(B)  U.S. Legal Standards Determine Whether Foreign Conviction Falls Within Ground of Deportation.  Most decisions involving the immigration effects of foreign convictions involve crimes of moral turpitude, but are discussed here for the light they shed on the aggravated felony analysis of foreign convictions.  In determining whether a foreign conviction involved moral turpitude, where foreign laws define crimes in terms unlike those found in similar offenses under United States law, the immigration court may consider matters beyond the statute or conviction record.[166]

Although the rule is well settled that the nature of a crime is conclusively established by the elements, the court may look beyond a foreign statute under certain circumstances to consider such facts as may appear from either the record of conviction or the noncitizen’s admissions, to reach an independent conclusion as to whether the offense is one which under United States law involves moral turpitude.  The Board said that this rule is applied when it is difficult to determine whether the foreign statute defines offenses which are designated as crimes under United States law.[167]

 

Whether a foreign conviction constitutes an offense involving moral turpitude is assessed under United States standards.[168] If a party relies on foreign law, however, it bears the burden of establishing the elements of the foreign law.[169] 

            For example, in United States ex rel. McKenzie v Savoretti,[170] the court held that the INS did not have to prove that the British West Indies convictions of crimes of forgery, uttering, and stealing involved moral turpitude in the foreign jurisdiction by investigating the substantive foreign law.  The noncitizen argued that his convictions were actually for juvenile delinquency, and that he was tried and convicted as an adult offender because a juvenile court had not been set up in the British West Indies.  The court rejected this argument, saying that moral turpitude within the scope of the immigration laws is determined without reference to the laws of foreign jurisdictions, and that where the noncitizen had admitted the accuracy of the record showing his conviction of the crimes of forgery, uttering, and stealing, the determination that he had been convicted of crimes involving moral turpitude was correct, since under United States standards these crimes are considered to be crimes of moral turpitude.

 

In rejecting the contention of a noncitizen that the hearing officer erred in referring to Italian law in his decision as to moral turpitude, since no proof of the foreign law was made at the hearing, the court in De Lucia v. Flagg[171] held that it was only necessary for the hearing officer to consider the record of conviction in Italy of voluntary homicide “with grave provocation” and apply the prevalent United States standards of what constitutes moral turpitude to reach his conclusion.

 

In Vidal y Planas v. Landon,[172] the court held that a noncitizen convicted in Spain of homicide with extenuating circumstances, when he had evidently shot a man in self-defense after having been attacked, had not been convicted of a crime involving moral turpitude.  The record of conviction established that the defendant, at the time of the slaying, was in a blind rage which had been incited by the victim.  The court applied standards supplied by the Solicitor General of the Department of Justice for the information of immigration officers, which excepted from the category of crimes involving moral turpitude those offenses which were “the outcome merely of natural passions, of animal spirits, of infirmity of temper, of weakness of character, or of mistaken principles, unaccompanied by a vicious motive or corrupt mind.”

 

            In Mercer v. Lence,[173] the court rejected the noncitizen’s argument that Canadian statutes must be consulted in order to determine whether the crime of conspiracy to defraud involves moral turpitude, and that without proof as to whether the crime proscribed by the foreign statute involved moral turpitude, the question could not be determined here.  The court held that moral turpitude for immigration purposes must be determined according to United States standards, and concluded that the noncitizen had been convicted of a crime which U.S. courts regard as involving moral turpitude.

[166] Chiaramonte v. INS, 626 F.2d 1093, 1099 (2d Cir. 1980) (the court distinguished the Lennon decision, since the elements of the crime of conviction under Italian statute were equivalent to larceny as understood in U.S. law); Lennon v. INS, 527 F.2d 187 (2d Cir. 1975) (the court examined British judicial opinions to determine whether conviction of violating British statute required guilty knowledge as an essential element); De Lucia v. Flagg, 297 F.2d 58 (7th Cir. 1961), cert. denied, 369 U.S. 837, 82 S.Ct. 867 (1962) (record of conviction disclosed Italian homicide conviction was equivalent to voluntary manslaughter conviction under United States law); Matter of S, 9 I. & N. Dec. 496 (BIA 1961) (record disclosed Peru homicide conviction was equivalent to voluntary manslaughter under United States law); Matter of M, 9 I. & N. Dec. 132 (BIA 1960); Matter of M, 2 I. & N. Dec 686 (1946) (Canadian auto-theft conviction held not CMT, since defendant was a minor at the time of the offense and evidence showed he intended only “joy-riding” rather than a permanent taking); Matter of T, 2 I. & N. Dec. 22 (AG 1944) (court considered facts in Canadian theft conviction record and admissions of noncitizen to determine whether the defendant intended to deprive the owner of the property permanently).

