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Category: Crime Involving Moral Turpitude

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This Fourth Circuit case rejects the Attorney General's third step in Matter of Silva-Trevino, finding that the Immigration and Nationality Act (INA) is not ambiguous on the procedure to determine whether a crime involved moral turpitude. The court recognized that INA section 237(a)(2)(A)(i) makes a noncitizen deportable only if he has a "conviction" for a crime involving moral turpitude, not for any conviction that may have followed an alleged act of moral turpitude. In other words, the noncitizen must actually plead to, or be found guilty of, an act of moral turpitude to be convicted of it and to thus be deportable.

The court found that the parallel inadmissibility section of the INA, section 212(a)(2)(A)(i)(I), supported its interpretation. Section 212(a)(2)(A)(i)(I), unlike section 237(a)(2)(A)(i), is not limited to convictions; a noncitizen also may be inadmissible if he admits to committing a crime involving moral turpitude (or the essential elements of one). The AG in Silva-Trevino had relied on the "admits having committed" language in the inadmissibility ground to extend the moral turpitude inquiry beyond the record of conviction, but the court pointed out that this case and Silva-Trevino involved convictions (not admissions, nor inadmissibility). Whatever the procedure for admissions to crimes involving moral turpitude, it is not relevant for convictions. Of course, I don't see how the admits having committed language authorizes review of police reports or witness declarations either, since 212(a)(2)(A)(i)(I) specifically refers to admissions by the alien.

The court also rejected the AG's reliance on the word "involving" to broaden the scope of the inquiry, since "crime involving moral turpitude" is a unitary term of art that has more than 100 years of prior history--none of it authorizing the procedure in Silva-Trevino.

Finally, the court noted that the agency retains discretion to determine whether an offense involves "moral turpitude," which the courts have long found to be a notoriously ambiguous phrase. This is a subtle distinction. Moral turpitude may be ambiguous, but the statute unambiguously requires that the noncitizen be convicted of it--i.e., that the act of moral turpitude be admitted by the noncitizen, or found by the court or jury, in the record of conviction. It does not authorize the agency to transform any conviction into a crime involving moral turpitude by using police reports, witness testimony, or other evidence that was not incorporated into the factual basis for the plea or finding of guilt.

Read the decision at http://pacer.ca4.uscourts.gov/opinion.pdf/102382.P.pdf.

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In Matter of Islam, the Board adhered to its previous decision in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), interpreting the ground of deportability for conviction of two or more crimes of moral turpitude not arising out of a single scheme of criminal misconduct.

The Board held that the respondent's convictions in two counties of forgery and possession of stolen property based on his use of multiple stolen credit or debit cards at several retail outlets on five separate occasions over the course of a day did not arise out of a “single scheme of criminal misconduct.” Although all of the crimes occurred on a single day and all followed a similar modus oparandi, this was not enough under Adetiba's rule.

Under Adetiba, Board held that a single scheme "refers to acts, which although separate crimes in and of themselves, were performed in furtherance of a single criminal episode, such as where one crime constitutes a lesser offense of another or where two crimes flow from and are the natural consequence of a single act of criminal misconduct. The related question is whether there is enough time after each crime for the person to reflect on it and disassociate from the criminal activity.

In deciding to follow Adetiba, the Board declined to apply the more expansive interpretation of the Second Circuit even within that circuit, citing its authority to interpret ambiguous statutory phrases despite previous federal court authority to the contrary. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3733.pdf.

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Definitively answering a long-standing question, the Board held the government bears the burden of proving that a permanent resident returning to the U.S. after travel abroad should be treated as an "applicant for admission." Permanent residents generally are not considered applicants for admission unless one of the exceptions at INA 101(a)(13)(C) applies. If an exception applies, then the permanent resident is subject to additional stricter grounds for removal than would otherwise apply. For example, a single conviction for a crime involving moral turpitude might not make a permanent resident removable unless he is considered an applicant for admission.

