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Transcript of Crimes Involving Moral Turpitude What Advocates Need To Know To Represent Self-Petitioners & U Visa...
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Crimes Involving Moral Turpitude
What Advocates Need To Know To Represent Self-Petitioners
& U Visa Applicants
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ASISTA CIMT Webinar: December 2009
Presented by:
Ann Benson & Jonathan Moore
Washington Defender Association’s Immigration Project
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Participants will:
Expand their knowledge of the CIMT inadmissibility ground, when and how it applies;
Learn the basic framework – the categorical analysis – for analyzing and advocating when convictions do and do not constitute CIMT offenses;
Become familiar with current issues and caselaw governing CIMT analysis.
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Overview of Presentation
I. The CIMT inadmissibility ground and when it applies;
II. The Categorical Analysis framework;
III. Overview of types of criminal offenses & CIMT determinations
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Step One:
Critical to get a copy of the criminal records, particularly
Judgment & sentence
Plea (or jury instructions if trial)
Charging document (original/dismissed and amended)
Any pre/post plea agreements
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CIMT Analysis
Part One:
The CIMT Inadmissibility Ground Under INA Sec. 212(a)(2)(A)(i) and When It
Applies
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CIMT Inadmissibility Ground
INA §212(a)(2)(A)(i)(I)
Conviction for (or admission to) CIMT offense triggers this ground
Usually requires conviction
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Is there a conviction?
INA definition of convictionSec. 101(a)(48)(A)
Finding of guilt (verdict from jury/judge)
Admission of guilt (e.g. plea)
Admission of facts sufficient to warrant finding of guilt
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Pre-Plea Adjudications
Not convictions unless agreement shows admission of guilt or facts sufficient and admitted into evidence by the court.
Often used in low-level, first-time offenses
If D complied and case dismissed still must disclose incident
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Juvenile Dispositions
Not convictions for immigration purposes
E.g. juvenile disposition for theft offense is not a CIMT offense
If tried as adult = conviction
Still must disclose incident
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Post Conviction Relief
Attempt to re-open criminal proceedings to eliminate conviction
General Rule = conviction must be vacated for legal defect in original proceedings
Sentence modifications = will be given effect in immigration proceedings
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Convictions on Direct Appeal
General Rule = Conviction not final and, thus, not a conviction for immigration purposes
Since 1996 changes, some circuits have eroded this rule
Still must disclose in application
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“Admissions” of CIMT offenses
Statute at INA 212(a)(2) contemplates “admissions” not just convictions
Does not apply to garden-variety admissions – strict requirements
Must meet 4 element test to trigger CIMT ground
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Juvenile Exception to CIMT Ground
INA 212(a)(2)(A)(ii)(I)
RequirementsOffense committed <18 yrs of age
Released from confinement at least 5 years prior to application
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Petty Offense Exception
INA 212(a)(2)(A)(ii)(II)
RequirementsSingle CIMT offenseMax POSSIBLE sentence (per statute) for the crime not more than 1 yearActual sentence imposed not >180 days
Amount of time served or time of sentence suspended is irrelevant
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I-360 Filings & CIMT Offenses
INA 101(f)(3)’s GMC bar incorporates INA 212(a)(2)(A)(i)(II)’s CIMT ground as bar for showing GMC
Argue conviction is not CIMT
Seek GMC waiver under INA 204(a)(1)(C) since CIMT is “waivable”
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I-360 Filings & CIMT Offenses
Applicability of “petty offense” exception to GMC determinations
Example: Single misdemeanor theft conviction (CIMT) w/90 day sentence
Conflicting caselawBad BIA decision Almanza-Arenas
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S/P Adjustments & CIMT Offenses
CIMT offenses that trigger inadmissibility ground will bar adjustment unless granted waiver per INA 212(h)(1)(C)
How was offense treated at S/P filing?Not CIMT, no waiver
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S/P Adjustments & CIMT Offenses
INA 212(H)(1)(c) Waiver Requirements
Approved Self-petition
Favorable exercise of discretionMust prove offense not “violent or dangerous crime” per 8 CFR 212.7(d)
No hardship requirement
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U Visa Applicants & CIMT Offenses
Inadmissibility – if crime falls w/in CIMT inadmissibility ground it will bar U visa grant unless waiver obtained under INA 212(d)(14)
Establish waiver in public/national interest
If “violent or dangerous crime” must prove extraordinary circumstances
Argue offense is not CIMT
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U Adjustments & CIMT Offenses
No inadmissibility determination
Previously adjudicated conduct should not bar adjustment
New criminal convictions can subject U visa holder to grounds of deportation under INA 237(a)(2)
Distinct from crime-related inadmissibility grounds under INA 212(a)(2)
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CIMT Determinations
Part Two:
The Categorical Analysis Framework
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Categorical Analysis
Traditional analytical process to determine whether criminal convictions trigger immigration provisions, such as CIMT grounds and aggravated felonies
Only applies to crime-related immigration grounds (inadmissibility, deportability) where conviction is required
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Categorical Analysis
Presently in extreme state of flux due to recent caselaw changes
Critical to research caselaw from both BIA and the circuit courts where your case arises
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Step One: The “Generic Definition”
First step is to identify the “generic definition” of the immigration provision at issue – here CIMT
Identify the elements of the definition against which the criminal conviction will be compared
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Generic Definition of CIMT
Traditional definition:Conduct that is “inherently base, vile or depraved and contrary to the accepted rules of morality and the duties owed between persons or society in general.”