[167] Matter of M, 9 I. & N. Dec. 132 (BIA 1960) (Italian conviction for swindling and forgery involved criminal intent; violation of domicile did not; independent study made of conviction records and statutes).

[168] Squires v. INS, 689 F.2d 1276, 1278 (6th Cir. 1982) (appraisal of petty offense statute);

United States ex rel. Ventura v. Shaughnessy, 219 F.2d 249 (2d Cir. 1955) (Portuguese crime “very similar to what we call burglary or larceny”); McKenzie v. Savoretti, 200 F.2d 546 (5th Cir. 1952); Mercer v. Lence, 96 F.2d 122 (10th Cir.), cert. denied, 305 U.S. 611 (1938); Whitty v. Weedin, 68 F.2d 127 (9th Cir. 1933) (bigamy committed in Canada); Pillisz v. Smith, 46 F.2d 769 (7th Cir. 1931) (manslaughter committed in Hungary); United States ex rel. Ulrich v. Kellogg, 58 App. D.C. 360, 30 F.2d 984, 71 A.L.R. 1210 (D.C. Cir.), cert. denied, 279 U.S. 868, 49 S.Ct. 482 (1929) (conviction in foreign country of larceny, irrespective of whether it was petit or grand larceny under American standards); Matter of McNaughton, 16 I. & N. Dec. 569 (BIA 1978) (securities fraud); Matter of M, 9 I. & N. Dec. 132 (BIA 1960); Ex parte Isojoki, 222 Fed. 151 (D. Cal. 1915) (unmarried woman living in Sweden with unmarried man, and having isolated intercourse with other unmarried men, both in Sweden and on a ship en route to Australia); Siniscalchi v. Thomas, 195 F. 701 (6th Cir. 1912) (conviction of rape in Italy); United States ex rel. Huber v. Sibray, 178 F. 144 (C.C.Pa. 1910), rev’d on other grounds, 185 F. 401 (3d Cir. 1910) (adultery committed in Austria); Forbes v. Brownell, 149 F.Supp. 848 (D.D.C. 1957) (bigamy in Canada); United States ex rel. Cumberbatch v. Shaughnessy, 117 F.Supp. 152 (D.N.Y. 1953) (false statement before United States consular officer in Trinidad); United States ex rel. Teper v. Miller, 87 F.Supp. 285 (D.N.Y. 1949) (noncitizen’s conviction in England of “stealing a fur” from his wife); United States ex rel. Ciarello v. Reimer, 32 F.Supp. 797 (D.N.Y. 1940) (assault and battery in Italy); United States ex rel. Chartrand v. Karnuth, 31 F.Supp. 799 (D.N.Y. 1940) (conviction in Canada of theft of shoes valued at $12); United States ex rel. Schreiber v. Reimer, 19 F.Supp. 719 (D.N.Y. 1937) (embezzlement committed in Belgium); Matter of Katsanis, 14 I. & N. Dec. 266 (BIA 1973); Matter of Awaijane, 14 I. & N. Dec. 117 (BIA 1972); Matter of M, 9 I. & N. Dec. 132 (1960) (swindling, forgery, and “violation of domicile” in Italy); Matter of D, 4 I. & N. Dec. 149 (BIA 1950) (attempted suicide); Matter of M, 2 I. & N. Dec. 686 (BIA 1946) (Canadian conviction for “joy riding”).

[169] Matter of Soleimani, 20 I. & N. Dec. 99 (BIA 1989); but see Sadeghi v. INS, 40 F.3d 1139, 1143 (10th Cir. 1994).

[170] United States ex rel. McKenzie v. Savoretti, 200 F.2d 546 (5th Cir. 1952).

[171] De Lucia v. Flagg, 297 F.2d 58 (7th Cir. 1961), cert. denied, 369 U.S. 837, 82 S.Ct. 867 (1962).

[172] Vidal y Planas v. Landon, 104 F.Supp. 384 (S.D.Cal. 1952).

[173] Mercer v. Lence, 96 F.2d 122 (10th Cir.), cert. denied, 305 U.S. 611, 59 S.Ct. 69 (1938).

Other

SAFE HAVEN - STATE REHABILITATIVE RELIEF - PRIOR FOREIGN CONVICTION DOES NOT DISQUALIFY DEFENDANT FROM FFOA TREATMENT
The Federal First Offender Act, 18 U.S.C. 3607(a)(1), does not permit an expungement if the defendant has prior to the commission of the current offense suffered a conviction under "Federal or State" law. This provision does not include foreign convictions as a disqualification for this relief.