Crimes of Moral Turpitude

(G)

Deference to the BIA Definition.  Although noting that all courts that have dealt with the issue have applied Chevron deference[60] to the BIA’s definition of crime of moral turpitude, the Seventh Circuit had previously suggested that such deference was not due, since the BIA has never applied or established a unique definition of the term, but rather has only “parrot[ed] the standard criminal-law definition.”[61]  The Seventh Circuit also noted that the circuit courts are split with regard to a second issue, whether the BIA is entitled to Chevron deference in its determination that a particular criminal offense is or is not a crime of moral turpitude.  The court noted that while the First, Third and Eighth Circuits grant such deference, the Fifth and Ninth Circuits do not.[62]  The Second Circuit has also chosen to give the BIA deference.[63]

The Seventh Circuit had encouraged the BIA to look to other contexts in making a determination whether an offense is a CMT, and suggested that because the BIA is not the only source of CMT law, it should not be accorded Chevron deference.[64]

However, the Seventh Circuit has recently held the BIA should be granted both Chevron and Brand X deference with respect to the determination that a criminal offense is a CMT.[65]

(H)  Foreign Offenses.  Whether a foreign conviction constitutes an offense involving moral turpitude will be assessed under United States standards.[66]  See § 8.21, infra.

[60] See § 3.18(B)(3), supra.

[61] Mei v. Ashcroft, 393 F.3d. 737, 739 (7th Cir. Dec. 29, 2004).

[62] Id., comparing Knapik v. Ashcroft, 384 F.3d 84, 87 (3d Cir. 2004); Chanmouny v. Ashcroft, 376 F.3d 810, 811 (8th Cir. 2004), and Cabral v. INS, 15 F.3d 193, 195 (1st Cir. 1994), with Smalley v. Ashcroft, 354 F.3d 332, 336 (5th Cir. 2003), and Rodriguez-Herrera v. INS, 52 F.3d 238 n.4 (9th Cir. 1995).  See also Plasencia-Ayala, 516 F.3d 738 (9th Cir. Feb. 7, 2008).  One Ninth Circuit case, Marmolejo-Campos v. Gonzales, 503 F.3d 922 (9th Cir. Sep 12, 2007), rehearing en banc granted by, 519 F.3d 907 (9th Cir. Mar 14, 2008), did give deference to a published BIA decision interpreting the same state statute, citing an asylum case for support of the idea deference was owed.  This case has a number of other problems and the court granted rehearing en banc.

[63] See, e.g., Wala v. Mukasey, 511 F.3d 102 (2d Cir. Jan. 20, 2008).

[64] Garcia-Meza v. Mukasey, 516 F.3d 535 (7th Cir. Feb. 5, 2008). 

[65] Ali v. Mukasey, 521 F.3d 737 2008 WL 901467 (7th Cir. Apr. 4, 2008).  See § 6.2(B), supra.

[66] Squires v. INS, 689 F.2d 1276, 1278 (6th Cir. 1982), cert. den., 461 U.S. 905 (1983) ((1) in determining whether foreign criminal conviction triggered deportation, the foreign conviction had to be analogized to an equivalent domestic offense as it existed at time of entry into the United States and not as it existed at time of his conviction, and (2) under circumstances of case, foreign “false pretenses” offense, for which six-month suspended sentence was imposed, could not be analogized to District of Columbia false pretenses statute, but could be analogized to a violation of the District of Columbia bad check statute, as amended after the conviction but before entry to the United States, and thus triggered deportation); McKenzie v. Savoretti, 200 F.2d 546 (5th Cir. 1952); Mercer v. Lence, 96 F.2d 122 (10th Cir.), cert. den., 305 U.S. 611 (1938); Matter of McNaughton, 16 I. & N. Dec. 569 (BIA 1978) (securities fraud); Matter of M, 9 I. & N. Dec. 132 (BIA 1960).