Crimes Involving Moral Turpitude What Advocates Need To Know To Represent Self-Petitioners & U Visa Applicants

ASISTA CIMT Webinar: December 2009 Presented by: Ann Benson & Jonathan Moore Washington Defender Association’s Immigration Project

Participants will: Expand their knowledge of the CIMT inadmissibility ground, when and how it applies; Learn the basic framework – the categorical analysis – for analyzing and advocating when convictions do and do not constitute CIMT offenses; Become familiar with current issues and caselaw governing CIMT analysis.

Overview of Presentation I. The CIMT inadmissibility ground and when it applies; II. The Categorical Analysis framework; III. Overview of types of criminal offenses & CIMT determinations

Step One: Critical to get a copy of the criminal records, particularly Judgment & sentence Plea (or jury instructions if trial) Charging document (original/dismissed and amended) Any pre/post plea agreements

CIMT Analysis Part One: The CIMT Inadmissibility Ground Under INA Sec. 212(a)(2)(A)(i) and When It Applies

CIMT Inadmissibility Ground INA §212(a)(2)(A)(i)(I) Conviction for (or admission to) CIMT offense triggers this ground Usually requires conviction

Is there a conviction? INA definition of conviction Sec. 101(a)(48)(A) Finding of guilt (verdict from jury/judge) Admission of guilt (e.g. plea) Admission of facts sufficient to warrant finding of guilt

Pre-Plea Adjudications Not convictions unless agreement shows admission of guilt or facts sufficient and admitted into evidence by the court. Often used in low-level, first-time offenses If D complied and case dismissed still must disclose incident

Juvenile Dispositions Not convictions for immigration purposes E.g. juvenile disposition for theft offense is not a CIMT offense If tried as adult = conviction Still must disclose incident

Post Conviction Relief Attempt to re-open criminal proceedings to eliminate conviction General Rule = conviction must be vacated for legal defect in original proceedings Sentence modifications = will be given effect in immigration proceedings

Convictions on Direct Appeal General Rule = Conviction not final and, thus, not a conviction for immigration purposes Since 1996 changes, some circuits have eroded this rule Still must disclose in application

“Admissions” of CIMT offenses Statute at INA 212(a)(2) contemplates “admissions” not just convictions Does not apply to garden-variety admissions – strict requirements Must meet 4 element test to trigger CIMT ground

Juvenile Exception to CIMT Ground INA 212(a)(2)(A)(ii)(I) Requirements Offense committed <18 yrs of age Released from confinement at least 5 years prior to application

Petty Offense Exception INA 212(a)(2)(A)(ii)(II) Requirements Single CIMT offense Max POSSIBLE sentence (per statute) for the crime not more than 1 year Actual sentence imposed not >180 days Amount of time served or time of sentence suspended is irrelevant

I-360 Filings & CIMT Offenses INA 101(f)(3)’s GMC bar incorporates INA 212(a)(2)(A)(i)(II)’s CIMT ground as bar for showing GMC Argue conviction is not CIMT Seek GMC waiver under INA 204(a)(1)(C) since CIMT is “waivable”

I-360 Filings & CIMT Offenses Applicability of “petty offense” exception to GMC determinations Example: Single misdemeanor theft conviction (CIMT) w/90 day sentence Conflicting caselaw Bad BIA decision Almanza-Arenas

S/P Adjustments & CIMT Offenses CIMT offenses that trigger inadmissibility ground will bar adjustment unless granted waiver per INA 212(h)(1)(C) How was offense treated at S/P filing? Not CIMT, no waiver

S/P Adjustments & CIMT Offenses INA 212(H)(1)(c) Waiver Requirements Approved Self-petition Favorable exercise of discretion Must prove offense not “violent or dangerous crime” per 8 CFR 212.7(d) No hardship requirement

U Visa Applicants & CIMT Offenses Inadmissibility – if crime falls w/in CIMT inadmissibility ground it will bar U visa grant unless waiver obtained under INA 212(d)(14) Establish waiver in public/national interest If “violent or dangerous crime” must prove extraordinary circumstances Argue offense is not CIMT

U Adjustments & CIMT Offenses No inadmissibility determination Previously adjudicated conduct should not bar adjustment New criminal convictions can subject U visa holder to grounds of deportation under INA 237(a)(2) Distinct from crime-related inadmissibility grounds under INA 212(a)(2)

CIMT Determinations Part Two: The Categorical Analysis Framework

Categorical Analysis Traditional analytical process to determine whether criminal convictions trigger immigration provisions, such as CIMT grounds and aggravated felonies Only applies to crime-related immigration grounds (inadmissibility, deportability) where conviction is required

Categorical Analysis Presently in extreme state of flux due to recent caselaw changes Critical to research caselaw from both BIA and the circuit courts where your case arises

Step One: The “Generic Definition” First step is to identify the “generic definition” of the immigration provision at issue – here CIMT Identify the elements of the definition against which the criminal conviction will be compared

Generic Definition of CIMT Traditional definition: Conduct that is “inherently base, vile or depraved and contrary to the accepted rules of morality and the duties owed between persons or society in general.”

