CLASSIFICATIONS OF CRIMES UNDER IMMIGRATION LAW

CHAPTER FIVE CLASSIFICATIONS OF CRIMES UNDER IMMIGRATION LAW Section I: Methodology... 188 Section II: Crimes Involving Moral Turpitude... 200 Section III: Aggravated Felonies... 217 Section IV: Classifications Beyond Moral Turpitude and Aggravated Felony... 255 Controlled Substance Offenses... 255 Firearms Offenses... 259 Money Laundering... 262 Crimes of Domestic Violence... 263 Alien Smuggling... 268 Crimes Involving Failure to Register; Visa and Passport Fraud... 272 Export Law Violations... 276 Failure to Register as a Sex Offender... 278 Upon determination that there is a final conviction, the next step is to determine the proper classification of the crime under immigration law. Immigration law contains two major classifications of crime: crimes involving moral turpitude, and aggravated felonies. Much of this chapter is devoted to defining these two terms. However, they are not the only classifications. In addition to categorizing crimes involving moral turpitude and aggravated felonies, the Immigration and Nationality Act (INA) has provisions addressing controlled substance offenses, money laundering, firearms offenses, crimes of domestic violence, alien smuggling, registration and visa/passport violations, and export law violations. Often, a specific crime will fall into more than one category. This chapter is divided into four sections. Section I discusses the methodology for classifying crimes, with an emphasis on recent case law on the categorical and modified categorical approaches. Section II analyzes crimes involving moral turpitude. Section III is devoted to the aggravated felony classification. Section IV goes into other classifications outside of moral turpitude and aggravated felony. With this foundation in place, chapter 6, in turn, discusses the consequences of specific criminal activity inadmissibility (pursuant to INA 212) and deportability (pursuant to INA 237) being the main ones. Prior to learning the actual classifications, it is of fundamental importance to understand the methodology for determining whether a specific offense fits a certain ground of removability under the INA. It is a mistaken approach to memorize certain offenses and automatically place them into certain categories. Rather, a good defense attorney will always revert back to the criminal statute, review the elements, and con- 187

188 IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. sider challenging the classification of the crime. Hence, this chapter begins with the methodology for doing so. Section I: Methodology Re-learning the Analysis: The Categorical Approach and Beyond In the 12 months prior to this book being published in fourth edition form, significant decisions were handed down by the attorney general (AG) and the U.S. Supreme Court, which force practitioners to rethink the methods and strategies for defining crimes and defending against removability. In November of 2008, the AG issued a decision that dramatically and fundamentally altered the analysis for determining whether a crime involves moral turpitude. In Matter of Silva-Trevino, 1 the AG introduced the realistic probability test for determining whether a crime involves moral turpitude. This decision invites the immigration court to analyze a broad range of evidence regarding the particular circumstances of the offense in order to determine whether a crime involves moral turpitude. Although the AG specifically writes that this analysis is limited to the moral turpitude classification, the reality is that this new methodology already is being applied to other grounds of removability, and judges are considering facts outside the criminal statute and record of conviction in various contexts. In Nijhawan v. Holder, 2 decided in June 2009, the Supreme Court reviewed an aggravated felony removal case and, like the AG seven months before (in the moral turpitude context), rejected limiting the analysis of whether a crime is an aggravated felony to the confines of a categorical or even modified categorical approach; instead, the Supreme Court called for an analysis of evidence outside the traditional record of conviction in determining the monetary loss in a fraud crime. Taken together, these two cases usher in broad changes to practicing before the immigration court and arguing the issue of removability. Indeed, it is yet unclear how these cases will be interpreted and what manner of evidence may be presented or viewed in determining the classification of crime. The following discussion delves into the two decisions in depth, discusses the new step-by-step methodology, and suggests ways to turn the decisions to one s advantage, using the new evidentiary parameters to present evidence (where possible) in a client s favor. The categorical approach Prior to discussing the new case law, it is useful to understand the pre-existing framework for analyzing crimes in the immigration law context. The traditional analysis is referred to as the categorical approach. To be clear, neither Silva- 1 24 I&N Dec. 687 (A.G. 2008). 2 557 U.S. (2009), No. 08-405; 129 S. Ct. 2294; 174 L. Ed. 2d 22; 2009 U.S. LEXIS 4320.

CH. 5 CLASSIFICATIONS OF CRIMES 189 Trevino nor Nijhawan reject the categorical approach in its entirety; rather, they instruct that the categorical approach only applies to certain offenses that may be quickly and easily classified based on the elements of the statute and the nature of the offense. In many cases, according to the new decisions, it will be necessary to go beyond the categorical approach to arrive at a conclusion as to whether an offense involves moral turpitude or qualifies as an aggravated felony. The categorical approach s analysis begins (and will often end) with the actual elements of the criminal statute: the elements of the criminal statute determine whether an offense fits within a certain category of crime under the INA. A practitioner s first step in every new client s case should be reference to the actual criminal statute involved. It is the penal statute not the arrest report, not the caption or title of a criminal code section that controls the immigration law classification. Discussion of the categorical approach begins with the Supreme Court s decision in Taylor v. United States. 3 This was not an immigration law case, but criminal; it concerned the Armed Career Criminal Act (ACCA), a statute that prescribes enhanced penalties for certain firearm offenses where the offender had three prior convictions for violent felonies. Taylor s categorical approach dictates that a determination of whether a prior offense qualifies as a violent felony must be limited to the elements of the criminal statute of the defendant s prior conviction, as opposed to a review of the factual circumstances involved. Thus the phrase categorical approach refers to the categorizing of crime in a generic sense (i.e., fraud, theft, purposeful violence) based on the elements of the criminal statute of conviction without review of the underlying facts of the crime or the conviction record. The Taylor decision, routinely cited by federal courts and the Board of Immigration Appeals (BIA or Board) in the immigration law context, specifically addresses whether burglary of a conveyance was properly categorized as a burglary offense for purposes of a federal sentencing statute based on the traditional, or generic, understanding of burglary: the unlawful entry into, or remaining in, a building, or structure, with the intent to commit a crime. The Court found that burglary of a vehicle did not fit within the traditional definition of burglary (because the traditional definition did not include conveyance, but only structure) and thus could not be categorized as a burglary offense for purposes of the sentencing statute. The Court noted that in categorizing an offense under the ACCA, the sentencing court looks not to the facts of the particular case, but to the state statute defining the crime of conviction. 4 The modified categorical approach When a strict categorical approach does not answer whether an offense falls into a certain immigration classification, the next step is a modified categorical inquiry. Specially, when the criminal statute is divisible for example, encompassing both acts that are deportable offenses and acts that are not recourse may be had to the 3 495 U.S. 575 (1990). Superseded by statute; see U.S. v. Spell, 44 F.3d 936, (11th Cir. 1995). 4 Id. at 599 600.

