Crimes of Moral Turpitude
§ 7.9 (C)
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(C)
Surplusage. Counsel can argue that archaic boilerplate should not be considered in determining the nature of the conviction:
The INS also argues that the indictment contains the term “with force and arms,” necessarily referring to non-custodial provisions of the statute. This use of archaic boilerplate, unnecessarily included in many Louisiana indictment forms, regardless of whether the crime involves a use of force or arms, is virtually irrelevant to whether the charge was brought under any particular section of the simple kidnapping statute.[1]
Thus, surplusage in the charge should not be considered as part of the record of conviction. Surplusage also includes allegations that go beyond the elements of the crime as defined by statute.[2]
Where a charge includes several different offenses, joined by the conjunctive “and,” and the defendant is found guilty of that charge, s/he is not considered convicted of each of the different offenses contained within the divisible statute and within the divisible charge. The term “and” is arguably surplusage, since only one offense or another within the divisible statute and charge is required for conviction of the offense. The Ninth Circuit has held that surplusage such as this does not form part of the record of conviction for purposes of determining the nature of the offense of conviction.[3] The BIA and other circuits agree. Allegations in the charge of conviction that are not essential elements of the offense are regarded as “surplusage,” and not as part of the nature of the offense of conviction.[4]
A conviction resulting from a jury trial is subject to a similar analysis.[5] Thus, where a defendant is found guilty in a jury trial of violating a divisible statute, i.e., one that contains more than one distinct offense or set of elements, on the basis of a charge that also contains more than one offense, s/he is not considered to have been convicted of all of the different offenses within the statute and charge where conviction of only one would have been sufficient. Under those circumstances, s/he is considered convicted only of the single offense with the minimum immigration consequences, since the conjunctive language in the charge or instructions is considered boilerplate or surplusage not essential to conviction, and is therefore ignored.
[117] Hamdan v. INS, 98 F.3d 183, 189 (5th Cir. 1996).
[118] Matter of Perez-Contreras, 20 I. & N. Dec. 615, 617 n.4 (BIA 1992) (where no element of the crime of conviction related to the use of a weapon, the statement in the criminal information that the petitioner had used a firearm was “surplusage”); Vue v. INS, 92 F.3d 696, 700-701 (8th Cir. 1996).
[119] Hirsch v. INS, 308 F.2d 562, 567 (9th Cir. 1962).
[120] Matter of Lethbridge, 11 I. & N. Dec. 444, 445, (BIA 1965) (conviction under that portion of 18 U.S.C. § 474 which makes it a crime to possess securities made after the similitude of United States securities intending to sell and use them, is not a conviction of a crime involving moral turpitude.
