Crimes of Moral Turpitude

 

(A)

In General.  The analysis of whether a conviction triggers removal as a crime of moral turpitude turns on the exact elements of the offense as defined by the legislature, sometimes as interpreted by the courts, and sometimes as elucidated by the “record of conviction.”[1]  This is called the “categorical” analysis because it depends upon the category of the crime as determined by its elements, not the facts of the specific case.  The categorical analysis should be specifically distinguished from a “factual” analysis in which the courts can look to what actually happened in order to determine, for example, whether the DHS has “reason to believe” a noncitizen has engaged in drug trafficking for purposes of establishing inadmissibility.[2]  The Seven Circuit has abandoned the traditional categorical analysis in the CMT context.  See § 6.2(B), infra.

 

            The categorical analysis is used both within and outside of the immigration context.  In the immigration context, the categorical analysis is used for the purposes of determining whether a conviction-based ground of removal[3] exists (e.g., a conviction constitutes a crime involving moral turpitude,[4] a firearms conviction,[5] a controlled substance offense,[6] or a domestic violence offense,[7] in addition to determining whether the conviction constitutes an aggravated felony[8]).  Outside the immigration context, the categorical analysis is also used, for example, when determining whether a prior criminal conviction can be used to convict a defendant of being a felon in possession of a firearm,[9] or when determining whether a prior conviction triggers a sentence enhancement for illegal re-entry,[10] or as a career offender in federal court.[11]  Taylor v. United States,[12] upon which most categorical analysis cases are based, and the more recent Shepard[13] case from the United States Supreme Court are both concerned with the Armed Career Criminal Act,[14] but their analysis applies with full force to the immigration context. Therefore, cases from a number of contexts will be discussed, not just immigration cases.

 

            The Ninth Circuit has described the categorical analysis (in the context of determining whether an offense is a crime of moral turpitude for deportation purposes) as follows:

 

To determine whether a specific crime falls within the category of “crimes involving moral turpitude,” we apply the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575 (1990). See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir. 2005). Under the categorical approach, we must compare “the elements of the statute of conviction to the generic definition, and decide whether the conduct proscribed [by the Arizona statute] is broader than, and so does not categorically fall within, this generic definition.” Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003). Under this approach, “[t]he issue is not whether the actual conduct constitutes a crime involving moral turpitude, but rather, whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude.” Cuevas-Gaspar, 430 F.3d at 1017.

            If the statute of conviction is not a categorical match because it criminalizes both conduct that does and does not involve moral turpitude, we apply a “modified” categorical approach “under which we may look beyond the language of the statute to a narrow, specified set of documents that are part of the record of conviction, including the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings.” Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004) (internal quotation marks omitted). We may not, however, “look beyond the record of conviction itself to the particular facts underlying the conviction.” Id. If the record of conviction that is introduced at the hearing before the IJ is not sufficient to establish that the offense qualifies as a basis for removal, “the government has not met its burden of proving that the conviction constitutes a predicate offense, and the conviction may not be used as a basis for removal.” Id. at 620-21; see also Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir. 2004) (“If the record of conviction does not establish that the offense the petitioner committed qualifies as an aggravated felony, the government has not met its burden of proving that the defendant committed an aggravated felony.”).[15]

 

The categorical analysis, as reflected in this description, often involves at least three steps. 

 

            The first step is an examination of the statute of conviction itself, as written by the legislature, and interpreted under the law of the convicting jurisdiction.  See § § 6.3-6.8, infra.  The second step, sometimes referred to as the “modified categorical” or “divisible-statute” analysis, is where the reviewing court is allowed to examine a limited number of documents called the “record of conviction” to further assist the reviewing court in determining which exact offense, within a divisible statute that includes more than one offense, was the specific offense of which the defendant was found guilty.  This second step is discussed in chapter 7, infra.

 

            The third step (which is really a repeat of the first) involves the application of the minimum conduct analysis, to determine whether the least culpable act sufficient to violate the statute of conviction categorically falls within the ground of removal. See § 6.6, infra. 

 

            Unfortunately, many courts are less than consistent in applying this analysis.  The areas in which the circuits, and even individual decisions within a circuit, differ most are: (1) when the record of conviction may be examined,[16] (2) what information constitutes the record of conviction,[17] and (3) for what purpose the record of conviction may be examined.[18]  At least one court, in an unpublished decision, has found failure to apply the categorical analysis violates due process.[19]

[15] See § 7.10, infra.

