The Board of Immigration Appeals has determined that the federal conspiracy statute and a statute criminalizing misuse of visas are both overbroad and divisible. The conspiracy statute is divisible between offenses against the United States (overbroad) and offenses to defraud the United States (crimes involving moral turpitude). The offense clause must then be evaluated by determining if the underlying offense is a removable offense under the categorical and modified categorical approaches. In this case, the underlying offense was 18 U.S.C. § 1546(a) (2012), which punishes fraud and misuse of visas, permits, and other documents. The Board found this statute to be divisible into four separate offenses.
“For clarity of our analysis, we will treat the four phrases of the statute as numbered one through four. Phrase one outlines, at minimum, conduct such as possessing with no illegal use or intent to illegally use, an altered or counterfeit immigration document. We conclude that such conduct is not a crime involving moral turpitude.” “The criminal indictment establishes that the respondent was convicted under phrase four of 18 U.S.C. § 1546(a). Since the respondent knowingly committed fraud undermining the immigration system, we conclude that his conviction involves moral turpitude.”
The full text of Matter of Nemis can be found here: