Criminal Defense of Immigrants

(H)  Plea to a Lesser Offense.  If the defendant pleaded guilty plea to a lesser crime than that charged in the indictment, the immigration court will assess moral turpitude on the basis of the lesser crime to which the guilty plea was entered, rather than the original charge.[386]

Unfortunately, a recent BIA decision seems to state the contrary:

In this case, we find that section 125.20 of the New York Penal Law is a divisible statute . . . .  Therefore, without referring to the conviction record, we are unable to determine whether the respondent was convicted of a removable offense. Although the conviction record does not specify the subsection under which the respondent was convicted, it does indicate that he was initially charged with murder in the second degree under section 125.25(1)of the New York Penal Law, because “with intent to cause the death of [his victim, he] caused [her] death . . . by stabbing her with a sharp instrument.” Based on our examination of the record of conviction, we conclude that the respondent was convicted under either subsection 1 or 2 of section 125.20, which define lesser included offenses to the crime of second-degree murder. [387]

Arguably this decision has been overruled by Shepard.[388]

[386] United States v. Turner, 349 F.3d 833, 836 (5th Cir. 2003) (refusing to consider charging document in order to determine whether prior conviction was a crime of violence under U.S.S.G. §   4B1.2(a)(2), since defendant had pleaded guilty to a lesser offense; “a district court may not rely on a charging document without first establishing that the crime charged was the same crime for which the defendant was convicted.”), quoting United States v. Spell, 44 F.3d 936, 940 (11th Cir. 1995); Valenti v. Karmuth, 1 F.Supp. 370 (N.D.N.Y. 1932); Matter of Ghunaim, 15 I. & N. Dec. 269 (BIA 1975); Matter of M, 5 I. & N. Dec. 642 (BIA 1954); Matter of K, 4 I. & N. Dec. 490 (BIA 1951); Matter of VT, 2 I. & N. Dec. 213, 214-15 (BIA 1944).  “He was convicted of first degree manslaughter, a lesser included offense. Therefore, we must disregard those allegations contained in the indictment which are pertinent only to the greater crime but not to the lesser.  Matter of Beato, 10 I. & N. Dec. 730, 732-3, 735 (S.I.O.; BIA 1964). See Matter of W, 4 I. & N. Dec. 241, 245 (BIA 1951).” Matter of Ghunaim, 15 I. & N. Dec. 269, 271 (BIA 1975).

[387] Matter of Vargas-Sarmiento, 23 I. & N. Dec. 651, 654-655 (BIA 2004).

[388] Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254 (Mar. 7, 2005).