Crimes of Moral Turpitude

(A)

Rationale for Ignoring the Facts.  The principal reason the DHS and reviewing courts do not go beyond the record of conviction is administrative workability.[1]  This rule originated as a matter of practical administrative convenience, on the basis that it would be extremely difficult and time consuming for the immigration courts to examine or re-litigate the factual context of every conviction sustained by a noncitizen to see whether moral turpitude was or was not present in the underlying factual circumstances of the particular crime committed.[2]  The rule therefore relieves them of a heavy fact-finding burden, and prevents miscarriages of justice in instances where clearly criminal conduct just as clearly did not involve moral turpitude.  The reasoning has been explained by the Board as follows:

[T]he principle of not looking behind a record of conviction provides this Board with the only workable approach in cases where deportability is premised on the existence of a conviction. If we were to allow evidence that is not part of the record of conviction as proof of whether an alien falls within the reach of section 241(a)(2)(C) of the Act, we essentially would be inviting the parties to present any and all evidence bearing on an alien’s conduct leading to the conviction, including possibly the arresting officer’s testimony or even the testimony of eyewitnesses who may have been at the scene of the crime.  Such an endeavor is inconsistent both with the streamlined adjudication that a deportation hearing is intended to provide and with the settled proposition that an Immigration Judge cannot adjudicate guilt or innocence. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984). If we were to make an exception here and accept the respondent’s testimony as proof of his deportability under section 241(a)(2)(C) of the Act, there would be no clear stopping point where this Board could limit the scope of seemingly dispositive but extrinsic evidence bearing on the respondent’s deportability. We believe that the harm to the system induced by the consideration of such extrinsic evidence far outweighs the beneficial effect of allowing it to form the evidentiary basis of a finding of deportability. See generally Cabral v. INS, supra; Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993); United States ex rel. Zaffarano v. Corsi, supra; United States ex rel. Robinson v. Day, 51 F.2d 1022 (2d Cir. 1931).[3]

The United States Supreme Court, in the context of a sentencing case, described the judicial chaos that could result if the courts were able to look to the facts underlying the conviction:

In all cases where the Government alleges that the defendant’s actual conduct would fit the generic definition of burglary, the trial court would have to determine what the conduct was.  In some case, the indictment or other charging paper might reveal the theory or theories of the case presented to the jury.  In other cases, however, only the Government’s actual proof at trial would indicate whether the defendant’s conduct constituted generic burglary.  Would the Government be permitted to introduce the trial transcript before the sentencing court, or if no transcript is available, present the testimony of witnesses?  Could the defense present witnesses of its own and argue that the jury might have returned a verdict on some theory that did not require a finding that the defendant committed generic burglary?  If the sentencing court were to conclude, from its own review of the record, that the defendant actually committed a generic burglary, could the defendant challenge this conclusion as abridging his right to jury trial?  Also, in cases where the defendant pleaded guilty, there is often no record of the underlying facts.  Even if the Government were able to prove those facts, if a guilty plea to a lesser, nonburglary offense was the result of the plea bargain, it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to burglary.[4]      

Thus, more than a desire for judicial economy underlies the basis for not looking to the facts underlying a conviction, including some due process concerns.[100]

The rule excluding facts of the crime from a determination of CMT has been harshly and persuasively criticized at times in the courts.[6]  Outside of the CMT context, the BIA has in limited circumstances relaxed the limitation to the record of conviction.[7]  The Seventh Circuit has applied this reasoning to crimes of moral turpitude as well.[101]

