Crimes of Moral Turpitude

           (A)  Particularly Serious Crimes.  A two-step process is used in determining whether a conviction constitutes a “particularly serious crime” (“PSC”) sufficient to disqualify a noncitizen from asylum or withholding of removal.  First, if the offense is considered an aggravated felony, the noncitizen is statutorily disqualified for asylum, regardless of sentence,[365] and is statutorily disqualified from withholding if the sentence imposed is for five years or more.[366]

Second, if a conviction is found not to be a particularly serious crime under either of the statutory bars, the conviction may still be found by the IJ to be a PSC by looking at the factors described in Matter of Frentescu.[367]  These factors include: 1) nature of the conviction; 2) circumstances and underlying facts of the conviction; 3) type of sentence imposed; and “most importantly” 4) “whether the type and circumstances of the crime indicate that the alien will be a danger to the community.”[368]  This test does not involve “an examination of the respondent’s family or community ties, the risk of persecution in the alien’s native country” or going “behind the record of conviction to redetermine the alien’s innocence or guilt.”[369]  The question of guilt or innocence is distinguished from the question of the extent of culpability and the seriousness of the crime.[370]  The court may not go beyond the record of conviction in making its determination, [371] and the court may not consider facts related only to dismissed counts.[372]

There are relatively few cases in which the courts have actually determined whether an offense is a PSC.[373]  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 24.19 (4th Ed. 2007).

[365] Ibid.

[366] INA § 241(b)(3)(B); 8 U.S.C. § 1231(b)(3)(B).  At least one court has held that, for withholding of removal purposes, a conviction must be an aggravated felony in order to be a PSC.  Alaka v. Attorney Gen., 456 F.3d 88 (3d Cir. Jul. 18, 2006) (BIA decision that bank fraud conviction was a “particularly serious crime” reversed because offense must be an aggravated felony to be considered a PSC and petitioner’s bank fraud conviction was not an aggravated felony).

[367] Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982).

[368] Ibid.  See also Yousefi v. INS, 260 F.3d 318 (4th Cir. 2001).

[369] Matter of LS, 22 I. & N. Dec. 645, 651 (BIA 1999).

[370] See, e.g., Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006) (BIA acted arbitrarily in failing to consider the facts of noncitizen’s California conviction for unlawful sexual intercourse with a minor in applying Frentescu standard to decide whether conviction constituted a “particularly serious crime” for purposes of withholding of removal).

[371] Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (“only the record of conviction and sentencing information may be considered in determining whether Morales’s conviction was for a particularly serious crime.”), citing Matter of LS, 22 I. & N. Dec. 645, 651 (BIA 1999).  But see Solis v. Mukasey, 515 F.3d 832 (8th Cir. Feb. 8, 2008) (police report, although hearsay, was allowed into evidence for purposes of rebutting respondent’s version of the underlying facts of controlled substances conviction in determining whether the conviction was for a particularly serious crime).

[372] Id. (IJ erred in relying on facts in a Washington appellate court’s opinion to determine whether petitioner’s prior conviction was for a particularly serious crime, where a large portion of the facts relied upon applied to offenses for which she was not convicted).

[373] See, e.g., Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (Washington conviction of communication with a minor for immoral purposes, in violation of Wash. Rev. Code § 9.68A.090, constituted crime of moral turpitude, but was not a particularly serious crime); Matter of LS, 22 I. & N. Dec. 645 (BIA 1999) (crime of alien smuggling for commercial gain was not particularly serious because the alien-smuggler had no intention of harming the smuggled alien, and the alien-smuggler spent only three-and-a-half months in prison); Cepero v. BIA, 882 F.Supp. 1575 (D. Kan. 1995) (bank robbery); Nguyen v. INS, 991 F.2d 621 (10th Cir. 1993) (shooting with intent to kill); Matter of Carballe, 19 I. & N. Dec. 357 (BIA 1986) (robbery); Matter of Garcia-Garrocho, 19 I. & N. Dec. 423 (BIA 1986) (residential burglary).