USCA4 Appeal: 22-1147     Doc: 67         Filed: 09/11/2023    Pg: 1 of 13




                                            PUBLISHED

                              UNITED STATES COURT OF APPEALS
                                  FOR THE FOURTH CIRCUIT


                                             No. 22-1147


        CESAR SOLIS-FLORES,

                            Petitioner,

                     v.

        MERRICK B. GARLAND, Attorney General,

                            Respondent.


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


        Argued: December 6, 2022                                  Decided: September 11, 2023


        Before DIAZ, Chief Judge, and RUSHING and HEYTENS, Circuit Judges.


        Petition for review denied in part, granted in part, and remanded by published opinion.
        Judge Rushing wrote the opinion, in which Chief Judge Diaz and Judge Heytens joined.


        ARGUED: Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE
        CENTER, LLC, Alexandria, Virginia, for Petitioner. Sarah Kathleen Pergolizzi, UNITED
        STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
        Lisa T. Johnson-Firth, VANDERPOOL, FROSTICK & NISHANIAN, PC, Manassas,
        Virginia, for Petitioner. Brian M. Boynton, Principal Deputy Assistant Attorney General,
        David J. Schor, Senior Litigation Counsel, Office of Immigration Litigation, Civil
        Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
        Respondent.
USCA4 Appeal: 22-1147      Doc: 67         Filed: 09/11/2023      Pg: 2 of 13




        RUSHING, Circuit Judge:

               Cesar Solis-Flores, a native and citizen of Mexico, petitions for review of a final

        order of removal entered by the Board of Immigration Appeals. The Board determined

        that Solis-Flores was ineligible for cancellation of removal because his prior conviction for

        receipt of stolen property was a crime involving moral turpitude. We agree and so deny

        the petition for review in part. The Board also held that the immigration judge (IJ) provided

        Solis-Flores with legally adequate notice of the conditions applicable to his voluntary

        departure. We disagree and so grant the petition in part and remand to the Board to consider

        Solis-Flores’s request for a remand to the IJ for a new period of voluntary departure.

                                                     I.

               In 2012, the Department of Homeland Security issued Solis-Flores a notice to

        appear, charging that he was removable as an alien present in the United States without

        having been admitted or paroled. Solis-Flores admitted he was removable as charged and

        applied for cancellation of removal. See 8 U.S.C. § 1229b(b). After conducting a hearing,

        the IJ concluded that Solis-Flores was not eligible for cancellation of removal because he

        had previously been convicted of a crime involving moral turpitude. See 8 U.S.C.

        §§ 1229b(b)(1)(C), 1227(a)(2)(A)(i). Specifically, Solis-Flores had a 2000 conviction for

        receiving stolen property in violation of Virginia Code § 18.2-108. But the IJ granted

        Solis-Flores the privilege of voluntary departure in lieu of removal.         See 8 U.S.C.

        § 1229c(b).

               Solis-Flores appealed to the Board. Reviewing de novo, the Board held that his

        conviction for receipt of stolen property was a crime involving moral turpitude and

                                                     2
USCA4 Appeal: 22-1147      Doc: 67         Filed: 09/11/2023     Pg: 3 of 13




        therefore Solis-Flores was ineligible for cancellation of removal. The Board declined to

        reinstate voluntary departure or remand to the IJ for that purpose because Solis-Flores had

        not posted the required bond despite receiving proper notice of his obligation to do so. In

        reaching that conclusion, the Board held that the relevant regulation did not require the IJ

        to provide advance notice of the bond requirement; one Board member dissented from that

        holding. Solis-Flores then petitioned this Court for review.

                                                    II.

               We first consider Solis-Flores’s challenge to the denial of his application for

        cancellation of removal. Where, as here, the Board issues its own opinion without adopting

        the IJ’s opinion, the Board’s decision “constitutes the final order of removal” and “we

        review that opinion and not the opinion of the IJ.” Martinez v. Holder, 

        (4th Cir. 2014). Solis-Flores presents only questions of law, which we have jurisdiction to

        resolve. See 

(a)(2)(B)(i), (a)(2)(D). We review those questions de novo,

        “affording appropriate deference to the [Board’s] interpretation of the [Immigration and

        Nationality Act] and any attendant regulations.” Li Fang Lin v. Mukasey, 

,

        691–692 (4th Cir. 2008).

               To be eligible for cancellation of removal, Solis-Flores was required to prove,

        among other things, that he has not been convicted of a crime involving moral turpitude.

