Crimes of Moral Turpitude

 

(C)

Realistic Probability of Prosecution.  Traditionally, if consultation of the record of conviction did not establish that the defendant was convicted of a charge that invariably involved moral turpitude, the conviction would be presumed not to involve moral turpitude where the government bore the burden of proof.[1]  However, the United States Supreme Court recently made a statement that might be interpreted to suggest the noncitizen must also show a realistic probability that the state in fact prosecutes defendants for offenses that factually would fall outside the ground of deportation, instead of merely imagining a set of facts that would arguably fall within the crime but outside the ground of deportation. 

 

            As a result, immigration authorities may require the noncitizen to show a realistic probability of prosecution under the state statute for conduct that falls outside the ground of deportation.  Sources counsel can use besides the statute itself[112] include:

 

·        Judicial decisions of the state of conviction affirming convictions for conduct falling outside the ground of deportation, or even referring in passing to prosecutions for non-deportable conduct; 

·        Unpublished decisions, since they reflect actual prosecutions for non-deportable conduct;

·        Pattern jury instructions.  If non-deportable conduct clearly falls within them, the government cannot argue persuasively there is no realistic probability of prosecution, since every jury in every prosecution for violating that statute is instructed to convict, under the statute, for the non-deportable conduct; 

·        An affidavit of a state prosecutor or defense attorney as to the state’s practices.[113]

 

In the aggravated felony context, where a specific aggravated felony category may be defined by a “generic” definition of the terms used,[114] the court stated:

 

Moreover, in our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.[115]

 

In James v. United States,[116] the court further expanded on this point in the context of determining whether attempted burglary qualified as on offense posing a “serious potential risk” of physical injury for purposes of the Armed Career Criminal Act.  Citing Duenas-Alvarez, the court announced:

 

We do not view that approach as requiring that every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony. . . .  Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.   One can always hypothesize unusual cases in which even a prototypically violent crime might not present a genuine risk of injury-for example, an attempted murder where the gun, unbeknownst to the shooter, had no bullets, see United States v. Thomas, 361 F.3d 653, 659 (C.A.D.C.2004).   Or, to take an example from the offenses specifically enumerated in §   924(e)(2)(B)(ii), one could imagine an extortion scheme where an anonymous blackmailer threatens to release embarrassing personal information about the victim unless he is mailed regular payments.   In both cases, the risk of physical injury to another approaches zero.   But that does not mean that the offenses of attempted murder or extortion are categorically nonviolent.[117]

 

Although counsel could argue that James applies in the context of determining whether a “risk” exists (as in 18 U.S.C. § 16(b) crime of violence cases[118]), a number of courts have already cited this language in connection with Duenas-Alverez as applied to other grounds of removal.[119]

 

              Duenas-Alvarez and James could be said to be announcing two new tests – first allowing courts to look to the realistic probability that the state would apply the statute at issue to prosecute conduct that falls outside the ground of deportation, as opposed to examining the minimum conduct punishable under the statute, and second allowing the courts to ask only whether the ordinary and usual manner of commission of the offense would fall within a ground of removal, rather than requiring the court to examine the full range of conduct punished.  This interpretation would alter the categorical analysis announced by Taylor, and reaffirmed by Shepard, without any discussion justifying such a wide-scale change in the law.  In Duenas, however, the Supreme Court expressly reaffirmed and applied the normal categorical and modified categorical analysis, so this interpretation would not seem to be justified.

 

            The Fifth and Ninth Circuits have taken different approaches to applying these cases.  The Fifth Circuit appears to take a very narrow view -- requiring the noncitizen or defendant provide either personal evidence (from his or her own case) or case law showing that the statute of conviction reaches conduct that falls outside the definition of the ground of deportation.  In United States v. Ramos Sanchez,[120] the court rejected the contention that an indecent solicitation statute at issue was overbroad because it could be used to prosecute a minor.  Even though the statute at issue had been used to prosecute a 17-year-old for having sex with his 15-year-old girlfriend, the court found that case inapplicable, since the age of consent in Kansas was 16.[121]  The Fifth Circuit has also applied the James “ordinary case” test. [122]

