Crimes of Moral Turpitude

Chapter

Summary Table of Contents

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Subject Matter Index

Index References are to section numbers in text

ABC Benefits see Asylum

Abandonment of Minor Child 9.94

Abduction see Kidnapping

Abortion 9.11, 9.16, 9.85

Accessory Liability 9.2–9.5

After the Fact 8.24(A), 9.4, 9.21

Before the Fact (Aiding and Abetting) 8.24(B), 9.3, 9.27, 9.37

Failure to Prevent Commission of a Crime 9.5

Harboring Fugitives 9.35

Misprision of a Felony 8.24(C), 9.5

Accomplice Liability see Accessory Liability

Adjustment of Status

After Grant of Asylum 3.30(C)

As an Admission 5.6

Defined 3.2, 5.6

Effect of CMT Convictions

One CMT Conviction 3.2, 3.44

Two or More CMT Convictions 3.2, 3.44

Generally 3.2

Waivers 3.2, 3.44(D)

See also Waivers

Admission of a CMT 3.14, 4.4

Avoiding 4.4(D)

Conviction 4.4(B)

Effect on Admissibility 4.4, App. C[4]

Effect on Deportability 4.4

Juvenile Acts 2.9

Limitations on Use 4.4(C)

Relationship to Definition of Conviction 4.4, 4.5

Requirements 4.4(A)

Admission to U.S.

Adjustment 3.2, 5.6

“After-Admission” 5.5, 5.13

Applicable Law 5.5(E)

Burden of Proof 5.7

Date of 4.5(F), 5.5

Defined 5.3–5.7

Detention 3.11(C)

Effect of Inadmissibility 4.8

Exceptions 5.5(D)

Illegal Entrants 5.5(A)

Physical Presence 5.5(B)

Relief from Removal 2.2, 5.5(C)

Returning Legal Permanent Residents 5.7

Adultery 9.90, 9.98

Advice of Immigration Consequences 10.8, 10.11

Aggravated Felonies 3.1, 3.3, 3.4, 3.11, 3.12(C), 3.16, 3.43(D), 3.44, 3.46, 9.46, 9.71

Aiding and Abetting see Accessory Liability

Alien Smuggling see Immigration Crimes

Alienage 2.2

Alford (People v. West) Plea 2.4(A)

Amnesty see Legalization

Anticipatory Offenses 9.83

Appeal

Criminal

Direct Appeal 2.3, 2.12(C), 10.2, 10.5, 10.10(E), 10.31

Finality 2.12

Late Appeal 2.12(D), 4.3

Immigration

See also Jurisdiction

Bar 3.18(B)

Convention Against Torture Claim 3.8

Detention and DHS Appeal 3.11(B)

Voluntary Departure 3.40–3.42

“Arriving Aliens” 3.11(C), 5.7

Arson 9.49

Assault 8.7, 9.13–9.17

Aggravated Assault 9.15

Assault (cont’d)

Domestic Assault 8.7, 9.15, 9.93

Indecent Assault 9.15

Sexual Assault 9.17, 9.104

Simple Assault 9.14

Upon Family 8.7, 9.15, 9.93

Upon Law Enforcement 9.15, 9.39

With Deadly or Dangerous Weapon 9.15, 9.75

With Intent to Commit a CMT 9.16, 9.85

With Intent to Inflict Injury 8.7, 9.15

With Intent to Kill 9.16

With Reckless Intent 8.15, 9.15

Asylum 3.29–3.31, 3.46

See also Political Offense Exception; Withholding of Removal; Convention Against Torture

ABC Benefits 3.31

Effect of CMT Conviction 3.30

Effective Date 3.30(B)

Particularly Serious Crimes 3.30(A)

Security Issues 3.30(D)

Waiver 3.30(C)

Attempt 9.81, see also 2.10, 4.1(B), 5.10, 8.15(B), 8.24, 9.12, 9.46, 9.51(B), 9.53, 9.55, 9.62, 9.71

Attempted Suicide 9.12

Auto Theft see Theft

Bad Checks 9.55, 9.57

See also Fraud

Bastardy 9.90

Battery

See also Assault

Domestic 8.7, 9.93

Generally 9.17, 9.105

Bigamy 9.91, App. C[21]

Blackmail see Extortion

Bond 3.11

Brandishing a Firearm see Firearms Offenses

Breaking and Entering 9.50

See also Burglary

Bribery 9.31

Burden of Proof

Criminal 10.3

Deportation 5.1, 5.14(B), 10.7

Detention 3.11(B)

Divisible Statute Analysis 6.2, 7.1–7.4, 7.6, 9.24, 9.51

Fact of Conviction 7.7

Foreign Law 2.10(B)

Inadmissibility

“Arriving Alien” 5.7

Generally 4.1(C)

Minimum Conduct 6.6(B)

Relief see generally Chapter 3

Returning Lawful Permanent Residents 5.7

Minimum Conduct 6.6

Relief 3.1(A)

Discretionary Findings 3.1(C)

Uncharged Convictions 3.1(B)

Single Scheme 5.14(B)

Vacated Conviction 10.4(B)

Burglary 9.51

Attempted 9.51(B)

Intent to Commit Non-CMT 9.85

Possession of Burglary Tools 9.83

Cancellation of Removal

See also Suspension of Deportation

Generally 3.3, 4.8

Effect of CMT Conviction 3.3–3.5

Judicial Review 3.18

Lawful Permanent Residents 3.4

NACARA 3.22

Non-Lawful Permanent Residents 3.5, 3.14

Stop-Time Rule 3.6, 3.35

Violence Against Women Act 3.37(B)

Carnal Knowledge or Abuse 9.98, 9.105

Carrying a Concealed Weapon see Firearms Offenses

Categorical Analysis to Determine if CMT see Crime of Moral Turpitude, Classification As

Charging Papers see Record of Conviction

Check Offenses see Bad Checks

Children, Offenses Committed Against

Child Abandonment 9.94

Child Abuse 9.92, 9.97

Contributing to the Delinquency of a Minor 9.97

Nonsupport 9.94

Sexual Offenses see Sexual Offenses

Citizenship

See also Naturalization

Derivative Citizenship 2.2

Civil Dispositions 2.14(C)

Conjunctive Charge see Divisibility

Analysis

Conjunctive Phrasing 7.4(B)

Collateral Attack

On JRAD 10.19

On Order Vacating Conviction 10.7

Conspiracy

Generally 4.1(B), 8.24(D), 9.82

To Defraud the U.S. 9.37, 9.46, 9.67, 9.82

Consular Processing 3.2, 3.7, 3.31, 3.44, 4.7, 8.2(B), 9.1(A)

Contempt 9.32

Contributing to the Delinquency of a Minor see Children – Offenses Against; Sexual Offenses

Controlled Substance Offenses 3.16(A),

9.1, 9.6–9.9, App. C[2]

Admission App. C[5]

See also Admission of a CMT

Distribution 9.9

Drug Abuse and Addiction 3.45(A), App. C[14]

Expungement see Expungement

Facilitation of Sale 9.9

Family Member of Trafficker App. C[7]

Importation 9.8

Particularly Serious Crime 3.46

Possession and Lesser Offenses 9.7

Prescription Offenses 9.8

Regulatory Offenses 9.8

Sale 9.9

Solicitation 9.7, 9.84

Trafficking Offenses 9.9, App. C[6]

Transportation 9.9

Convention Against Torture 3.8

Conviction 2.2-2.13

Admissions of 4.4(B)

Charges 7.11(A), 7.4(B)

Constitutional Safeguards 2.4

Court Martial 2.11

Definition 2.4, 10.27

Effect of New Definition 10.5–10.6

Effective Date 2.4

Dismissal 2.5

Effective Order Vacating 10.1–10.10

As Legally Invalid 10.2, 10.4, 10.6

Collateral Attack by DHS 10.2, 10.4

Full Faith and Credit 10.7

Expungement see Expungement

Finality

Deferred Adjudication 2.12(E)

Direct Appeal 2.12(C)

Generally 2.12(A)

Late Appeal 2.12(D)

Post-Conviction Relief 2.12(F), 10.4

Post-1996 2.12(B)

Sentence 2.4(B), 2.12(C)

In Absentia 2.8

Inadmissibility 4.3

Infractions 2.4(A)

Juvenile Proceedings 2.9

Multiple Convictions 3.16(B)

Proof of Conviction 2.13, 7.7(B)

State Rehabilitative Relief 10.11

Conviction (cont’d)

Vacating 2.3, 10.2

Violations 2.4(A)

Uncharged, Use of 3.1(B)

Counsel, Effectiveness see Post-Conviction Relief

Counterfeiting 9.33

Court Martial see Military Convictions

Credit Card Offenses see Fraud

Crewmen 3.3

Crime, Requirement of 2.14, 8.19

Civil Dispositions 2.14(C)

State Label 2.14(B)

Crime of Moral Turpitude, Classification as, Categorical Analysis 6.1–6.6

Comparison of Statute of Conviction and Removal Ground 6.2, 6.4

Divisible Statutes 7.1–7.9

Effect of State Law Classification 6.5(B)

Elements of the Offense 6.2

Judicial Decisions 6.5

Statutory 6.4

Minimum Conduct Necessary 6.6, 7.2

Reasoning from One Decision to Another 9.1(A)

Record of Conviction see Record of Conviction

Relevance of the Facts of the Offense 6.2, 7.7-7.9

Resort to Record of Conviction 7.7–7.12

Rule of Lenity 6.4, 6.7, 7.4(B)

Subsequent Offenses 8.2(A)

Crime of Moral Turpitude, Definition

Categories of 9.1(D)

Consular Processing 8.2(B)

Deference to BIA 8.2(G)

Foreign Offenses 8.2(H), 8.21(B)

See also Foreign Convictions

Generally 8.2

Gravity of the Offense 8.20

Intent see Intent

Malum In Se vs. Malum Prohibitum 8.2(A), 8.2(C), 8.10, 8.22(C)

Ninth Circuit 8.2(E)

Non-Immigration Contexts 8.2(F)

Prior Convictions 8.2(A), 8.2(B)

Regulatory Offenses see Regulatory Offenses

Requirement of a Crime see Crime, Requirement

Seventh Circuit 8.2(D)

Significance of Contemporary Standards 8.21

Target Offenses see Target Offenses

Vagueness Challenge 8.2(C)

Crime of Violence

Asylum see Particularly Serious Crime

Juvenile Proceedings 2.9

State Law Classification 6.5(B)

212(h) Waiver 3.44

Criminal Libel 9.20

Damage to Property 9.58

Deferred Action Status 3.9

Deferred Adjudication 2.6, 2.12(E), 10.11

Deferred Enforced Status (DED) 3.36

Deferred Entry of Judgment see Diversion

Definition, Crime of Moral Turpitude see Crime of Moral Turpitude, Definition

Delinquency Findings see Juveniles

Deportation on the Basis of One CMT

Conviction

Elements of Ground of Deportation

5.2

“After Admission” 2.10(D), 5.3-5.7, see also Admission

Date of Commission 5.11

5-Year Rule 5.11(A)

No Contest Plea 5.11(B)

Re-Starting the Clock 5.5(B)

S-Visa 5.2(C), 5.11(C)

Deportation on the Basis of One CMT

Conviction (cont’d)

No-Contest Plea 5.11(B)

Sentence Requirements

AEDPA Version, from April 24, 1996, to March 31, 1997 5.10

Current Law, after April 1, 1997 5.9

Effect of Vacating or Reducing the Sentence 5.9(D)

Effect of Vacating Prior Conviction 5.9(D)

Felony/Misdemeanor 5.9(B)

Pre-AEDPA Version, before April 24, 1996 5.10

Eligibility for Relief see generally Chapter 3

Deportation on the Basis of Two or More

CMT Convictions 5.12–5.15

Elements of Ground of Deportation

5.13

“After Admission” 2.10(D), 5.13, see also 5.3–5.7

Single Scheme Exception 3.10, 3.11, 3.12, 3.16(B), 3.18, 3.43(C), 5.14

Use of CMT Previously Waived under INA § 212(c) 5.15, see also 3.43

Derivative Citizenship 2.2

Desertion see Military Offenses

Detention 3.11

See also Expedited Removal

“Arriving Aliens” 3.11(C)

Mandatory 3.11(A)

Noncitizens with Final Order of Removal 3.11(B)

Discretionary Relief 3.1, 3.18(B), see generally Chapter 3

Disjunctive Phrasing 7.4(A)

Dismissed Counts, See Record of Conviction

Disorderly Conduct 9.34

Diversion 2.6, 4.3(B)

Divisibility Analysis 7.1–7.12

See also Categorical Analysis

Court Differences 6.2(B), 7.1

Conjunctive Charges 7.4(B)

Discrete Subsections 7.3

Disjunctive Statutes 7.4

Elements vs. Facts 6.2, 7.6, 7.8, 7.9

Existence of Conviction 7.7(B)

Fact of Conviction 7.7(A)

Generally 7.1

Multiple Means 7.6(B)

Nature of Offense 7.7(A)

Record of Conviction 7.8–7.12

See also Record of Conviction

When it Applies 7.2–7.5

When it Does Not Apply 7.6

Domestic Battery 8.7, 9.93

See also Assault

Domestic Violence

As Crime of Moral Turpitude 3.16, 8.7, 9.92–9.93

Violence Against Women Act 3.27, 3.37

Domicile 3.43

See also Physical Presence

Doubts Favor the Noncitizen see Rule of Lenity

Driving Under the Influence see Motor Vehicle Offenses

Drug Offenses see Controlled Substance Offenses

Drunk Driving see Motor Vehicle Offenses

Effective Assistance of Counsel see Post-Conviction Relief

Effective Dates

Admission of CMT 4.4

AEDPA 3.4, 3.11(C), 3.18, 3.43, 10.26

Asylum 3.30(B)

Effective Dates (cont’d)

Cancellation 3.6

Conviction Definition 10.3

Family Unity 3.13

Federal Juvenile Delinquency Act 2.9

Finality of Conviction 2.12(B)

JRAD Repeal 10.18

Judicial Review Restrictions 3.18

INA § 212(c) 3.43

INA § 212(h) Regulation on Crimes of Violence 3.44

IIRAIRA 3.4, 3.43

Mandatory Detention 3.11(A)

Petty Offense Exception 4.5(E)

Reinstatement 3.34

Single CMT Ground of Deportation 5.10

Special Agricultural Workers (SAW) Program 3.21

Suspension of Deportation 3.35(E)

VAWA 3.26, 3.37

Elements of the Offense, Role in Determining Whether CMT

See also Categorical Analysis

Judicially Created Elements 6.5

Divisibility Analysis 7.1-7.9

Record of Conviction 7.10-7.12

Reference to State Law 6.4, 6.5(B)

Statutory Elements 6.4, 7.9

Versus Facts 7.9

Embezzlement 9.53, 9.55

Endangerment 9.18

See also Children, Offenses Committed Against

Entry, Into U.S.

see Admission to U.S.

