This chapter describes how to determine whether a criminal conviction and the records presented to the Immigration Judge will cause the noncitizen to fall within any of the moral turpitude conviction-based grounds of removal.[1]  This same analytical structure will also provide counsel with the tools necessary to identify or create a criminal conviction that will avoid a crime of moral turpitude.  This analysis, however, only applies to the conviction- based grounds of removal, not to the conduct-based CMT ground.[2]

 

            To determine whether a given conviction will trigger a conviction-based ground of removal, it is necessary to go through the following analysis:

 

(1)   Examine the record of conviction[3] to identify the statute that defines the offense of conviction on the date of the offense.  This examination is limited to determining the section and subsection number or offense of which the person was convicted.[4]

(2)   Determine whether judicial decisions have modified the essential elements specified by the Legislature.[5]

(3)   If the statute of conviction includes only one offense, with one set of essential elements,[6] determine the minimum conduct[7] necessary to satisfy the essential elements of the criminal offense.

(4)   If the statute of conviction punishes multiple offenses, as delineated by subsections or a disjunctive,[8] determine by reference to the record of conviction[9] (if possible) the set of elements of which the person was found guilty.  Then determine the minimum conduct necessary to satisfy the essential elements of the criminal offense of conviction.

(5)   Compare the set of elements necessary to convict to the crime of moral turpitude definition and past cases determining whether an offense is a CMT.

(6)   If there is any instance in which all essential elements necessary to convict under the criminal statute are established, yet the offense is not a crime of moral turpitude, then the conviction in question must be held not to be a CMT.[10]

 

            The nature of a conviction is determined according to the elements of the offense, rather than the facts of the offense.[11]  The courts may not go behind the record of conviction to ascertain the facts of the case,[12] in order to determine whether the facts in the case, beyond the minimum facts necessary to convict, trigger a ground of removal.

 

            The courts have held that the specific facts of the case will not be examined to assess whether a crime of moral turpitude was committed in the specific case before the court.  This would be an administrative burden, and would not be fair or equitable to the various defendants, convicted of identical statutory violations, whose individual circumstances might or might not be held to involve moral turpitude.  One major effect of this prohibition against consideration of the facts of the case, in making the moral turpitude assessment, is that many convictions are therefore held to involve moral turpitude (by ignoring the facts of the case), that would never otherwise be considered to do so because of the very minor nature of the offense or because of the existence of extenuating circumstances such that no court could conclude that the individual perpetrating the offense was in fact exhibiting moral turpitude.

 

            It is critical, however, to ensure that this rule of the irrelevance of the facts is applied in an even-handed manner.  It would be highly unfair and unjust, for example, to preclude persons convicted of stealing bread to feed starving children in war-torn Yugoslavia from evading a moral turpitude determination because of rigid application of the rule against consideration of the facts of the offense, and yet allow the government to go outside the elements of the statute of conviction to establish the fact that the person assaulted had formerly cohabited with the defendant and conclude that the simple assault conviction was therefore a crime involving moral turpitude.

 

            If it is not possible to determine, in step (4), above, the set of elements of which the noncitizen was convicted, the set of elements most beneficial to the party who does not have the burden of proof will be applied to steps (5) and (6).[13]

 

            All reasonable doubts must be found in favor of the noncitizen.[14]

[3] In light of a recent decision, this analysis may not apply within the Seventh Circuit.  See § 6.2(B), infra.

[4] See § 4.4, supra.

[5] See § § 7.10-7.12, infra.

[6] See § 6.4, infra.

[7] See § 6.5, infra.

[8] See § 7.6, infra.

[9] See § 6.6, infra.

[10] See § § 7.2-7.5, infra.

[11] See § § 7.10-7.12, infra.

[12] See § 6.6, infra.

[13] See § 7.9, infra.

[14] See § 7.8, infra.

[1] The government generally bears the burden of proof when the respondent is charged with a ground of deportation.  See § 5.1, supra.  Who bears the burden in inadmissibility proceedings is more complicated.  See § 4.1, supra.  See also § 5.7, supra.

[2] See § 6.7, infra.

Other

RESOURCES " PRACTICE ADVISORIES " CATEGORICAL APPROACH
ILRC is pleased to release a new resource on how to identify new defenses using the categorical approach. See How to Use the Categorical Approach Now, available at http://www.ilrc.org/trainings-webinars/recorded-webinars/the-categorical-approach-ninth-circuit.

CATEGORICAL ANALYSIS - CRIME OF MORAL TURPITUDE
Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 9, 2008) (Moral turpitude is an "extra-element" allowing the courts to examine the underlying facts of the conviction in order to made a moral turpitude determination).

In short, the Attorney General has abandoned the categorical analysis in favor of a fact-based examination, rejecting Taylor, Shepard, and all prior categorical analysis case law in the CMT context. There is no longer any limit to the statute of conviction or minimum conduct. The IJ can look directly to the underlying facts whenever s/he feels it necessary to do so.

The categorical analysis survives only as an "evidentiary hierarchy," to ease the administrative burden of the immigration courts and the DHS. The new rule can be phrased as, "if at first its not a CMT, try, try again."

Step 1 (from Duenas-Alvarez, 549 U.S. 183 (2007)): Look at the statute, if the statute is categorically a CMT the conviction is a CMT. The Attorney General applies Duenas language regarding "reasonable probability of prosecution," as a requirement that the noncitizen prove that the statute of conviction is not categorically a CMT by pointing to the facts of his own case or a prior published decision. If there isnt a case out that punishes a non-CMT under the statute, then the conviction is categorically a CMT.

Step 2 (from Conteh v. Gonzales, 461 F.3d 45 (1st Cir.2006)): "Modified categorical approach" no longer means looking to determine the elements of conviction in case of a divisible statute. The term now means looking to any facts in the record of conviction to determine whether the offense was in fact a CMT.

Step 3 (from Ali v. Mukasey, 521 F.3d 737 (7th Cir. Apr. 4, 2008)): The Attorney General sees no justification for being limited to the record of conviction. If it cannot be determined that the conviction was a CMT by looking to the facts in the record of conviction, the immigration authorities can look at any and all underlying facts and subsequent testimony if the immigration judge decides it is necessary to do so.

While the noncitizen cannot dispute any facts found by the judge/jury or elements necessary for conviction, the DHS not limited by the elements of conviction in any way.

The minimum conduct punishable under the Texas Statute at issue in Silva-Trevino included where a 20 year old consensually feeling the breast of a girl 1-day shy of 18 years old, though clothing, while (mistakenly) believing she was over 18 years old. The conviction record reflected only the basic language of the statute. Nevertheless, the Attorney General remanded the case back to the BIA to determine whether the actor, in fact, knew or had reason to believe that the victim was under the age of 18.

The Attorney General was explicit in stating his view that Brand-X allows this decision to overrule all prior inconsistent case law from the Circuit Courts.

See http://www.bibdaily.com/pdfs/Silva%20Trevino%20Amicus%20Brief.pdf, for amici brief outlining many arguments in opposition to this terrible decision. This decision abruptly changes nearly 100 years of CMT law, and should be attacked.