Crimes of Moral Turpitude

 

(A)

In General.  The courts are not authorized to examine the record of conviction where a given statute (or subdivision of a statute) contains only one set of elements, because then the statute is not divisible.[1]  If it is not possible to determine, applying the categorical analysis, whether the nondivisible statute or subdivision triggers removal, the court can go no further.[2]  To do so would mean going beyond the elements of the statute into the facts of the case.  The court must instead apply the minimum conduct analysis to determine whether the full range of conduct punished under the statute falls within the ground of removal.[3]  If not, the conviction does not trigger removal.  Likewise, if the conviction is categorically a crime of moral turpitude or otherwise triggers removal, there is no need to examine the record of conviction.[50]

 

            A clear example would be California Penal Code § 240, which defines “assault” as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”[51]  This statute contains only a single set of elements: (1) unlawful attempt to commit; (2) a violent injury; (3) on the person of another; and (4) coupled with a present ability to do so.  In a case where the government bears the burden of proof, if any violation of this statute is not a CMT, then this offense can never be found to be a CMT, regardless of the individual facts of the case.  Thus, an examination of the record of conviction as part of a divisible statute analysis would be irrelevant.

 

            The Second Circuit applied a similar principle in finding that the BIA could not infer that a burglary statute involved a permanent (vs. temporary) taking where the statute of conviction required no proof that the taking was permanent:

 

            We have held that the BIA cannot adjudicate the facts in a criminal case to determine whether, standing alone, they suggest that the petitioner committed a removable offense. See Sui v. INS, 250 F.3d 105, 119 (2d Cir.2001) (emphasizing that the BIA cannot assume the position of factfinder). Because Wala did not admit to, was not charged with, and was not required to plead to a permanent taking in order to be convicted in Connecticut of burglary in the third degree, Wala's guilty plea does not necessarily rest on facts identifying the burglary as a CIMT. See Dulal-Whiteway, 501 F.3d at 129-31. As the Supreme Court explained in Shepard, if the state statute requires no finding of the particular element at issue and there is no charging document that narrows the charge to those limits, the “only certainty [in a pleaded case] of [that] finding lies in ... the defendant's own admissions or accepted findings of fact confirming the factual basis for a valid plea.” Shepard, 544 U.S. at 25. In Wala's case, the record is silent on the removability element, that is, whether he intended to commit a permanent taking. The BIA, by looking to the facts of Wala's conviction to infer such an intent, therefore transgressed the permitted scope of the modified categorical approach. [52]

 

            In the CMT context, the Ninth Circuit has stated that where the state statute lacks an element required to establish the existence of a crime of moral turpitude,[53] it is unnecessary to engage in a modified categorical analysis.[54]

 

            Some courts incorrectly conclude that a statute without subdivisions, and without any disjunctive elements, is “divisible” merely because the single set of elements required to convict embraces both some acts which do, and other acts which do not, trigger removal.  These cases hold that when such a statute has been violated, it is permissible to look to the record of conviction to determine the specific act committed.[9]  This is improper.  The record of conviction cannot add additional elements to the statute that are not in the offense as defined by the Legislature, and the court is precluded from examining facts of the case not necessary to convict, i.e., non-elements, even if they are included in the record of conviction.[10]  See § 7.9, infra.

 

            In some cases, a state statute may contain subdivisions or disjunctive language, but still will not be “divisible” for immigration purposes, because (regardless of the subdivisions) each offense described within the statute clearly falls (or does not fall) within the ground of removal.[11]

 

            Despite this, courts sometimes improperly proceed to examine the record of conviction in making a divisible statute analysis when it is not necessary or permissible to do so.[55]  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 16.14 (4th Ed. 2007) for further discussion. 

[56] Matter of Short, 20 I. & N. Dec. 136, 138 (BIA 1989) (“Only where the statute under which the respondent was convicted includes some offenses that involve moral turpitude and some that do not do we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense for which the respondent was convicted.”).  Cf. Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (“Sexual communication with a minor is inherently wrong and contrary to the accepted rules of morality and the duties owed between persons. The full range of conduct prohibited by section 9.68A.090 of the Revised Code of Washington categorically constitutes a crime involving moral turpitude. Therefore, without proceeding to the modified categorical approach, we conclude that Morales has been convicted of a crime involving moral turpitude . . . .”).

[57] Likewise, where all the possible acts punishable by the statute trigger removal under the ground at issue, there is no need to examine the record of conviction.  See, e.g., United States v. Ladwig, 432 F.3d 1001, 1004 n.7 (9th Cir. Dec. 27, 2005) (“Because the Washington statute is not ‘facially overinclusive,’ that is, because it does not criminalize, as a felony, conduct that is not a ‘violent felony’ under the [Armed Career Criminal Act], we need not address whether [the offense] is a ‘violent felony’ under the modified categorical approach.”); Sutherland v. Reno, 228 F.3d 171, 177 n.5 (2d Cir. 2000) (rejecting petitioner’s argument that BIA was required to look to record of conviction, since court determined that all offenses under the statute of conviction were crimes of violence); Matter of Martinez-Recinos, 23 I. & N. Dec. 175 (BIA 2001) (although statute contained discrete subsections, convictions under all subsections were equally grounds for deportation).

[58] See § 6.6, supra.

[59] United States v. Neri-Hernandes, 504 F.3d 587 (5th Cir. Oct. 12, 2007) (where the existence of a categorical crime of violence may be shown, there is no need to apply Taylor and Shepard or look further to the record of conviction to determine whether the offense is a crime of violence).

[60] California Penal Code § 240.

[61] Wala v. Mukasey, 511 F.3d 102 (2d Cir. Dec. 12, 2007).

[50] See § 8.2, infra.

[51] Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. Feb. 7, 2008) ("Where the statute of conviction is categorically broader than the generic definition of a crime involving moral turpitude, this Court employs the “modified categorical” approach. Navarro-Lopez, 503 F.3d at 1073. However, the “modified categorical” approach only applies when the particular elements in the statute of conviction are broader than the generic crime. Id. When the statute of conviction is missing an element of the generic crime altogether, we cannot hold that “a jury was actually required to find all the elements” of the generic crime. Id. The crime of failing to register, like the accessory crime at issue in Navarro-Lopez, lacks an element of the generic crime: the requisite baseness or depravity. Therefore, there is no reason to apply the “modified categorical” approach in this case.").

[52] See, e.g., Matter of C, 5 I. & N. Dec. 65 (BIA 1953) (Oregon conviction of contributing to the delinquency of a minor held a CMT under a statute broad enough to include acts which did and acts which did not involve moral turpitude, where record of conviction merely stated that the respondent was convicted of the crime of contributing to the delinquency of a minor, but an examination of the information filed against him clearly showed the commission of certain lewd and lascivious acts which involved moral turpitude).

[53] United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc).

[54] See, e.g., Matter of Martinez-Recinos, 23 I. & N. Dec. 175, 117 (BIA Oct. 15, 2001) (“Although we agree with the respondent that the statute contains several parts, we find that each of the offenses enumerated in section 118(a) of the California Penal Code constitutes perjury as defined in 18 U.S.C. § 1621, and, thus, is an aggravated felony.  Because all of the parts of the California statute encompass the aggravated felony crime of perjury as defined by the federal statute, we need not look further to the record of conviction.”).

[55] Stubbs v. Ashcroft, 452 F.3d 251 (3d Cir. Jun. 29, 2006); Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. Jun. 26, 2006).