(B)

State Label.  The label given to the offense by the state (i.e., what the offense is called by the state) is also irrelevant.[93]  The label a state gives a particular crime is not an element of a conviction under that statute, and is irrelevant in determining whether a conviction involves moral turpitude.  In Matter of Franklin,[94] the BIA rejected the respondent’s argument that prior BIA case law established that involuntary manslaughter was not a crime involving moral turpitude, and that his conviction under Missouri’s “involuntary manslaughter” statute also did not involve moral turpitude merely because of the label given that statute.  The BIA held that a “‘black-letter’ holding that convictions for involuntary manslaughter do not constitute crimes involving moral turpitude is not workable.”[95]  Because the elements of the various states’ manslaughter statutes differ, the BIA held that “one must analyze the specific statute under which the alien was convicted on a case-by-case basis in order to determine whether the conviction is for a crime involving moral turpitude.”[96]

 

            If the statute and judicial decisions defining the offense leave its nature ambiguous, all reasonable doubts must be construed in favor of the noncitizen.[97]  The court must narrowly construe deportation statutes in favor of the noncitizen.[98]  See § 6.7, infra.

[93] See Jeune v. Attorney General, 476 F.3d 199 (3d Cir. Feb. 20, 2007) (Pennsylvania conviction of manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance, in violation of  35 Pa. Cons.Stat. Ann. § 780-113(a)(30), does not constitute an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for immigration purposes, even though defendant was sentenced under state sentencing statute labelled “drug trafficking,” since statute provided no more than that the defendant was convicted under the statute of the offense of conviction); United States v. Taylor, 495 U.S. 575, 591-92 (citing United States v. Nardello, 393 U.S. 286, 293-94 (1969)); United States ex rel. Fontan v. Uhl, 16 F.Supp. 428 (S.D.N.Y. 1936) (holding that the offense, under French law, of not having paid one’s ship passage does not constitute a crime involving moral turpitude, even though designated as a “robbery”); Forbes v. Brownell, 149 F.Supp. 848 (D.D.C. 1957) (the name or label attached to the proscribed conduct does not determine whether the offense involves moral turpitude; the determination of moral turpitude inherent in a conviction of violating a criminal statute must be made from the elements of the offense).  But see United States v. Iniguez-Barba, 485 F.3d 790 (5th Cir. Apr. 25, 2007) (per curiam) (“While we don't look only to the label of the statute at issue to determine what exactly it proscribes, see Fierro-Reyna, 466 F.3d at 326-27, of course we must look to the labels of the statutes to which we compare the statute at issue.”)

[94] Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994).

[95] Id. at 870-871.

[96] Id. at 871.  Compare Matter of Khourn, 21 I. & N. Dec. 1041 (BIA 1997) (finding that conviction for distribution of a controlled substance is a CMT where evil intent is required for conviction) with Matter of Abreu-Semino, 12 I. & N. Dec. 775 (BIA 1968) (finding that conviction for unlawful possession and sale of a controlled substance was not a CMT because intent was not required for a conviction).  Compare Matter of Balao, 20 I. & N. Dec. 440 (BIA 1992) (conviction for passing bad checks not a CMT because intent to defraud not an element of the offense) with Matter of Bart, 20 I. & N. Dec. 436 (BIA 1992) (conviction for passing bad checks a CMT because intent to defraud was an element of the offense).

[97] Matter of H, 7 I. & N. Dec. 616 (BIA 1957).  See also Ablett v. Brownell, 240 F.2d 625 (D.C. Cir. 1957).

[98] Rosenberg v. Fleuti, 374 U.S. 449, 459 (1963); Bonetti v. Rogers, 356 U.S. 691, 699 (1958); Barber v. Gonzalez, 347 U.S. 637, 642-643 (1954); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948); Lennon v. INS, 527 F.2d 187, 193 (2d Cir. 1975); Matter of Chartier, 16 I. & N. Dec. 284, 287 (BIA 1977); Matter of G, 9 I. & N. Dec. 159, 164 (AG 1961).

Fourth Circuit

NATURE OF CONVICTION " STATUTORY INTERPRETATION " STATE COURT INTERPRETATIONS OF STATE STATUTES
United States v. Parral-Dominguez, ___ F.3d ___, 2015 WL 4479530 (4th Cir. Jul. 23, 2015) (immigration authorities are bound by interpretation of elements of state offense by states highest court); United States v. Aparicio"Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc) (To the extent that the statutory definition of the prior offense has been interpreted by the state's highest court, that interpretation constrains our analysis of the elements of state law.).

