Safe Havens

The general rule is that the facts of the offense are irrelevant to the decision whether a given conviction falls within a ground of deportation.  The individual facts of the case are not considered when determining whether a conviction is a crime of moral turpitude.[10]   Judge Learned Hand described this principle:

Neither the immigration officials, nor we, may consider the circumstances under which the crime was in fact committed.  When by its definition it does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral. Conversely, when it does, no evidence is competent that he was in fact blameless.[11]  

This rule originated as a matter of practical administrative convenience, on the basis that it would be extremely difficult and time consuming for the immigration courts to examine the factual context of every conviction sustained by a noncitizen to see whether moral turpitude was or was not present in the underlying factual circumstances of the particular crime committed.[12]  The rule therefore relieves them of a heavy fact-finding burden, and prevents miscarriages of justice in some instances.  Most circuits therefore established the rule that the elements of the crime must necessarily involve moral turpitude under all possible sets of circumstances before the noncitizen could be deported.[13] 

            There are other ways, however, in which the facts of the case do matter.   An immigration judge or court may be profoundly affected by the facts of the case, and form an opinion — favorable or not — of the client that alters the outcome.  It is therefore very important always to present the favorable facts of the case and equities of the client as litigation themes, while arguing — correctly — that the facts of the case are irrelevant when the DHS attempts to poison the decision-maker with the grisly facts of the crime.

[10] See, e.g., Velez-Lozano v. INS, 150 App. D.C. 214, 463 F.2d 1305 (D.C. Cir. 1972);

Guerrero de Nodahl v. INS, 407 F.2d 1405 (9th Cir. 1969); Rassano v. INS, 377 F.2d 971 (7th Cir. 1966); Burr v. INS, 350 F.2d 87 (9th Cir. 1965), cert. den., 383 U.S. 915, 86 S.Ct. 905 (1966); Wadman v. INS, 329 F.2d 812 (9th Cir. 1964); Giammario v. Hurney, 311 F.2d 285 (3d Cir. 1962); Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962); De Lucia v. Flagg, 297 F.2d 58 (7th Cir. 1961), cert. den., 369 U.S. 837, 82 S.Ct. 867 (1962); United States ex rel. Sollazzo v. Esperdy, 285 F.2d 341 (2d Cir.), cert. den., 366 U.S. 905, 81 S.Ct. 1049 (1961); Bisaillon v. Hogan, 257 F.2d 435 (9th Cir.), cert. den. sub nom. Bisaillon v. Sureck, 358 U.S. 872, 79 S.Ct. 112 (1958); Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir.), cert. den., 355 U.S. 892, 78 S.Ct. 265 (1957); Ablett v. Brownell, 240 F.2d 625, 99 App. D.C. 387 (D.C. Cir. 1957); United States ex rel. Giglio v. Neelly, 208 F.2d 337 (7th Cir. 1953); United States ex rel. McKenzie v. Savoretti, 200 F.2d 546 (5th Cir. 1952); Matter of Pichardo, 21 I. & N. Dec. 330 (BIA 1996); Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989); Matter of Goodalle, 12 I. & N. Dec. 106 (BIA 1967); Matter of Abi-Rached, 10 I. & N. Dec. 551 (BIA 1964); Matter of W, 5 I. & N. Dec. 239 (BIA 1953).

[11] United States ex rel. Robinson v. Day, 51 F.2d 1022, 1022-23 (2d Cir. 1931) (citations omitted).  See also Okoro v. INS, 125 F.3d 920 (5th Cir. 1997); Wadman v. INS, 329 F.2d 812 (9th Cir. 1964).

[12] The court determining whether a conviction involves moral turpitude is not free to go behind the judgment of the criminal court to re-determine the guilt or innocence of the noncitizen.  Giammario v. Hurney, 311 F.2d 285 (3d Cir. 1962) (court refused to look behind a noncitizen’s plea of guilty to Australia larceny charges to consider whether he actually committed the crime of which he was convicted); United States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939); United States ex rel. Meyer v. Day, 54 F.2d 336 (2d Cir. 1931); Ng Sui Wing v. United States, 46 F.2d 755 (7th Cir. 1931); Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929); Zgodda v. Holland, 184 F.Supp. 847 (D. Pa. 1960); United States ex rel. Amato v. Commissioner of Immigration, 18 F.Supp. 480 (D.N.Y. 1937).

[13] Marciano v. INS, 450 F.2d 1022, 23 A.L.R. Fed. 466 (8th Cir. 1971), cert. den., 405 U.S. 997, 92 S.Ct. 1260 (1972) (dissenting opinion).  See Pino v. Nicolls, 215 F.2d 237 (1st Cir. 1954), rev’d on other grounds, Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576.  (“If the crime in its general nature is one which in common usage would be classified as a crime involving moral turpitude, neither the administrative officials in a deportation proceeding nor the courts on review of administrative action are under the oppressive burden of taking and considering evidence of the circumstances of a particular offense so as to determine whether there were extenuating factors which might relieve the offender of the stigma of moral obliquity.”).