The allocation of the burden of proof can be determinative because whether a crime involves moral turpitude often is not clear from the record of conviction. If the noncitizen bore the burden of proof, an inconclusive record of conviction might make him removable. By placing the burden on the government, of clear and convincing evidence no less, Rivens protects permanent residents from loss of their status and removal based on inconclusive evidence.

In a second holding, the Board found that the crime of being an accessory after the fact, 18 U.S.C. § 3, is a crime involving moral turpitude only if the underlying offense involved moral turpitude. The Board found that helping someone after he commits a crime is turpitudinous (base, vile, or depraved) if the crime committed was turpitudinous. This contrasts with the Ninth Circuit's decision in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), overruled on other grounds by United States v. Aguila-Montes de Oca, No. 05-50170, 2011 WL 3506442 (9th Cir. Aug. 11, 2011), although the Board suggested otherwise.

The Board's holding does not stand to reason, though, since an accessory after the fact does not participate in the underlying crime. Rather, being an accessory after the fact is a completely separate crime that should not depend on the nature of the underlying offense.

For example, being an accessory after the fact would include giving your son $100 when you know he is on the run from the police. Does giving your son the money become more or less turpitudinous depending on whether the police are after him for grand theft (a crime of moral turpitude) or possessing an unregistered firearm (not a crime of moral turpitude)? No, in either case the mother is not helping her son commit the crime; she is helping him to avoid standing trial for it. This is a crime and bad parenting, but not vile or depraved.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3731.pdf

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In another brilliant decision by Judge Berzon, the Ninth Circuit rejected the BIA's determination that California second-degree commercial burglary is an attempted theft offense that qualifies as an aggravated felony with a sentence to a year or more. It also held that the offense is not a crime involving moral turpitude (CIMT) either.

AGGRAVATED FELONY

The BIA had held that entering a building with the intent to commit theft amounted to an overt act that constituted a substantial step toward completion of the theft. The Ninth Circuit disagreed, primarily because the building the petitioner entered was a business open to the public.Mere preparation to commit a crime does not constitute attempt. The difference between making preparations and taking a substantial step toward the commission of a crime is one of degree. A suspect crosses the line separating preparation from attempt when his actions unequivocally demonstrate that the crime will take place unlessinterrupted by independent circumstances.

The Ninth Circuit held that, for example, breaking into a locked vehicle amounted to a substantial step toward the completed offense of theft, since it is the type of conduct that strongly corroborates the criminal purpose to commit theft. On the other hand, simply walking into a store open for business does not. Most people who walk into a store do not commit theft, so it is not the type of act that is substantial enough for attempt.

CRIME INVOLVING MORAL TURPITUDE

The Ninth Circuit also determined that commercial burglary is not a CIMT. It first determined that it owed no deference to the BIA's holding on this point, since it was unpublished and not persuasive because the brief analysis either misapprehended the elements of California burglary or Ninth Circuit precedent. Namely, the BIA appeared to equate commercial burglary with residential burglary.

The Ninth then determined that commercial burglary was not equivalent to traditional CIMT's. It is not equivalent to theft because it does not involve a taking or deprivation, and it is not an attempted theft offense as discussed above. Nor does it involve fraud, since there is nothing explicitly or implicitly fraudulent about walking into a store.

Nor is entering a commercial building open to the public with the intent to commit theft a crime that is so depraved or reprehensible that it otherwise amounts to a CIMT. "To hold otherwise would mean that someone who did what Hernandez Cruz admitted doing—walking into a commercial building with the intent to commit larceny—but then changed his mind and walked out without ever committing any crime, would be guilty of a CIMT." "If it did, the phrase 'moral turpitude' would be devoid of all meaning."Of course, BIA precedent has gone a long way toward sapping the meaning from moral turpitude.

