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
abenson@defensenet.org
360-385-2538
jonathan@defensenet.org
206-623-4321
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. 125.10 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.
10851: 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. 2008 (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.
Q&A
Resources
www.asistahelp.org
Questions@asistahelp.org