        8 U.S.C. §§ 1229a(c)(4)(A), 1229b(b)(1)(C), 1227(a)(2)(A)(i); see Pereida v. Wilkinson,

        

 (2021). A crime involving moral turpitude is one that not only violates

        a statute but also is inherently immoral. See Uribe v. Sessions, 

 (4th Cir.

        2017); Mohamed v. Holder, 

 (4th Cir. 2014). Such a crime “‘requires

                                                     3
USCA4 Appeal: 22-1147      Doc: 67         Filed: 09/11/2023      Pg: 4 of 13




        two essential elements: a culpable mental state and reprehensible conduct.’” Sotnikau v.

        Lynch, 

 (4th Cir. 2017) (quoting In re Ortega-Lopez, 

 (BIA 2013)). In determining whether a crime involves moral turpitude, courts and the

        Board apply the “categorical approach,” which “requires that we examine the statutory

        elements of the crime” rather than the facts underlying the particular violation. Prudencio

        v. Holder, 

 (4th Cir. 2012). Only if “all permutations” of the proscribed

        conduct involve moral turpitude will the offense categorically qualify.         Martinez v.

        Sessions, 

 (4th Cir. 2018).

               Solis-Flores disputes (1) under what circumstances receipt of stolen property

        involves moral turpitude, and (2) whether his statute of conviction qualifies. We consider

        each in turn.

                                                     A.

               The Board has long held that receipt of stolen property is a crime involving moral

        turpitude if the offense requires knowledge that the received property was stolen. See, e.g.,

        Matter of Salvail, 

 (BIA 1979) (holding that possession of stolen

        goods was a crime involving moral turpitude, “as it specifically requires knowledge of the

        stolen nature of the goods”); Matter of Patel, 

 (BIA 1975) (“The

        crime of receiving stolen property involves moral turpitude, if knowledge that the goods

        were stolen is an element of the offense.”), overruled on other grounds by Matter of Castro,

        

 (BIA 1988). In its decision below, the Board reiterated this standard

        and rejected Solis-Flores’s argument that receipt of stolen property cannot be a crime

        involving moral turpitude absent proof that the accused intended to permanently deprive

                                                       4
USCA4 Appeal: 22-1147      Doc: 67          Filed: 09/11/2023     Pg: 5 of 13




        the owner of her property. As the Board explained, it has never adopted that requirement

        for receipt offenses but “has always” maintained that “the salient element” for purposes of

        moral turpitude is “the defendant’s knowledge of the stolen nature of the property.” J.A.

        5. The Board distinguished an earlier line of cases requiring proof of intent to permanently

        deprive for “ordinary theft or larceny offenses,” explaining that theft and receipt of stolen

        property are “conceptually distinct.” J.A. 5 n.5.

               We defer to the Board’s precedential “determination of what type of conduct

        involves moral turpitude,” provided its interpretation is reasonable. Yousefi v. I.N.S., 

, 326 (4th Cir. 2001) (per curiam) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def.

        Council, Inc., 

 (1984)); see also Prudencio, 

. Solis-Flores

        says deference is not warranted here because the Board has contradicted its own precedent

        and, in any event, it would be arbitrary and capricious to regard receipt of stolen property

        as a crime of moral turpitude without proof of intent to permanently deprive the owner of

        her property. See Amaya v. Rosen, 

 (4th Cir. 2021) (“An interpretation

        is unreasonable under Chevron deference if it is arbitrary, capricious, or manifestly

        contrary to the statute.” (internal quotation marks omitted)). We disagree on both counts.

               First, the Board did not contradict its precedent. Solis-Flores contends that, in 1944,

        the Board ruled that receipt of stolen property could be a crime involving moral turpitude

        only if it required proof of the receiver’s intent to permanently deprive the victim of her

        property and that this precedent has never been overruled. The decision was Matter of K-

        , 

 (BIA 1944), and the Board held that a German statute criminalizing

        receipt of stolen property did not involve moral turpitude because it included “negligent

                                                      5
USCA4 Appeal: 22-1147       Doc: 67         Filed: 09/11/2023      Pg: 6 of 13




        receipt of property by a person acting in good faith.” 

. The Board explained that,

        “[w]here property is acquired without knowledge that it is stolen or without intent to

        deprive the rightful owner of his possession, the offense does not involve moral turpitude.”