190 IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. record of conviction, such as the charging document, plea bargain and colloquy or jury instructions, and sentence. 5 This approach is termed the modified categorical approach, and allows the adjudicator to look to the factual basis for a plea or the jury instructions in case of a verdict when the statute is so broad that it encompasses offenses that fall outside the generic category of the crime at issue. Thus prior to the AG s decision in Silva-Trevino, the Board utilized a modified categorical approach to divisible statutes: where a criminal statute contained different sentences, clauses, or subsections that described different offenses, the modified categorical approach gave the adjudicator an opportunity to determine, based on the documents comprising the record of conviction, which portion of the statute the non American citizen had been prosecuted and convicted under. Minimal (or least culpable) conduct approach Before the AG s November 2008 decision, the Board (and most circuit courts) operated under a minimal conduct approach. In the case of a divisible statute, where recourse to the record of conviction did not clarify which portion of the statute applies, the BIA would assume that the conviction was for the least culpable conduct described by the statute. 6 For example, assume a criminal assault provision contained three subsections: one involving an intentional act and causation of harm; another describing a credible threat; and one involving a touch or strike, with no causation of harm, and the record of conviction did not specify which subsection applied. The immigration judge (IJ) would assume the least culpable conduct (a touch without causation of harm), which is not a crime involving moral turpitude. In such a circumstance were the burden of proof with the Department of Homeland Security (DHS) the government could not sustain its burden of proof. 7 Accordingly, and prior to Silva-Trevino, an IJ s inquiry did not extend beyond the statute and record of conviction; the default position (assume least culpable conduct described by statute) was in favor of the non American citizen. Non-elemental facts In the context of aggravated felonies, the modified categorical approach can also be applied to situations where the immigration charge at issue refers to characteristics of the offense conduct falling outside the actual criminal statute, such as an amount of financial loss, a domestic violence victim, an underage victim, etc. These are nonelemental facts because the particular element that renders the offense an aggravated 5 Id. at 819 (citing Shepard v. U.S., 544 U.S. 13, 26 (2005)). 6 See, e.g., Partyka v. Attorney General, 417 F.3d 408 (3d Cir. 2005). 7 See, e.g., Matter of Sanudo, 23 I&N Dec. 968, 974 75 (BIA 2006) ( [B]ecause the admissible portions of the respondent s conviction record do not reflect that he pled guilty to conduct encompassed with the definition of crime of violence definition, we agree with the Immigration Judge that the DHS has not satisfied its burden of proving by clear and convincing evidence that the respondent has been convicted of a crime of violence under 18 USC 16 or, by extension, a crime of domestic violence under section 237(a)(2)(E)(i) of the [INA]. ).

CH. 5 CLASSIFICATIONS OF CRIMES 191 felony will oftentimes not be found within the four corners of the criminal statute. Reference to the modified categorical approach in this context implies that the adjudicator (IJ, BIA, or federal court) may look to the record of conviction to determine whether the required characteristic (i.e., loss, financial gain, minor victim, etc.) is present in the conviction record. 8 The aggravated felony section later in this chapter discusses non-elemental facts at length in the context of specific offenses. Prior to Silva-Trevino, the term non-elemental facts was applied only to certain aggravated felony definitions, as well as the domestic violence ground at INA 237(a)(2)(E) [domestic violence as a ground of deportability is discussed infra in this chapter]. However, in Silva-Trevino, the AG decided that the phrase moral turpitude itself is a non-elemental fact that justifies going beyond both the categorical and modified categorical approach to glean its presence in a criminal act. In sum, and based on a wealth of case law, prior to November 2008 the BIA and immigration courts did not go beyond the modified categorical approach to determine whether an offense involved moral turpitude; and in only specific situations involving certain definitions of aggravated felony involving non-elemental facts, would the adjudicator go outside the modified categorical approach to determine removability. However, starting with a Supreme Court decision in 2007, the window was opened to explore other evidence in determining the proper classification of a crime. Gonzales v. Duenas-Alvarez As noted above, United States v. Taylor was a criminal law case. In 2007, the Supreme Court affirmed the applicability of the categorical approach to immigration law cases in Gonzales v. Duenas-Alvarez. 9 Although this is a good starting point, the Court also introduced the idea of the realistic probability test, which in most cases requires a significant amount of legal research into state law and places the burden on the non American citizen. The issue in Duenas-Alvarez was whether a theft statute, Cal. Veh. Code Ann. 10851(a), which includes temporary and permanent deprivations of a vehicle, as well as aiding and abetting the crime, could be generically categorized as a pure theft offense constituting an aggravated felony under INA 101(a)(43)(G). 10 Respondent Duenas-Alvarez argued that the language of the statute was broad enough to encompass traditional theft offenses (i.e., a permanent or temporary taking of property without the owner s consent) as well as acts were not thefts (such as an accessory or accomplice after the fact). Because the statute included this aiding and abetting phrase, and without an indication in the record of conviction as to which clause 8 See, e.g., Conteh v. Gonzales, 461 F.3d 45, 55 (1st Cir. 2006). 9 127 S. Ct. 815 (2007). 10 Cal. Veh. Code Ann. 10851(a) states: Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense.