[16] INA § 212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C)(i).  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 21.6 (4th Ed. 2007).  See also United States v. Carbajal-Diaz, 508 F.3d 804 (5th Cir. Nov. 26, 2007) (drawing a distinction between the “categorical analysis” applied when determining whether a conviction requires “use of force” for first prong of illegal re-entry sentencing definition of “crime of violence” and the “common sense approach” applied when examining whether an offense falls within one of the offenses enumerated in the second prong.); Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. Jun. 26, 2006) (distinguishing between INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i)[domestic violence conviction ground of deportation], and 18 U.S.C. § 921(a)(33)(A)(i) [sentence enhancement for person with prior domestic violence conviction found in possession of a firearm], in that the former requires that the domestic relationship must be an element of the offense, where the latter merely requires that the offense was in fact committed against someone with a domestic relationship).

[17] Compare a conduct-based ground of removal, such as the reason to believe drug trafficking ground of inadmissibility.  INA § 212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C)(i).

[18] Matter of Short, 20 I. & N. Dec. 136 (BIA 1989).

[19] Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996).

[20] Matter of Mena, 17 I. & N. Dec. 38 (BIA 1979).

[21] Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004).

[22] Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999).

[23] See, e.g., United States v. Ladwig, 432 F.3d 1001 (9th Cir. Dec. 27, 2005).

[24] See, e.g., United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (sexual battery, under California Penal Code § 243.4, is not a categorical crime of violence under the federal Sentencing Guidelines, as the offense is not necessarily a “forcible” sex offense under U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii)); United States v. Rodriguez-Rodriguez, 323 F.3d 317 (5th Cir. Feb 27, 2003) (Texas conviction of unauthorized use of a motor vehicle, in violation of Texas Penal Code Ann. § 30.02(a), is not a crime of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the offense is not listed in Application Note 1(B)(ii)(II) and does not have as an element the use, attempted use, or threatened use of physical force against the person of another), vacated and superseded on rehearing, 388 F.3d 466 (5th Cir. Oct. 15, 2004).  But see United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. Mar. 31, 2005) (taking indecent liberties with a child, in violation of North Carolina General Statutes Annotated § 14-202.1(a)(1), is a crime of violence, as sexual abuse of a minor, for sentencing purposes under U.S.S.G. § 2L1.2, following illegal re-entry; this holding based on “common meaning,” rather than “categorical” analysis); United States v. Rodriguez-Duberney, 326 F.3d 613 (5th Cir. Mar. 25, 2003) (since court’s consideration of whether a prior conviction constitutes a drug trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i) does not require a determination whether the offense “by its nature” fits a certain definition, as opposed to the question whether a conviction constitutes a “crime of violence” under 18 U.S.C. § 16, the court will not employ a categorical analysis that ignores the facts of the case).

[25] See, e.g., United States v. Granbois, 376 F.3d 993 (9th Cir. July 22, 2004) (conviction under 18 U.S.C. § 2244(a)(3), sexual contact with a child, is a “crime of violence” for purposes of the Career Offender Guideline, U.S.S.G. § 4B1.1).

[26] Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143 (1990).

[27] Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254 (Mar. 7, 2005) (applying Taylor to convictions arising from a guilty plea).

[28] 18 U.S.C. § 924(e) (imposing a minimum 15-year prison sentence for anyone possessing a firearm after three prior convictions for serious drug offenses or violent felonies).

[29] Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163-1164 (9th Cir. Nov. 15, 2006) (emphasis added).

[30] See § § 7.2-7.6, infra.

[31] See § § 7.11-7.12, infra.

[32] See § 7.9, infra.

[33] United States v. Meza-Corrales, 2006 U.S. Dist. LEXIS 11199 (E.D. Wash. Mar. 1, 2006) (immigration judge violated due process by bypassing categorical analysis of Oregon conviction of attempted sexual abuse in the first degree, in violation of O.R.S. § 161.405(2)(c) [which did not contain an element of the age of the victim], by improperly examining the record of conviction, though the statute was not divisible, and by improperly going beyond the record of conviction to examine police reports to determine age of the victim).  See also United States v. Pintado-Isiordia, 448 F.3d 1155 (9th Cir. May 26, 2006) (per curiam) (because record unclear whether district court applied either the categorical or modified categorical analysis, defendant’s sentence for illegal re-entry was vacated and remanded for district court determination as to whether prior conviction for assault with a firearm qualifies as a “crime of violence” under either approach).