Read decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/08/08-73805.pdf

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The Board held that recklessness is a sufficiently culpable level of scienter for a crime to involve moral turpitude, at least where it involves an intentional act done with unreasonable disregard of risk to life or property. In this case, the offense was driving a vehicle in a manner indicating a wanton or willful (i.e., reckless) disregard for the lives or property of others while attempting to elude a pursuing police vehicle in violation of section 46.61.024 of the Revised Code of Washington (1997). The Board rejected the respondent's argument that reckless disregard of the danger to property would not involve moral turpitude and held that the offense categorically was a CMT.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3720.pdf

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The Ninth Circuit remanded this case to the BIA to determine whether a conviction for failure to register as a sex offender in violation of California Penal Code section 290(g)(1) is a crime of moral turpitude.  The BIA in this case had held that it categorically was a CMT pursuant to its decision in Matter of Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007).

After its decision, however, the Ninth Circuit issued a contrary decision regarding the Nevada sex offender statute, finding that it was the underlying sex offense and not the failure to register that constituted a CMT.  See Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir.2008).

The Attorney General also issued a decision casting doubt on Tobar-Lobo. The AG's decision in Silva-Trevino held that an offense must have some level of scienter (criminal intent) to qualify as a CMT.  California penalizes failure to register even if it is due to mere forgetfulness, which is in tension with the requirement that a CMT have an element of intent (at least of recklessness, rather than mere negligence).

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/05/11/07-71988.pdf

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The Board held that immigration judges may NOT go beyond the record of conviction to determine whether a crime involves moral turpitude if the record of conviction conclusively establishes it did not.  This is an often overlooked corollary of the Attorney General's decision in Silva-Trevino.  (See my post at http://crimeandimmigrationlawyer.com/blog/2011/03/01/matter-of-samuel-esaul-guevara-alfaro/.)

In Ahortalejo-Guzman, the respondent was convicted of simple assault, and the criminal court specifically noted that the conviction did not involve family violence.  Simple assault is not a crime of moral turpitude.  The immigration judge, however, went beyond the conviction documents to consider police reports and testimony.  The police reports and testimony indicated the respondent committed a crime of domestic violence.  The IJ found that the domestic violence involved moral turpitude and denied the respondent relief from removal based on that.

The Board held the IJ erred.  It cited Silva-Trevino, which stated that an IJ could consider evidence outside the record of conviction only after determining that the record of conviction documents were ambiguous as to whether the offense involved moral turpitude. It noted that this sequential, hierarchical approach "serves the important function of recognizing and preserving the results of a plea bargain, where the parties, with the consent of a trial judge, agree to allow the defendant to plead to a less serious crime."

This case is a bit unusual, however, since the criminal court specifically found that the offense did not involve family violence.  It remains to be seen whether something this explicit is necessary, although it certainly should be considered a best practice in making a plea now.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3709.pdf.

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The Board of Immigration Appeals held that the crime of moral turpitude ground of deportability, INA 237(a)(2)(A), encompasses a conviction for attempt if the attempt is to commit a crime that involves moral turpitude.  In this case, the respondent had a conviction for attempted grand theft.  The Board found that this conviction, along with another conviction for grand theft, made him deportable for having two convictions for crimes of moral turpitude after admission.

The Board rejected the respondent's argument that conviction for attempt to commit a crime of moral turpitude should not trigger deportability because INA 237(a)(2)(A) does not explicitly include attempt, while the ground of inadmissibility at INA 212(a)(2)(A)(i)(I) does include the inchoate offenses of attempt and conspiracy.

The Board noted a Ninth Circuit decision, Barragan-Lopez v. Mukasey, 508 F.3d 899, 903 (9th Cir. 2007), which concluded that this meant the deportation ground was broader (rather than narrower) than the inadmissibility ground.  The Ninth Circuit reasoned the listing of only two inchoate offenses in the inadmissibility ground narrowed the ground to exclude other inchoate offenses such as solicitation or facilitation, while the lack of any references to inchoate offenses in the deportability ground meant it was expansive enough to cover all inchoate crimes.

The Board cited, but did not quite adopt the Ninth Circuit's analysis (given it may have wished to leave room to find that the inadmissibility ground covers inchoate offenses other than attempt and conspiracy).  It offered its own justification for the listing of attempt and conspiracy in the inadmissibility ground but not the deportability ground: Congress may have been just trying to be clear that the former covered attempt and conspiracy without implying anything about the coverage of the latter, particularly since the Congress drafted them at different times.  This belt-and-suspenders-argument overlooks the fact that Congress presumably knows how it drafted other parts of the Act and strives for consistency in its language.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3706.pdf.