192 IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. applied, the adjudicator should assume the least culpable conduct described by statute. Under this approach, according to Respondent Duenas-Alvarez, because the record was not clear, he could not be deportable for an aggravated felony offense. His view was supported by a Ninth Circuit decision, which found that the relevant California Vehicle Code provision did sweep more broadly than generic theft, precisely because of the aiding and abetting clause. 11 The Supreme Court disagreed with this strict categorical approach to interpreting the criminal statute, and instead proposed the realistic probability test, a somewhat cynical challenge, which may be described like this: in order to establish that the statute of conviction is not categorically a theft offense, provide the adjudicating court with a real case (including, if relevant, the non American citizen s own case) where the California statute has been applied to prosecute a person for an offense that was not a generic theft crime. In the absence of a real case (as opposed to a theoretical case) in which Cal. Veh. Code Ann. 10851(a) was used to prosecute an offense that did not qualify as a theft, the Court found that the California statute categorically described a theft offense, hence an aggravated felony. Matter of Silva-Trevino 12 One year later, the AG would look to the Supreme Court s remarks in Duenas- Alvarez to support a new, bold approach in Silva-Trevino, which adopts the realistic probability test to cases involving moral turpitude. The Facts Matter of Silva-Trevino involved a lawful permanent resident who pled no contest to the criminal offense of indecency with a child under Title 5, 21.11(a)(1) of the Texas Penal Code. The statute criminalizes sexual contact with a child younger than 17 years old who is not the person s spouse, unless the perpetrator is not more than three years older than the victim and the victim is of the opposite sex. Sexual contact includes any touching including touching through clothing of the anus, breast, or any part of the genitals, if committed with the intention to arouse or gratify the sexual desire of any person. As such, although it could be applied to a consensual, statutory rape situation, in this case the respondent was 64 years old at the time of the offense. 13 In removal proceedings, the respondent conceded that his conviction was an aggravated felony, 14 but proposed that it was not a crime involving moral turpitude. Respondent applied for adjustment of status, arguing that this relief would act as a waiver of the aggravated felony ground because, according to Respondent, the offense was not a crime involving moral turpitude, there was no ground of inadmissibil- 11 Penuliar v. Ashcroft, 395 F.3d 1037 (2005). 12 Matter of Silva-Trevino, 24 I&N Dec. 687 (BIA 2008). 13 Id. at 690. 14 The definition of aggravated felony includes sexual abuse of a minor. INA 101(a)(43)(A).

CH. 5 CLASSIFICATIONS OF CRIMES 193 ity, hence no need for any other waiver. [Waivers are discussed in chapter six; note that if the crime were an offense involving moral turpitude, the respondent would not be eligible for a waiver because he was already a permanent resident, and thus would be barred from seeking the necessary waiver under INA 212(h). Thus it was important for respondent Silva-Trevino to prevail on the argument that his offense was not a crime involving moral turpitude.] According to respondent Silva-Trevino, the Texas statute did not require that the perpetrator act with knowledge that the individual with whom he has sexual contact is a child, and thus could encompass cases where the individual honestly and reasonably believes he is having sexual contact with a consenting adult; this situation would not be one involving moral turpitude. The IJ disagreed with respondent Silva-Trevino, and found that statutory rape qualifies as a crime involving moral turpitude; he ordered respondent removed. On appeal, however, the Board of Immigration Appeals reversed the decision of the IJ, stating it was constrained by Fifth Circuit law to consider the least culpable conduct described by statute and that not every crime potentially covered by the Texas statute would involve moral turpitude. 15 Complying with circuit law, the Board did not look beyond the record of conviction into the factual circumstances of the offense, but confined itself to a modified categorical approach. It is not clear whether the case was then certified to the AG by DHS or the Board, but it arrived before the AG, who vacated the decision and remanded to the BIA with instructions to adopt a broad new evidentiary methodology along with a new legal standard to determine whether the offense in question involved moral turpitude. The New Methodology The AG states at the outset that the categorical approach still applies in determining whether a crime involves moral turpitude. The first step, he writes, is to look at the criminal law statute: the elements of the statute still control the outcome, not the actual circumstances underlying the offense. 16 Step one As will be discussed in the next section specifically on moral turpitude, the AG notes that to qualify as a crime involving moral turpitude, an act must involve both reprehensible conduct and some degree of scienter, which may be specific intent, deliberateness, willfulness, or recklessness. 17 Where the statute categorically describes a crime involving moral turpitude, and contains the element of specific intent or knowledge, the inquiry ends. It is important for practitioners to note the import of this first step: a crime involving moral turpitude will necessarily contain the requisite state of mind. Certain offenses, which are discussed in the next section, do not involve moral turpitude because they do not contain the elements of either specific or evil intent, knowledge, or willfulness. 15 Matter of Silva-Trevino, 24 I&N Dec. at 691. 16 Id. at 697. 17 Id. at 689.