            On the other hand, the Ninth Circuit does not require the noncitizen to provide “specific examples” of a state prosecuting people “for acts that would fall outside the generic definition of crimes of moral turpitude.”[123]  Rather the court stated that:

 

The issue is not whether in some cases violators of section 32 have been involved in a crime of moral turpitude.  The issue is whether everyone prosecuted under that section has necessarily committed a crime involving moral turpitude.  There is nothing inherent in the crime of accessory after the fact that makes it a crime involving moral turpitude in all cases.[124]

 

Likewise, in finding that the California offense of leaving the scene of an accident resulting in bodily injury was not a crime of moral turpitude, the Ninth Circuit found that looking to the statutory language, “a driver in an accident resulting in injury who stops and provides identification, but fails to provide a vehicle registration number, has violated the statute.”[125]  The court then rejected the DHS’s argument that such an offense would not be prosecuted:

 

We cannot . . . ignore the plain language of § 20001(a).  Duenas-Alvarez does caution us against “conjur[ing] up some scenario, however improbable, whereby a defendant might be convicted under the statute in question even though he did not commit the act encompassed by the federal provision.”  United States v. Carson, 486 F.3d 618, 610 (9th Cir. 2007) (per curiam).  But where, as here, the state statute plainly and specifically criminalizes conduct outside the scope of the federal definition, we do not engage in judicial prestidigitation by concluding that the statute “creates a crime outside the generic definition of a listed crime.”  Duenas-Alvarez, 127 S.Ct. at 822.[126]

 

The Ninth Circuit is clearly correct in holding that where non-deportable conduct falls within the plain language of the statute defining the criminal offense, no more proof is required.  Other courts may also follow this analysis,[127] and counsel outside the Ninth Circuit could argue that the same reasoning should be followed.

            This new rule is similar to a largely ignored minority rule holding that an offense should be classified as one involving moral turpitude not based upon the “inherent nature” of the crime (i.e., essential elements), but rather on the “general nature” of the crime, as it is commonly understood in common usage.  In Pino v Nicolls,[18] the court of appeal held that the factual circumstances of a particular offense could not be considered in determining whether it constituted a CMT “if the crime in its general nature is one which in common usage would be classified as a crime involving moral turpitude.”  The court felt that an accurate application of the older view, requiring that all conceivable acts violating a statute must necessarily inherently involve moral turpitude in order to classify the crime as one involving moral turpitude, would practically emasculate the relevant provisions of the immigration laws, since it is possible to conceive of circumstances under which almost any crime might be committed for the “purest of motives.”  The court held that since the crime of larceny is “in the general category” of crimes involving moral turpitude “in ordinary acceptation,” the theft of a dozen golf balls was a crime involving moral turpitude for deportation purposes.[19]

[128] See Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir. May 27, 2003) (Arizona conviction of aggravated driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or drugs in violation of Arizona Revised Statutes § § 28-692(A)(1) and 28-697(A)(1), did not constitute crime of moral turpitude, since statute was divisible because one may be convicted under it for sitting in one’s own car in one’s own driveway with the key in the ignition and a bottle of beer in one’s hand, and the record of conviction did not establish that the defendant was convicted of violating the CMT portion of the statute), overruling Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA Dec. 21, 1999);  Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992) (Washington state conviction of third-degree assault is not a crime involving moral turpitude); Matter of Espinosa, 10 I. & N. Dec. 98 (BIA 1962) (false statement, not deemed fraudulent).

[129] Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. Jan. 14, 2008).

[130] Thanks to Lynn Marcus for this suggestion.

[112] See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 19.9 (4th Ed. 2007).

[113] Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815 (Jan. 17, 2007) (generic definition of “theft offense” for purposes of INA § 101(a)(43)(G) includes “aiding and abetting” a theft).

[114] James v. United States, 549 U.S. ___, 127 S.Ct. 1586, 1597 (Apr. 18, 2007).

[115] Ibid.

[116] See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 19.44 (4th ed. 2007).

[117] See, e.g., Navarro-Lopez v. Gonales, 503 F.3d 1063 (9th Cir. Sept. 19, 2007) (en banc); United States v. Bolanos-Hernandez, 492 F.3d 1140 (9th Cir. Jan. 18, 2008). 