        

 Contrary to Solis-Flores’s argument, the Board did not hold that a statute must require

        proof the receiver intended to permanently deprive the rightful owner of the property in

        order to involve moral turpitude. The other Board decisions Solis-Flores cites are not to

        the contrary. See, e.g., Matter of G-, 

, 238 (BIA 1945) (holding that “the

        original theft” involved moral turpitude because the thief intended to permanently deprive

        the owner of the property and “the appellant’s retention of the goods with knowledge that

        it had been so obtained likewise involve[d] moral turpitude”); Matter of Serna, 

 (BIA 1992) (quoting Matter of K-); Matter of S-, 

, 365–

        366 (BIA 1951) (examining the same German statute as Matter of K-).

               Second, the Board’s determination that knowing receipt of stolen property is a crime

        involving moral turpitude is reasonable. Independent of any statutory proscription, it is

        morally wrong to possess property knowing it has been stolen from its rightful owner. See

        Mohamed, 

 (asking whether the conduct “not only violates a statute but also

        independently violates a moral norm”). The vast majority of our sister circuits agree. See

        Michel v. INS, 

 (2d Cir. 2000) (holding receipt crime was “morally

        turpitudinous because knowledge is a requisite element . . . and corrupt scienter is the

        touchstone of moral turpitude”); De Leon-Reynoso v. Ashcroft, 

 (3d Cir.

        2002) (“[K]nowingly possessing stolen goods is a crime of moral turpitude.”); United

        States v. Castro, 

, 558 n.1 (5th Cir. 1994) (“Convictions for . . . receiving stolen

                                                      6
USCA4 Appeal: 22-1147      Doc: 67         Filed: 09/11/2023     Pg: 7 of 13




        property with knowledge that such property is stolen constitute crimes of ‘moral

        turpitude.’”); Hashish v. Gonzales, 

, 576 n.4 (7th Cir. 2006) (“[R]eceiving

        stolen property requires the same state of mind, ‘knowingly,’ . . . and has been recognized

        as a crime of moral turpitude.”); Okoroha v. INS, 

, 382 (8th Cir. 1983)

        (deferring to the Board’s decision that possessing stolen mail was a crime involving moral

        turpitude “because knowledge that the article of mail had been stolen was an essential

        element of the offense”); De Leon v. Lynch, 

 (10th Cir. 2015) (“[T]he

        weight of apposite caselaw from the [Board] and our sister circuits supports the view that

        knowing the goods to be stolen, alone, is sufficient to render an offense a crime of moral

        turpitude.”); Nasrallah v. U.S. Att’y Gen., 

, 643 (11th Cir. 2019), rev’d

        on other grounds sub nom. Nasrallah v. Barr, 

 (2020) (holding that

        “knowledge that the items were stolen” “is enough to qualify as a crime involving moral

        turpitude”).

               Only the Ninth Circuit has held to the contrary, and it did so based on an incorrect

        assessment of Board precedent. See Castillo-Cruz v. Holder, 

, 1159–1161

        (9th Cir. 2009). The court reasoned, and Solis-Flores now argues, that because the Board

        considers “whether there was an intention to permanently deprive the owner of his

        property” in assessing whether a theft offense is a crime of moral turpitude, “the same

        principle would appear to apply to the receipt of stolen property.” 

 at 1159–1160

        (internal quotation marks omitted). Like our sister circuits, “we are not persuaded by the




                                                    7
USCA4 Appeal: 22-1147      Doc: 67         Filed: 09/11/2023      Pg: 8 of 13




        Ninth Circuit’s analysis.” 1 De Leon, 

. Theft and receipt of stolen property

        are distinct offenses that require different mental states and different conduct. The Board

        used to hold that theft is not a crime of moral turpitude if the thief did not intend to

        permanently deprive the owner of the property; the favored example is “‘joyriding’—the

        nonconsensual taking of a motor vehicle with the intent to return it to the owner shortly

        thereafter.” Matter of Diaz-Lizarraga, 

 (BIA 2016); see 

        (abandoning this rule in favor of one that requires “intent to deprive the owner of his

        property either permanently or under circumstances where the owner’s property rights are

        substantially eroded”). But a receipt crime requires proof that a theft has already occurred;

        what makes receipt of stolen property morally culpable is the receiver’s knowledge that the

        property was previously stolen. See, e.g., Matter of Serna, 

 n.10

        (reasoning that possession of stolen property “perpetuate[s] the harm already inflicted” by

        the theft). The Board’s theft cases, therefore, “do not shed light on the necessary scienter

        for the receipt or possession of stolen property to be morally turpitudinous.” De Leon, 

.