Escape 9.35

Evidence

Police Reports 7.12

Record of Conviction 7.10

Expedited Removal 3.12

Aggravated Felons 3.12(C)

Illegal Entrant 3.12(B)

Judicial Orders of Removal 3.12(D)

Misrepresentation 3.12(A)

Noncitizens in Prison 3.12(E)

Expungement

Controlled Substance Offenses 2.6, 4.3, 10.11

Effect on CMT Conviction 2.10(E), 3.1, 3.14, 3.23, 3.30, 4.3–4.4, 10.5, 10.7, 10.11(C)

Foreign 2.10(E)

Extortion 9.36, 9.54

Facilitation

Controlled Substance Offenses 9.9

Facts of the Offense, Role in Determining Whether CMT 6.2(B), 7.7-7.9

Factual Basis 7.9(D)

Failure to Prevent a Crime 9.5

False Pretenses 9.37, 9.55, 9.62

False Statement Offenses 9.64–9.70

For U.S. Government Benefits 9.67

Generally 9.65

Of U.S. Citizenship 9.68

On Tax Returns 9.46

Perjury see Perjury

To U.S. Government Official 9.66

Family Unity 3.13, 3.25, 3.27

Family, Offenses Against

Adultery 9.90

Bastardy 9.90

Bigamy 9.91

Child Abuse 9.92

Domestic Battery 9.93

Nonsupport 9.94

Sexual Offenses 9.95

Federal Courts see Jurisdiction

Federal Juvenile Delinquency Act see Juvenile Proceedings

Felony Offense 2.9, 2.13, 4.5(D), 5.9(B), 8.20 10.24

Reduction to Misdemeanor 10.24

Finality of Conviction see Conviction

Financial Crimes

See also Fraud

Financial Crimes (cont’d)

Bankruptcy Offenses 9.36

Counterfeiting 9.33

Currency Violations 9.36

Embezzlement 9.53, 9.55

Securities Fraud 9.36, 9.55

Structuring Financial Transactions 9.36

Firearms Offenses 9.71–9.75

Brandishing a Weapon 9.72

Carrying a Concealed Weapon 9.73

Possession of a Firearm 9.74

Use of Firearms 9.75

Fondling 9.97

Foreign Convictions

Burden 2.10(B)

By Juveniles 2.10(G)

Crime in United States 2.10(A), 2.14, 8.2(H)

Deportation 2.10(D)

Due Process 2.10(C)

Finality 2.12

Military 2.10(H), 2.11(B)

Not Limited to Record of Conviction 7.9(E)

Vacatur 10.7(B)

Foreign Expungements 2.10(E)

Foreign JRADs 10.13(E)

Foreign Law 2.10, 2.14, 7.11, 8.2

Foreign Pardons 2.10(F), 7.12(D), 10.23

Forgery 9.69

Fornication 9.98, 9.103

Full Faith and Credit of State Court Orders 10.7, 10.19, 10.27

Fraud

Against the Government 6.2(B), 8.6(B), 9.37

Against Revenue 9.37, 9.55

Bank Fraud 9.55

Check Fraud 9.55, 9.57

Commercial Documents 9.55

Conspiracy to Defraud 9.37

Credit Card Fraud 9.55, 9.57

Destruction of Own Property 9.55

False Pretenses 9.55

Fare Evasion 9.55

Immigration Fraud 9.37, 9.79

Impersonation 9.55

Intent to Defraud 8.6(B), 9.37

Mail Fraud 9.41, 9.55

Passing Bad Checks 9.57

Passport Fraud 9.37, 9.79

Securities Fraud 9.36, 9.37, 9.55

Student Loan Fraud 9.37, 9.55

Tax Fraud 9.46

Telephone Fraud 9.37

Unemployment Fraud 9.55

Waivers 3.43, 3.44, 3.45(B), 3.45(D)

Welfare Fraud 9.37

Gambling 9.38

General Intent see Intent

Good Moral Character

Cancellation of Removal 3.5

CMT 3.1, 3.14, 4.1(D)

Generally 3.14

NACARA 3.22

Naturalization 3.23(A)

Petty Offense Exception 4.5

Registry 3.33

State Rehabilitative Relief 10.11

Suspension of Deportation 3.35

Vacated Conviction 10.4

VAWA 3.37

Voluntary Departure 3.38, 3.40, 3.41

Grand Theft see Theft

Great Bodily Harm 8.7

See also Assault

Gross Negligence see Intent

Guilty Plea

Alford (People v. West) Plea 2.4, 4.4(C)

As Charged 7.9(B)

As Part of the Record of Conviction 7.11(E)

Insanity 2.5

Guilty Plea (cont’d)

No Contest 2.4, 4.4(C)

Not Admission of Facts 4.4(C)

To Lesser Offense 7.12(D)

Withdrawal of Plea see Post-Conviction Relief

Habeas Corpus 2.12, 3.8, 3.11, 3.18(A), 10.8, 10.10, 10.11

See also Jurisdiction

Harboring Fugitives 9.35, 9.4

Homicide see Murder

Homosexual Conduct 9.100, 9.34

Illegal Re-entry see Immigration Crimes

Immigration Crimes 9.76–9.79

False Claim of U.S. Citizenship 9.68, App. C[15]

False Immigration Documents 3.45(B), 3.45(D), 9.37, 9.79

False Statements to Immigration Officials 3.12(A), 9.37, 9.66, 9.70, App. C[16]

Illegal Re-entry 3.12(B), 3.34, 3.42, 9.78

Immigrant Smuggling 3.2, 3.18, 3.45(C), 3.46, 9.77, App. C[18]

Passport Fraud or Misuse 3.45(B), 3.45(D), 9.37, 9.70

Visa Document Fraud App. C[17]

See also Fraud

Impeachment with CMT Conviction 6.2, 8.2(F)

Impersonating Law Enforcement see Police

Impersonation 9.40, 9.55

INA § 212(h) see Waivers

INA § 212(c) see Waivers

Inadmissibility

Admission Doctrine 4.1, 5.3–5.7

Admission of a CMT 4.4

After Removal 3.17

Attempted Conspiracy 4.1(B)

Burden of Proof 4.1(C), 6.6(D)

Deportable but not Inadmissible 3.44, 4.1(E)

Exceptions

Petty Offense Exception 4.2, 4.5

Political Offense Exception 4.7

Youthful Offender Exception 4.6

Good Moral Character see Good Moral Character

Grounds of Inadmissibility Relating to

CMTs

Admission 4.4

Conviction 4.3

Conviction of One or More CMTs 4.1–4.4, App. C[1]

Elements 4.2

Immigration Consequences 4.8, see generally Chapter 3

Non-CMT Criminal Grounds 3.16

State Rehabilitative Relief 4.3(B)

Waivers see Waivers

Incest 9.95

Inchoate Crimes see Accessory Liability, Attempt, Conspiracy, Misprision, Solicitation

Income Tax Crimes see Tax Evasion

Indecency 9.98, 9.99, 9.100

Indecent Assault see Assault

Indecent Liberties 9.97

Ineffective Assistance of Counsel see Post-Conviction Relief

Infractions 2.4(A)

Insanity 2.5

Intent, as Required Element for CMT Classification

Evil Intent 8.3

Generally 8.3, 8.9

Differing Definitions 8.18, 9.3(C)

General Intent 8.11

Gross Negligence 8.14

Knowledge 8.17

Intent, as Required Element for CMT

Classification (cont’d)

Malice 8.16

Negligence 8.13

Recklessness 8.15(A)

Attempted 8.15(B)

Strict Liability 8.10

Willfulness 8.17

Intent to Break Law 8.12

Intent to Commit a CMT 7.5(A), 8.23, 9.16, 9.83, 9.85

Intent to Commit a Felony 9.50–9.51, 9.85

Intent to Commit Theft 7.5, 8.5, 8.23, 9.50–9.51, 9.81, 9.85

Intent to Defraud 8.6, 9.65, 9.66

Intent to Inflict Bodily Harm 8.7

Lewd Intent 8.8

Interference with Law Enforcement 9.39

Intimidation see Threats

Involuntary Manslaughter see Manslaughter

J/K

Joyriding 9.62, 9.88

Judicial Recommendation Against Deportation (JRAD) 10.12–10.20

Collateral Attack on 10.19

Continuing Validity 10.15

Effective Date of Repeal 10.18

Ex Post Facto Argument 10.18(B)

Foreign JRADs 10.13(E)

Immigration Effect of 10.13, 10.15

Ineffective Assistance in Failing to Request 10.16

Requirements 10.14

Upon Vacating Conviction 10.17

Judicial Review see Jurisdiction

Judicial Orders of Removal 3.12(D)

Jurisdiction

Criminal Court, Lacking in 2.7, 10.7, 10.9

Criminal Grounds Bar 3.18(B)

Convention Against Torture 3.8

Discretionary Issues Bar 3.18(B)

Federal Court of Appeals–Petition for Review of Immigration Decision 3.18

Habeas Corpus (28 U.S.C. § 2241) 2.12, 3.8, 3.11, 3.18(A), 10.1, 10.2, 10.8, 10.11

JRAD see Judicial Recommendation Against Deportation

Pardon 10.21

Reinstatement 3.34

Voluntary Departure 3.42

Jury Trials 3.43(B), 4.5, 7.11(D), 7.12(D)

Juveniles 2.9

Definition of Conviction 2.9, 4.6

Family Unity 3.13

Federal Juvenile Delinquency Act 2.9(B)

Foreign Crimes 2.10(G)

Inadmissibility 4.4

Transfer into Adult Court 2.9

Youthful Offender Exception 4.6(B)

Waiver 3.45(F)

Kidnapping 9.19

Knowledge see Intent

Label, State

Criminal 6.5(B)

As CMT 8.2(F)

Level 2.14(B)

Larceny see Theft

Lasciviousness see Lewdness

Lawful Permanent Resident

Adjustment of Status as an Admission 5.6

Cancellation of Removal 3.4

Effect of Inadmissibility on Returning LPRs Seeking Admission 5.7

INA § 212(h) Waiver 3.44(B)

INA § 2.12(c) Waiver 3.43

Legalization 3.19

Legalization (cont’d)

Amnesty 3.13, 3.20

Special Agricultural Workers (SAW) Program 3.21

Lenity, Rule of see Rule of Lenity

Lesser Included Offenses

As Not Part of the Record of Conviction 7.12(D)

Manslaughter 9.21–9.24

Lewdness 8.8, 9.34, 9.100

Libel 9.20

Liquor Law Violations see Regulatory Offenses

Loan Sharking see Extortion

Loitering 9.34, 9.84, 9.100

Mail Offenses 9.41

Extortion by Mail 9.41

Mail Fraud 9.41, 9.55

Mailing Obscenity 9.41, 9.101

Theft of Mail 9.41, 9.61, 9.62

Threats by Mail 9.41

Malice see Intent

Malicious Mischief see Property Destruction

Malum In Se 8.2, 8.3, 8.22(C)

Malum Prohibitum 8.2, 8.10, 8.22(C)

Mandatory Detention see Detention, Mandatory

Mann Act Violations see Fornication

Manslaughter 9.21–9.24

Generally 9.21

Involuntary 9.23

Reduced from Murder 9.24

Statute not Specifying Voluntary or Involuntary 9.24

Voluntary 9.22

With Deadly Weapon 9.24

With Reckless Intent 9.22, 9.24

Mayhem 9.25

Medical Issues

See also Controlled Substances

Waiver 3.45(A)

Military Convictions 2.11, 9.42

AWOL 9.42(C)

Court Martial 2.11(A)

Foreign Convictions 2.10(H), 2.11(B)

Ineffective Assistance of Counsel 2.11(C)

Pardon 2.11(C)

Selective Service 2.11(C), 9.42(A)

Minimum Conduct 6.2, 6.6, 7.2, 7.3, 7.4, 7.6

Full Range 6.6(B)

Generally 6.6(A)

Inadmissibility 6.6(D)

Possibility of Prosecution 6.6(C)

Misdemeanors 2.9, 2.14, 3.13, 3.20, 3.21, 3.36, 4.5, 5.9(B), 5.10, 5.13

Reduced from Felony 10.24

Misprision of a Felony 9.5

Money Laundering App. C[13], 9.53

Moral Turpitude, Definition see Crime of Moral Turpitude, Definition

Motion to Reopen see Reopen

Motor Vehicle Offenses 9.86–9.88

Driving Under the Influence 9.87

False Driver’s License 9.88

Hit and Run 9.88

Joy Riding 9.62, 9.88

Reckless Driving 9.88

Theft-Related Offenses 9.62

Murder 9.4, 9.26

Multiple Conviction Ground of Inadmissibility 3.16(B), App. C[3]

