Crimes Involving Moral Turpitude

1. Crimes Involving Moral Turpitude What Advocates Need To Know To Represent Self-Petitioners & U Visa Applicants

2. ASISTA CIMT Webinar: December 2009 Presented by: Ann Benson & Jonathan Moore Washington Defender Association’s Immigration Project • abenson@defensenet.org • 360-385-2538 • jonathan@defensenet.org • 206-623-4321

3. 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.

4. 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

5. 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

6. CIMT Analysis Part One: The CIMT Inadmissibility Ground Under INA Sec. 212(a)(2)(A)(i) and When It Applies

7. CIMT Inadmissibility Ground • INA §212(a)(2)(A)(i)(I) • Conviction for (or admission to) CIMT offense triggers this ground • Usually requires conviction

8. Is there a conviction? • INA definition of conviction • Sec. 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

9. 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

10. 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

11. 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

12. 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

13. “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

14. Juvenile Exception to CIMT Ground • INA 212(a)(2)(A)(ii)(I) • Requirements • Offense committed <18 yrs of age • Released from confinement at least 5 years prior to application

15. Petty Offense Exception • INA 212(a)(2)(A)(ii)(II) • Requirements • Single CIMT offense • Max POSSIBLE sentence (per statute) for the crime not more than 1 year • Actual sentence imposed not >180 days • Amount of time served or time of sentence suspended is irrelevant

16. 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”

17. I-360 Filings & CIMT Offenses • Applicability of “petty offense” exception to GMC determinations • Example: Single misdemeanor theft conviction (CIMT) w/90 day sentence • Conflicting caselaw • Bad BIA decision Almanza-Arenas

18. 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

19. S/P Adjustments & CIMT Offenses • INA 212(H)(1)(c) Waiver Requirements • Approved Self-petition • Favorable exercise of discretion • Must prove offense not “violent or dangerous crime” per 8 CFR 212.7(d) • No hardship requirement

20. 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

21. 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)

22. CIMT Determinations Part Two: The Categorical Analysis Framework

23. 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

24. 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

25. 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

26. 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.”

27. 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

28. 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?

29. 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

30. 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.

31. 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

32. 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

33. 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).

34. 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.”

35. 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

36. 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

37. Categorical Analysis: Step Four • Documents included in ROC • Statutory definition • Charging document • Written plea agreement • Transcript of plea/sentencing hearings • Jury instructions • Any finding by judge to which Defendant assented

38. Categorical Analysis: Step Four • Documents NOT included in ROC • Prosecutor’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

39. 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 decisions • Seventh Circuit decision in Ali v. Mukasey

40. 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.

41. 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

42. 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

43. 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.

44. 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

45. CIMT Analysis Part III. Types of Offenses That Are and Are Not Crimes Involving Moral Turpitude

46. 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.

47. 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 offenses • Drug possession (simple) is not a CIMT.

48. Traditional Non-CIMT Offenses • Drunk driving • Even for multiple offenses • Criminal trespass • Simple assault/battery • Even where assault is D.V.- related • EXCEPTION: assault w/aggravating factor (e.g. of public servant or with weapon) will be CIMT

49. 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.

50. Q & A • Resources • www.asistahelp.org • Questions@asistahelp.org