               We defer to the Board’s reasonable interpretation that “[t]he crime of receiving

        stolen property involves moral turpitude, if knowledge that the goods were stolen is an

        element of the offense.” Matter of Patel, 

. Proof of the receiver’s

        intent to permanently deprive the original owner of the property is not required.



               1
                 Nor do we find persuasive Solis-Flores’s citation to an unpublished decision
        arising out of the Ninth Circuit in which the Board complied with Castillo-Cruz, as it must.
        See D-E-P-L-, AXXX XXX 458 (BIA Dec. 18, 2014).
                                                     8
USCA4 Appeal: 22-1147      Doc: 67         Filed: 09/11/2023      Pg: 9 of 13




                                                     B.

               Applying the Board’s standard to Solis-Flores’s crime of conviction, we conclude

        it qualifies as a crime involving moral turpitude. We owe no deference to the Board’s

        determination of this issue. See Martinez, 

.

               At the time of Solis-Flores’s conviction in 2000, Section 18.2-108 of the Virginia

        Code stated: “If any person buy or receive from another person, or aid in concealing, any

        stolen goods or other thing, knowing the same to have been stolen, he shall be deemed

        guilty of larceny thereof . . . .” Virginia courts have identified four elements required for

        conviction under the statute: “(1) That the goods or other things were previously stolen by

        some other person. (2) That the accused bought or received them from another person, or

        aided in concealing them. (3) That at the time he so bought or received them, or aided in

        concealing them, he knew they had been stolen. (4) That he so bought or received them,

        or aided in concealing them, malo animo or with a dishonest intent.” Patterson v.

        Commonwealth, 

 (Va. 1935) (internal quotation marks and citations

        omitted); see Whitehead v. Commonwealth, 

 (Va. 2009).

               Because knowledge that the property was stolen is an element of Section 18.2-108,

        Solis-Flores’s conviction thereunder qualifies as a crime involving moral turpitude. To the

        extent he hypothesizes about the possibility of receiving stolen property with intent to

        return it to its rightful owner, Solis-Flores has not shown a “realistic probability” that

        Virginia would apply the statute to such conduct in view of the dishonest intent element.

        Gonzales v. Duenas-Alvarez, 

 (2007); see, e.g., Jones v. Commonwealth,



                                                     9
USCA4 Appeal: 22-1147      Doc: 67          Filed: 09/11/2023     Pg: 10 of 13




        No. 0351-16-1, 

, at *3 (Va. Ct. App. Feb. 14, 2017) (describing dishonest

        intent as intent “to continue acting adversely to the owner’s property interest”).

               Solis-Flores alternatively contends that someone could be convicted under Section

        18.2-108 for passively receiving benefits flowing from the sale of stolen goods, which

        would fall outside the bounds of what the Board considers a crime involving moral

        turpitude. In support of his contention, Solis-Flores relies on Whitehead v. Commonwealth,

        No. 1699-06-3, 

 (Va. Ct. App. Mar. 25, 2008). There, the defendant’s

        partner stole personal property, sold it, and used the proceeds to support the defendant and

        her child. The Virginia Court of Appeals affirmed her conviction for receipt of stolen

        property. But the Virginia Supreme Court reversed, deriding the Court of Appeals’

        decision as “plainly wrong in holding that Whitehead ‘received’ the property merely

        because she benefited from the proceeds of its sale.” Whitehead, 

        (emphasis added). The Virginia Supreme Court emphasized that it had “never recognized

        this manner of receipt for the purposes of this offense” and “such a manner of receipt does

        not fall within the plain meaning of Code § 18.2-108.” Id.

               Despite the Supreme Court’s clear statement of Virginia law, Solis-Flores asserts

        that the brief existence of the Court of Appeals’ contrary 2008 decision demonstrates that,

        at the time of his conviction in 2000, it was possible for a defendant to be convicted on this

        erroneous theory. Yet Solis-Flores does not identify a single conviction other than

        Whitehead’s. And, as the Virginia Supreme Court explained, the plain text of Section 18.2-

        108 does not support such a theory. Solis-Flores therefore has not shown a “realistic



                                                     10
USCA4 Appeal: 22-1147      Doc: 67         Filed: 09/11/2023     Pg: 11 of 13




        probability”—as opposed to a “theoretical possibility”—that Virginia would have applied

        the statute in such a manner, even in 2000. Gonzales, 

.

               Because Solis-Flores’s conviction for receipt of stolen property was a crime

        involving moral turpitude, we deny the petition for review as regards the Board’s denial of

        cancellation of removal.

