Aggravated Felonies

In determining whether a foreign conviction triggers a ground of removal, where foreign laws define crimes in terms unlike those found in similar offenses under United States law,[220] the immigration court may consider matters beyond the statute or conviction record.[221]

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 of conviction 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.[222]

[220] The foreign conviction must be for conduct that constitutes a crime under United States Law.  See § 3.26(A), supra.

[221] 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) (Italian conviction for swindling and forgery involved criminal intent; violation of domicile did not; independent study made of conviction records and statutes); 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).

[222] 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).