Crimes of Moral Turpitude

 

(B)

Seventh Circuit.  In a recent ill-reasoned decision, the Seventh Circuit held that neither the Taylor categorical analysis, nor the limitation to the record of conviction for determining the nature of a conviction for immigration purposes, strictly applies to the determination of whether a conviction is a crime involving moral turpitude.[34]  The court’s reasoning is based largely on recent decisions from the BIA and the Third Circuit in the aggravated felony context.  Riddled with fundamental and embarrassing errors, this decision should be reversed en banc in the Seventh Circuit, and should not be followed either by the BIA nationally, or within any other circuit, for a number of reasons.

 

Some circuits held that certain aggravated felonies depend on factors beyond the elements of the offense of conviction.[35]  In Matter of Gertsenshteyn,[3] the BIA expanded upon this analysis:

 

[W]here Congress has defined an aggravated felony to include a component (e.g., ‘commercial advantage’) that is neither an element of the underlying offense nor a basis for a sentence enhancement, and thus would not normally be alleged in a criminal charging instrument, it would defeat the statute to require the application of the categorical (or modified categorical) approach, in which only the statute itself and the limited material constituting the record of conviction may be consulted.[4]

 

While this analysis is largely the same as that now applied in the Third Circuit, the BIA went beyond merely adopting an “extra element” analysis by concluding that any extra elements “may be proved by any evidence, including evidence outside the record of conviction.”[5]  The BIA equated this record-of-conviction-free analysis to the determination of whether an offense is a “particularly serious crime” for asylum and withholding purposes, and found that “[a]lthough some burden to the system may result from the inapplicability of the categorical approach in this instance, we believe such burden to be minor.”[6] 

 

            In Matter of Babaisakov,[36] the BIA applied Gertsenshteyn to an aggravated felony fraud case arising out of the third circuit.  The BIA found there was no need to limit its examination to the record of conviction when faced with an “extra element.”  The court stated that it would “leave for another day any questions that may arise with respect to circuit law that may be in tension with this decision . . . .”[37]  The BIA also found that it did not matter that such facts were not proven beyond a reasonable doubt – anything shown by a preponderance of the evidence was deemed sufficient.[38]  

 

            The Seventh Circuit, already inconsistent in its application of the categorical approach,[39] has extended Babaisakov to the CMT context:

 

            Our decisions in Hashish, Padilla, and similar cases apply to immigration law the approach that Taylor v. United States, 495 U .S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), adopt for recidivist enhancements in federal criminal prosecutions. The Supreme Court gave two principal reasons: in Taylor it stressed the benefits of simple application, so that sentencing not be burdened by a retrial of the original prosecution, and in Shepard it stressed the allocation of tasks between judge and jury under the sixth amendment. The Justices adopted a rule that prevented the sentencing judge in the new case from assuming a role that the Constitution assigns to the jurors in the first case. Neither of these reasons applies to immigration proceedings. They are not criminal prosecutions, so the sixth amendment and the doctrine of Apprendi v. New Jersey, 530 U.S. 466 (2000), do not come into play. And how much time the agency wants to devote to the resolution of particular issues is, we should suppose, a question for the agency itself rather than the judiciary. See Conteh v. Gonzales, 461 F.3d 45 (1st Cir.2006) (adopting for immigration cases what the court called a “modified categorical approach” rather than the rule that Taylor and Shepard devise for criminal prosecutions).[40]

 

Granting the BIA Chevron and Brand X[41] deference, the court announced a new rule: “when deciding how to classify convictions under criteria that go beyond the criminal charge – such as the amount of a victim’s loss, or whether the crime is one of ‘moral turpitude’, the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction.”[42]  The Seventh Circuit found all of its prior decisions following Taylor and Shepard in the CMT context to be inapposite in light of Matter of Babaisakov.[43]

 

            In announcing this rule, the court touched upon the distinction between proving the “existence” of a conviction, using the documents listed at INA § 240(c)(3)(B), and proving the “nature” of the conviction.  While proving the “nature” of a conviction had previously been limited to the documents itemized in Taylor and Shepard, a conspicuously narrower set of documents than those listed in INA § 240(c)(3)(B), the Seventh Circuit held that while examination of a pre-sentence report is insufficient to prove the existence of a conviction, it may be considered in determining whether a conviction constitutes a CMT.[44]

 

            There are a number of arguments why this decision should be limited or overruled that deserve consideration:

 

            (1)  It is limited to the CMT context, since the CMT concept is highly ambiguous, thus, according to Ali, opening the door to deference to the BIA.  The same claim of ambiguity does not apply to other well-defined removal grounds, and so this analysis should not apply to them.

 

            (2)  It conflicts with other panel decisions in the Seventh Circuit, which apply the categorical analysis to CMT decisions, and its reasoning for doing so is deeply flawed; it also conflicts with other decisions of the BIA[45] (to which the court states it grants deference), and with decisions of the United States Supreme Court.[46]

 

            (3)  It also contains a number of serious errors and contradictions.  For example, the court fails to make the distinction between the statutory offense to which a criminal defendant enters a plea of guilty, and the actual facts of the crime. 