NACARA 3.3, 3.14, 3.22, 3.31, 3.35,

Narcotics see Controlled Substance Offenses

National Security Offenses see Military Offenses

Nationals of the United States 2.2

Naturalization 3.19, 3.23, 9.37

Effect of Inadmissibility 2.2, 3.23

Naturalization (cont’d)

Effect of Probation or Parole 3.23

Good Moral Character 3.14, 3.23

Relief from Removal 3.23(B)

Nature of Offense see Divisibility Analysis

Negligence see Intent

No-Contest Plea 5.11(B)

Non-Immigrant Visas 3.24–3.27

See also Consular Processing

“J” Visa 3.3

“S” Visa 3.25, 5.9(C), 5.1(C)

“T” Visa 3.26

“U” Visa 3.27

Nonsupport see Children, Offenses Committed Against

Nuisance 9.56

Obscenity 9.101

Obstruction of Justice 9.4, 9.43

One CMT Conviction see generally Chapters 4, 5

P/Q

Pandering 9.102

Pardon 10.21–10.23, 2.11(C)

Draft Evasion 2.11(C)

Effect on CMT Conviction 4.4, 10.21

Foreign Pardons 2.10(F), 7.12(D), 10.23

Requirements 10.21–10.22

Parole (Criminal) 3.14, 3.23

Parole (Immigration) 3.28, 4.5(F), 5.3

Parties to the Crime see Accessory Liability

Particularly Serious Crimes 3.8, 3.13, 3.30(A), 3.36, 3.46

Passing Bad Checks 9.55, 9.57

Passport Offenses see Immigration Crimes

Petition for Review see Jurisdiction

Petty Offense Exception to Inadmissibility 4.5, 4.2, 10.25

Commission of Other CMT Conduct 4.5(B)

Date of Admission 4.5(F)

Effective Date 4.5(E)

Elements 4.5(A)

Immigration Effect of 3.2–3.7, 3.11(A), 3.14, 3.18–3.21, 3.23, 3.33, 3.36, 3.37(A), 3.41, 4.5(G)

Sentence Requirements 4.5(C), 4.5(D), 5.9, 10.24, 10.25(B)

Perjury 9.70

Physical Presence 3.4, 3.5, 3.30, 3.35, 3.41, 3.43,

Plea see Guilty Plea

Police

Impersonating Law Enforcement 9.40

Interference with Law Enforcement 9.39

Obstruction of Justice 9.43

Police Reports Not Part of the Record of Conviction 7.12(B)

Political Offenses

Exception to Inadmissibility 4.7

Political Asylum see Asylum

Pornography see Obscenity

Possession, Drugs see Controlled Substance Offenses

Possession, Firearms see Firearms Offenses

Possession of Item with Intent to Commit CMT 9.85, 9.83

Possession of Stolen Property 9.60

Post-Conviction Relief 10.1–10.32

See also Sentence

Analysis 10.8

Appeal, see Appeal

Collateral Attack on Order Vacating the Conviction 10.7, 10.9

Definition, Effect of 10.5, 10.6

Effective Order Vacating the Conviction 10.2–10.10

Expungement see Expungement

Post-Conviction Relief (cont’d)

Fifth Circuit Exception 10.5(B)

Foreign, see Foreign

Grounds to Vacate 10.10

Affirmative Misadvice 10.8(A), 10.10(G)

Breach of Plea Agreement 10.10(N)

Coercion 10.10(S)

Conflict of Interest 10.10(J)

Essential Element Omitted 10.10(M)

Factual Basis 10.10(L)

Failure to Inform Defendant of Nature of Offense 10.10(H)

Immigration Related 10.8

Affirmative Misadvice 10.8(A)

Failure to Advise 10.8(B)

Failure to Defend 10.8(C)

Failure to Investigate 10.10(B)

Failure to Mitigate 10.8(D)

“No one knew” 10.8(E)

State Advisal Statutes 10.8(F)

Ineffective Assistance of Counsel 10.10(F), 2.11(C)

Insufficient Waivers of Constitutional Rights 10.10(A)

Interpreter Issues 10.10(B)

Mental Incompetence 10.10(I)

Right to Appeal 10.10(E)

Right to Counsel 10.10(D), 10.10(Q)

Sentencing 10.10(P)

Use of Prior Conviction 10.10(C)

Waiver of Counsel 10.10(K), 10.10(R)

Warn of Collateral Consequences 10.10(O)

Immigration Effect 10.3–10.7

Judicial Recommendation Against Deportation see Judicial Recommendation Against Deportation

Jurisdiction of Criminal Court 10.9

Modify or Vacate Sentence see Sentence

Pardon see Pardon

Reduction of Felony to Misdemeanor 10.24

State Rehabilitative Relief 10.11, 10.5

Deferred Adjudication 10.11(A)

Humanitarian Grounds 10.11(B)

State Rehabilitative Statute 10.11(C)

Preparation Crimes 9.37, 9.83

Prison Removal Proceedings see Expedited Record

Private Bills 3.32

Probation

Effect on Naturalization 3.23(A)

Reports, as Not Part of Record of Conviction 7.12(C)

Property Damage or Destruction 9.58

Prosecutorial Discretion 3.9

Prostitution 3.27, 9.47, 9.56, 9.100, 9.102, App. C[8]

Purely Political Offenses see Political Offenses

Racketeering Offenses 9.45

Rape 3.27, 9.15, 9.16, 9.97, 9.103, 9.104, 9.105

Receiving Stolen Property 9.61

Reckless Driving see Motor Vehicle Offenses

Recklessness see Intent

Record of Conviction 6.2(B), 7.10–7.12

Discretionary Findings 3.1(C)

Documents Included 7.11

Bench Trial Findings 7.11(F)

Charge 7.11(A)

Clerk’s Certificate 7.11(F)

Conduct Based Sentence Enhanced 7.11(F)

Factual Basis 7.11(B)

Judgment 7.11(C)

Record of Conviction (cont’d)

Jury Instructions 7.11(F)

Jury Verdict 7.11(D)

Plea 7.11(E)

Sentence 7.11(C)

Statement by Court 7.11(F)

Statements by Defendant 7.11(F)

Statement of Prosecutor 7.11(F)

Documents Not Included 7.12

Charges Against Others 7.12(D)

Clerk’s Certificate 7.12(D)

Codefendant’s Record of Conviction 7.12(D)

Conditions of Probation or Parole 7.12(D)

Criminal History Reports 7.12(D)

Documents Outside the Record of Conviction 6.2(B), 7.8

Dismissed Counts 7.12(A)

Facts Assumed for Criminal Appeal 7.12(D)

Foreign Pardon 7.12(D)

Plea to Lesser Crime 7.12(I)

Police Reports 7.12(B)

Probation and Presentence Reports 7.12(C)

Recidivist Sentence Enhancement 7.12(D)

Statements by Criminal Judge 7.12(D)

Statements in Immigration Court 7.12(D)

Statements of Prosecutor 7.12(D)

Statements by Victims 7.12(D)

Subsequent Offenses 7.12(D)

Elements vs. Facts 7.9

Factual Basis 7.1(D)

Forgein Convictions 7.9(E)

Guilty as Charged 7.9(B)

Rational 7.9(A)

Surplusage 7.9(C), 7.11

Foreign Convictions 7.9(E), 7.12

Limit to 7.8

Nature of Offense 7.7

Use in Determining Whether CMT 7.8–7.9

Re-Entry After Removal after CMT Convictions 3.12(B), 3.17, 3.34, 3.42

Registry 3.33

Regulatory Offenses 8.22, 9.44, 9.8

Rehabilitative Relief see State Rehabilitative Relief

Reinstatement of Removal 3.34

Relief from Removal see generally Chapter 3

See also Waivers

Removal see Deportation or Inadmissibility

Reopen

Criminal Proceedings 10.32

Immigration Proceedings 3.34, 3.42, 3.43(B), 10.17, 10.31

Retroactivity 2.4, 3.13, 3.18, 3.34, 3.35(E), 3.43, 3.46, 3.6(C), 4.5(E), 5.13, 10.18

Returning LPRs Seeking Admission see Lawful Permanent Residents

RICO Offenses 9.45

Riot 9.34

Robbery 9.27

Rule of Lenity 6.7, 10.16(A)

S Visas see Non-Immigrant Visas

Securities Fraud see Fraud and/or Financial Crimes

Selective Service Violations see Military Offenses

Sentence

Appeal 2.12(C)

Date of Conviction 3.43(A), 5.7, 5.11

Definition of “Sentence Imposed” 2.4(B), 5.8

Former Law 5.10

“One Year” 5.9, 5.10

Suspended Sentence 5.10, 5.13

Sentence (cont’d)

Effect of Vacating or Reducing the Sentence 5.9, 10.25

Conviction Definition, Effect of 10.4, 10.27

Five Years 3.16(B), 3.43, 3.46

Grounds to Vacate 10.29

Brady Error 10.29(D)

Breach of Plea Agreement 10.29(L)

Court Reliance on Inaccurate Information 10.29(F), 10.29(I), 10.29(J)

Ineffective Assistance of Counsel 10.29(A)–(C)

Interpreter Issues 10.29(E)

Mechanistic Formulation 10.29(K)

Other Constitutional Violations 10.29(N)

Prosecutorial Misconduct 10.29(G)–(H)

Right to Counsel Violation 10.29(M)

Timely Filed Motion to Vacate 10.29(P)

Vindictiveness 10.29(O)

Most Recent Governs 10.26

Reducing 10.28

Gravity of Sentence 8.20

Increase in Statutory Maximum 5.9, 7.12(D)

Maximum Punishable 2.9, 3.25, 3.43, 4.5(D), 5.9, 5.10, 10.24

One-CMT Ground of Deportation 5.8–5.11

Record of Conviction 7.11(F), 7.11(C)

Requirements for Petty Offense Exception 4.5

Sentencing Enhancements 7.11(F), 7.12(D)

Sexual Offenses

See also Assault; Family, Offenses Against

Against Children 9.97

Carnal Knowledge 9.97

Contributing To Delinquency of a Minor 9.97

Fondling 9.97

Indecent 9.97

Sexual Misconduct 9.97

Statutory Rape 9.105

Assault 9.104

Cohabitation 9.100

Fornication 9.98

Generally 9.96

Homosexuality 9.100

Indecency 9.99

Lewdness 9.100

Obscenity 9.101

Prostitution 9.47, 9.56, 9.100, 9.102

Rape 9.103

Sodomy 9.100

Solicitation 9.100, 9.102, 9.84

Shoplifting see Theft

Single Scheme Exception see Deportation on the Basis of Two or More CMT Convictions

Smuggling

Illegal goods see Regulatory Offenses

Immigrants see Immigration Crimes

Social Security 9.67

Sodomy 9.100

Solicitation 3.27, 9.7, 9.31, 9.84, 9.99,

9.102

Generally 7.84, 8.24(E)

Of a Drug Crime 9.7

Of a Lewd Act 9.99, 9.102

Special Agricultural Workers (SAW) see Legalization

Special Immigrant Juvenile 3.45(F)

Special Removal for Noncitizens in Prison 3.12

Spousal Abuse 3.37, 8.7, 9.15, 9.93

Stalking 9.28

State Law

Civil Disposition 2.14(C)

Classification of Offenses 6.5(B)

State Law (cont’d)

Classification as CMT 8.2(F)

Elements of the Offense 6.3, 6.6

Level of Offense 2.14(B)

State Rehabilitative Relief

Collateral Attack of Order Granting 10.11

Immigration Effect 4.3(B), 10.11

Statutory Construction

See also Categorical Analysis; Divisibility Analysis

All Doubts Benefit Noncitizen 6.7

Statutory Rape 9.105

Strict Liability see Intent

Stolen Property 9.59–9.62

Disposing of 9.61

Possession 9.60

Receiving 9.61

Transporting 9.59, 9.61

Structuring Financial Transactions see Financial Crimes

Suicide 9.12

Surplusage 7.11, 7.9(C), 9.36, 9.82

Suspended Sentence 2.4(B), 4.5, 5.10

Suspension of Deportation 3.3, 3.14, 3.35

Generally 3.35(A)

Ten-Year Suspension 3.35(B)

Stop-Time Rule 3.35(C)

VAWA 3.35(D)

Retroactivity 3.35(E)

T Visa see Non-Immigrant Visas

Target Offenses 7.5(A), 9.16, 9.50–9.51, 9.85

Tax Evasion 9.46

False Statement 9.46, 9.67

Telephone Fraud 9.37

Temporary Protected Status (TPS) 3.9, 3.31, 3.36

Terrorism 3.3, 3.4, 3.5, 3.11, 3.25, 3.26, 3.27, 3.30, 3.40, 3.45, 3.46, App. C[25]–[33]

Theft 9.62

Auto 9.62

Joyriding 9.62, 9.88

False Pretenses 9.62

Grand Theft 9.62

Intent to Commit – Breaking and Entering 9.50

Intent to Commit – Burglary 9.51

Intent to Deprive Owner 9.62, 8.5

Petty Theft 9.62

Shoplifting 9.62

Temporary Taking 9.62, 7.2, 8.5

Threats 9.29, 9.41

Trafficking in Persons

Alien Smuggling see Immigration Crimes

Family Member of Traffickers in Persons App. C[2]

International Child Abduction App. C[22], [23]

Traffickers in Persons App. C[11]

