United States v.
Morris, 

 (2d Cir. 2023).

      Giron-Molina’s statute of conviction is divisible. It provides:

        (a) A person commits abuse of a corpse if, except as
            authorized by law, he or she knowingly:

               (1)      Disinters, removes, dissects, or mutilates a
                     corpse; or

               (2)      (A) Physically mistreats or conceals a corpse
                        in a manner offensive to a person of
                        reasonable sensibilities.

                        (B) A person who conceals a corpse in a
                        manner offensive to a person of reasonable
                        sensibilities that results in the corpse
                        remaining concealed is continuing in a
                        course of conduct under § 5-1-109(e)(1)(B).

                        (C)   (i) As used in this section, “in a
                              manner offensive to a person of
                              reasonable sensibilities” means in a
                              manner that is outside the normal

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                           practices of handling or disposing of
                           a corpse.

                           (ii) “In a manner offensive to a person
                           of reasonable sensibilities” includes
                           without limitation the dismembering,
                           submerging, or burning of a corpse.

ACA § 5-60-101 (emphasis added).

      The disjunctive “or” between § 5-60-101(a)(1) and § 5-60-
101(a)(2) renders the statute divisible. See United States v. Beardsley,

 (2d Cir. 2012); United States v. Martinez, 

 (2d Cir. 2021), cert. denied, 

 (Oct. 4, 2021). To aid our
analysis, the modified categorical approach permits us to “review a
limited class of documents from the record of conviction” to
determine which of the alternate offenses was the crime of conviction
that serves as the alleged CIMT. Morris, 

 (quoting
Pastore, 36 F.4th at 428); see United States v. Moore, 

 (2d
Cir. 2019). Such documents include the “indictment, jury instructions,
or plea agreement and colloquy.” Moore, 

 (quoting
Mathis v. United States, 

 (2016)).

      While the statute is divisible, we need not go through the
modified categorical approach exercise in this case, because Giron-
Molina’s indictment reflects that she was indicted under the statute
as a whole rather than under one of its two subsections. The
indictment charges: “Count 1: On or about October 15, 2017, in
Washington County, Arkansas, the said defendant knowingly
disinters, removes, dissects, or mutilates a corpse, or physically
mistreats or conceals a corpse in a manner offense to a person of
reasonable sensibilities, in violation of ACA § 5-60-101.” Admin. Rec.
at 355. Because we cannot determine from the indictment which

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subsection of the statute Giron-Molina was charged with violating,
we must decide whether all the conduct specified in the statute to be
an abuse of a corpse constitutes a CIMT. Williams, 960 F.3d at 73.

      When we apply the categorical approach, we must assume that
the conviction “rested upon nothing more than the least of the acts
criminalized” by the state statute, and then determine whether those
acts are encompassed by the federal standard, in this case the federal
definition of a CIMT. Moncrieffe, 569 U.S. at 190–91 (alteration marks
and internal quotation marks omitted). If the state statute criminalizes
behavior that does not meet the federal definition of a CIMT, our
inquiry ends because a conviction under the state statute is not
categorically a CIMT. See Hylton v. Sessions, 

 (2d Cir.
2018). Here, the language of ACA § 5-60-101(a)(1) allows someone to
be convicted if he or she knowingly “removes” or “disinters” a corpse,
no matter the reason and without regard to whether it is done in a
manner offensive to a person of reasonable sensibilities. That broad
language makes it clear to us that one can be convicted under the
statute for conduct that is not “inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed
between persons or to society in general.” Mota, 

.

      We can easily think of scenarios under which a coffin could be
“removed” or “disinterred” that do not involve “vile,” “base,” or
“depraved” conduct. For example, a family violates ACA § 5-60-101
if it disinters a loved-one’s body from a cemetery and reburies it in a
family plot without completing the paperwork required by state law.
See ACA § 20-18-604(e) (“Authorization for disinterment and
reinterment shall be required prior to disinterment of a dead body . .
.”). To take another hypothetical, it is not uncommon for floods and
hurricanes to rip bodies from their graves or crypts. See, e.g., Adam
Aton, Even the Dead Cannot Escape Climate Change, Scientific America,

                                   7
Oct. 31, 2019.   2   If someone went to an Arkansas cemetery as
floodwaters rose and removed a coffin containing the body of a family
member so that it would not be damaged or washed away, their
actions would violate ACA § 5-60-101. In both cases, although the
conduct would violate Arkansas law, it would not be “vile” or ”base”
or “depraved” conduct. 3 Thus, because ACA § 5-60-101 criminalizes
conduct that is not invariably vile or depraved, a conviction under the
statute cannot categorically be considered a CIMT.

      The BIA did not conduct an elements-based categorical inquiry.
Instead, it applied an inapposite “realistic probability” test. That test
“operates as a backstop when a statute has indeterminate reach, and
where minimum conduct analysis invites improbable hypotheticals.”
Hylton, 

. It applies only when there is a match between
the state statute and federal standard, but a petitioner posits
imaginative scenarios in which the state statute would be violated in
such a way that does not meet the requirements of a CIMT. In these
instances, we require petitioners to demonstrate that there is a
“realistic probability” that such behavior would actually be
prosecuted. Id.; see also Moncrieffe, 

 (“To defeat the
categorical comparison in this manner, a noncitizen would have to
demonstrate that the State actually prosecutes the relevant offense in
cases involving antique firearms.”).



2 Available at https://www.scientificamerican.com/article/even-the-dead-
cannot-escape-climate-change/.
3 Although theses hypothetical scenarios are not what occurred in this case,
Giron-Molina’s actual conduct is irrelevant. The Supreme Court has made
clear that the categorical approach “precludes . . . an inquiry into how any
particular defendant may commit the crime.” United States v. Taylor, 

 (2022).

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      Giron-Molina argued to the BIA that there are several scenarios
in which one could violate the statute without engaging in
reprehensible conduct. The BIA rejected this argument and concluded
that she had not provided any evidence reflecting a “realistic
probability” of Arkansas convicting someone under ACA § 5-60-101
based on her hypotheticals. Special App’x at 5. This approach was an
incorrect application of the realistic probability test.

      We have been clear that the realistic probability test is not
applicable when, as here, “the statutory language itself . . . creates the
realistic probability that a state would apply the statute to conduct
beyond” the federal standard. Hylton, 

 (quoting Ramos
v. U.S. Att’y Gen., 

 (11th Cir. 2013)); see also United
States v. Chappelle, 

 (2d Cir. 2022) (holding that
because “the plain statutory language is so abundantly clear” that
Hobbs Act robbery can be committed through the use or threat of
force against property, the defendant “need not identify an actual
Hobbs Act robbery prosecution involving only a threat of force
against property”).

        For these reasons, we hold that a conviction under ACA § 5-
60-101 does not categorically constitute conviction of a CIMT.

                            CONCLUSION

      We REVERSE the BIA’s order of removal and REMAND for
further proceedings consistent with this opinion.




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