The Board of Immigration Appeals held that malicious vandalism in violation of California Penal Code section 594(a) was categorically a crime involving moral turpitude where it is accompanied by a finding that the offense was committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members, a sentencing enhancement under PC 186.22(d).
First, the Board found that the immigration judge had erred by analyzing the vandalism and the enhancement separately. Rather, the Board held that they must be considered together as a single offense. The enhancement requires a specific intent to promote criminal activity by a street gang, so that means an act of malicious vandalism with the enhancement must be done with the specific intent to promote that activity. What activity? The Board cited "turf wars and gang violence." The Board found that gang vandalism promoted that activity.
I would argue, though, that vandalism with a gang enhancement is not a CIMT under the categorical approach if there is a realistic probability that a defendant might be convicted of it for conduct that does not promote turf wars or gang violence. The Board seems to assume that the only vandalism that comes within the statute is gang graffiti, which obviously stakes out territory and could lead to confrontations.
I would be interested to know if any of my readers could think of a scenario where a person could be convicted of vandalism with a gang enhancement (for the benefit of a gang and to promote criminal activity by the gang) that is not necessarily turpitudinous. If so, is there a realistic probability of it being prosecuted? Submit a comment below if you can.