Prostitution see Prostitution

Trespass 9.63

Two or More CMT Convictions 4.5(B), 5.12–5.15

U/V

U Visa see Non-Immigrant Visas

Underlying Offenses see Target Offenses

Unlawful Entry see Breaking and Entering

Unlawful Voters App. C[24]

Use of Firearms see Firearms Offenses

Vacated Convictions

See also Post-Conviction Relief

Immigration Consequences 2.12, 5.11, 6.3-10.7

Use as Admission of CMT 4.4

Vagrancy 9.47

Vagueness Challenge to CMT Definition 8.2(C)

Violence Against Women Act (VAWA)

3.37

Adjustment 5.6

Violence Against Women Act (VAWA) (cont’d)

Cancellation 3.3, 3.6, 3.37(B)

Crime Victims (“U” Visa) 3.27

Domestic Violence Waiver 3.37(C)

Effect of Inadmissibility 3.44

Good Moral Character 3.14

Self-Petitioning 3.37(A)

Suspension of Deportation 3.35(D)

Victims of Trafficking (T-Visa) 3.26

Violent Crimes

Asylum 3.30(A)

INA § 212(h), 3.44(C)

Visa see Non-Immigrant Visas

Visa Fraud 3.16, 3.45(D), App. C[15]-[17]

Voluntary Manslaughter see Manslaughter

Voluntary Departure 3.38–3.42

After Proceedings 3.42

Before Proceedings 3.39

Request During Proceedings 3.40

Request at End of Proceedings 3.14,

3.41

Effect of Inadmissibility 3.38

Effect of JRAD 10.13(C)

W/X/Y/Z

Waivers of Removal

Former INA § 212(c)

Analogous Grounds 3.43(A)

Date of Conviction 3.43(B)

Domicile 3.43(B)

Effect of Waiver 3.43(A)

History 3.43(A)

Jury Trial 3.43(B)

Motion to Reopen 3.43(I)

Prior Grant 3.3, 3.4, 5.15

Requirements 3.43(A)

Waived CMT Joined with Other CMT 3.43(A)

INA § 212(h) 3.2, 3.7, 3.37

Adjustment of Status 3.44(D)

Lawful Permanent Resident 3.44(B)

Violent Crimes 3.44(C)

Generally 3.44(A)

INA § 209(C), 3.30(C)

Other Waivers 3.45

Alien Smuggling 3.45(C)

Document Fraud 3.45(B)

Medical Grounds 3.45(A)

Non-Immigrant Visas 3.45(E)

Special Immigrant Juvenile 3.45(F)

Visa Fraud 3.45(D)

Welfare Fraud 9.37

Willfulness see Intent

Withholding of Removal 3.8, 3.25(C), 3.29, 3.46

Youthful Offender Dispositions see Juveniles

Youthful Offender Exception to Inadmissibility 3.2–3.7, 3.14, 3.19–3.21, 3.23, 3.33, 3.36, 3.37(A), 3.41, 4.6

Updates

CAL CRIM DEF " PRACTICE ADVISORY " BURGLARY " TARGET OFFENSE IS NOT AN ELEMENT
Under Descamps and Moncrieffe, arguably no California conviction of burglary, in violation of Penal Code 459, is a crime of moral turpitude, because the specific intended offense is not an "element" of burglary but merely a "means" of committing the offense, since the jury need not agree unanimously as to which specific offense was intended at the time of the entry. Therefore the immigration judge must decide the case on the minimum conduct sufficient to commit burglary, which could include intent to commit a felony which is not a crime of moral turpitude, and the immigration judge may not look to the record of conviction to see which felony was intended, because the statute is not divisible with respect to which felony was intended. For discussion of elements versus means in this context, see Practice Advisory at www.nipnlg.org/legalresources/practice_advisories/cd_pa_Descamps_Practice_Advisory_7-17-2013.pdf. This argument is supported by specific language in California jury instructions for trials involving Penal Code 459 that state that, at least in deciding between intended offenses charged by the prosecution, the jury does not need unanimously to agree as to the identity of the intended offense in order to return a guilty verdict. CALCRIM 1700 (The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]")(emphasis supplied). Thanks to Katherine Brady.

CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS
Descamps v. United States, 570 U.S. ___, 133 S.Ct. 2276 (June 20, 2013) (the modified categorical approach does not authorize a fact-based inquiry; court may use the modified approach only to determine which alternative element in a divisible statute formed the basis of the conviction.).

CRIMES OF MORAL TURPITUDE " NEGLIGENT HOMICIDE
Matter of Tavdidishvili, 27 I&N Dec. 142 (BIA 2017) (New York conviction of negligent homicide, in violation of New York Penal Law 125.10, is categorically not a crime involving moral turpitude, because it does not require that a perpetrator have any awareness of the facts that make his or her conduct dangerous.).

BIA

CRIMES OF MORAL TURPITUDE " NEGLIGENT HOMICIDE
Matter of Tavdidishvili, 27 I&N Dec. 142 (BIA 2017) (New York conviction of negligent homicide, in violation of New York Penal Law 125.10, is categorically not a crime involving moral turpitude, because it does not require that a perpetrator have any awareness of the facts that make his or her conduct dangerous.).

RELIEF " ASYLUM " FILING DATE
Matter of M-A-F-, 26 I&N Dec. 651 (BIA 2015) (where noncitizens first asylum application was filed before May 11, 2005, and a second application was submitted after that date, the filing date later application controls if it is properly viewed as a new application).

CRIMES OF MORAL TURPITUDE " DEADLY CONDUCT
Matter of Hernandez, 26 I&N Dec. 464 (BIA 2015) (Texas conviction of deadly conduct, in violation of Texas Penal Code 22.05(a), is categorically a crime involving moral turpitude).

CONVICTION " NATURE OF OFFENSE " ELEMENTS OF OFFENSE " SENTENCE ENHANCEMENT " MILITARY CONVICTION
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (an sentencing enhancement element listed in a specification in the Manual for Courts-Martial, that must be pled and proved beyond a reasonable doubt, is the functional equivalent of an element of a criminal offense for immigration purposes).

ADJUSTMENT OF STATUS " ASYLEE
Matter of C-J-H, 26 I. & N. Dec. 284 (BIA 2014) (noncitizen who has already adjusted status from asylee to LPR cannot re-adjust under INA 209(b), as a defense to removal).

POST CON RELIEF " SENTENCE " IMMIGRATION CONSEQUENCES " REDUCTION OF SENTENCE INEFFECTIVE
Matter of Garcia-Mendoza, unpublished (BIA Feb. 15, 2013) (A200 582 682) (actual confinement of 180 days or more constitutes a statutory bar to showing good moral character, even after state court nunc pro tunc sentence reduction of the sentence imposed to 166 days).

CRIMES OF MORAL TURPITUDE " INDECENT EXPOSURE
Matter of Cortes Medina, 26 I. & N. Dec. 79 (BIA 2013) (California conviction of indecent exposure, in violation of Penal Code 314(1), which includes the element of lewd intent, is categorically a crime involving moral turpitude).

CONVICTION " MUNICIPAL ORDINANCE
Matter of Cuellar-Gomez, 25 I&N Dec. 850, 855 (BIA Jul. 18, 2012) (Kansas conviction of possession of marijuana, in violation of a Wichita municipal ordinance, constituted a conviction for immigration proceedings because the Wichita proceedings required proof beyond a reasonable doubt, even though there was no right to counsel or jury trial), distinguishing Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004).

CRIME OF MORAL TURPITUDE " RECKLESS ENDANGERMENT
Matter of Leal, 26 I. & N. Dec. 20 (BIA 2012) (Arizona conviction for violation of ARS 13-1201(a), recklessly endangering another person with a substantial risk of imminent death, is a CMT for immigration purposes, even though Arizonas definition of recklessness includes ignorance of risk resulting from voluntary intoxication).

OVERVIEW " ADJUSTMENT AS ADMISSION " CUBAN REFUGEE ADJUSTMENT ACT
Matter of Espinosa-Guillot, 25 I&N Dec. 653 (BIA Dec. 6, 2011) (noncitizen who adjusted to LPR status through Cuban Refugee Adjustment Act has been admitted to the United States and is therefore subject to grounds of removal under INA 237).

First Circuit

NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MINIMUM CONDUCT " BURDEN
Sauceda v. Lynch, ___ F.3d ___ (1st Cir. Apr. 22, 2016) (a non-citizen can qualify for cancellation of removal without having to prove affirmatively that a conviction wasn't for a disqualifying conviction: "We hold that since all the Shepard documents have been produced and the modified categorical approach using such documents cannot identify the prong of the divisible Maine statute under which Peralta Sauceda was convicted, the unrebutted Moncrieffe presumption applies, and, as a matter of law, Peralta Sauceda was not convicted of a "crime of domestic violence."). NOTE: This case addresses the issue of who wins a divisible statute argument when the record of conviction is unclear which part of the statute the noncitizen was convicted under. The Ninth Circuit went back and forth on this issue for several years. See Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir. 2007); Young v. Holder, 697 F.3d 976, 988"90 (9th Cir.2012) (en banc). Ultimately, however, the Ninth Circuit left this question open following Moncrieffe. See Almanza Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016). This appears to be the first Circuit Court decision to definitively apply Moncrieffe to find that the categorical (and modified categorical) analysis is a question of law, and does not depend upon whether the Government or the Respondent bears the burden of proof.

CRIMES OF MORAL TURPITUDE " LARCENY
Patel v. Holder, 707 F.3d 77 (1st Cir. Feb. 1, 2013) (Connecticut conviction of fourth degree larceny under Conn. Gen.Stat. 53a"125, is not categorically a crime of moral turpitude because the offense may be committed without intent to permanently deprive).

JUDICIAL REVIEW " PETITION FOR REVIEW " SUA SPONTE MOTION TO REOPEN
Matos-Santana v. Holder, 660 F.3d 91, 2011 WL 5176795 (1st Cir. Nov. 2, 2011) (Court of Appeals lacked jurisdiction to review claim that BIA abused its discretion in not sua sponte entertaining his untimely motion to reopen).

Second Circuit

MORAL TURPITUDE " MISPRISION OF A FELONY
Lugo v. Holder, 783 F.3d 119 (2d Cir. Apr. 9, 2015) (remanding to BIA to determine whether to continue to adhere to Matter of Robles"Urrea, 24 I. & N. Dec. 22 (BIA 2006), holding that conviction of misprision of a felony, under 18 U.S.C. 4, is still a crime of moral turpitude in light of circuit split), citing Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir.2002), and Robles"Urrea v. Holder, 678 F.3d 702, 711 (9th Cir. 2012).

RELIEF " WAIVERS " INA 212(h) " AGGRAVATED FELONY BAR
Flores v. Holder, ___ F.3d ___, 2015 WL 795212 (2d Cir. Feb. 26, 2015) (noncitizen convicted of aggravated felony not barred from 212(h) relief, since he had not previously been admitted at a lawful permanent resident), following Matter of Michel, 21 I. & N. Dec. 1101, 1104 (BIA 1998) (Section 212(h) of the Act, while specifically precluding waiver eligibility for a lawful permanent resident who has been convicted of an aggravated felony, imposes no such restriction on one who has not been admitted previously as a lawful permanent resident.).

CRIMES OF MORAL TURPITUDE " THREATS " DEADLY CONDUCT
Matter of Hernandez, 26 I. & N. Dec. 464 (BIA 2015) (Texas conviction of "deadly conduct" in violation of Texas Penal Code 22.05(a), which punishes a person who "recklessly engages in conduct that places another in imminent danger of serious bodily injury," is categorically a crime involving moral turpitude), relying upon Matter of Leal, 26 I&N Dec. 20 (BIA 2012), affd, 771 F.3d 1140 (9th Cir. 2014).

RELIEF " ADJUSTMENT OF STATUS " RELEASE ON CONDITIONAL PAROLE PENDING REMOVAL PROCEEDINGS IS NOT PAROLED INTO UNITED STATES SO AS TO BE ELIGIBLE FOR ADJUSTMENT
Cruz-Miguel v. Holder, ___ F.3d ___, 2011 WL 1565847 (2d Cir. Apr. 27, 2011)(an alien released on conditional parole pending resolution of ongoing removal proceedings is not thereby paroled into the United States so as to be eligible for adjustment of status).

Third Circuit

ADMISSION"VISA WAIVER PROGRAM
Vera v. Atty General, 672 F.3d 187 (3d Cir. Mar. 1, 2012) (court may presume visa waiver entrant executed the statutorily required waiver of her right to challenge removal; even if waiver was not signed or invalid, prejudice must also be shown).

Fourth Circuit

CRIMES OF MORAL TURPIUTDE " SEX OFFENDER REGISTRATION
Mohamed v. Holder, 769 F.3d 885 (4th Cir. Oct. 17, 2014) (Virgina conviction for violation of VaCodeAnn. 18.2-472.1, failure to register as a sex offender, is not a crime involving moral turpitude for immigration purposes, since it is merely a regulatory offense), disagreeing with Matter of Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007).

NATURE OF CONVICTION " RECORD OF CONVICTION " RESPONDENTS EVIDENCE DURING REMOVAL PROCEEDINGS
Mondragon v. Holder, 706 F.3d 535 (4th Cir. Jan. 31, 2013) (respondents sworn evidence concerning the offense conduct did not constitute part of the record of conviction on the basis of which the immigration authorities determine whether his Virginia conviction for assault and battery, in violation of Virginia Code 18.2"57, constituted an aggravated felony crime of violence for immigration purposes). NOTE: This case demonstrates the problems with placing the burden on a respondent in removal proceedings seeking relief where the record of conviction is inconclusive. The statute in this case makes punishable anyone who commits assault and battery or simple assault. The court found that Mondragon could not present facts to show the offense did not involve the use of violent force. The Court arguably erred here when applying the categorical and modified categorical analysis; although the court was arguably correct that the Virgina statute contained more than one set of elements, the court did not address the minimum conduct analysis, i.e., that the minimum conduct necessary to convict under either set of elements was insufficient to constitute an aggravated felony crime of violence.