[102] Cabral v. INS, 15 F.3d 193, 196 n.6 (1st Cir. 1994); Chiaramonte v. INS, 626 F.2d 1093, 1098 (2d Cir. 1980) (“such collateral attacks . . . could not reasonably provide a fair forum for ascertaining the truth of the assertion.  The proceeding would be conducted in a different court, and a different country, geographically and temporally far removed from the locus of the crime”); Castle v. INS, 541 F.2d 1064, 1066 n.5 (4th Cir. 1976) (Congress did not intend that the INS or courts undertake the challenging task of relitigating the facts of the offense of conviction); Lennon v. INS, 527 F.2d 187, 194 n.16 (2d Cir. 1975) (“To make the facts of each individual case determinative would require the Board or the reviewing court to, in effect, retry the case on which the conviction was based.  This, of course, would pose insurmountable obstacles. Witnesses would be scarce or impossible to find and the deportation proceedings would be interminably delayed.  In addition, the events may well have occurred in foreign lands in the dim past.  All we can consider is whether the statute permits the conviction of an individual who would be quite innocent under our system of criminal justice.”); Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971), cert. denied, 405 U.S. 997, 92 S.Ct. 1260 (1972); Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939); Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929); Zgodda v. Holland, 184 F.Supp. 847 (E.D. Pa. 1960); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989); Matter of Santoro, 11 I. & N. Dec. 607, 608 (BIA 1966) (it has “long ago been settled . . . that the immigration authorities may not go behind the record of conviction to examine the circumstances under which the crime was committed, and the determination of whether the crime involves moral turpitude must be made on the basis of the statutory definition of the crime and the record of conviction” [citations omitted]; conviction of mayhem by biting wife constituted crime involving moral turpitude).  Cf. Matter of T, 2 I. & N. Dec. 22 (AG 1944).

[103] The court determining whether a conviction involves moral turpitude is not free to go behind the judgment of the criminal court to redetermine the guilt or innocence of the noncitizen.  Giammario v. Hurney, 311 F.2d 285 (3d Cir. 1962) (court refused to look behind a noncitizen’s plea of guilty to Australia larceny charges to consider whether he actually committed the crime of which he was convicted); United States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939); United States ex rel. Meyer v. Day, 54 F.2d 336 (2d Cir. 1931); Ng Sui Wing v. United States, 46 F.2d 755 (7th Cir. 1931); Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929); Zgodda v. Holland, 184 F.Supp. 847 (D. Pa. 1960); United States ex rel. Amato v. Commissioner of Immigration, 18 F.Supp. 480 (D.N.Y. 1937).

[104] Matter of Pichardo, 21 I. & N. Dec. 330, 335-336 (BIA 1996).  See also Michel v. INS, 206 F.3d 253, 264, 265 (2d Cir. 2000); Cabral v. INS, 15 F.3d 193, 196 n.6 (1st Cir. 1994); Lennon v. INS, 527 F.2d 187, 194 n.16 (2d Cir. 1975); Pino v. Nicolls, 215 F.2d 237, 245 (1st Cir. 1954), rev’d on other grounds sub nom. Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576 (1955) (per curiam); Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999) (applying same rationale to aggravated felonies).  See also Michel v. INS, 206 F.3d 253, 264, 265 (2d Cir. 2000).

[105] Taylor v. United States, 495 U.S. 575, 601 (1990).

[106] Cf. Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 393 n.8 (BIA Dec. 13, 2007) (en banc) ("Aliens in removal proceedings have no constitutional right to appointed counsel, so allowing facts about recidivism to be determined by an Immigration Judge in the first instance could raise due process concerns. Chewning v. Cunningham, 368 U.S. 443, 447 (1962) (finding that due process requires the appointment of counsel to a defendant charged as an habitual offender under Virginia law in light of the complexity of the recidivism issue).").

[107] See, e.g., Medina v. United States, 259 F.3d 220, 228 n.7 (4th Cir. 2001); Michel v. INS, 206 F.3d 253, 268-71 (2d Cir. 2000) (Calabresi, J., dissenting) (“Given the fact that this definition of ‘moral turpitude’ appears to require some analysis of whether a particular crime is ‘inherently base, vile, or depraved, [etc.]’ it is hard to understand how the gravity of the crime can play no part in the inquiry.”) (emphasis in original); Marciano v. INS, 450 F.2d 1022, 1026-31 (8th Cir. 1971) (Eisele, J., dissenting), cert. den., 405 U.S. 997, 31 L. Ed.2d 466, 92 S.Ct. 1260 (1972); Zgodda v. Holland, 184 F.Supp. 847, 849 (E.D.Pa. 1960) (“Counsel’s argument makes a powerful appeal to reason and conscience.  It poses the question whether the moral quality of an act can be assessed apart from the impact of attendant circumstance.  Unfortunately for this petitioner, the question is not an open one.  We regret that we are not free, as we understand the law, to go back of the convictions.”).

[100] Matter of Gertsenshteyn, 24 I.& N. Dec.111 (BIA 2007); Matter of Babaisakov, 24 I. & N. Dec. 306 (BIA Sept. 28, 2007).

[101] See § 6.2(A), supra.