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The Board in Guevara-Alfaro returned to the same issues decided by former Attorney General Mukasey in Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008).

It first held that any intentional sexual contact between an adult and a child of less than 16 years of age involves moral turpitude if the adult knew or should have known the child was under 16. Thus, it held that a conviction under California Penal Code 261.5(d) (sexual intercourse between 21+ adult and minor under 16) may involve moral turpitude.

It acknowledged, however, that 261.5(d) did not categorically involve moral turpitude because the offense does not require that the perpetrator knew or reasonably should have known that the victim was less than 16 years of age.

In reaching this conclusion, the Board cited Brand-X to assert that the Ninth Circuit had to defer to this interpretation despite its decision in Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007).  It noted the Ninth Circuit ruled in Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.2009) (en banc) that the definition of a  crime of moral turpitude is quintessentially ambiguous, so the the court must defer to the Board's interpretation.

Quintero-Salazar had held that 261.5(d) would not involve moral turpitude if, for example, the relationship was between a high school junior of 15 years and 11 months and a college student of 21 years.  It noted that the conduct involved, consensual sex, would be legal if the two were married.  Marriages between 21 year-olds and 15 year-olds may not be as common as they once were in the U.S., but are legally possible in some states with parental consent.

Guevara Alfaro disagreed, holding that intentional sexual contact between a 15 year-old and a 21 year-old would involve moral turpitude, if the 21 year-old knew or reasonably should have known the victims age.  It did not explain how this could be a crime of moral turpitude if the two were legally married.

The Board next held it should use the process enunciated by Silva-Trevino to determine whether the offense actually involved moral turpitude (i.e., whether the perpetrator knew or reasonably should have known the victims age).  It held that since 261.5(d) did not categorically involve moral turpitude, it had to examine the record of conviction documents and, if the record of conviction is inconclusive, it had to review other probative evidence to determine if the offense involved moral turpitude.  This would include, in this case, the testimony of the respondent.

The important caveat that both Silva-Trevino and Guevara Alfaro included, but which immigration judges may overlook, is that they may proceed to the third step of examining other probative evidence only if the record of conviction documents are "inconclusive."  This should mean that an IJ may not look at other evidence if the record of conviction documents clearly show that the offense did not involve moral turpitude.  Thus, where state law permits such a conviction, a guilty plea that stipulates the defendant "did not know and had no reasonable basis for knowing the victim was under 16" should prevent inquiry by the IJ beyond the record of conviction.  The record of conviction in such a case would be conclusive.  Whether the Board actually adheres to this aspect of Silva-Trevino, however, remains to be seen.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3705.pdf.

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For removability under 237(a)(2)(A)(i), a crime of moral turpitude must occur within 5 years after "the date of admission."  In Alyazji, the Board (re)defined "the date of admission," abrogating Matter of Shanu in part.
The date of admission for this purpose is now the date of the admission by virtue which the person was present in the United States at the time of committing the crime of moral turpitude.  A few different scenarios illustrate the application:
  • A person who entered the U.S. without inspection would never be subject to this ground of deportability because he has not been admitted.
  • For a person who last entered the U.S. without inspection and then adjusts to permanent resident status (perhaps under 245(i)), the date of admission is the date of adjustment.  This is the case even if the person had a prior inspection and admission (perhaps on a tourist visa as a child), but then departed.
  • For a person who last entered the U.S. on a visa and then overstays or violates the terms of the admission before adjusting status to lawful permanent residence, the date of arrival on the visa is still the date of admission.
  • After obtaining lawful permanent resident status, a noncitizen does not obtain a new date of admission unless one of the exceptions at INA 101(a)(13)(C) applies (seeking return to the U.S. after abandonment of residence, absence of more than 180 days, removal, illegal activity abroad, commission of a crime identified in INA 212(a)(2) absent a waiver, etc.).

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3703.pdf

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