REMOVAL PROCEEDING " BURDEN OF PROOF " RELIEF
Mondragon v. Holder, 706 F.3d 535 (4th Cir. Jan. 31, 2013) (respondents sworn evidence concerning the offense conduct did not constitute part of the record of conviction on the basis of which the immigration authorities determine whether his Virginia conviction for assault and battery, in violation of Virginia Code 18.2"57, constituted an aggravated felony crime of violence for immigration purposes). NOTE: This case demonstrates the problems with placing the burden on a respondent in removal proceedings seeking relief where the record of conviction is inconclusive. The statute in this case makes punishable anyone who commits assault and battery or simple assault. The court found that Mondragon could not present facts to show the offense did not involve the use of violent force. The Court arguably erred here when applying the categorical and modified categorical analysis; although the court was arguably correct that the Virgina statute contained more than one set of elements, the court did not address the minimum conduct analysis, i.e., that the minimum conduct necessary to convict under either set of elements was insufficient to constitute an aggravated felony crime of violence.

CRIMES OF MORAL TURPITUDE " CONTRIBUTING TO THE DELINQUENCY OF A MINOR
Prudencio v. Holder, 669 F.3d 472 (4th Cir. Jan. 30, 2012) (Virginia misdemeanor conviction of contributing to the delinquency of a minor, in violation of Virginia Code 18.2-371, did not categorically constitute a crime involving moral turpitude applying the modified categorical approach).

Fifth Circuit

CRIMES OF MORAL TURPITUDE " MISPRISION OF A FELONY
Villegas-Sarabia v. Sessions, 874 F.3d 871 (5th Cir. Oct. 31, 2017) (federal conviction of misprision of a felony, in violation of 18 U.S.C. 4 ((1) knowledge that a felony was committed; (2) failure to notify the authorities of the felony; and (3) an affirmative step to conceal the felony."), was a crime against moral turpitude, because misprision of a felony required an intentional act of deceit); following Patel v. Mukasey, 526 F.3d 800 (5th Cir. April 29, 2008); Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002) (holding that misprision of felony is a categorical CIMT); distinguishing Robles-Urrea v. Holder, 678 F.3d 702, 711 (9th Cir. 2012) (holding that misprision of felony is not a CIMT for lack of a sufficiently evil mental state).

RELIEF " ASYLUM " REINSTATEMENT
Ramirez Mejia v. Lynch, __ F.3d __ (5th Cir. Jul. 21, 2015) (noncitizens whose removal orders are reinstated following illegal re-entry into the United States may not apply for asylum, since asylum is a form of relief for purposes of the bar to relief under INA 1231(a)(5)), agreeing with Herrera"Molina v. Holder, 597 F.3d 128, 139 (2d Cir. 2010).

RELIEF " ADJUSTMENT OF STATUS " ASYLEE WHOSE STATUS WAS TERMINATED MAY APPLY FOR ADJUSTMENT OF STATUS
Siwe v. Holder, 742 F.3d 603 (5th Cir. Feb. 6, 2014) (an alien whose asylum has been terminated is not prohibited from applying for adjustment of status).

CRIMES OF MORAL TURPITUDE " ASSAULT WITH A WEAPON
Esparza-Rodriguez v. Holder, 699 F.3d 821 (5th Cir. Oct. 18, 2012) (Texas conviction of assault, in violation of Penal Code 22.01(a)(1), properly held a crime involving moral turpitude, where there was a heightened mens rea, the use of a weapon, and violent conduct, applying the modified categorical analysis).

CRIMES OF MORAL TURPITUDE " FRAUD " POSSESSION OF FALSE ID
Nino v. Holder, 690 F.3d 691 (5th Cir. Aug. 13, 2012) (Texas conviction of unlawful possession of fraudulent identifying information, in violation of Texas Penal Code 32.51(b)(2007) [obtains, possesses, transfers, or uses identifying information of another person without the other person's consent and with intent to harm or defraud another.], categorically constituted a crime involving moral turpitude, even when considering that the offense may be committed only with intent to harm).

Sixth Circuit

CRIMES OF MORAL TURPITUDE " FALSE STATEMENT TO GOVERNMENT
Fayzullina v. Holder, __ F.3d __ (6th Cir. Jan 6, 2015) (federal conviction for violation of 18 U.S.C. 1001(a)(3), willful false statement, for false statements related to marriage fraud, is categorically a crime of moral turpitude).

RELIEF " ADJUSTMENT OF STATUS " TEMPORARY PROTECTED STATUS
Flores v. USCIS, __ F.3d __ (6th Cir. Jun. 4, 2013) (plain language of INA 244(f)(4) allows noncitizen who entered without inspection, then obtained TPS, to become an LPR despite illegal entry, and provides an exception to the inspected and admitted or paroled language of INA 245(a)).

CRIMES OF MORAL TURPITUDE " COUNTERFEITING " TRAFFICKING IN UNLAWFUL IDENTIFICATION DOCUMENTS
Yeremin v. Holder, 738 F.3d 708 (6th Cir. Apr. 16, 2013) (federal conviction of one count of violating 18 U.S.C. 1028(f), for conspiracy to traffic in identification documents in violation of 18 U.S.C. 1028(a)(3), which prohibits knowingly possessing with intent to use unlawfully or transfer unlawfully five or more identification documents or false identification documents, which requires proof of an intent to use or transfer the identification documents or false identification documents unlawfully, is a crime involving moral turpitude because fraud or deceit is inherent in the elements of the offense); citing Matter of Flores, 17 I. & N. Dec. 225, 228-230 (BIA 1980) (federal conviction for uttering or selling false or counterfeit paper relating to registry of aliens with knowledge of their counterfeit nature . . . inherently involves a deliberate deception of the government and an impairment of its lawful functions, and that therefore fraudulent conduct is implicit in the statute, even absent a requirement of a specific intent to defraud; the government need not have been defrauded out of money or property for moral turpitude to be involved; rather, [i]t is enough to impair or obstruct an important function of a department of the government by defeating its efficiency or destroying the value of its lawful operations by deceit, graft, trickery, or dishonest means.), superceding Yeremin v. Holder, 707 F.3d 616 (6th Cir. Feb. 14, 2013). NOTE: This decision preceded Moncrieffe and Descamps, and the basis for the courts argument, i.e., that an offense can inherently involve fraud even when there is no such express element in the statute, has arguably been abrogated.

CRIMES OF MORAL TURPITUDE " FORGERY " TRAFFIC IN ID DOCUMENTS
Yeremin v. Holder, 707 F.3d 616 (6th Cir. Feb. 14, 2013) (federal conviction of 18 U.S.C. 1028(f), for conspiracy to traffic in identification documents in violation of 1028(a)(3), which prohibits knowingly possessing with intent to use unlawfully or transfer unlawfully five or more identification documents or false identification documents, constituted a crime of moral turpitude because the conduct prohibited by the statute inherently involves deceit).

Seventh Circuit

RELIEF " WAIVERS " JUDICIAL REVIEW " DISCRETIONARY DECISIONS
Asentic v. Sessions, 873 F.3d 974 (7th Cir. Oct. 17, 2017) (court lacks jurisdiction to review discretionary denial of fraud waiver under INA 237(a)(1)(H)).

RELIEF " ASYLUM " REINSTATEMENT
Garcia v. Sessions, __ F.3d __ (7th Cir. Oct. 11, 2017) (noncitizen subject to reinstatement of removal is barred by INA 241(a)(5) from applying for asylum).

Eighth Circuit

CRIMES OF MORAL TURPITUDE " ASSAULT " GENERAL CRIMINAL INTENT
Alonzo v. Lynch,___ F.3d ___, ___, 2016 WL 1612772 (8th Cir. Apr. 22, 2016) ([T]he BIA and various courts have declined to classify [simple assault] as a [CIMT]. Simple assault typically is a general intent crime, and it is thus different in character from those offenses that involve a vicious motive, corrupt mind, or evil intent. Chanmouny v. Ashcroft, 376 F.3d 810, 814"15 (8th Cir. 2004) (emphasis added) (quoting Matter of O, 3 I. & N. Dec. 193, 194"95 (BIA 1948)); see also [Matter of] Solon, 24 I. & N. Dec. at 241 (same).).

CRIMES OF MORAL TURPITUDE " FORGERY
Miranda-Romero v. Lynch, ___ F.3d ___, 2015 WL 4746166 (8th Cir. Aug. 12, 2015) (California conviction of forgery, under Penal Code 472, categorically constitutes crime of moral turpitude, since entire statute requires intent to defraud). Note: This decision is erroneous. The plain language of the statute includes three groups of offenses, of which only the first expressly requires intent to defraud. The Eighth Circuit relies on California decisions discussing the statute as a whole, which do not consider whether there is a different mental element for each of the three groups of offenses stated in the disjunctive. In particular, the third group of offenses, penalizing one who has in his possession any such [fraudulently] counterfeited seal or impression thereof, knowing it to be counterfeited, and willfully conceals the same, is guilty of forgery, is innocent of an intent to defraud under the plain language of the statute. It is doubtful that most Ninth Circuit panels would agree with this sloppy decision.

CRIMES OF MORAL TURPITUDE " THREATS " TERRORISTIC THREATS

CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS " DIVISIBLE STATUTE
United States v. Tucker, 740 F.3d 1177 (8th Cir. Jan. 29, 2014) (under the Supreme Courts decision in Descamps, the court may not apply the modified categorical approach to a statute that is textually indivisible, such as the Missouri statute penalizing a walk-away escape from a half-way house, to hold the offense to be a crime of violence under the residual otherwise clause of the ACCA, 18 U.S.C. 924(e)(2)(B)(ii), because there was a guard on duty when the escape occurred); partially overruling United States v. Parks, 620 F.3d 911 (8th Cir. 2010) (holding that a walk-away escape from a halfway house was a crime of violence under the Career Offender Guideline, applying the modified categorical approach to determine that Parkss escape offense posed a substantial risk of physical injury to another, because there was a guard on duty at the entrance of the halfway house when Parks walked away, even though the Missouri statute did not make this an element of the offense).

Lower Courts of Eighth Circuit

RECORD OF CONVICTION " ADMISSION OF FACTS " FACTUAL BASIS OF PLEA
Morales v Gonzales, 478 F3d 972 (9th Cir. 2007) (a defendants admission to facts for a limited purpose does not become part of the record of conviction and cannot be used in subsequent proceedings). Note: Facts recited by a court of appeals opinion affirming the sufficiency of the evidence for conviction were not facts admitted by the defendant for their truth and should not have been considered part of the record of conviction for purposes of determining the nature of the conviction for immigration purposes. [F]or the sole purpose of determining the sufficiency of the evidence, the evidence is presumed true. It was from this isolated context that the IJ drew the facts and circumstances of Morales's conviction. This is far different from relying on a charging document read in conjunction with a valid plea agreement, where a defendant admits the alleged facts in a way that is binding for the purposes of conviction and subsequent proceedings. See Lara-Chacon v. Ashcroft, 345 F3d 1148, 1152 (9th Cir 2003). Here, in her appeal, Morales did not admit the truth of the evidence presented by the State for all future purposes; she simply allowed the state appellate court to assume the truth of the State's evidence for the purpose of her challenge to its sufficiency." Morales, supra, 982-983. COMMENT: Just as with the limited admission in the court of appeal in this case, the agreement that the court may use police reports or an oral statement of facts or any facts to assess whether there is a factual basis for the plea, should not under identical reasoning be taken as an admission that is binding for the purposes of conviction and later proceedings. Counsel could make this clear, and say, As the court knows, the defense sometimes disagrees with the truth of the facts in the police reports, or prosecution version. We are therefore not agreeing that this statement of facts is true, but are agreeing that the court may consider it for the limited purpose of allowing the court to evaluate a factual basis for this plea. That may well protect the defendant against adverse facts in the factual basis being considered as true in later immigration proceedings. Cross-References: Cal Crim Def Immig 3.41

Ninth Circuit

CRIME OF MORAL TURPITUDE " OBSTRUCTION OF JUSTICE " WITNESS DISSUASION
Escobar v. Lynch, 846 F.3d 1019 (9th Cir 2017) (California conviction of witness dissuasion, in violation of Penal Code 136.1(b)(1) is not a crime of moral turpitude). NOTE: The Courts analysis focused on the growing rift between the BIA and the Ninth Circuit (and older BIA case law) on defining crime of moral turpitude.)

CRIMES OF MORAL TURPITUDE " HIT AND RUN
Conejo Bravo v. Sessions, 875 F.3d 890 (9th Cir. Nov.17, 2017) (California conviction of hit and run, under Vehicle Code 20001(a), is under a divisible statute; the record established that noncitizen failed to render aid, which is a crime of moral turpitude); see Garcia-Maldonado v. Gonzales, 491 F.3d 284, 290 (5th Cir. 2007) (holding that Texas hit and run law qualifies as a CIMT, as "the failure to stop and render aid after being involved in an automobile accident is the type of base behavior that reflects moral turpitude").

