Crimes Involving Moral Turpitude Marc Prokosch, Senior Attorney, Karam Law Jennifer J

Home , Moral turpitude

Crimes Involving Moral Turpitude Marc Prokosch, Senior Attorney, Karam Law Jennifer J. Keeney, Assistant Director, OIL,DOJ

#ImmigrationLaw #FBA Crimes Involving Moral Turpitude

• Standards for Inadmissibility and Deportability • Overview of Method for Determining if Crime is a CIMT • What is a CIMT and How Defined? • What to Do if Crime is Found to Be a CIMT- Relief?

#ImmigrationLaw #FBA Crimes Involving Moral Turpitude

• Inadmissibility generally set forth at INA § 212(a)(2)(A): only need one CIMT to be permanently inadmissible. • Waiver exists under INA § 212(h).

#ImmigrationLaw #FBA Crimes Involving Moral Turpitude

• Exceptions: • § 212(a)(2)(A)(ii)(I): Age and recency exception • § 212(a)(2)(A)(ii)(II): Petty offense exception

#ImmigrationLaw #FBA Crimes Involving Moral Turpitude

• Removability grounds • One within five years of admission, at INA § 237(a)(2)(A)(i) requires a possible sentence of a year or more. • Two or more must be after admission and not arising out of the same scheme of conduct. INA § 237(a)(2)(A)(ii). • Scheme: Matter of Islam, 25 I. & N. Dec. 637 (BIA 2011); Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992).

#ImmigrationLaw #FBA Inadmissibility Encountered when Seeking “Admission” to U.S. • Consular processing for Immigrant Visa, or at Border & Non- Immigrant; • Adjustment of Status Proceedings: from undocumented to status as LPR; • LPR Returning to U.S., with Specific Criminal Conviction: § 212(a)(2).

#ImmigrationLaw #FBA Method for Determining if a Crime is a CIMT • Categorical Approach

• Divisibility

• Modified Categorical Approach

#ImmigrationLaw #FBA CIMTs: Categorical Approach Matter of Silva-Trevino III, 26 I. & N. Dec. 826 (BIA 2016) • First step: Identify the elements of the statute of conviction • Second step: Identify generic definition • For CIMTs – determine category of CIMT and identify requirements for category • Third step: Compare the elements with the CIMT category requirements • Look to statute of conviction only – not underlying facts of crime

#ImmigrationLaw #FBA CIMTs: Divisibility The Supreme Court’s Rule in Descamps Holding: modified categorical approach only appropriate when statute divisible

Divisible: statute lists multiple, alternative elements creating several different crimes

Purpose: identify from alternative elements the crime of conviction to compare to generic definition

#ImmigrationLaw #FBA CIMTs: Divisibility The Supreme Court’s Rule in Mathis Statute lists multiple, alternative elements Elements: Statutory criteria that prosecutor must prove and that (as a legal matter) jury must find beyond a reasonable doubt to convict Factual Means: Statutory criteria that (as a legal matter) a jury need not agree on to convict Distinguishing between elements and factual means is central to the analysis

#ImmigrationLaw #FBA CIMTs: Mathis Divisibility Identifying Statutory Alternatives • Disjunctive elements (use of “or”)

• Lists

• Outlines

• Definitions (separate definition provisions)

• Cross-referenced provisions #ImmigrationLaw #FBA CIMTs: Mathis Divisibility Are alternatives Elements or Means? • State case definitively answers question

• Statute, on its face, answers question • If statutory alternatives carry different punishment may = element • If statutory alternatives offer “illustrative examples” may = means

• If state law fails to provide answer- look to record of conviction itself • Peek at criminal documents for sole and limited purpose of determining if statutory alternatives are elements

#ImmigrationLaw #FBA CIMTs: Modified Categorical Approach • When statute of conviction not match – may (at times) consult criminal record

• Only resort to criminal record when statute of conviction is divisible

• Sole purpose – identify, from several alternatives, the crime of conviction to compare to generic definition

• When statute is neither categorical nor divisible, inquiry ends #ImmigrationLaw #FBA CIMTs: What is a CIMT and How Defined? • What is the “generic definition” of CIMTs?

• Basic CIMT requirements

• Different Categories for CIMTs with Unique Definitions

#ImmigrationLaw #FBA Definition of CIMT

• “Moral turpitude is conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed to other persons.” Matter of Tejwani, 24 I. & N. Dec. 97 (BIA 2007)

• Not the best tool for analyzing whether convictions = CIMTs

#ImmigrationLaw #FBA CIMT: Basic Requirements

• “To involve moral turpitude, a crime requires two essential elements: reprehensible conduct and a culpable mental state.” Matter of Silva-Trevino, 26 I. & N. Dec. 826 (BIA 2016); see also Matter of Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015); Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008) • Reprehensible Conduct + Culpable Mental State = Basic Requirements • Board has adopted more specific requirements for many categories of CIMTs

#ImmigrationLaw #FBA Some of BIA’s Categories of CIMTs

Sex Burglary Offenses Domestic Violence Assault Battery Kidnapping CIMTs

Fraud Reckless DUIs Offenses Endangerment Theft Offenses

#ImmigrationLaw #FBA CIMT: Fraud Offenses

• “Fraud has consistently been regarded as such a contaminating component . . . that American courts have, without exception, included such crimes within the scope of moral turpitude.” Jordan v. De George, 341 U.S. 223 (1951)

• A fraud offense can be CIMT where it: (1) has as an element the intent to defraud; or (2) is inherently fraudulent (standard differs so check your circuit)

#ImmigrationLaw #FBA CIMT: Theft Offenses

• Theft is a CIMT if intent to deprive the owner of the property either – • Permanently, or • *Under circumstances where the owner’s property rights are substantially eroded *Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016) (standard may apply prospectively only so check your circuit) #ImmigrationLaw #FBA CIMT: Burglary Offenses

• Basic Burglary • Intent to commit a crime that involves moral turpitude (i.e., theft) • Burglary of Dwelling • Unlawfully entering or remaining in an occupied, or regularly or intermittently occupied, dwelling with intent to commit ANY crime • Matter of Louissaint, 24 I. & N. Dec. 754 (BIA 2009); Matter of J-G-D- F-, 27 I. & N. Dec. 82 (BIA 2017) #ImmigrationLaw #FBA What Next? Relief

Removal proceedings for 1 CIMT within 5 years of admission What event is the “admission?” When is removability triggered? Available vs. Ineligible relief