Crimes of Moral Turpitude

(A)  Burden of Proof.  Once removability is established, the Government bears the initial burden of production to show that a statutory bar to relief may exist.[14]  Once that is met, then the noncitizen then bears the burden of showing, by a preponderance of the evidence,[15] that s/he is eligible for relief from removal, both statutorily and as a matter of discretion.[3]  At least three circuits have found that relief may be denied on the basis of criminal convictions or acts that were not charged as triggering grounds of removal in the Notice to Appear.[4]  Because the determination of whether an offense triggers removal, applying divisible statute analysis,[5] may turn upon who bears the burden of proof, it is possible that a court could find a conviction not to be an aggravated felony (for example) for purposes of proving deportability, but find that it is an aggravated felony for purposes of barring relief from removal.

The Ninth Circuit has held that, even though the noncitizen bears the burden of proof, if the record of conviction is inconclusive (i.e., it is impossible to determine whether the conviction for an offense that would statutorily bar relief), the conviction cannot trigger the bar.  The court stated:

[W]e must determine whether the judicially noticeable documents establish that Lua's conviction necessarily was for all of the elements constituting an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). If the record of conviction does not so establish, Lua's § 11379(a) conviction cannot amount to the generic offense, and Lua has carried his burden. This conclusion results from the Supreme Court's holdings in Taylor, 495 U.S. 599-602, and Shepard, 544 U.S. at 19-21, which both stress that a predicate conviction qualifies as a generic crime under the modified categorical approach only if the record of conviction shows the jury “necessarily” found all of the generic elements, or the defendant “necessarily” admitted all of the generic elements in a plea.

            It is just as possible, on the basis of the record, that Lua pleaded to the nongeneric elements. When confronted with such a record, pursuant to Taylor and Shepard we must conclude as a matter of law that the conviction was not for a generic offense for purposes of determining whether Lua has committed an aggravated felony under the INA. Thus, Lua has carried his burden to show that he has not been convicted of an aggravated felony. [16]

[17] 8 C.F.R. § 1240.8(d).  The BIA requires the Government to produce some evidence to satisfy its burden. See In re SK, 23 I. & N. Dec. 936, 941 (BIA 2006) (material support bar to asylum); In re RSH, 23 I. & N. Dec. 629, 640 (BIA 2003) (national security danger bar to asylum).  The Ninth Circuit held the government’s burden of production was the same as the burden to prove deportability, for example, a high burden to establish respondent has an aggravated felony. Cisneros-Perez v. Gonzales, 451 F.3d 1053, 1059-60 (9th Cir. 2006).  Thanks to Dan Kesselbrenner.

[18] Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. Aug. 28, 2007) (respondent in removal proceedings bears the burden of proof before the BIA to establish eligibility for relief by a preponderance of the evidence), citing 8 C.F.R. § 1240.8(d); see also Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. July 31, 2006) (“[A]n alien who applies for cancellation of removal bears the burden of demonstrating that he is eligible for such relief.”).

[19] INA § 240(c)(4)(A), 8 U.S.C. § 1229a(c)(4)(A).

[14] Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. Apr. 4, 2006); Brown v. Ashcroft, 360 F.3d 346 (2d Cir. 2004); Aalund v. Marchall, 461 F.2d 710 (5th Cir. 1972).

[15] See § § 7.1-7.6, infra.

[16] Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1132 (9th Cir. Aug. 28, 2007) (California conviction of transportation of methamphetamines, in violation of Health & Safety Code § 11379(a), did not constitute a drug-trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), and therefore did not disqualify the noncitizen from eligibility for cancellation of removal for LPRs, under INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3), because the noncitizen offered an inconclusive record of conviction that showed the conviction was not necessarily for an aggravated felony, and thus offered sufficient evidence to establish by a preponderance of the evidence that he was not convicted of an aggravated felony).