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Matter of Khanh Hoang Vo

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.

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