194 IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. The realistic probability test It is under the canopy of this first stage that the AG introduces the realistic probability test as the applicable standard for deciding whether a criminal statute categorically involves moral turpitude, or may be viewed as divisible, including conduct that does not involve moral turpitude. The AG states that in determining whether a statute could possibly be construed or applied to conduct that does not involve moral turpitude, the non American citizen must point to a case (which might include his own) wherein the criminal statute was used to prosecute and convict someone for conduct that did not involve moral turpitude. Put another way, if the respondent s interpretation of the statute is that its elements may be read in such a fashion as to penalize an act that does not categorically involve moral turpitude (i.e., categorically an act involving theft, fraud, intentional violence) he must present a case or cases in which the state courts did in fact apply the statute in this special ( nongeneric ) manner. 18 In this way, the non American citizen must establish a realistic probability that the statute could be applied to conduct that does not involve moral turpitude. If the non American citizen is able to point to a case wherein the statute was applied to non-moral turpitude conduct, the case is not yet over; rather, the inquiry moves to the second stage of inquiry. Note: In Silva-Trevino, the AG acknowledges a state court case in which the Texas penal statute was used to prosecute an individual for an offense which did not involve moral turpitude. In the highlighted case, the defendant was led to believe that the victim he had sexual contact with was over 17; thus, he did not have knowledge that the victim was underage, but he was prosecuted and convicted anyway. The AG notes that a realistic probability exists that the statute could be applied to non-moral turpitude situations. 19 However this does not end the inquiry, but only leads the analysis to step two. Step two Where the criminal statute is divisible, and it cannot be categorically determined to involve moral turpitude, the second stage of the analysis is a modified categorical inquiry to determine whether the non American citizen s record of conviction evidences a crime that in fact involves moral turpitude. 20 The AG writes that adjudicators should engage in this second-stage inquiry in every case where the criminal statute at issue has at some point been applied to conduct that did not involve moral turpitude. 21 During this second stage, the adjudicator should look to the record of 18 Id. at 697. 19 Id. at 708, citing Johnson v. State, 967 S.W. 2d 848, 849 (Tex. Crim. App. 1998) (en banc). 20 Matter of Silva-Trevino, 24 I&N Dec. at 698. 21 Id.

CH. 5 CLASSIFICATIONS OF CRIMES 195 conviction to determine whether the indictment, judgment, sentence, verdict, plea and/or plea transcript resolve the moral turpitude question. Step three If the record of conviction does not identify which portion or aspect of the statute applies to the respondent s offense, the AG allows a third stage of inquiry. According to the decision, the modified categorical approach is not limited to the traditional record of conviction: the indictment, judgment, jury instructions, plea, or plea transcript. 22 Rather, where the record of conviction does not demonstrate which portion of the statute was charged, IJs are permitted to consider evidence outside the record if doing so is necessary and appropriate to determine whether the specific offense at issue involved moral turpitude. 23 At this point in his decision, discussing a stage of inquiry that goes well beyond the record of conviction, the AG appears to abandon the categorical approach altogether, and herein lies the core frustration of this decision: although the AG claims at the outset that the categorical approach still applies, the methodology he sets forth in Silva-Trevino has nothing in common with a categorical inquiry limited to the elements of the statute, but instead requires consideration of the underlying circumstances of the offense. The AG writes that the problem with relying on the formal record of conviction is that it typically focuses only on the charging elements of a specific criminal offense, but moral turpitude is not an element of any criminal offense; in most cases, the formal record will not yield an answer to the overriding question of whether the crime involved moral turpitude. He then states that IJs cannot be limited in information as they determine whether the underlying conduct actually involves moral turpitude. 24 Unfortunately, this language invites the IJ to cast the criminal statute aside altogether and delve into the actual details of the offense, a relitigation of guilt and innocence, which turns the immigration court into a secondstage criminal law courtroom. Moral turpitude as a non-elemental fact The AG s justification for consideration of evidence outside the record of conviction is that the concept of moral turpitude is a non-elemental fact. This premise is subject to question. Moral turpitude has been ably defined by case law for decades, both within and outside the immigration law context. The challenge, where challenge arose, was in properly analyzing the criminal statute and record of conviction, not in defining moral turpitude itself. The term non-elemental fact applies to specific definitions of the term aggravated felony definitions that contain specific elements that are not ascertainable 22 What constitutes the traditional record of conviction is defined often in case law, including but not limited to Shepard v. United States, 544 U.S. 13, 26 (2005); Matter of Mena, 17 I&N Dec. 38 (BIA 1979). 23 Matter of Silva-Trevino, 24 I&N Dec. at 698 99. 24 Id. at 700.