RELIEF " CANCELLATION OF REMOVAL " ADMISSION IN ANY STATUS
(respondent was admitted in 1993 when he was waved across the border after inspection by an immigration officer, since the phrase in any status plainly encompasses every status recognized by immigration statutes, lawful or unlawful, his procedurally regular admission in 1993 was an admission in any status under 8 U.S.C. 1229b(a)(2)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 U.S.C. 16(b)
Dimaya v. Lynch, ___ F.3d ___ (9th Cir. Oct. 15 2015) (California conviction for burglary under Penal Code 459 is not a categorical crime of violence as defined by INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because the language in 18 U.S.C. 16(b), which is incorporated into 1101(a)(43)(F)s definition of a crime of violence, is unconstitutionally vague since the 18 U.S.C. 16(b) language suffers from the same indeterminacy the Supreme Court found void for vagueness in the Armed Career Criminal Acts residual clause definition of a violent felony in Johnson v. United States, 135 S. Ct. 2551 (2015)). The Dimaya court stated: The Fifth Amendments Due Process Clause requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Alphonsus, 705 F.3d at 1042 (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). Although most often invoked in the context of criminal statutes, the prohibition on vagueness also applies to civil statutes, including those concerning the criteria for deportation. Jordan v. De George, 341 U.S. 223, 231 (1951) (Despite the fact that this is not a criminal statute, we shall nevertheless examine the application of the vagueness doctrine to this case. We do this in view of the grave nature of deportation.); see also A.B. Small Co. v. Am. Sugar Ref. Co., 267 U.S. 233, 239 (1925) (The defendant attempts to distinguish [prior vagueness] cases because they were criminal prosecutions. But that is not an adequate distinction. The ground or principle of the decisions was not such as to be applicable only to criminal prosecutions.). (Id. at 1113.)

PRACTICE ADVISORY " CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " ELEMENTS " RECORD OF CONVICTION " LESSER INCLUDED OFFENSES " CALIFORNIA
The Ninth Circuit held that because a lesser included charge must be one that is necessarily included in the charged offense, the lesser-included possession offense must have been possession of the same substance charged in the dismissed count charging the greater offense. In dissent, Judge Reinhardt argued the Ninth should stay out of messy questions about what is and is not a lesser-included offense: The complexity and uncertainty of that task is well illustrated here. Although Petitioner pled no contest to the lesser included offense to sale of a controlled substance, the offense to which he pled no contest " possession of a controlled substance " is not a lesser included offense to the crime charged " sale of a controlled substance " under at least one of the tests used by California courts. Under Californias elements test, possession of a controlled substance cannot be a necessarily lesser included offense of selling or offering to sell . . . because the former crime contains elements a sales offense does not: knowing possession of a usable quantity. People v. Peregrina-Larios, 28 Cal. Rptr. 2d 316 (Cal. Ct. App. 1994); see also Judicial Council of California Criminal Jury Instructions, 1 CALCRIM No. 2300 (2015). Moreover, under that test the particular drug alleged in the information is not relevant to determining a lesser included offense. See People v. Sosa, 148 Cal. Rptr. 3d 826, 828"29 (Cal. Ct. App. 2012). Under the accusatory pleading test, the specific language of the accusatory pleading must include all of the elements of the lesser offense. People v. Moses, 50 Cal. Rptr. 2d 665, 668 (Cal. Ct. App. 1996). In this case, the first count in the accusatory pleading " the count to which Petitioner pled no contest to the lesser included offense " does not include any specific language concerning possession of methamphetamine; it merely repeats the language in the sale statute. There is an excess clause as to count one including the allegation that Petitioner possessed for sale/sold . . . methamphetamine, but that allegation could be satisfied by Petitioner selling methamphetamine without possessing it for sale. In short, rather than clear, unequivocal, and convincing evidence that Petitioner pled no contest to possession of methamphetamine, the record in this case reveals ambiguity and confusion regarding the meaning of Petitioners plea to a lesser included offense. Ruiz-Vidal v. Holder, ___ F.3d ___, ___ (9th Cir. 2015) (Reinhardt, J. dissenting). A petition for rehearing is in preparation.

CRIMES OF MORAL TURPITUDE " POSSESSION OF A BILLY CLUB
Hernandez-Gonzalez v. Holder, ___ F.3d ___, 2015 WL 618776 (9th Cir. Feb. 13, 2015) (California conviction for a violation of Penal Code 12020(a)(1) for possession of a billy club, does not constitute a crime involving moral turpitude).

CRIMES OF MORAL TURPITUDE " POSSESSION OF A WEAPON
Navarro"Lopez v. Gonzales, 503 F.3d 1063, 1072 (9th Cir. 2007) (en banc) (No court has ever found possession of a weapon to be a crime involving moral turpitude.), overruled on other grounds by United States v. Aguila"Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc), abrogated by Descamps v. United States, 133 S.Ct. 2276 (2013); Matter of Serna, 20 I. & N. Dec. 579, 584 (BIA 1992) ([C]arrying or possessing a concealed weapon has been held to involve moral turpitude only when the intent to use it against another person has been established), modified on other grounds by Matter of Franklin, 20 I. & N. Dec. 867 (1994); Matter of Granados, 16 I. & N. Dec. 726, 728"29 (BIA 1979) (holding that possession of sawed-off shotgun is not a crime involving moral turpitude), abrogated by Matter of Wadud, 19 I. & N. Dec. 182, 185 (BIA 1984); United States v. Aguilera"Rios, 754 F.3d 1105, 1116 (9th Cir. 2014) (government conceded that a conviction under California Penal Code 12021(c)(1), for anyone who owns, purchases, receives, or has in possession or under custody or control, any firearm within ten years of a prior conviction for certain misdemeanors, is not a crime of moral turpitude.).

CRIMES OF MORAL TURPITUDE " THREATS " CRIMINAL THREATS
Cervantes v. Holder, ___ F.3d ___, 2014 WL 6463031 (9th Cir. Nov. 19, 2014) (California conviction for threatening to commit a crime resulting in death or great bodily injury under Penal Code 422 is categorically a crime of moral turpitude, for purposes of determining whether immigrant was inadmissible under INA 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I)); following Latter"Singh v. Holder, 668 F.3d 1156, 1163 (9th Cir. 2012).

CRIMES OF MORAL TURPITUDE " CORPORAL INJURY OF A SPOUSE
Cervantes v. Holder, ___ F.3d ___, ___, 2014 WL 6463031 (9th Cir. Nov. 19, 2014) (California conviction for corporal injury of a spouse, in violation of Penal Code 273.5(a) [[a]ny person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony.], is not categorically a crime of moral turpitude: Our precedents make clear that although 273.5(a) is not categorically a CIMT, it is a divisible statute for which a conviction under one portion of the statute (corporal injury against a spouse) will qualify as a CIMT, while conviction under other subsections (for example, corporal injury against a cohabitant) will not.); compare Grageda v. INS, 12 F.3d 919, 922 (9th Cir. 1993) (holding that spousal abuse under section 273.5(a) is a crime of moral turpitude (emphasis added)), with Morales"Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009) (holding that corporal injury against a cohabitant under 273.5(a) is not a crime involving moral turpitude).

CRIMES OF MORAL TURPITUDE " UNAUTHORIZED DRIVING A VEHICLE
Almanza-Arenas v. Holder, ___ F.3d ___ (9th Cir. Nov. 10, 2014) (California conviction of violating Vehicle Code 10851(a), a statute that criminalizes both conduct that would constitute a crime of moral turpitude " taking a vehicle with intent permanently to deprive the owner, and conduct that does not amount to a crime of moral turpitude " taking with intent temporarily to deprive the owner " was not categorically a crime of moral turpitude and does not render respondent ineligible for non-LPR cancellation of removal under 8 U.S.C. 1229b(b) in the context of removal proceedings for inadmissibility); see Castillo-Cruz v. Holder, 581 F.3d 1154, 1159 (9th Cir. 2009) (a theft offense is not categorically a crime of moral turpitude if the statute of conviction is broad enough to criminalize a taking with intent to deprive the owner of his property only temporarily.).

CRIMES OF MORAL TURPITUDE " RECKLESS ENDANGERMENT
Leal v. Holder, 771 F.3d 1140 (9th Cir. Nov. 6, 2014) (Arizona conviction of felony endangerment under Arizona Revised Statute 13"1201 [recklessly endangering another person with a substantial risk of imminent death or physical injury where reckless means consciously disregard a substantial and unjustifiable risk] constituted a crime of moral turpitude: We agree with the BIA's determination that the creation of a substantial, actual risk of imminent death is sufficiently reprehensible, or in terms of our case law base, vile, and depraved, to establish a CIMT, even though no actual harm need occur.).

CRIMES OF MORAL TURPITUDE " IDENTITY THEFT
Ibarra-Hernandez v. Holder, 770 F.3d 1280 (9th Cir. Nov. 5, 2014) (Arizona conviction of identity theft, in violation of Arizona Revised Statutes 13-2008(A), is a crime involving moral turpitude, under the modified categorical analysis, since the statute is divisible and the record shows that petitioner stole a real person's identity without their consent for the purpose of obtaining employment, which is inherently fraudulent and involves moral turpitude).

CRIMES OF MORAL TURPITUDE " FORGERY
Espino-Castillo v. Holder, ___ F.3d ___, 2014 WL 5462309 (9th Cir. Oct. 29, 2014) (Arizona conviction of forgery, in violation of Arizona Revised Statutes 13-2002, is categorically a crime involving moral turpitude because the statute requires fraudulent intent; Beltran-Tirado v. INS, has not been applied to a state statute); discussing Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. May 31, 2000) (an amendment to the social security laws that granted immunity from prosecution for longstanding resident aliens who used a false social security number to obtain employment expressed congressional intent that such conduct did not establish moral turpitude for immigration purposes).

CRIMES OF MORAL TURPITUDE " FRAUD " CRIMINAL IMPERSONATION
De Martinez v. Holder, ___ F.3d ___, 2014 WL 5394445 (9th Cir. Oct. 24, 2014) (per curiam) (Arizona conviction of criminal impersonation, in violation of Arizona Revised Statutes 13"2006(A)(1), is categorically a crime involving moral turpitude, because the statute explicitly requires proof of fraudulent intent).

CRIMES OF MORAL TURPITUDE " BURGLARY
Rendon v. Holder, ___ F.3d ___, ___, 2014 WL 4115930 (9th Cir. Aug. 22, 2014) (California conviction of burglary, in violation of Penal Code 459 [entry with intent to commit larceny or any felony], did not constitute a divisible statute, under Descamps; the presence of an or between grand or petit larceny and any felony does not render the statute divisible, because the intended offense, under this statute, is not an element of the offense, but a means of commission, since California law does not require jury unanimity on this point; BIA's use of the modified categorical approach was impermissible); citing People v. Failla, 414 P.2d 39, 44-45 (1966); distinguishing Ngaeth v. Mukasey, 545 F.3d 796, 802 (9th Cir. 2008) (per curiam) (decided prior to Descamps); Hernandez"Cruz v. Holder, 651 F.3d 1094, 1104"05 (9th Cir. 2011) (same). NOTE: The court states: To be clear, it is black-letter law that a statute is divisible only if it contains multiple alternative elements, as opposed to multiple alternative means. Id. at 2285. Thus, when a court encounters a statute that is written in the disjunctive (that is, with an or), that fact alone cannot end the divisibility inquiry. Only when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute are we able to conclude that the statute contains alternative elements and not alternative means.

POST-CON " VACATUR AFTER DEPORTATION
United States v. Barrios-Siguenza, 747 F.3d 1222, 1223 (9th Cir. Apr. 9, 2014) (We were assured at oral argument that Barrios will return for trial should the government choose to retry him and parole him into the country for that purpose. Cf. United States v. Leal"Del Carmen, 697 F.3d 964, 975 (9th Cir. 2012) (discussing the Attorney General's authority to parole aliens into the country to testify in criminal prosecutions (citing 8 U.S.C. 1182(d)(5)(A))). Given the government's authority to permit Barrios to return for retrial, and counsel's assurances that Barrios would be willing to do so, this case is unlikely to languish for an indefinite period before the district court, should the government choose to retry Barrios.).

MOTION TO REOPEN REMOVAL PROCEEDINGS " CONVENTION AGAINST TORTURE
Go v. Holder, 744 F.3d 604 (9th Cir. Mar. 7, 2014) (the specific time and number limitations on motions to reopen, 8 C.F.R. 1003.2(c), apply to motions to reopen that arise under the Convention Against Torture).

CONVICTION -- NATURE OF CONVICTION " FACTS VS ELEMENTS " PLEA OF GUILTY CONTROLS
United States v. Avery, 719 F.3d 1080, 1084 (9th Cir. Jun. 18, 2013) (As we have stated in other contexts, plea agreements are contracts, and are premised on the notion that the negotiated guilty plea represents a bargained-for quid pro quo. United States v. Escamilla, 975 F.2d 568, 571 (9th Cir.1992) (internal quotation marks omitted).; language in information cannot be counted against defendant if the language is unrelated to the plea; [i]n enforcing a plea agreement, we are bound to construe any ambiguities or inconsistencies in favor of the defendant, ordinarily placing on the government responsibility for any lack of clarity. United States v. Franco"Lopez, 312 F.3d 984, 989 (9th Cir.2002) (internal citations and quotation marks omitted). The government cannot seize upon convenient language contained in the information to substantiate a broader charge that was not incorporated into the plea agreement . . .).

CRIMES OF MORAL TURPITUDE " SIMPLE KIDNAPPING
Castrijon-Garcia v. Holder, 704 F.3d 1205 (9th Cir. Jan. 9, 2013) (California conviction of simple kidnapping, under Penal Code 207(a), is categorically not a crime involving moral turpitude making a noncitizen statutorily ineligible for cancellation of removal, because it does not require an intent to injure, actual injury, or a special class of victims).

