Criminal Defense of Immigrants

(C)  Inadmissibility.  The minimum-conduct test clearly applies when the government bears the burden of showing removability.[151]  The test also applies, however, where the noncitizen bears the initial burden.  The noncitizen may bear the burden when charged with inadmissibility, or when applying for relief, [152] to show that s/he was not convicted under a set of elements that categorically triggers a ground of removal that renders the noncitizen inadmissible or ineligible for relief.  However, once the court has identified a single set of elements as the offense of the conviction, the conviction cannot be found to trigger removal, if the conviction fails the minimum conduct test, regardless of who bears the burden.[153]

[151] See Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir. May 27, 2003) (Arizona conviction of aggravated driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or drugs in violation of Arizona Revised Statutes § § 28-692(A)(1) and 28-697(A)(1), did not constitute crime of moral turpitude, since statute was divisible because one may be convicted under it for sitting in one’s own car in one’s own driveway with the key in the ignition and a bottle of beer in one’s hand, and the record of conviction did not establish that the defendant was convicted of violating the CMT portion of the statute), amended opinion on denial of rehearing, 343 F.3d 1075 (9th Cir. Sept. 11, 2003), overruling Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA Dec. 21, 1999); Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992) (Washington state conviction of third-degree assault is not a crime involving moral turpitude); Matter of Espinosa, 10 I. & N. Dec. 98 (BIA 1962) (false statement, not deemed fraudulent).

[152] For example, when a noncitizen charged with inadmissibility is seeking a waiver under INA § 212(h), 8 U.S.C. § 1182(h).  See § 18.6, infra.

[153] See Matter of LVC, 22 I. & N. Dec. 594, 603 (BIA 1999) (en banc) (“[W]hen the statute under which an alien is convicted includes some crimes which may, and some which may not, involve moral turpitude, an alien is not excludable or deportable on moral turpitude grounds unless the record of conviction itself demonstrates that the particular offense involved moral turpitude.”) (emphasis supplied); Matter of R, 2 I. & N. Dec. 819 (BIA Jan. 27, 1944); Matter of T, 2 I. & N. Dec. 22, 23 (BIA Jan. 27, 1944) (“If the crime as defined does not necessarily involve moral turpitude, the alien cannot be excluded because in the particular instance his conduct was immoral.”).  Cf. Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376 (1948) (all doubts to be resolved in favor of the noncitizen).  See § 16.38, infra.