196 IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. within the particular criminal statutes: amount of loss, age of the victim, etc. The broad concept of moral turpitude is not similar to a specific and identifiable element like financial loss or age of victim; the AG misapplies the concept, yet this is the foundational justification for his new methodology. The Burden of Proof Chapter three discusses the burdens of proof in immigration proceedings. When a non American citizen is charged under INA 212(a), he or she has the burden of proving admissibility. 25 When a non American citizen has already been admitted to the United States, the burden is on the government to establish that he or she is deportable. 26 In Silva-Trevino, the AG discusses allocation of the burden in light of the new formula for identifying moral turpitude. Clearly, where the non American citizen is (correctly and appropriately) charged with inadmissibility under INA 212(a), the burden lies with the individual to establish that the offense is either categorically not a crime involving moral turpitude, or that there is a realistic probability that the statute could be applied to conduct that does not involve moral turpitude. If the situation is the latter (the statute could be applied in more than one fashion), the non American citizen then bears the burden in the second stage of proceedings to show that his or her conduct did not involve moral turpitude. It is not surprising that the burden rests squarely with the non American citizen at every stage where the charge(s) involves inadmissibility under INA 212(a). What seems unfair, however, is the manner in which the burden plays out under Silva- Trevino where the charge(s) is deportability under INA 237. It appears that the burden of proof and persuasion now falls on the non American citizen. Specifically, the AG states that if the criminal statute requires proof of an element or fact that evidences moral turpitude, the government sustains its burden. If the respondent contests, the burden then shifts to the non American citizen to point to his own case or other cases wherein a person was convicted under the statute without proof of the moral turpitude element. Where the statute includes conduct that both does and does not involve moral turpitude, the analysis moves to the second stage, the modified categorical approach; here, the judge will consider all evidence relevant and necessary to determine whether the respondent s act involved moral turpitude. 27 Thus the reality of the realistic probability test is that unless the statute clearly describes a crime that categorically does or does not involve moral turpitude the non American citizen will be the one researching case law to identify a case wherein the statute was applied to non-moral turpitude conduct, and after performing that task, it will be the non American citizen presenting evidence (or arguing against the relevancy of evidence) to establish that his or her particular conduct did not involve moral turpitude. The decision represents a potential marathon in terms of the legal 25 INA 240(c)(2); see also discussion of admissibility and deportability in chapter 3. 26 INA 240(c)(3)(A); see also discussion of admissibility and deportability in chapter 3. 27 24 I&N Dec. 687, at n.4.

CH. 5 CLASSIFICATIONS OF CRIMES 197 research and evidence. In realistic terms, although it is certainly not said outright in the decision, the burden of proof for all practical purposes now lies with the respondent to present cases involving a non-generic application of the statute, and to present (or counter) evidence in his or her own case that establishes that the underlying circumstances of the offense did not involve moral turpitude. Evidence that is necessary and appropriate In Silva-Trevino, the AG does not delineate the forms of evidence that may be necessary and appropriate for identifying moral turpitude. The AG does mention witness testimony as an allowable form of evidence. 28 The AG writes that any form of evidence that is admissible in immigration court may be considered. 29 Thus, it would appear there is no limitation to the evidence that could be presented in establishing, or denying, the existence of moral turpitude. As for presenting cases that would illustrate application of a statute to a non-moral turpitude offense, in order to meet the realistic probability standard, the AG does not specify whether the case must be a published decision, or something less than precedent. The fact that a respondent could present his or her own case as an example implies that the case need not be a published opinion. This means that immigration defense counsel could rely on non-precedent examples any real case wherein a nonmoral turpitude offense was prosecuted under the particular statute to meet the realistic probability hurdle. Examples could be ascertained by talking to defense attorney colleagues about application of the statute in their own practices, and obtaining an affidavit, the conviction record, etc., from that particular case. 30 Viewed from this perspective, the realistic probability test is not so daunting (although certainly time consuming) and could even be turned to one s advantage. Ultimately, navigating the methodology of Silva-Trevino will be just that: using the precedent to one s own advantage to convince the IJ that one s client did not commit a moral turpitude offense. Based on the particular case at hand, of course, respondent may introduce exonerating evidence regarding his or her state of mind, a lack of harm, the lack of force, a temporary appropriation as opposed to a deprivation, etc. In addition, communicating with criminal counsel on their experiences with application of the statute may yield numerous occasions where someone was prosecuted under an ambiguous or divisible criminal statute for behavior that did not rise to the level of moral turpitude, in which case, again, an affidavit from counsel, the conviction record, etc. will establish a realistic probability that the penal code section does not always represent moral turpitude. The AG cautions against re-litigating guilt 28 Matter of Silva-Trevino, 24 I&N Dec. at 701 02, citing Matter of Babaisakov, 24 I&N Dec. 306, 321 (BIA 2007). 29 Id. 30 The question of whether non-published, non-precedential cases can be relied on to meet the realistic probability test is addressed in dicta by the Ninth Circuit in Nicanor-Romero v. Mukasey, 523 F.3d 992, 1005 (9th Cir. 2008), wherein the court of appeals writes, in determining the actual application of a statute, a conviction is a conviction, regardless of the manner in which it is reported.