[118] United States v. Ramos-Sanchez, 483 F.3d 400, 404 (5th Cir. Apr. 2, 2007) (“Though it is theoretically possible that Kansas might punish such an act, Ramos-Sanchez points to no evidence of the realistic possibility of such a prosecution.”).  See also United States v. Balderas-Rubio, 499 F.3d 470 (5th Cir. Sept. 5, 2007) (although violation of Okla. Stat. tit. 21, § 1123, making it unlawful to “to intentionally look upon, touch, maul, or feel the body or private parts of any child under sixteen (16) years of age in any lewd or lascivious manner ....” could include the act of viewing a child in a lewd manner from a significant distance (using binoculars), and without the knowledge of the child, the defendant “failed to show a realistic probability that [Oklahoma] would in fact punish conduct of the type he describes.”; offense therefore is considered “sexual abuse of a minor” for illegal re-entry sentencing purposes).

[119] Note that here the court seems to be looking exclusively to prosecution of the law of the state.  The court did not consider that 17 years old is below the age of consent in other states, or even that 17 years old is under the age of consent for (at least some) federal purposes.  See, e.g., Matter of VFD, 23 I. & N. Dec. 859 (BIA 2006) (for purposes of aggravated felony sexual abuse of a minor, a “minor” is a person who is under the age of 18).

[120] See, e.g., Perez-Munoz v. Keisler, 507 F.3d 357 (5th Cir. Nov. 6, 2007) (“Although it may be possible to commit this offense by an intentional act without the use of physical force (such as by placing poison in a child’s food or drink), this is not the ordinary, usual way the crime is committed. The crime, when committed by an act, is usually committed with the use of some force, or at least through conduct that presents the substantial risk that force may be used. The BIA correctly found that Perez had been convicted of an aggravated felony."), following James v. United States, 549 U.S. ___, 127 S.Ct. at 1586, 1597 (2007).

[121] Navarro-Lopez v. Gonales, 503 F.3d 1063, 1072 (9th Cir. Sept. 19, 2007) (en banc)

[122] Ibid.

[123] Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. Jan. 14, 2008).

[124] Ibid.

[125] See, e.g., Wala v. Mukasey, 511 F.3d 102 (2d Cir. Dec. 12, 2007) (“However improbable, Wala could have been taking the jewelry with the intent to loan it to his girlfriend for one “night on the town” and then return it. Or, he could have been taking the credit cards with the intent to use them for a one-time identification purpose. The point is that either would have been sufficient to sustain Wala's guilty plea and conviction under Connecticut penal law. Thus, although it may have been reasonable for the BIA to infer that Wala intended permanently to keep the items he admitted taking, the modified categorical approach does not permit the BIA to draw inferences of this kind.”).

[126] Pino v. Nicolls, 215 F.2d 237 (1st Cir. 1955), rev’d on other grounds sub nom. Pino v. Landon, 349 U.S. 901, 99 L. Ed. 1239, 75 S.Ct. 576 (1955) (per curiam).

[127] See also Marinelli v. Ryan, 285 F.2d 474 (2d Cir. 1961) (stating the question was whether the crime of indecent assault was a CMT “as that term is generally understood.”); Marciano v. INS, 450 F.2d 1022, 23 A.L.R. Fed. 466 (8th Cir. 1971), cert. den., 405 U.S. 997, 31 L. Ed.2d 466, 92 S.Ct. 1260 (1972) (the court rejected the argument that statutory rape under a Minnesota statute not requiring criminal intent as an element of the offense and disallowing mistake as to age as a defense was not a CMT, and held that the crime of which the noncitizen had been convicted was “usually classed” as rape, and “such a crime manifestly involves moral turpitude.”  But see dissenting opinion, pointing out that Congress did not decree deportation where there was conviction of a crime which “generally” or “commonly” involves moral turpitude, but rather when “the crime involved” moral turpitude, which could only mean when moral turpitude was in fact involved); Zgodda v. Holland, 184 F.Supp. 847 (D. Pa. 1960) (if the crime “in its general nature” was one which “in common usage” would be classified as a CMT, the court could not go behind the record of conviction to consider possible extenuating circumstances).