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The Ninth Circuit rejected the Board of Immigration Appeals' published opinion in this case, Matter of Robles-Urrea, 24 I&N Dec. 22 (BIA 2006), and held that misprision of a felony in violation of 18 U.S.C. § 4 is not categorically a crime involving moral turpitude. The Ninth Circuit found the Board's analysis was conclusory and flawed, so it did not defer to the Board's decision.

Misprision of a felony requires knowledge of the commission of a felony and concealment of that felony and not making it known to the authorities. The Board found this was a crime involving moral turpitude (CIMT), but the Ninth held it failed to meaningfully address one of the key requirements for a CIMT: that the offense be inherently base, vile, or depraved.

The Ninth Circuit held the fact that misprision requires concealment does not satisfy the requirement of baseness, vileness, or depravity. This is the case because misprision does not require the specific intent to conceal or obstruct justice. It is enough to know of the crime and do something that conceals it--even if concealment of the crime is not intended.

Although the Ninth Circuit held that misprision does not categorically involve moral turpitude, it also held that it could involve it in some cases. Thus, the Ninth Circuit remanded for the Board to determine in the first instance whether Robles-Urrea's conviction necessarily rested on facts that involved moral turpitude.

The most interesting thing about the remand, though, is that by indicating that the Board would have to look only to the narrow set of documents that form the record of conviction, the Ninth implicitly rejected the third step of Matter of Silva-Trevino, which authorizes inquiry beyond the record of conviction. This is a surprisingly beneficial application of Aguila Montes de Oca.

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The Board held that a second degree murder conviction under a Michigan statute that did not require intent to kill is categorically an aggravated felony "murder" conviction, 8 USC 1101(a)(43)(A). The noncitizen killed two persons in an automobile collision where he was driving under the influence of alcohol. He pled no contest to second degree murder in violation of section 750.317 of the Michigan Compiled Laws.

The Board first found that 8 USC 1101(a)(43)(A) defines murder in the generic sense, so it looked to the law of the majority of states and to the federal definition of murder. It determined these defined murder to include "depraved heart" murder where there was no specific intent to kill, but there was extremely reckless conduct carrying a high likelihood of death or serious bodily injury. The Michigan conviction here was that type of murder, so the Board found it fit the aggravated felony definition.

The Board disregarded the Supreme Court's decision in Leocal because that case concerned whether DUI was a crime of violence, which is a separate aggravated felony offense.

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The Ninth Circuit held that the decision as to whether a conviction is a "particularly serious crime" to bar asylum and withholding of removal is an inherently discretionary decision. Thus, the court will review a finding by the Board of Immigration Appeals that an offense is a particularly serious crime for abuse of discretion. The court found no abuse of discretion here where the immigration judge and Board reviewed the Statement of Facts from the guilty plea, took testimony from the applicant, and decided that a fraud conspiracy that resulted in a loss to the victims of nearly $2 million amounted to a particularly serious crime.

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This decision extends the Supreme Court's decision in INS v. St. Cyr, which held that permanent residents who pled guilty to a removable offense prior to Congress' enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) in 1996 remained eligible for discretionary relief from removal under former section 212(c) even though IIRAIRA repealed that form of relief. Although St. Cyr concerned a resident who pled guilty, Peng extends that holding to permanent residents who were convicted at trial of a crime involving moral turpitude who can plausibly argue they relied on the availability of 212(c). The decision rejected, however, Peng's argument that IIRAIRA's creation of a 7 year residence requirement for relief from removal under 212(h) was impermissibly retroactive.

Here, Peng could plausibly argue reliance on the existing state of the pre-IIRAIRA law when she decided to go to trial. A guilty plea to the charged offense (conspiracy to defraud the former INS, 18 U.S.C. § 371 (1995)) would result in no immigration benefit. She would be deportable no matter whether she pled guilty or was convicted at trial. Likewise, she would be eligible for 212(c) as a discretionary form of relief from deportation no matter whether she pled guilty or was convicted at trial. However, the option of proceeding to trial offered the benefit of the possibility of acquittal. In choosing that option, she plausibly could be said to rely on the availability of 212(c) even if the jury convicted her and the judge sentenced her to the maximum potential sentence. The maximum potential sentence was 5 years, and the aggravated felony definition at the time required a sentence to more than 5 years (an aggravated felony would have disqualified her from 212(c)).

The court contrasted this situation with that of a resident charged with an offense that could be an aggravated felony depending on the sentence imposed by the judge. Since it would leave the sentence in the hands of the judge and thus leave the question of whether it was an aggravated felony in the hands of the judge, a decision to go to trial would preclude a showing of plausible reliance.