198 IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. or innocence in immigration court; however, the AG s decision is so broad, that it will be difficult to confine the analysis to strict parameters. Re-litigation of the particular circumstances will often be unavoidable. With the right case, creative immigration defense counsel will be able to use the new methodology to his or her advantage. Within the next section on moral turpitude, BIA decisions post-silva-trevino are discussed. After Silva-Trevino: the federal courts response As of the fall of 2009, only one circuit court of appeals has directly rejected Matter of Silva-Trevino. The Third Circuit, in Jean-Louis v. Attorney General, 31 soundly criticizes the AG s methodology, finding that the categorical and a strict modified categorical approach (limited to the record of conviction) still applies in determining whether a conviction involves moral turpitude. The Third Circuit re-emphasizes that it is the elements of the statute under which a non American citizen is convicted that determine deportability, not the underlying crime that may have been committed. Nijhawan v. Holder 32 Like Silva-Trevino, the Supreme Court s decision in Nijhawan also dictates a new approach to the consideration of evidence and introduces a new phrase, circumstance-specific approach, to describe the proper analysis. However, the Court s decision in Nijhawan is easier to navigate (in terms of analysis) and will affect far fewer cases; it is also a more justifiable decision, as discussed further, below. Nijhawan involved the determination of a non-elemental fact, in this case, the $10,000 loss to a victim provision contained in the aggravated felony definition at INA 101(a)(43)(M). This provision defines an aggravated felony to include a crime involving fraud or deceit where loss to a victim exceeds $10,000. The issue at hand involved what sort of evidence could be considered to determine whether the loss indeed exceeded the $10,000 mark. The facts Petitioner Nijhawan was a lawful permanent resident (LPR) who had been indicted for mail fraud, wire fraud, bank fraud and money laundering. He was eventually convicted by jury trial. The jury made no findings as to amount of loss. At the sentencing phase of the criminal trial, Nijhawan stipulated to a loss in excess of $100 million dollars. Restitution was ordered in the amount of $683 million. 33 In ordering the non American citizen removed, the IJ had relied on a sentencing stipulation and restitution order to establish that the loss exceeded $10,000. The BIA and Third Circuit Court of Appeals upheld that decision. Throughout the appeal process, the respondent (the petitioner before the court of appeals and Supreme Court) 31 Jean-Louis v. Att y Gen., No. 07-3311 (3d Cir. Oct. 6, 2009). 32 Nijhawan v. Holder, 557 U.S. (2009), No. 08-495 (June 15, 2009); 129 S. Ct. 2294, 2298. 33 Id.

CH. 5 CLASSIFICATIONS OF CRIMES 199 argued first for a strict categorical approach (that the statute of conviction must include the financial amount). The Supreme Court found this approach untenable, as criminal fraud provisions do not include a loss amount as an element of the offense. In the alternative, the petitioner advocated for a limited modified categorical approach: that the loss must be determined by the jury verdict, or a judge-approved equivalent, which may include only the charging documents, jury instructions, any special jury finding or judge-made findings, and the plea documents or plea colloquy. Prior to the Supreme Court s decision, there was a split among the circuits as to what documentation could be properly considered in determining loss. The Court disagreed with the petitioner, finding that neither the categorical nor modified categorical approach (limited to the record of conviction) could properly or fairly determine the amount of financial loss as required by INA 101(a)(43)(M). Instead, the Court concludes that the fraud and deceit provision calls for a circumstance specific approach, wherein relevant evidence may be considered in determining the loss involved in a specific offense. The Court finds nothing unfair in considering the petitioner/defendant s own stipulation regarding loss produced for sentencing purposes, as well as the sentencing court s own restitution order. The Supreme Court does note that an individual, such as petitioner, has the opportunity in immigration court to produce conflicting evidence to establish a loss lower than $10,000. The Court further notes that the amount of loss must be tied to the specific count or counts of the conviction. 34 The Nijhawan decision is important precedent because it highlights the change in presentation of evidence before the immigration court. For the last decade, defense counsel have clung tightly to the elements of the criminal statute in making legal argument; the categorical approach, and a modified version limited to the record of conviction, has not only been a clear and easy model to follow, but also allowed attorneys to successfully argue that their client s offense did not qualify as, for example, a moral turpitude or aggravated felony offense. With these recent decisions, a myriad of other forms of evidence might be presented in immigration court. Again, although certainly more challenging, the key to successfully defending against a charge will be creative presentation of evidence in the client s favor (where possible). With time, practitioners will see how the various IJs interpret and apply the new rulings. 34 Id.

200 IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. Section II: Crimes Involving Moral Turpitude The meaning of the term falls well short of clarity. Indeed, as has been noted before, moral turpitude is perhaps the quintessential example of an ambiguous phrase. 35 An Introduction to the Concept There are references throughout the INA to crimes involving moral turpitude. As discussed in the next chapter on consequences of certain crimes, a conviction for a crime involving moral turpitude (or admission to the essential elements of such an offense) may not only serve as the basis for removal proceedings, but implicates good moral character in the context of relief from removal and naturalization. In spite of the term s importance, moral turpitude is not defined within the Immigration and Nationality Act. Instead, the term moral turpitude is defined by case law. Except in those situations where there is clear precedent on the exact same offense (i.e., the same specific state or federal statute), determinations of whether a crime involves moral turpitude are made on a case-by-case basis. Indeed, even where there is precedential case law on point, defense counsel should not hesitate to present a good-faith challenge to the precedent, if appropriate. This is particularly true now, in light of Matter of Silva-Trevino, 36 discussed in the introduction to this chapter. Working under a strict categorical approach, or even a modified categorical approach, DHS may not have successfully established that a particular crime qualified as one involving moral turpitude. Now, with a greater arsenal of evidence at its disposal in light of the AG s decision, the Department may succeed more often in arguing that a particular offense did involve moral turpitude. As stated in the introduction to this chapter, however, it should be defense counsel s goal to use the new evidentiary standards to the client s advantage. The phrase moral turpitude refers generally to acts that are inherently evil or wrong by any society s standards (malum in se), rather than acts that are regulated by society (malum prohibitum). The BIA has held that moral turpitude refers generally to conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons, or to society in general. 37 Acts of moral turpitude are essentially those offensive to American ethics and accepted moral standards. 38 For example, and as discussed infra, crimes of theft, fraud, and serious violence are normally viewed as acts involving moral turpitude. Licensing and regu- 35 Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009), citing Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1055 (9th Cir. 2006). 36 24 I&N Dec. 687 (BIA 2008). 37 Matter of L V C, 22 I&N Dec. 594 (BIA 1999); Matter of Tran, 21 I&N Dec. 291 (BIA 1996); Matter of Danesh, 19 I&N Dec. 669 (BIA 1988). 38 Castle v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976).