RELIEF " CONSULAR PROCESSING " CONSULAR NONREVIEWABILITY " JUDICIAL REVIEW
Rivas v. Napolitano, 677 F.3d 849 (9th Cir. Apr. 25, 2012) ("Federal courts are generally without power to review the actions of consular officials. Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986). However, at least two exceptions to this rule exist. First, a court has jurisdiction to review a consular official's actions 'when [the] suit challenges the authority of the consul to take or fail to take an action as opposed to a decision within the consul's discretion.' Patel v. Reno, 134 F.3d 929, 931"32 (9th Cir.1997). Second, the court has jurisdiction to review a consular official's acti5ons when the government denies a visa without a 'facially legitimate and bona fide reason.' Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir.2008)."; the Mandamus Act, at 28 U.S.C. 1361 give the court jurisdiction to require Government take action to consider request to review denial of an I-601 waiver).

CRIMES OF MORAL TURPITUDE " MISPRISION OF A FELONY
Robles-Urrea v. Holder, 678 F.3d 702, 705 (9th Cir. Apr. 23, 2012) (A crime involving moral turpitude is either one that involves fraud or one that involves grave acts of baseness or depravity, such that its commission offend[s] the most fundamental values of society. Navarro"Lopez v. Gonzales, 503 F.3d 1063, 1074"75 (9th Cir.2007) (en banc) (Reinhardt, J., concurring for the majority), overruled on other grounds by United States v. Aguila"Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc). That an offense contravenes societal duties is not enough to make it a crime involving moral turpitude; otherwise, every crime would involve moral turpitude. Id. at 1070 (majority opinion). Because the BIA relied on this flawed rationale in concluding that misprision of a felony is a crime involving moral turpitude, we cannot defer to its interpretation of the Immigration and Nationality Act (INA). Instead, we hold that misprision of a felony is not categorically a crime involving moral turpitude.). Note: While this ought to be good news signaling that California accessory after the fact, in violation of Penal Code 32, is not a CIMT, the ILRC strongly suggests that criminal defense counsel continue to assume conservatively that it will be charged as a CIMT, however wrongly. There are three reasons to be conservative here: 1. Misprision is somewhat different from accessory, in that misprision does not require intent to help someone avoid arrest, sentence, etc., and accessory does. The federal offense of misprision of a felony, under 18 U.S.C. 4, in Robles, prohibits someone who, knowing a felony has been committed, "conceals" or fails to report it, with no further intent required. At one point, the opinion points out that misprision does not have this intent unlike other concealing offenses, including accessory after the fact, as yet another reason why misprision is not CIMT. ICE is likely to use this to assert that even if misprision is not CIMT, accessory after the fact is. While this goes against the thrust of the whole rest of the opinion, it still gives ICE its opening. 2. The court made clear that misprision is a divisible statute and that the immigration judge may review the record of conviction under the modified categorical approach to see if a fact "necessary" to the conviction showed moral turpitude, although the court found it hard to see how that could happen. (The Ninth Circuit appears to hold that the regular categorical approach applies, contrary to Silva-Trevino. On the other hand, Silva-Trevino had not been decided at the time the BIA made its decision in this case, so that issue was not before the court.) 3. It is possible that this case will go en banc. For one thing, this is a very rare instance where a court acknowledges that it owes Chevron deference to an agency opinion, but declines to give it because the agency's reasoning is so bad as to be impermissible. 4. Immigration counsel in removal proceedings should argue that a California conviction of accessory after the fact, in violation of Penal Code 32, is not a CIMT. Thanks to Katherine Brady, Senior Staff Attorney, Immigrant Legal Resource Center.

CRIMES OF MORAL TURPITUDE " STATUTORY INTERPRETATION " CHEVRON DEFERENCE IS NOT DUE WHERE BIA RELIES ON FLAWED RATIONALE
Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. Apr. 23, 2012) (court of appeals did not give Chevron deference to BIA holding that federal conviction of misprision of a felony, in violation of 18 U.S.C. 4, was categorically a crime involving moral turpitude, where BIA relied on flawed rationale that an offense which contravenes societal duties is enough to make it a crime involving moral turpitude, since under that rationale, every crime would involve moral turpitude); following Navarro"Lopez v. Gonzales, 503 F.3d 1063, 1070 (9th Cir. 2007) (en banc) (Reinhardt, J., concurring for the majority), overruled on other grounds by United States v. Aguila"Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc).

CRIMES OF MORAL TURPITUDE"PROSTITUTION"SOLICITING AN ACT OF PROSTITUTION AS A CUSTOMER
Rohit v. Holder, 670 F.3d 1085 (9th Cir. Feb. 29, 2012) (California misdemeanor conviction of disorderly conduct [soliciting an act of prostitution], in violation of Penal Code 647(b), categorically constitutes a crime involving moral turpitude, whether or not the defendant is the prostitute or the customer: We hold that soliciting an act of prostitution is not significantly less base, vile, and depraved than engaging in an act of prostitution.). In Rohit v. Holder, 670 F.3d 1085 (9th Cir. Feb. 29, 2012), the court held that a California misdemeanor conviction of disorderly conduct"soliciting an act of prostitution, in violation of Penal Code 647(b), categorically constitutes a crime involving moral turpitude, whether or not the defendant is the prostitute or the customer. It stated: We hold that soliciting an act of prostitution is not significantly less base, vile, and depraved than engaging in an act of prostitution. (Id. at 1089.) The court reasoned that a crime that does not involve moral turpitude does not become a crime involving moral turpitude through repetition. (Id. at 1090; see Matter of Short, 20 I. & N. Dec. 136, 139 (BIA 1989) (Moral turpitude cannot be viewed to arise from some undefined synergism by which two offenses are combined to create a crime involving moral turpitude, where each crime individually does not involve moral turpitude.).) The court rejected an argument that solicitation of prostitution is not analogous to prostitution because prostitution often involves repeated acts. The court felt it owed Chevron deference to the Board's decision in Matter of W, where the BIA held that an ordinance that criminalized a single act of prostitution dealt with a crime involving moral turpitude. 4 I. & N. Dec. at 401-02, 404. Rohit offers no authority for the proposition that acts of prostitution are only morally turpitudinous if repeated. If a single act of prostitution involves moral turpitude, there is no reason why a single act of solicitation of prostitution does not. Id. at 1090. Unfortunately, this decision implies that customers, as well as prostitutes, commit a crime of moral turpitude by soliciting an act of prostitution under this statute. The California courts stated: Thus, the ordinary meaning of the statute [Penal Code 647(b)] is that all persons, customers as well as prostitutes, who solicit an act of prostitution are guilty of disorderly conduct. (Leffel v. Municipal Court 54 Cal.App.3d 569, 575, 126 Cal.Rptr. 773, 777 (1976.) A better analysis would be by analogy to controlled substances: using and selling are both illegal but being a consumer is not a CIMT while being in the business of selling is. Counsel could have argued that this case should not apply to a customer, depending on the facts which are not made clear by the decision. The Board cases cited by the court do not say that merely being a customer one-on-one is a CIMT. Matter of Lambert is basically about renting out rooms for prostitution"i.e. running & profiting from a whorehouse, not merely being a john. Just because prostitution is assumed to be wrong doesnt make being in the business of prostitution and patronizing a prostitute the same. Under the Courts logic, since drug trafficking is immoral, a person who buys a controlled substance is participating in an act of trafficking, since the base act is the result of the base request or offer. Rohit slip op at 2265. Thanks to Jonathan Moore. Appellate counsel may not have argued either the difference between prostitutes and customers, or addressed the congressional intent/statutory interpretation issue, or overbreadth. Congress has specifically chosen to treat prostitution, and the procurement of prostitutes, separately from crimes involving moral turpitude. Compare INA 212(a)(2)(A), with INA 212(a)(2)(D). Commission of a single crime involving moral turpitude renders a noncitizen permanently inadmissible, and in order to qualify for a waiver of inadmissibility the noncitizen must establish extreme hardship to a spouse, parent, or child. INA 212(a)(2)(A)(i)(I), 212(h)(1)(B). However, a person who has committed prostitution, or procurement of prostitutes, is only inadmissible for a period of ten years. INA 212(a)(2)(D). Additionally, such a person is eligible to seek a waiver, under INA 212(h)(1)(A), and need only show rehabilitation. If prostitution, or procuring a prostitute were crimes involving moral turpitude, the ten-year statute of limitations in INA 212(a)(2)(D) would be meaningless. The provisions allowing persons inadmissible under INA 212(a)(2)(D) to obtain a waiver under INA 212(h) without showing hardship would likewise be meaningless. The rules of statutory construction demand, however, that meaning be given to every portion of a statute. Flores-Figueroa v. United States, 129 S.Ct. 1886 (May 4, 2009) ("We should not interpret a statute in a manner that makes some of its language superfluous."). Therefore, the only way to read the statute is to treat prostitution, and the procurement of prostitutes, as acts separate from crimes involving moral turpitude. There is no justifiable basis in the law for treating a person who procures a prostitute less harshly than a person who merely solicits. Additionally, even if soliciting a prostitute, as traditionally understood, constitutes a crime involving moral turpitude, a first conviction does not meet that definition. California Penal Code 647(b) is a divisible statute that reaches both the prostitutes themselves as well as persons seeking to hire a prostitute. It may not be clear from the record of conviction which of the two offenses the defendant was found guilty of. The records from the California case show only that the defendant was charged under the statutory language of Penal Code 647(b), and entered a plea of no contest to that same statute. California Penal Code 647(b) also punishes conduct that is not considered prostitution. While the INA does not specifically define prostitution, the Ninth Circuit has observed that the Department of State has defined the term for immigration purposes as engaging in promiscuous sexual intercourse for hire. 22 C.F.R. 40.24(b). The court found this regulation to be a reasonable interpretation of the statute. Kepilino v. Gonzales, 454 F.3d 1057, 1061 n.2 (9th Cir. 2006). California Penal Code 674(b), however, includes engaging in any lewd act, whether it be sexual intercourse or any other contact that might include a lap-dance or massage. Wooten v. Superior Court, 93 Cal.App.4th 422, 427 (2001). If the record of conviction does not show intercourse, the minimum conduct necessary to violate California Penal Code 647(b) appears to include offering to pay another person for an erotic massage, so the conviction cannot be considered a crime involving moral turpitude. See Hamdan v. INS, 98 F.3d 183, 187 (5th Cir. 1996) (if a statute encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain a deportability finding on that statute). Thanks to Joseph Justin Rollin.

CRIMES OF MORAL TURPITUDE"THREATS"CRIMINAL THREATS
Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. Feb. 17, 2012) (California conviction of criminal threats, in violation of Penal Code 422, categorically constitutes a crime involving moral turpitude, for immigration purposes, because (1) the required threatened conduct is itself a CMT; (2) the victims must suffer sustained fear; and (3) the offense is committed with intent to instill fear), compare Fernandez"Ruiz v. Gonzales, 468 F.3d 1159, 1167 (9th Cir. 2006) (Arizona a conviction for violation of ARS 13-1203, placing another person in reasonable apprehension of imminent physical injury, is not a CMT because no intent to injure is required).

CATEGORICAL ANALYSIS " SCOTUS REVIEW OF AGUILA-MONTES DE OCA
United States v. Descamps, 466 Fed. Appx. 563 (9th Cir. 2012) (Supreme Court grant of certiorari is limited to the question whether, in a case under the Armed Career Criminal Act, when a state crime does not require an element of the federal crime of burglary, the federal court may find the existence of that element by examining the record of the state proceedings under the "modified categorical approach.). The issue presented is "Whether the Ninth Circuit's ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir.2011) (en banc) that a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the modified categorical approach, even though most other Circuit courts of Appeal would not allow it."

CRIMES OF MORAL TURPITUDE " BANK FRAUD " PASSING BAD CHECK
Planes v. Holder, ___ F.3d ___, ___, 2011 WL 2619105 (9th Cir. Jul. 5, 2011) (California conviction of delivering or making a check with insufficient funds with intent to defraud, in violation of Penal Code 476a(a), was a fraud offense and thus categorically a crime involving moral turpitude).

CRIMES OF MORAL TURPITUDE " BANK FRAUD " POSSESSION OF ACCESS DEVICES
Planes v. Holder, ___ F.3d ___, ___, 2011 WL 2619105 (9th Cir. Jul. 5, 2011) (federal conviction of possessing 15 or more access devices, in violation of 18 U.S.C. 1029(a)(3), was a fraud offense and thus categorically a crime involving moral turpitude). Note. This decision seems very poorly reasoned. It ignores pertinent authority. E.g., Paredes v. Attorney General, 528 F.3d 196 (3d Cir. 2008); Matter of Cardenas-Abreu, 24 I&N Dec. 795 (BIA 2009). It ignores the argument that since the sentence was appealed, there was no sentence at all in effect in the case, and thus there was no complete judgment (which includes sentence), and no restraint portion of the conviction under INA 101(a)(48)(A) in effect. See Griffiths v. INS, 243 F.3d 45, 50"51 (1st Cir.2001), which the Planes court described as observing that finality is not required under the deferred-adjudication portion of 1101(a)(48)(A), but which actually held there to be no conviction in that case, since no sentence at all had been imposed " a circumstance far closer to the situation in Planes. Finally, the general rule is that Congress is deemed to approve judicial decisions that are in effect concerning a point when it legislates. The universal rule, at the time the new statutory definition of conviction came into effect, was that a conviction must be final before it can be the basis of immigration consequences. Congress did not disturb this rule. Therefore, it must be deemed to have approved of it. This argument was apparently not made in Planes, which therefore did not reject it. The question before us is whether a conviction is final for purposes of deportation proceedings once any appeal as a matter of right has been exhausted. Morales-Alvarado v. Immigration and Naturalization Service 655 F.2d 172, 175 (9th Cir.1981) By any appeal, the court must have meant any appeal of the judgment of guilt, as in any level of an appeal of right, not an appeal of the sentence only. There is also a great deal of authority in support of the view that without a sentence, there is no conviction. This point, as well, was not addressed in Planes. There may also be an argument under Chenery v. SEC that the Ninth Circuit can only affirm the case under the grounds set forth in the opinion, and the BIA never affirmed on the basis that the Ninth affirmed. Thanks to Katherine Brady, Michael Mehr, and Jonathan Moore.