                                                    III.

               Lastly, we consider the Board’s refusal to remand to the IJ for a new grant of

        voluntary departure. After denying cancellation of removal, the IJ granted Solis-Flores

        voluntary departure. Solis-Flores, however, did not post the mandatory bond. On appeal

        to the Board, he argued that the IJ failed to comply with 

(c)(3)(i), which

        requires the IJ to inform an alien of the bond obligation before granting voluntary

        departure. He requested a remand for the IJ to grant a new period of voluntary departure

        after providing the required advisals. Over the dissent of one member, the Board held that

        advance notice is required only for discretionary conditions on voluntary departure and not

        for mandatory conditions like the bond requirement. The Board therefore concluded the IJ

        had not erred and denied remand.

               We have jurisdiction to review the Board’s interpretation of 

(c)(3) because it is a question of law.       See 

(a)(2)(B)(i),

        (a)(2)(D), 1229c(f). At the conclusion of removal proceedings, an IJ may permit an alien

        to voluntarily depart in lieu of removal, provided certain criteria are satisfied. 8 U.S.C.

        § 1229c(b); 

(c). An alien permitted to voluntarily depart must post a

        “voluntary departure bond” to ensure timely departure. 8 U.S.C. § 1229c(b)(3). “Before

                                                    11
USCA4 Appeal: 22-1147      Doc: 67         Filed: 09/11/2023      Pg: 12 of 13




        granting voluntary departure, the immigration judge shall advise the alien of the specific

        amount of the bond to be set and the duty to post the bond . . . within 5 business days of

        the immigration judge’s order granting voluntary departure.” 

(c)(3)(i).

               The Board erred as a matter of law. The relevant regulation unequivocally requires

        the IJ, “[i]n all cases,” to inform an alien of the bond amount and deadline “[b]efore

        granting voluntary departure.” 

(c)(3), (c)(3)(i) (emphasis added). The

        regulation makes no exception for cases in which the IJ sets the bond at the mandatory

        minimum of $500. Contrary to the Board’s conclusion, therefore, it was insufficient for

        the IJ to advise Solis-Flores of the bond amount and deadline in the order itself.

               The Government does not make any argument in support of the Board’s ruling but

        instead urges us to deny the petition because Solis-Flores has not demonstrated prejudice. 2

        However, the Board did not address whether an alien must show he was prejudiced by the

        IJ’s delay in providing the required advisals or whether Solis-Flores had made such a

        showing. Cf. Matter of Gamero Perez, 

 (2010) (concluding that

        remand is “the appropriate remedy when the mandatory advisals have not been provided”).

        Because “‘[a]n agency’s action must be upheld, if at all, on the basis articulated by the

        agency itself,’” we decline to consider this argument in the first instance. Gonzalez v.

        Garland, 

 (4th Cir. 2021) (quoting Motor Vehicle Mfrs. Ass’n v. State

        Farm Mut. Auto. Ins., 

 (1983)).


               2
                 The Government also has not asked us to apply 

(i) in these
        circumstances. That provision states that “any grant of voluntary departure shall terminate
        automatically upon the filing of [a] petition [for review] or other judicial challenge” and
        the alternate order of removal “shall immediately take effect.” 

(i).
                                                     12
USCA4 Appeal: 22-1147          Doc: 67       Filed: 09/11/2023   Pg: 13 of 13




               We therefore grant the petition in part and remand for the Board to consider Solis-

        Flores’s request for remand to the IJ for a new period of voluntary departure with the

        required advisals. 3

                                                     IV.

               We affirm the Board’s holding that Solis-Flores’s conviction for receipt of stolen

        property rendered him ineligible for cancellation of removal. But the Board erred in

        concluding that the IJ was not required to advise Solis-Flores of the bond requirement

        before granting voluntary departure. Accordingly, we deny the petition with respect to

        cancellation of removal but remand for the Board to consider Solis-Flores’s request for

        voluntary departure.

                                         DENIED IN PART, GRANTED IN PART, AND REMANDED




               3
                The parties agree that 

(k)(1), which prohibits the Board from
        remanding to an IJ to reconsider a request for voluntary departure, does not apply here.
        Solis-Flores filed his appeal to the Board before the effective date of this new provision.
        See 

, 81588 (Dec. 16, 2020). And implementation of the regulation
        remains enjoined nationwide. See Centro Legal de la Raza v. Exec. Off. for Immigr. Rev.,
        

, 980 (N.D. Cal. 2021).
                                                     13