CH. 5 CLASSIFICATIONS OF CRIMES 201 latory violations are generally found not to involve moral turpitude. 39 Regulatory offenses are discussed further, infra. Includes felonies and misdemeanors In determining whether an offense involves moral turpitude, it is a common mistake to consider the degree of punishment (i.e., whether the crime is punished as a misdemeanor or felony). Neither the seriousness of a criminal offense nor the severity of the sentence imposed determines whether a crime involves moral turpitude. 40 Intentional theft of a 10 cent item is nonetheless theft, and involves moral turpitude, notwithstanding the cost of the item or the minimal punishment imposed. Whether the offense can be excepted or waived based on its minor nature also is distinct from whether the act involves moral turpitude. Exceptions and waivers are discussed in subsequent chapters. The elements of the criminal statute control It is worthwhile in every new client s case to review the actual criminal statute involved, even if counsel feels a familiarity with the offense, perhaps from handling similar cases in the past. As discussed in the section on practice tools, 41 immigration practitioners should have on hand their state s criminal code and the U.S. Code volumes enumerating federal crimes. The client should be instructed to bring to the consultation all arrest reports, charging documents, and final dispositions to ascertain the criminal code section he or she was convicted under. It is important to engage in an objective analysis of whether the elements necessary to obtain a conviction under the particular criminal statute render the offense a crime involving moral turpitude. 42 Practitioners are cautioned to avoid hasty determinations without scrutinizing the elements of the criminal law provision. It is an incorrect approach to decide whether moral turpitude adheres simply by the title of the offense (the penal provision s caption), or what the offense sounds like. The question of intent In addition to the actual proscribed conduct, an offense involving moral turpitude will generally (although not always) include specific intent to do harm, or knowledge of the act s illegality. Evil intent is usually required for a crime to be classified as one involving moral turpitude. 43 Thus, the elements of knowledge or specific intent should be identified 39 Matter of Tiwari, 19 I&N Dec. 875 (BIA 1989). But see Matter of Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007), in which the Board of Immigration Appeals (BIA) found that the regulatory violation of failure to register as a sex offender under California law was a crime involving moral turpitude. As discussed in the dissent by Board Member Filppu, this decision represents a departure from longstanding BIA precedent regarding the nature of regulatory violations. 40 Matter of Serna, 20 I&N Dec. 579, 581 (BIA 1992). 41 See chapter one, Tips and Tools of the Trade. 42 Matter of Short, 20 I&N Dec. 136 (BIA 1989). 43 Matter of Khourn, 21 I&N Dec. 1041, 1046 (BIA 1997).

202 IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. in determining whether an offense involves moral turpitude. 44 A longstanding test employed by the BIA is whether the act is accompanied by a vicious motive or a corrupt mind. 45 Still, an evil or specific intent alone does not transform an otherwise non-base, vile, or fraudulent offense into one involving moral turpitude; rather, it is the combination of a morally wrong act with the element of willfulness or specific intent that represents a crime involving moral turpitude. 46 Where the criminal statute prescribes a mental state of recklessness, the analysis becomes more difficult. The BIA has held that moral turpitude can lie in criminally reckless conduct when there is a conscious disregard of a substantial and unjustifiable risk. Although there may not be a specific intent to cause a particular harm, the violator must show a willingness to commit the act in disregard of the perceived risk. 47 Attempted reckless behavior, however, does not involve moral turpitude because it is legally incoherent (i.e., impossible) that a person will attempt to act recklessly. 48 Attempted reckless endangerment is not a crime involving moral turpitude because this concept is nonsensical. 49 In Silva-Trevino, the AG did not spend a lot of time on the concept of mental state, or scienter, but did state that recklessness was enough to qualify a crime as one involving moral turpitude. 50 The focus of the AG s decision was not, of course, the issue of recklessness; thus a criminal statute that references reckless behavior is subject to argument on the issue of moral turpitude. Negligence vs. recklessness In Matter of Medina, 51 the BIA defined recklessness as an actual awareness of the risk created by the criminal violator s action. Medina involved a violation of an Illinois assault statute that required a mens rea of recklessness; the BIA found that moral turpitude attached to this offense. Circuit courts have approved this approach. 52 In comparison, criminal negligence lacks this essential culpability requirement. For example, a negligent assault is unintentional, unwitting, and committed without con- 44 Matter of Silva-Trevino, 24 I&N Dec. at 687. 45 Matter of Franklin, 20 I&N Dec. 867 (BIA 1994). 46 See, e.g., Nicanor-Romero v. Mukasey, 523 F.3d 992, 999 1000 (9th Cir. 2008), citing Grageda v. INS, 12 F.3d 919, 922 (9th Cir. 1993). 47 Matter of Medina, 15 I&N Dec. 611, 614 (BIA 1976). In Medina, the individual had been convicted of aggravated assault with a firearm under the Illinois Code. 48 Gill v. INS, 420 F.3d 82 (2d Cir. 2005). 49 Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004). 50 See note 41. 51 Matter of Medina, 15 I&N Dec. at 614. 52 Partyka v. Att y Gen., 417 F.3d 408, 416 (3d Cir. 2005); Knapik v. Ashcroft, 384 F.3d 84, 89 (3d Cir. 2004). Partyka involved aggravated assault on a police officer, a felony of the third degree in violation of N.J. Stat. Ann. C:12-1b(5)(a); the court found that this offense was not a crime involving moral turpitude because the statute was divisible, the record of conviction did not specify which subsection the individual was charged or convicted of, and the least culpable conduct described in the statute was negligence.