Eighth Circuit

NATURE OF OFFENSE - STATE LABEL IRRELEVANT
United States v. Chavarria-Brito, 526 F.3d 1184 (8th Cir. May 29, 2008) ("The mere fact that a state labels a crime as forgery does not control whether his crime is actually related to forgery [under federal law]."), citing Taylor v. United States, 495 U.S. 575, 590-591, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

Other

MARIANA ISLANDS COME UNDER INA
S.2739 became Public Law No. 110-229 on May 8, 2008, the immigration related provisions are excerpted here. http://www.ilw.com/immigdaily/news/2008,0514-cnmi.shtm

CRIMES OF MORAL TURPITUDE - DEPORTATION GROUND - CATEGORICAL ANALYSIS EXCEPTION OF SILVA-TREVINO DOES NOT APPLY HERE BECAUSE THE "ADMISSION" EXCEPTION IN THE CMT INADMISSIBILITY GROUND DOES NOT EXIST IN THE CMT DEPORTATION GROUND
Article: Argument Silva-Trevino Applies Only to Crime of Moral Turpitude Ground of Inadmissibility, Not to the Grounds of Deportability

On November 7, 2008, former Attorney General Mukasey decided Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. November 7, 2008), in which he modified the categorical analysis used to determine whether a given conviction constitutes a crime of moral turpitude (CMT) for purposes of inadmissibility under INA 212(a)(2)(A)(i), 8 U.S.C. 1182(a)(2)(A)(i). He reasoned that because the CMT ground of inadmissibility refers to whether the immigrant admitted commission of a CMT, Congress intended that factual question to be relevant.

The relevant provisions contemplate a finding that the particular alien did or did not commit a crime involving moral turpitude before immigration penalties are or are not applied. Section 212(a)(2)(A)(i)(I), the inadmissibility provision at issue in this case, refers to "any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude." (Emphasis added.) Section 237's removability provisions similarly pertain only to "[a]ny alien who is convicted of a crime involving moral turpitude" under certain enumerated circumstances, one of which relates to the alien's date of admissiona fact that would not typically be reflected in a criminal record of conviction. Sections 237(a)(2)(A)(i)-(ii) of the Act. To impose evidentiary limitations with the result that immigration penalties under section 212(a) or section 237 apply to aliens whose crimes did not involve moral turpitude, or with the result that aliens whose crimes did involve moral turpitude escape those penalties, is in tension with the text of those sections.

(Matter of Silva-Trevino, 24 I. & N. Dec. 687, 699-700 (A.G. November 7, 2008).)

The reference to the CMT ground of inadmissibility is apt: that ground of removal does refer to the commission of an offense, or acts constituting an offense. Silva-Trevino was an inadmissibility case, not a deportation case under INA 237(a)(2), 8 U.S.C. 1227(a)(2). The reference to the CMT ground of deportation, however, is dictum. Moreover, the language of the CMT deportation grounds does not refer to the commission of a CMT, or of acts constituting a CMT. It does refer, as Silva-Trevino pointed out, to the date of admission, which would not typically be reflected in a criminal record of conviction. (Id. at 700.) Therefore, the reasoning of Silva-Trevino, and its holding, do not apply to the CMT grounds of deportation. This difference between the two statutes is a distinction sufficient to require a different holding in a deportation case, which is technically not governed by the holding of Silva-Trevino.

This reasoning has begun to be adopted by Immigration Judges. For example, in one case, the immigration judge reasoned as follows:

It is unclear whether the portions [of the] Attorney General's decision allowing a factual inquiry into the nature of the acts engaged in by Respondent applies where, as here, ICE holds the burden of proving a conviction for a CIMT under 237(a)(2)(A)(i). First, the decision in Silva-Trevino rests on a rationale dependent in part upon language contained only in section 212(a)(2)(A)(i)(I), related to "admission" of certain "acts". [Footnote 4.]

[Footnote 4] The Attorney General Finds the statutory language to be ambiguous as to whether a factual inquiry is appropriate, rather than a strictly categorical one, holding that the language "cuts both ways." He finds that the language requiring a conviction cuts in favor of a purely categorical approach, but that language such as "involving" (which appears in both 212(a)(2)(A)(i)(I) and 237(a)(2)(A)(i)) and language such as "admits" the "commission" of certain "acts" (which appears only in 212 cut in favor of a factual inquiry. Thus, the language in 237 may be said to be less ambiguous, or at least less favoring of a factual inquiry, than is that in 212. See Silva-Trevino, supra, at 693 and 699.

Therefore, counsel is free to argue, and Immigration Judges are free to decide, that Silva-Trevino applies only in cases charging CMT inadmissibility, but not in cases charging CMT deportability.