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Generic Definition of CIMT
New definition from A.G.’s 2008 decision in Matter of Silva-Trevino:
“Reprehensible conduct” plus some degree of “scienter” (mental state), whether specific intent, deliberateness, willfulness or recklessness.”
Does not include negligence
Not actually substantial change
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Categorical Analysis Step Two:
Compare the elements of statute of conviction to CIMT definition
TEST: Does conduct necessary to sustain conviction under element of the statute – in all cases that have a “realistic probability” of prosecution – always or never involve moral turpitude?
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Categorical Analysis Step Two:
Example #1: Criminal statutory elements “always” falling w/in CIMT definition –
Theft offenses, such as Calif. Penal Code Sec. 484, that require specific intent to permanently deprive rightful owner of property
Categorically a CIMT offense
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Categorical Analysis Step Two:
Example #2: Criminal statutory elements that “never” fall w/in the CIMT definition
Any statute that has a mens rea (mental state) of negligence, such as NY Penal Law Sec. 125.10 for criminally negligent homicide
Such offenses will categorically never be CIMT offenses.
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Categorical Analysis: Step Three
If the statue is not clearly “always” or “never” a CIMT, is the statute “divisible”?
Many criminal statutes are not clear & advocates should be arguing that it is divisible
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Categorical Analysis: Step Three
Is statute “divisible”?Example #1: One statute with multiple
subsections – e.g. Washington offense of 3rd degree assault – 8 subsections, each a different crime, some are CIMT, some not
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Categorical Analysis: Step Three
Is the statute “divisible”?Example #2: No subsections, but separately described offenses w/in statute- e.g. Cal. Vehic. Code Sec. 10851: vehicle taking two different ways (permanent deprivation = CIMT; temporary deprivation is not CIMT).
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Categorical Analysis: Step Three
Is the statute divisible? Example #3: Broadly defined, overly inclusive statute- e.g. Calif. Penal Code Sec. 272 “Contributing to the delinquency of a minor.”
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Categorical Analysis Step Three:
Silva-Trevino decision imports “realistic probability test from U.S. Supreme Ct. decision in Gonzalez v. Duenas-Alvarez (aggravated felony case):
Must be a realistic probability, not theoretical possibility that state would prosecute conduct falling outside the immigration statute definition
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Categorical Analysis: Step Four
Where statute is divisible, look to the record of conviction (ROC) to determine elements of offenders conviction.
Do elements as revealed in ROC, fall w/in CIMT definition
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Categorical Analysis: Step Four
Documents included in ROCStatutory definition
Charging document
Written plea agreement
Transcript of plea/sentencing hearings
Jury instructions
Any finding by judge to which Defendant assented
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Categorical Analysis: Step Four
Documents NOT included in ROCProsecutor’s remarks
Police reports (unless incorporated into plea as factual basis)
Probation or pre-sentence reports
Dismissed charges
Statements of D outside judgment and sentence
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Categorical Analysis: Step Four
Under traditional “modified” categorical analysis, if ROC does not clearly establish elements of conviction that fall w/in CIMT definition then CIMT grounds not triggered and analysis ends.
Confusing circuit court decisionsSeventh Circuit decision in Ali v. Mukasey
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Categorical Analysis: Silva-Trevino
Issued in Nov. 2008 (2 months prior to departure), A.G.’s decision in Matter of Silva-Trevino drastically alters categorical analysis for CIMT offenses
Purports to alter nearly 100 years of precedent.
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Categorical Analysis: Silva-Trevino
New Silva-Trevino Test: Where statutory comparison and ROC comparison are “inconclusive” adjudicator may consider “all necessary and appropriate” evidence to determine whether conduct for which D was convicted, in fact, involved moral turpitude
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Categorical Analysis: Silva-Trevino
Federal circuit courts have not yet decided whether new Silva-Trevino test will stand
Third Circuit overturned S-T in recent decision Jean-Louis v. Holder
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Categorical Analysis: Silva-Trevino
PRACTICE POINT: Where applicant is asserting that conviction does not constitute CIMT and statute/ROC may be deemed “inconclusive” critical to carefully craft applicant’s declaration and carefully present analysis in cover letter.
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Categorical Analysis: Silva-Trevino
PRACTICE POINT: Where applicant is asserting that conviction does not constitute CIMT and statute/ROC may be deemed “inconclusive” critical to carefully present analysis in cover letter where damaging police report will be included in application.
Under S-T, police report can be consulted for CIMT analysis if “inconclusive” determination
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CIMT Analysis
Part III.
Types of Offenses That Are and
Are Not Crimes Involving
Moral Turpitude
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Traditional CIMT Offenses
Offenses with elements involving theft, fraud & deceit
Theft statutes must have intent to permanently deprive (temporary deprivation is not a CIMT)
Offenses of morally offensive character committed with willful/evil intent.
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Traditional CIMT Offenses
Crimes that have as an element and intention to case or threat to cause significant bodily harm
Usually requires willful/intentional but in some cases recklessness will suffice
Drug trafficking offensesDrug possession (simple) is not a CIMT.
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Traditional Non-CIMT Offenses
Drunk driving Even for multiple offenses
Criminal trespass
Simple assault/batteryEven where assault is D.V.- related
EXCEPTION: assault w/aggravating factor (e.g. of public servant or with weapon) will be CIMT
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Traditional Non-CIMT Offenses
Immigration form and document violations
EXCEPTION: BIA recently held offense of requiring “intent to mislead a public servant through written statement person knows is untrue” is CIMT.