CH. 5 CLASSIFICATIONS OF CRIMES 203 templation of the risk of injury involved. 53 Thus, while the element of recklessness can connote moral turpitude (because, although the person acts without specific intent to carry out a certain crime, the statute might include as an element a conscious disregard of a specific, reasonably foreseeable risk), the element of negligence does not imply moral turpitude, because it is committed without contemplation of the risk of injury involved. 54 Certainly, the line between recklessness and negligence is a fine line indeed; it is for this reason that careful review and consideration of the specific elements of the statutory offense is essential. The mental state of recklessness is discussed in greater detail, below, in the section covering crimes of violence. Divisible statutes and the record of conviction As stated in the introduction, a divisible statute contains more than one provision (or subsection), some of which describe elements that involve moral turpitude and others that do not. When the criminal statute involved is a divisible statute, reference is made to the individual s record of conviction to determine whether the activity of which he or she was convicted involves moral turpitude. 55 The documents that comprise the record of conviction are the indictment, plea, verdict, and sentence. 56 In some circumstances, the record of conviction may include the jury instructions (in cases where there is a plea). The record of conviction does not include the arrest report. 57 The U.S. Supreme Court has held that when the case involves a guilty plea, the record of conviction may include consideration of the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. 58 Based on Silva-Trevino (discussed in the introduction to this chapter), if a review of the conviction record does not highlight the portion of the criminal statute charged in the underlying case, resort is made to other evidence to determine whether the provision or provisions relating to moral turpitude apply. [If the reader has not, at this juncture, read the introduction to this chapter, regarding methodology, this is the point at which reference should be made to the new methodology set forth by Matter of Silva-Trevino at the beginning of this chapter.] Aiding and abetting; conspiracy Where the underlying or substantive crime involves moral turpitude, then a conviction for aiding in the commission of the crime or for otherwise acting as an acces- 53 Partyka, supra note 52, at 414. 54 See Perez-Contreras, 20 I&N Dec. 615, 618 19 (BIA 1992) (mere negligence cannot support a finding of moral turpitude; underlying offense was assault against a police officer). 55 Matter of V Z S, 22 I&N Dec. 1338 (BIA 2000). 56 Matter of Mena, 17 I&N Dec. 38 (BIA 1979). For a list of acceptable documents to establish a conviction, see ch. 2. 57 See Matter of Teixeira, 21 I&N Dec. 316, 319 20 (BIA 1996). 58 Shepard v. United States, 544 U.S. 13, 26 (2005).

204 IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. sory before the fact is also a conviction for a crime involving moral turpitude. 59 A conspiracy offense is a crime involving moral turpitude if it contains the element of fraud, or the underlying substantive offense involves fraud. 60 Note that 18 USC 371, the federal conspiracy statute, is a divisible statute: the first phrase refers to a conspiracy to commit any offense the United States, and the second clause refers to an intent to defraud. The initial phrase committing an offense against the United States involves moral turpitude only if the underlying substantive offense is a crime involving moral turpitude. 61 A Discussion of Specific Offenses and Whether They Involve Moral Turpitude Beware: The precedent cases cited below that stand for the proposition that a particular offense does not involve moral turpitude should not be considered safe harbors. In light of Matter of Silva-Trevino, 62 the Department of Homeland Security may argue that an individual s particular crime is subject to increased scrutiny under an expansive modified categorical approach; moreover, the burden of proof and persuasion will likely fall on the individual to show that, regardless of a precedent decision, his or her particular offense was not morally turpitudinous. Theft and larceny Crimes of larceny involve moral turpitude. 63 Most theft offenses will involve moral turpitude. 64 However, on occasion the BIA has held that crimes of theft involve moral turpitude only where a permanent taking is intended. 65 The difference between theft and larceny is that the latter involves a permanent taking. Under the common law, larceny is distinguishable from theft because the former includes all takings with a criminal intent to deprive the owner of the rights and benefits of ownership. 66 59 Matter of Short, 20 I&N Dec. 136 (citing Matter of F, 6 I&N Dec. 783 (BIA 1955)). Further, note that in the context of the aggravated felony definition at INA 101(a)(43)(G), the Supreme Court found that aiding and abetting a theft constitutes a theft offense. Gonzalez v. Duenas-Alvarez, 127 S. Ct. 815 (2007). 60 Matter of Flores, 17 I&N Dec. 225 (BIA 1980), citing Matter of McNaughton, 16 I&N Dec. 569 (BIA 1978), Matter of G, 7 I&N Dec. 114 (BIA 1956). 61 Id. See also Notash v. Gonzales, 427 F.3d 693, 699 (9th Cir. 2005) (discussing Matter of Flores, supra note 60, for the proposition that the first clause of 18 USC 371 does not involve moral turpitude). 62 24 I&N Dec. 687 (BIA 2008); see introductory discussion at beginning of this chapter. 63 Matter of Scarpulla, 15 I&N Dec. 139 (BIA 1974) (involving a conviction in Italy for theft of 30 kilograms of olives). 64 Matter of De La Nues, 18 I&N Dec. 140, 145 (BIA 1981); Matter of Westman, 17 I&N Dec. 50, 51 (BIA 1979). 65 See Matter of V Z S, 22 I&N Dec. 1338 n.12 (BIA 2000) (citing Matter of Grazley, 14 I&N Dec. 330 (BIA 1973)). 66 Id. (citing United States v. Pittman, 441 F.2d 1098, 1099 (9th Cir. 1971)).