Crimes of Moral Turpitude

The key purpose of divisible statute analysis is always to determine which set of elements[93] constitutes the offense of which the noncitizen was convicted.[2]  In doing so, the courts are not only limited to the documents that make up the record of conviction, but are also limited in the type of information that can be gleaned from those documents.  While the record of conviction can be considered to determine the set of elements of which the noncitizen was found guilty, the courts generally should not consider any facts contained in those documents that do not speak to that question.[3] 

For example, a conviction under California Penal Code § 243.4, punishing sexual battery through intimate touching and for the purpose of sexual arousal, gratification or abuse, should never be considered an aggravated felony sexual abuse of a minor.[4]  Although the statute is arguably divisible on the question of whether the conviction involved abuse, whether the actual offense was committed against a minor is completely irrelevant in determining culpability of this offense.  Even if the charging document indicated that the defendant “touched the breast of Jane Doe, a 17-year-old girl, for the purpose of sexual abuse,” the fact of the victim’s age does not go to the question of which of all possible sets of elements under the divisible statute formed the basis of the conviction.[5]

An element is something that must have been shown, beyond a reasonable doubt, to support the conviction.[94]  If the conviction can be sustained without proof of a given fact, then that fact is superfluous, and is not an essential element of the offense, and therefore should not be considered in determining the nature of the conviction.[7]  

[95] Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 388 (BIA Dec. 13, 2007) (en banc) ("A criminal “offense” is defined by its “elements,” Schmuck v. United States, 489 U.S. 705, 716-17 (1989), with “elements” being understood as facts that must be proven to a jury beyond a reasonable doubt in order to convict. In re Winship, 397 U.S. 358, 364 (1970).").

[96] See United States v. Calderon-Pena, 339 F.3d 320, 239 (5th Cir. 2003) (en banc) (looking to the record of conviction “for the limited purpose of determining which of a series of disjunctive elements a defendant’s conviction satisfies.”). 

[97] See United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. Oct. 31, 2006) (in determining whether an offense triggers a ground of removal, no reference may be made to the facts alleged in an indictment or information; analysis is limited to the set of statutory elements of which the noncitizen was found guilty); United States v. Acuna-Cuadros, 385 F.3d 875 (5th Cir. Sept. 21, 2004) (per curiam) (“Even accepting the government’s proposition that the court may look at the indictment pursuant to the exception, we cannot use the fact that the offense involved the use of force to conclude that force is an element of the statute. Thus, given the plain meaning of the statute and the purported disjunctive elements, the use, attempted use, or threatened use of physical force is simply not an element of the Texas retaliation statute.”), following United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc); Manzella v. Zimmerman, 71 F.Supp. 534 (E.D. Pa. 1947) (the common-law crime of escape did not constitute a crime involving moral turpitude, since it was committed by a prisoner when he voluntarily departed from lawful custody without breach of prison, since the offense involved no element of force or fraud, even though the indictment alleged that the offender did break prison and escape “with force and arms.”).  Cf. Rusz v. Ashcroft, 376 F.3d 1182, 1185 (9th Cir. 2004) (“In Corona-Sanchez, the defendant ‘actually received a two-year sentence for [recidivist shoplifting] due to the application of California Penal Code § 666.’  Because the categorical approach required us to separate the recidivist enhancement, the Corona-Sanchez defendant’s actual two-year sentence was of no moment.  Thus, we concluded that ‘even under the § § 484/488/666 scheme ... the maximum possible sentence for [petty theft with a prior qualifying offense] ... is six months.’”) (internal citations omitted).

[98] See, e.g., Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) (Delaware conviction of unlawful sexual contact in the third degree under Del. C. § 767, penalizing “sexual contact with another person [with knowledge] that the contact is either offensive to the victim or occurs without the victim’s consent,” does not constitute aggravated felony sexual abuse of a minor because the age of the victim is irrelevant under the statute).

[99] But see Sharashidze v. Gonzales, 480 F.3d 566, (7th Cir. Mar. 16, 2007) (Illinois conviction of misdemeanor indecent solicitation of a sex act, under 720 ILCS 5/11-14.1 [“offers a person not his or her spouse any money, property, token, object, or article or anything of value to perform any act of sexual penetration as defined in Section 12-12 of this Code, or any touching, or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification],” constituted a divisible statute with respect to the age of the victim for purposes of considering whether conviction constituted sexual abuse of a minor aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), because the offense in fact involved a minor). 

[93] Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 456 (BIA Dec. 19, 2007).  See also Matter of Aruna, 24 I. & N. Dec. 452 (BIA Feb. 26, 2008) (distinguishing between facts necessary to convict and facts necessary for sentencing; “[T]he categorical approach is concerned only with the facts that a jury must have decided beyond a reasonable doubt.”).  But see Conteh v. Gonzales, 641 F.3d 45 (1st Cir. 2006) (allowing examination of facts beyond those needed to be proven beyond a reasonable doubt in some cases).

[94] United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc); Matter of Lethbridge, 11 I. & N. Dec. 444, 445 (BIA 1965) (conviction under that portion of 18 U.S.C. § 474 which makes it a crime to possess securities made after the similitude of United States securities intending to sell and use them, is not a conviction of a crime involving moral turpitude: “Language in the indictment charging knowledge of the counterfeit nature of the securities is not found in 18 U.S.C. § 474 and would therefore appear to be surplusage”); Matter of B, 6 I. & N. Dec. 98 (BIA 1954) (conspiracy to violate New York Banking Law § § 340, 357 is not a CMT, since those sections are merely regulatory enactment; statement in the conspiracy count relating to intimidation and threats was immaterial since it was surplusage and not necessary for conspiracy conviction).  But see Conteh v. Gonzales, 641 F.3d 45 (1st Cir. 2006) (allowing examination of facts beyond those needed to be proven beyond a reasonable doubt in some cases).