CRIMES OF MORAL TURPITUDE " FALSE IMPRISONMENT
Saavedra-Figueroa v. Holder, 625 F.3d 621 (9th Cir. Nov. 5, 2010) (California misdemeanor conviction of false imprisonment, in violation of Penal Code 236, was not a categorical crime of moral turpitude, because crime did not require noncitizen to have the intent to harm necessary for the crime to be base, vile or depraved).

CRIME OF MORAL TURPITUDE " DOMESTIC VIOLENCE " CORPORAL INJURY
Morales-Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009) (California conviction of corporal injury of a person with a present or former listed domestic relationship, in violation of Penal Code 273.5 is not categorically a crime of moral turpitude, because the listed relationships can cover persons such as former dates, who are not protected by domestic violence laws). NOTE: The DHS may argue that the domestic relationship is a "circumstance-specific" fact that can be proven by evidence extrinsic to the elements of the offense and extrinsic to the record of conviction, by analogy to United States v. Hayes, 555 US 415, 129 SCt 1079 (2009). Although the Ninth Circuit decision in Tokatly has not been overruled, it may be in the future. Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir 2004). See also, Nijhawan v Holder (2009) 129 SCt 2294 (loss to victim is circumstance-specific factor that need not be element of offense and may be proven by evidence outside record of conviction). Therefore, the best practice to avoid a deportable crime of domestic violence is to either plead to an offense that is not a crime of violence, or to a victim who does not have a protected relationship. However, under present law, counsel can file a motion to terminate removal proceedings if the complaint and plea colloquy do not establish that the victim is someone protected by domestic violence laws. Also, if the Service does argue Hayes, counsel can reply that while in Hayes the evidence of the relationship could be extrinisic to the original offense, it still had to be proved beyond a reasonable doubt in a criminal proceeding. The 9th Circuit addressed the difference between the two situations in Cisneros-Perez: [T]he contexts of the two decisions involve different statutory provisions, as to which the pertinent considerations are quite different: In Belless [338 F.3d 1063],the government was required to prove a second, distinct crime in the second prosecution. We concluded that the domestic aspect of a prior domestic violence conviction can be proven as an element of the second crime whether or not established by the conviction documents in the prior proceeding. Tokatly, on the other hand, involved the application of the modified categorical approach in an immigration case, such as this one, in which the inquiry is confined only to determining the nature of the prior crime. Cisneros-Perez v. Gonzales, 465 F.3d 386, 392 (9th Cir. 2006).

Lower Courts of Ninth Circuit

CRIMES OF MORAL TURPITUDE " ORAL COPULATION WITH A MINOR
People v. Zuniga, 225 Cal.App.4th 1178, 170 Cal.Rptr.3d 811 (Cal.App. 4 Dist., Apr. 28, 2014) (California conviction of violating Penal Code 288a(b)(1), oral copulation with a minor, is not a crime of moral turpitude since there is no scienter requirement or age gap required and minor could be any person under 18).

Tenth Circuit

CRIME OF MORAL TURPITUDE " THEFT " RETURN OF PROPERTY
Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. Nov. 14, 2017) (conviction under Westminster, Colo., Municipal Code 6-3-1(A) did not categorically qualify as a crime involving moral turpitude because the statute was divisible, since one portion of the statute " demanding consideration for return of property " did not involve a permanent taking; because it was unclear from the record of conviction whether he committed a CIMT, he did not sustain his burden to prove eligibility for cancellation of removal). NOTE: The court found that Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847, 849-52 (BIA 2016), expanding what constitutes CMT theft, was prospective only.

RELIEF " NON-LPR CANCELLATION OF REMOVAL " PETTY OFFENSE EXCEPTION
Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. Nov. 14, 2017)(assumed moral turpitude conviction disqualified respondent from eligibility for discretionary cancellation of removal, and qualifying for the petty offense exception to moral turpitude inadmissibility would not change this result); following In re Cortez Canales, 25 I&N Dec. 301, 303-04 (BIA 2010); see also Mancilla-Delafuente v. Lynch, 804 F.3d 1262, 1265-66 (9th Cir. 2015); Hernandez v. Holder, 783 F.3d 189, 191-96 (4th Cir. 2015).

CRIME OF MORAL TURPTIUDE " CRIMINAL IMPERSONATION " SSN
Veloz-Luvevano v. Lynch, __ F.3d __ (10th Cir. Aug. 31, 2015) (Colorado conviction for criminal impersonation, in violation of Col.Rev.Stat. 18"5"113(1)(d), for possession of a forged social security card to allow him to work, is a categorical crime of moral turpitude for immigration purposes). NOTE: The judge in this case had clear distain for the noncitizen, and dismissed out of hand, what were likely legitimate minimum conduct arguments. The court also made no mention of Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000).

CRIMES OF MORAL TURPITUDE " SEX OFFENSES " FAILURE TO REGISTER AS A SEX OFFENDER
Efagene v. Holder, ___ F.3d ___, ___, 2011 WL 1614299 (10th Cir. Apr. 29, 2011) (Colorado misdemeanor conviction of failure to register as a sex offender, in violation of Colo.Rev.Stat. 18-3-412.5(1)(a), (3), does not constitute a crime of moral turpitude, because it is a regulatory offense, malum prohibitum, and lacks an evil intent; the BIAs contrary conclusion in Tobar-Lobo is not supported by the decisions on which it relies, and is inconsistent with many prior BIA decisions, rendering it worthy of much less deference: The BIA's interpretation of moral turpitude in Tobar"Lobo is unreasonable for the additional reason that the rationale for the decision could apply to any and every criminal infraction. Any obligation on which society has placed a threat of imprisonment for failure to comply can be characterized as too important not to heed, as the BIA said of the obligation to register as a sex offender.).

Eleventh Circuit

CRIMES OF MORAL TURPITUDE " UTTERING A FORGED INSTRUMENT
Walker v. U.S. Atty. Gen., ___ F.3d ___, ___, 2015 WL 1782677 (11th Cir. Apr. 21, 2015) (Florida conviction of uttering a forged instrument, under Fla. Stat. 831.02, is categorically a crime involving moral turpitude, under INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i): Because uttering a forged instrument involves deceit, we hold that it is a crime of moral turpitude. Uttering a forged instrument is behavior that runs contrary to accepted societal duties and involves dishonest or fraudulent activity.); quoting and following Itani v. Ashcroft, 298 F.3d 1213, 1215 (11th Cir. 2002).

CRIMES OF MORAL TURPITUDE " RESISTING ARREST " RESISTING AN OFFICER WITH VIOLENCE
Cano v. U.S. Attorney General, 709 F.3d 1052 (11th Cir. Feb. 15, 2013) (Florida conviction for resisting an officer with violence, in violation of Fla. Stat. 843.01 [knowingly and willfully resists, obstructs, or opposes any [officer] ... by offering or doing violence to the person of such officer], is a crime involving moral turpitude, because the offense requires intentionally offering or doing violence to the officers person); following United States v. Romo"Villalobos, 674 F.3d 1246, 1250 n.4 (11th Cir. 2012) (rejecting argument that no intent is required for the offering or doing violence element of the crime of resisting an officer with violence, in violation of Fla. Stat. 843.01); see Frey v. State, 708 So.2d 918, 919"20 (Fla.1998).

Other

RESOURCES " FEDERAL CONVICTIONS " CHART OF FELONY AND MISDEMEANOR OFFENSES
Felony and Misdemeanor Federal Chart as prepared by Federal Defender office: http://ms.fd.org/maxpenalties/maxpenalties.pdf

RELIEF " DEFERRED ACTION " EXPUNGEMENTS
DHS has stated that individuals with expunged convictions did not categorically fall outside the enforcement priorities. Rather, ICE has internal guidance that instructs them to weigh the expungement in determining whether to exercise prosecutorial discretion. ICE officers have the ability to implement this guidance in such a way where an individuals expunged conviction would not make them an enforcement priority. This determination is made on a case-by-case basis. DHS stated that expungement essentially functions as a positive equity and community members who potentially fall within the enforcement priorities because of one or more convictions should obtain expungements. Thanks to Jose Magaa-Salgado

CAL CRIM DEF " PRACTICE ADVISORY " BURGLARY " TARGET OFFENSE IS NOT AN ELEMENT
Under Descamps and Moncrieffe, arguably no California conviction of burglary, in violation of Penal Code 459, is a crime of moral turpitude, because the specific intended offense is not an "element" of burglary but merely a "means" of committing the offense, since the jury need not agree unanimously as to which specific offense was intended at the time of the entry. Therefore the immigration judge must decide the case on the minimum conduct sufficient to commit burglary, which could include intent to commit a felony which is not a crime of moral turpitude, and the immigration judge may not look to the record of conviction to see which felony was intended, because the statute is not divisible with respect to which felony was intended. For discussion of elements versus means in this context, see Practice Advisory at www.nipnlg.org/legalresources/practice_advisories/cd_pa_Descamps_Practice_Advisory_7-17-2013.pdf. This argument is supported by specific language in California jury instructions for trials involving Penal Code 459 that state that, at least in deciding between intended offenses charged by the prosecution, the jury does not need unanimously to agree as to the identity of the intended offense in order to return a guilty verdict. CALCRIM 1700 (The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]")(emphasis supplied). Thanks to Katherine Brady.

CRIMES OF MORAL TURPITUDE " BURGLARY " TARGET OFFENSE CATEGORICAL ANALYSIS " TARGET OFFENSE
In California burglary cases, the jury need not unanimously agree on the identity of the offense that the defendant intended to commit crime at entry. CALCRIM 1700 provides: The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]" (Emphasis supplied.) The jury instructions establish that the target offense for burglary is not an element under California law. The elements are a question of California law, not federal immigration law. Moncrieffe and Descamps hold that the nature of the offense of conviction is limited to the elements (regardless of what is in the Record of Conviction). Therefore, a conviction of violating Penal Code 459 cannot be a crime of moral turpitude for purposes of deportation. The same rules (minimum conduct analysis and ignoring the facts) also apply to inadmissibility and bars to relief. Therefore, a conviction of burglary also did not trigger inadmissibility at entry. There is some slightly contradictory authority. CalCRIM jury instructions provide: Although actual commission of the underlying theft or felony is not an element of burglary (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042 [31 Cal.Rptr.2d 128, 874 P.2d 903]), the court has a sua sponte duty to instruct that the defendant must have intended to commit a felony and has a sua sponte duty to define the elements of the underlying felony. (People v. Smith (1978) 78 Cal.App.3d 698, 706 [144 Cal.Rptr. 330] ; see also People v. Hughes (2002) 27 Cal.4th 287, 349 [116 Cal.Rptr.2d 401, 39 P.3d 432] .) Give all appropriate instructions on theft or the felony alleged. The courts sua sponte duty to instruct on the elements of the target offense, however, is not the same as a requirement that the jury must unanimously agree on the same offense, just that they must all agree that theft or some felony offense or other was committed.

CRIMES OF MORAL TURPITUDE"FIREARMS"POSSESSION OF AN ASSAULT WEAPON
People v. Gabriel, 203 Cal.App.4th 199, 137 Cal.Rptr.3d 382 (2d Dist. Feb. 3, 2012) (California conviction of possession of an assault weapon, in violation of Penal Code 12280(b), constituted a crime of moral turpitude, for purposes of impeachment of a witness with that conviction; Defendant's conviction of this charge required, at the least, that he should have known the weapon possessed the characteristics that made it particularly dangerous to human life. ( 12280, subd. (b); see In re Jorge M., supra, 23 Cal.4th at p. 885, 98 Cal.Rptr.2d 466, 4 P.3d 297.) We thus conclude that under Castro's least adjudicated elements test, the mere possession of such a weapon demonstrates a general readiness to do evil. (Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111.)).

CRIMES OF MORAL TURPITUDE"CONTROLLED SUBSTANCES"CULTIVATION OF MARIJUANA
People v. Gabriel, 203 Cal.App.4th 199, 137 Cal.Rptr.3d 382 (2d Dist. Feb. 3, 2012) (California conviction of cultivation of marijuana, in violation of Health and Safety Code 11358, constituted a crime of moral turpitude, for purposes of impeachment of a witness with that conviction; rejecting argument that the offense is not a CMT because, at its minimum, includes cultivation for personal use, and so it not necessarily related to drug trafficking).

CRIMES OF MORAL TURPITUDE"POSSESSION OF A FIREARM BY AN UNDOCUMENTED IMMIGRANT
Possession of a firearm, under 18 U.S.C. 922(g)(5), should not be considered to be a crime involving moral turpitude. Since possessing a firearm is not inherently evil and not malum prohibitum, the fact of being unlawfully undocumented when doing so should not make it a crime of moral turpitude. See Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990) (possessing a sawed-off shotgun not a crime of moral turpitude). See also Matter of Gabryelski, 20 I&N Dec. 750 (1993): [W]e point out that while the respondent's conviction for possession of a firearm establishes his deportability under section 241(a)(2)(C) of the Act, see Matter of Chow, Interim Decision 3199 (BIA 1993), it does not render him inadmissible for purposes of section 245 adjustment, as there is no corresponding exclusion ground. In Matter of Rainford, supra, the Board specifically held that a conviction for criminal possession of weapon did not preclude a finding of admissibility in connection with an application for adjustment of status under section 245 of the Act, because it is not a ground of excludability. (Ibid.) Since it is not a ground of inadmissibility, it is not a crime involving moral turpitude. Thanks to Jonathan Moore.