Generic Definition of CIMT New definition from A.G.’s 2008 decision in Matter of Silva-Trevino: “Reprehensible conduct” plus some degree of “scienter” (mental state), whether specific intent, deliberateness, willfulness or recklessness.” Does not include negligence Not actually substantial change

Categorical Analysis Step Two: Compare the elements of statute of conviction to CIMT definition TEST: Does conduct necessary to sustain conviction under element of the statute – in all cases that have a “realistic probability” of prosecution – always or never involve moral turpitude?

Categorical Analysis Step Two: Example #1: Criminal statutory elements “always” falling w/in CIMT definition – Theft offenses, such as Calif. Penal Code Sec. 484, that require specific intent to permanently deprive rightful owner of property Categorically a CIMT offense

Categorical Analysis Step Two: Example #2: Criminal statutory elements that “never” fall w/in the CIMT definition Any statute that has a mens rea (mental state) of negligence, such as NY Penal Law Sec for criminally negligent homicide Such offenses will categorically never be CIMT offenses.

Categorical Analysis: Step Three If the statue is not clearly “always” or “never” a CIMT, is the statute “divisible”? Many criminal statutes are not clear & advocates should be arguing that it is divisible

Categorical Analysis: Step Three Is statute “divisible”? Example #1: One statute with multiple subsections – e.g. Washington offense of 3rd degree assault – 8 subsections, each a different crime, some are CIMT, some not

Categorical Analysis: Step Three Is the statute “divisible”? Example #2: No subsections, but separately described offenses w/in statute- e.g. Cal. Vehic. Code Sec : vehicle taking two different ways (permanent deprivation = CIMT; temporary deprivation is not CIMT).

Categorical Analysis: Step Three Is the statute divisible? Example #3: Broadly defined, overly inclusive statute- e.g. Calif. Penal Code Sec. 272 “Contributing to the delinquency of a minor.”

Categorical Analysis Step Three: Silva-Trevino decision imports “realistic probability test from U.S. Supreme Ct. decision in Gonzalez v. Duenas-Alvarez (aggravated felony case): Must be a realistic probability, not theoretical possibility that state would prosecute conduct falling outside the immigration statute definition

Categorical Analysis: Step Four Where statute is divisible, look to the record of conviction (ROC) to determine elements of offenders conviction. Do elements as revealed in ROC, fall w/in CIMT definition

Categorical Analysis: Step Four Documents included in ROC Statutory definition Charging document Written plea agreement Transcript of plea/sentencing hearings Jury instructions Any finding by judge to which Defendant assented

Categorical Analysis: Step Four Documents NOT included in ROC Prosecutor’s remarks Police reports (unless incorporated into plea as factual basis) Probation or pre-sentence reports Dismissed charges Statements of D outside judgment and sentence

Categorical Analysis: Step Four Under traditional “modified” categorical analysis, if ROC does not clearly establish elements of conviction that fall w/in CIMT definition then CIMT grounds not triggered and analysis ends. Confusing circuit court decisions Seventh Circuit decision in Ali v. Mukasey

Categorical Analysis: Silva-Trevino Issued in Nov (2 months prior to departure), A.G.’s decision in Matter of Silva-Trevino drastically alters categorical analysis for CIMT offenses Purports to alter nearly 100 years of precedent.

Categorical Analysis: Silva-Trevino New Silva-Trevino Test: Where statutory comparison and ROC comparison are “inconclusive” adjudicator may consider “all necessary and appropriate” evidence to determine whether conduct for which D was convicted, in fact, involved moral turpitude

Categorical Analysis: Silva-Trevino Federal circuit courts have not yet decided whether new Silva-Trevino test will stand Third Circuit overturned S-T in recent decision Jean-Louis v. Holder

Categorical Analysis: Silva-Trevino PRACTICE POINT: Where applicant is asserting that conviction does not constitute CIMT and statute/ROC may be deemed “inconclusive” critical to carefully craft applicant’s declaration and carefully present analysis in cover letter.

Categorical Analysis: Silva-Trevino PRACTICE POINT: Where applicant is asserting that conviction does not constitute CIMT and statute/ROC may be deemed “inconclusive” critical to carefully present analysis in cover letter where damaging police report will be included in application. Under S-T, police report can be consulted for CIMT analysis if “inconclusive” determination

CIMT Analysis Part III. Types of Offenses That Are and Are Not Crimes Involving Moral Turpitude

Traditional CIMT Offenses Offenses with elements involving theft, fraud & deceit Theft statutes must have intent to permanently deprive (temporary deprivation is not a CIMT) Offenses of morally offensive character committed with willful/evil intent.

Traditional CIMT Offenses Crimes that have as an element and intention to case or threat to cause significant bodily harm Usually requires willful/intentional but in some cases recklessness will suffice Drug trafficking offenses Drug possession (simple) is not a CIMT.

Traditional Non-CIMT Offenses Drunk driving Even for multiple offenses Criminal trespass Simple assault/battery Even where assault is D.V.- related EXCEPTION: assault w/aggravating factor (e.g. of public servant or with weapon) will be CIMT

Traditional Non-CIMT Offenses Immigration form and document violations EXCEPTION: BIA recently held offense of requiring “intent to mislead a public servant through written statement person knows is untrue” is CIMT.

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