Although the court found the repeal of 212(c) impermissibly retroactive because Peng plausibly could have relied on 212(c) as relief from removal, it dismissed without much explanation her argument that IIRAIRA's changes to 212(h) were not impermissibly retroactive. Adjustment of status with a waiver under 212(h) was another form of discretionary relief that was available to Peng when she decided to go to trial in her case. She could have relied on it to the same extent she relied on 212(c). Congress, however, later imposed a requirement of 7 years of continuous residence prior to the initiation of removal proceedings for a permanent resident to be eligible for 212(h). That disqualified Peng from something she plausibly could have relied upon, so it is not apparent why the court would reach a different conclusion. The brief treatment in the opinion mentions that she already had permanent resident status at the time she went to trial and seems to suggest that makes a difference. Perhaps the panel did not understand that adjustment with a 212(h) waiver is a long-recognized form of discretionary relief not just for non-residents, but also for residents like Peng.

Finally, the court rejected Peng's argument that imposing a 7 year continuous residence requirement on aliens previously granted permanent resident status, but not on those who have not previously held permanent resident status, violates equal protection. It cited Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 2002) for the proposition that residents have greater rights so Congress may rationally hold them to a higher standard.

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The Supreme Court held that a permanent resident who pled guilty to a crime involving moral turpitude before the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 still benefits from the Supreme Court's 1963 decision in Fleuti, which provides he would not be considered to be "seeking entry" after a innocent, casual, and brief trip abroad. If the resident is not seeking entry, then he is not subject to numerous additional criminal and noncriminal grounds for removal.

IIRAIRA created a new rule that returning residents are considered to be seeking admission upon return from abroad if they have committed an offense that makes them inadmissible. The Supreme Court held that rule is not retroactive because Congress did not explicitly make it retroactive and it creates a new disability (the noncitizen's inability in this case to travel to Greece briefly to visit his ill parents without being subject to removal upon return). It is thus another application of Landgraf v. USI Film Products, 511 U. S. 244, 263 (1994).

Notably, the Supreme Court held that explicit reliance on prior law by the individual is not required to avoid retroactive application. The majority of the Court also rejected the dissent's argument that the noncitizen's own travel after IIRAIRA is what triggered his removal proceedings and he could have avoided those problems by not traveling.

Vartelas is not a big change for those of us in the Ninth Circuit or Fourth Circuit, since they already had found that the new definition of when a permanent resident would be seeking admission was not retroactive for noncitizens who pled guilty before IIRAIRA. Camins v. Gonzales, 500 F. 3d 872 (CA9 2007); Olatunji v. Ashcroft, 387 F. 3d 383 (CA4 2004).

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The Second Circuit remanded the removal order in Lanferman to the Board for an opinion on whether (A) a criminal offense must have discrete subsections or clauses to be divisible (thus triggering the modified categorical approach to determining removability or ineligibility for relief from removal) or (B) a criminal offense is divisible regardless of the structure if--based on the elements of the offense--some but not all violations give rise to removability or ineligibility for relief. The Board held that the second broader approach applied.

The decision is entirely academic, though, because the New York menacing statute at issue, N.Y. Penal Law § 120.14(1), is divisible under either approach as to whether it is a deportable firearms offense pursuant to INA 237(a)(2)(C). Section 120.14(1) provides that a person is guilty of menacing if he or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying any one of a series of deadly weapons or instruments, including but not limited to firearms. Since the various weapons are specifically identified in the statute and separated by commas, the offense has discrete clauses that would seem to satisfy the narrower approach. It thus is unclear why the Second Circuit thought a remand was necessary.

Most significant for those of us practicing in the Ninth Circuit is the Board's vague and contradictory endorsement of the Ninth's decision in Aguila Montes de Oca. Lanferman's holding clearly requires that divisibility be determined "based on the elements of the offense." However, the Board also cites Aguila's "necessarily found" analysis to support its holding. The "necessarily found" analysis permits the immigration authorities to use non-elements in determining removability under the modified categorical approach. Thus, per Aguila, a menacing statute that did not have use of a firearm as an element would still constitute a removable offense if a firearm necessarily was used to commit the menacing. If the Board wanted to endorse this approach, though, why does it seem to consciously use the term "element" throughout the Lanferman opinion?? I welcome your thoughts.

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The Ninth Circuit held that a conviction under California Penal Code § 647(b) for soliciting an act of prostitution is categorically a crime involving moral turpitude. (The opening paragraph of the decision is misleading, since the body of the opinion makes clear the petitioner is challenging whether he is deportable for two crimes involving moral turpitude--not the denial of voluntary departure.)