 

(4)  Its claim that deference is due to the BIA on the definition of a CMT is unwarranted, because the CMT context has application in the criminal area, as well as in certain civil contexts, and so its definition has not been exclusively entrusted to the immigration authorities.  It conflicts with a prior Seventh Circuit decision which encouraged the BIA to look to other contexts in making a determination whether an offense is a CMT, and suggested that because the BIA is not the only source of CMT law, it should not be accorded Chevron deference.[47]

 

            (5)  The BIA decision in Babaisakov, to which the Seventh Circuit defers, is itself an unwarranted and unjustified abandonment of a hundred years of BIA jurisprudence, and is therefore legally invalid.  The Board of Immigration Appeals has uniformly applied this analysis across the board to every conviction-based ground of deportation, including crimes of moral turpitude, controlled substances offenses, firearms offenses, domestic violence convictions, and aggravated felony convictions.[48]   The BIA may not arbitrarily change its published interpretation of the law without providing a reasoned explanation.[49]  In particular, it cannot lawfully simply rubber-stamp a decision of an Immigration Judge violating these rules via a streamlining process.[50]

 

            (6)  The BIA's interpretation of the CMT definition also does not deserve deference, since the Supreme Court held the concept is not ambiguous.[51]

 

            (7)  The Seventh Circuit has opened the door to the consideration of the underlying facts of the case in determining whether a conviction constitutes a CMT.  Counsel for noncitizens can therefore introduce any non-record facts into evidence in the immigration proceedings in an effort to establish that the noncitizen's behavior did not in fact in this individual case show moral turpitude.  For example, counsel can show the noncitizen stole bread to feed his starving daughter, clearly not an act of moral turpitude.

[52] Ali v. Mukasey, 521 F.3d 737 (7th Cir. Apr. 4, 2008).

[53] E.g., Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) ( dictum stating that the aggravated felony definition explicitly required additional information in order to determine the nature of some removal grounds – the most obvious of these being the “loss to the victim” requirement of INA § 101(a)(43)(M)(i)); Alaka v. Attorney General, 456 F.3d 88 (3d Cir. Jul. 18, 2006).

[54] Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007) (federal conviction of 18 U.S.C. § 2422 is an aggravated felony prostitution offense where committed for commercial advantage).

[55] Id. at 114.

[34] Matter of Gertsenshteyn, 24 I. & N. Dec. at 112 (emphasis added).

[35] Id. at 116. 

[36] Matter of Babaisakov, 24 I. & N. Dec. 306 (BIA 2007) (federal conviction for violation of 18 U.S.C. § 1341, mail fraud, is an aggravated felony fraud offense for immigration purposes under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), where the loss to the victim exceeds $10,000).

[37] Matter of Babaisakov, 24 I. & N. Dec. at 322.

[38] This idea was lifted from Conteh v. Gonzales, 641 F.3d 45 (1st Cir. 2006) (the “modified categorical analysis” is not limited to facts/elements found beyond a reasonable doubt).

[39] See, e.g., Sharashidze v. Gonzoles, 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],” held deportable where the offense in fact involved a minor constituted an aggravated felony sexual abuse of a minor offense for removal purposes under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A)).

[40] Ali v. Mukasey, 521 F.3d 737, 741 (7th Cir. Apr. 4, 2008).

[41] National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005).

[42] Ali v. Mukasey, 521 F.3d 737, 743 (7th Cir. April 4, 2008).

[43] Id. at *4.

[44] Id. at *5.

[45] See, e.g., Matter of Sejas, 24 I. & N. Dec. 236 (BIA 2007) (applying categorical analysis to CMT issue); Matter of Aruna, 24 I. & N. Dec. 452 (BIA 2008) (applying categorical analysis to aggravated felony determination).

[46] See, e.g, Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815 (Jan. 17, 2007).

[47] Garcia-Meza v. Mukasey, 516 F.3d 535 (7th Cir. Feb. 5, 2008). 

[48] See, e.g., Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996) (holding police reports not part of record of conviction in deciding firearm deportability); Matter of Pichardo, 21 I. & N. Dec. 330 (BIA 1996) (holding that testimony in immigration court was not part of record of conviction for determining firearm deportability); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (same for moral turpitude deportability); Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999)(same for aggravated felony ground of deportation).

[49] See, e.g., Rust v. Sullivan, 500 U.S. 173 (1991) (allowing agency to change its interpretation, but only if it provided a reasoned explanation).

[50] Ng v. Att’y Gen., 436 F.3d 392, 395 n.4 (3d Cir. Feb. 7, 2006) (open question whether court of appeals owes Chevron deference to BIA streamlining decision merely rubber-stamping Immigration Judge’s decision: “We have also previously questioned whether a BIA decision is entitled to deference when, as here, the BIA has affirmed without opinion the decision of the IJ pursuant to 8 C.F.R. § 1003.1(e)(4).  See Smiriko v. Ashcroft, 387 F.3d 279, 289 n.6 [“[I]t would seem to be, at the very least, an open question as to whether an IJ’s decision affirmed through the streamlining process would be entitled to Chevron deference . . .  [D]eferring to the reasoning of an IJ from which the BIA would be free to depart in other cases would seem highly problematic.”); cf. Singh, 383 F.3d at 152 (“[T]he BIA, by affirming without opinion, gave no considered and authoritative agency-wide interpretation of the statute . . . .”)).

[51] See Jordan v. De George, 341 U.S. 223 (1951) (CMT concept not void for vagueness; court considered decisions defining it as including fraud).