Crimes of Moral Turpitude

(A)

Dismissed Counts.  In determining whether a conviction triggers deportation, charges other than the charge(s) of which the defendant was convicted are irrelevant.  This includes dismissed[1] and vacated charges.[2]  The determination is made solely on the basis of the offense of which the defendant was convicted.[3]  “Conviction of a lesser included offense is acquittal of the higher offense. U.S. ex rel, Valenti v. Karnuth, 1 F.Supp. 370, 375 (M.D.N.Y.1932); Matter of VT, 2 I. & N. Dec. 213, 216-17 (BIA 1944); cf. Matter of W, 4 I. & N. Dec. 241 (BIA 1951).”[4]

            The principle that an arrest or charge is not evidence of guilt derives from the presumption of innocence.  When the jury in a criminal case is informed of the presumption of innocence, it is told, in effect, “to judge an accused’s guilt or innocence solely on the evidence adduced at trial and not on the basis of suspicions that may arise from the fact of his [or her] arrest, indictment, or custody.”[5]  A charge, standing alone, is proof of nothing; the defendant may be completely innocent, and is presumed to be innocent absent a conviction on the particular charge.

            The Fourth Circuit has held it an abuse of discretion, and arbitrary, to consider “facts” alleged in dismissed counts in determining the immigration consequences of a conviction.[6]

Moreover, both the immigration judge and the Board considered irrelevant factors. The immigration judge relied on an indictment count (assault with intent to kill) that had been dismissed, and the Board relied on a conviction (for simple assault) that was not alleged in the Service’s order to show cause or in any additional charge. The Frentescu standard focuses on the crime that the Service claims is particularly serious, and the standard does not call for consideration of conduct that is unrelated to that crime. We can find no authority for the proposition that dismissed counts or crimes not relied upon by the Service may be considered in determining whether a specific crime is a particularly serious one. Cf. 8 U.S.C. § § 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii) (barring the Attorney General from granting asylum or withholding of deportation to an alien who has been “convicted” of a particularly serious crime); id. § 1229(a)(1) (requiring “written notice” specifying the “charges against the alien”); 8 C.F.R. § 1240.10(e) (allowing the Service to lodge additional charges “[a]t any time during the proceeding,” if they are “in writing” and served upon the alien).[7]

The First Circuit has rejected this approach, holding it is proper to look to the charging paper and improperly concluding it could look at dismissed charges.[8] The Fifth Circuit has issued a similar decision.[179]  There are also several older homicide cases, in which the statute of conviction did not distinguish between voluntary (CMT) and involuntary (non-CMT) manslaughter, and the court relied on the dismissed murder count for the proposition that the killing was voluntary.[10]  These decisions should be considered aberrations.  They improperly open the door to relitigation of the facts of the case in immigration court, or violate due process by precluding the respondent from contesting the facts alleged in dismissed charges, then unfairly using those facts against him as if they were somehow established as true.  It is black letter law that an accusation is proof of nothing.

[180] See, e.g., Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. Jan. 18, 2007) (even though dismissed charge indicated that defendant was originally charged with controlled substances offenses involving methamphetamine, where the defendant entered a plea to an offense that was not charged in the charging document, “there is simply no way for us to connect the references to methamphetamine in the charging document” with the uncharged offense to which the defendant ultimately pleaded guilty), citing Martinez-Perez v. Gonzales, 417 F.3d 1022 (9th Cir. 2005); Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. Jun. 26, 2006) (court could not use dismissed counts, charging spousal abuse, to create an inference that the victim of the simple battery count of which the noncitizen was convicted was in a domestic relationship with the noncitizen defendant).  See also United States v. Gonzalez-Ramirez, 477 F.3d 310 (5th Cir. Jan. 30, 2007).

[181] Nath v. Gonzales, 467 F.3d 1185 (9th Cir. Nov. 3, 2006) (California conviction of sale or offer to transport a controlled substance, in violation of Health & Safety Code § 11379(a), did not unequivocally establish conviction of a deportable aggravated felony drug trafficking offense or deportable controlled substances offense, since record of conviction did not specify the specific offense, within the divisible statute, of which respondent had been convicted the second time after the initial conviction had been vacated; BIA erred in assuming that respondent had been reconvicted of the same offense within the divisible statute of which he had originally been convicted, since reconviction documents did not establish that he had been reconvicted of a deportable offense).

[182] Matter of B, 7 I. & N. Dec. 342 (BIA 1956).

[183] Matter of Baker, 15 I. & N. Dec. 50, 52 (BIA 1974).

[184] Bell v. Wolfish, 441 U.S. 520, 533, 99 S.Ct. 1861, 1871 (1979).

[185] Yousefi v. INS, 260 F.3d 318, 329-330 (4th Cir. 2001) (decision that assault with dangerous weapon constituted “particularly serious crime” reversed, as arbitrary, on ground immigration court considered irrelevant dismissed count in reaching decision).

[186] Yousefi v. INS, 260 F.3d 318, 329-330 (4th Cir. 2001).

[187] Montero-Ubri v. INS, 229 F.3d 319, 320-321 (1st Cir. 2000).  See also Matter of Thomas, 21 I. & N. Dec. 20, 23-24 (BIA 1995) (citing several circuits allowing consideration of arrest that did not culminate in convictions for purposes of determining whether discretionary relief is warranted).

[188] United States v. Lopez-DeLeon, 513 F.3d 472 (5th Cir. Jan. 9, 2008) (applying modified categorical analysis to find that California conviction of statutory rape, under Penal Code § 261.5(c) was sexual abuse of a minor for illegal re-entry sentencing purposes, even though conviction statute was overbroad, where dismissed charge indicated that the victim was 14 years old).

[179] “In this case, however, the indictment indicated voluntariness by the allegation that the respondent ‘deliberately, wilfully, with malice aforethought, and with premeditation did kill . . . .”  See Matter of S, 2 I. & N. Dec. 559 (C.O. 1946; BIA 1946; AG 1947), a case in which an Ohio manslaughter statute was considered.’ Matter of Pataki, 15 I. & N. Dec. 324, 325 (BIA 1975); Matter of Ghunaim, 15 I. & N. Dec. 269 (BIA 1975) (respondent was charged with the crime of murder in the first degree under 29 Ohio Revised Code Annotated § 2901.01 (1954), but pleaded guilty to a charge of Manslaughter First Degree, 29 Ohio Revised Code Annotated § 2901.06 (1954), which applies to both voluntary and involuntary manslaughter; the BIA considered the original dismissed charge of murder, a voluntary crime, in concluding the conviction record leads to the conclusion that the respondent’s conviction was for voluntary manslaughter, a crime involving moral turpitude); Matter of HR, 4 I. & N. Dec. 742 (BIA 1952).