No published Board decision holds that soliciting a prostitute is a crime involving moral turpitude (CIMT), but the panel relied on a 61 year-old decision that found the underlying act of prostitution is a CIMT, Matter of W., 4 I&N Dec. 401, 401-02 (CO 1951). (The Ninth Circuit mistakenly identified it as a Board of Immigration Appeals decision, but it actually is a Central Office decision.) The court also relied on a 46 year-old decision holding that renting a room for prostitution is a CIMT. Lambert, 11 I&N Dec. 340, 342 (BIA 1965). The panel found it could not distinguish solicitation from either of those offenses.

The reliance on hoary old cases like these is troublesome, particularly for a definition that is dependent on contemporary mores. Doubtless the adjudicators who decided the cited cases in 1951 and 1965 would consider most of what is on network television today to be morally turpitudinous. Certainly views on prostitution have evolved--from an emphasis on morality to an emphasis on protecting against exploitive conditions.

More significantly, it is hard to say that adult prostitution is a crime involving moral turpitude when it is legal and regulated in so many developed countries, including Canada, France, Germany, Israel, Hong Kong, Singapore, Ireland, and several other European countries. Apparently these countries do not view the profession as intrinsically evil as is generally the case with crimes involving moral turpitude. Indeed, there is no U.S. federal law that generally prohibits prostitution and it is legal in some counties in Nevada. How can something be legal in one state (not to mention other highly developed countries) yet be morally turpitudinous? The panel decision and the ancient cases it cited do not grapple with that question.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/02/28/10-70091.pdf.

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The Ninth Circuit held that a conviction for California Penal Code § 422 categorically is a crime involving moral turpitude. It reached this conclusion because (1) the conviction requires threats of death or great bodily injury, and actual intentional infliction of death or GBI would involve moral turpitude; (2) the statute also requires the threat to be of a nature that reasonably places the victim in sustained fear; and (3) a § 422 conviction requires the specific intent by the perpetrator that the victim take the statement as a threat, and the court deferred to the Board's judgment that this mens rea is a significant factor.

The outcome in this case is not surprising, but I note that the Ninth Circuit did not cite former Attorney General Mukasey's precedential definition of a crime involving moral turpitude in Matter of Silva-Trevino as a "reprehensible act" accompanied by a scienter of at least recklessness. Instead, like other recent Ninth Circuit cases, it defines crimes involving moral turpitude with reference to older definitions (here, the redundant “(1) is vile, base, or depraved and (2) violates accepted moral standards”). It seems everybody recognizes Silva-Trevino deserves no respect...

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/02/17/08-71277.pdf.

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The Supreme Court held in this case that the aggravated felony definition at 8 U. S. C. § 1101(a)(43)(M)(i) (an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000") encompasses tax offenses. It reached this conclusion despite a separate provision of the statute that designates only certain tax offenses as aggravated felonies: § 1101(a)(43)(M)(ii) (an offense that "is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000").

The Court's primary justification for why its interpretation did not render clause (ii) superfluous was a hypothetical that even the government conceded had never arisen in any tax prosecution: evasion of tax payment without fraud or deceit. In other words, a taxpayer who files a truthful return but puts the money beyond the IRS's reach. Since the tax offense listed in clause (ii) covers this scenario (as well as evasion that involves fraud or deceit), the Court concluded that clause (ii) covers some offenses not covered by the fraud or deceit offense in clause (i).

Justice Ginsberg's dissent points out how ridiculous it is to attribute this intention to Congress when the government has never prosecuted anyone for filing a truthful return and then evading payment. Instead, she attributes to Congress the sensible intent of only making the most serious tax offense, 26 U.S.C. § 7201, an aggravated felony. And in all of the known prosecutions, that tax offense has involved fraud or deceit. Thus, it makes no sense for Congress to create two provisions side-by-side and have one of them be essentially meaningless. Instead, clause (ii), which specifically addresses the most serious tax offense that causes loss of revenue to the government of more than $10,000, should be interpreted to exclude tax offenses from the fraud and deceit offenses covered by clause (ii). But only two justices agreed with Justice Ginsberg's analysis, so that is not the law.

Read the decision at http://www.supremecourt.gov/opinions/11pdf/10-577.pdf.

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In a per curiam decision, the Ninth Circuit held that a juvenile offender has a conviction under 8 USC § 1101(a)(48)(A) if he is charged as an adult and receives the conviction after attaining the age of majority, since in that case the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-504, would not apply.

The court also summarily found no equal protection violation in distinguishing between juvenile offenders depending on whether they reach the age of 18 before adjudication or conviction and depending on whether the conviction is as a juvenile or adult (rather than the offender's age at the time of the offense). The court did not even address the petitioner's arguments, if there were any.

When this opinion was first issued in January 31, 2011, the court had held that 212(c) was not available for lack of a comparable statutory ground of inadmissibility. The court withdrew and reissued the decision, overruling the 212(c) holding based on Judalang and leaving the rest of the decision as it was.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/02/13/07-72316.pdf.

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