BIA Overrules its Precedent Assuming that Theft Statute Includes Intent to Permanently Deprive

The Board of Immigration Appeals has overruled its decision in Matter of Jurado, which assumed that retail theft in Pennsylvania inherently includes an intent to permanently deprive, finding it inconsistent with the categorical approach outlined by the Supreme Court in Mathis v. United States. The Board then concluded that Pennsylvania retail theft convictions criminalize less than permanent takings, and thus, under pre-Diaz LIzarraga precedent, they do not constitute crimes involving moral turpitude.

The full text of Matter of Thakker can be found here:

https://www.justice.gov/d9/2024-09/4080.pdf

Ninth Circuit Applies Skidmore Deference to CIMT Determination

The Ninth Circuit has determined that Skidmore deference is the appropriate level of deference to apply to the agency’s determination that a conviction constitutes a crime involving moral turpitude. Under Skidmore, the agency’s decision is entitled to “due respect,” but not binding deference. Applying this standard, the Court determined that the agency’s abolition of the distinction between permanent takings and certain less-than-permanent takings in Matter of Diaz-Lizarraga is entitled to deference. With that definition, the Court agreed that a conviction for theft under the Reno Municipal Code is a crime involving moral turpitude. The Court also deferred to the decision in Matter of Nolan, finding that the non existence of a pardon for a municipal offense does not preclude its classification as a conviction. Finally, with respect to prior interpretations of what crimes involving moral turpitude “arise from a single scheme,” the Court noted that it had deferred under Chevron to Matter of Adetiba in Szonyi v. Whitaker. Although Chevron deference has been abolished, the Court found it was still bound by precedent in Szonyi.

The full text of Lopez v Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/11/23-870.pdf

Fourth Circuit finds that VA Solicitation of Prostitution Conviction is CIMT

The Fourth Circuit has affirmed that a Virginia conviction for solicitation of prostitution is a crime involving moral turpitude. The Court rejected the argument that societal attitudes toward prostitution had sufficiently changed such that solicitation of prostitution was no longer base conduct.

The full text of Ortega-Cordova v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/221700.P.pdf

Eleventh Circuit Finds that Money Laundering Convictions are not CIMTs

The Eleventh Circuit has determined that several federal money laundering statutes do not meet the definition of crimes involving moral turpitude. The court also applied the categorical approach in denaturalization proceedings.

The full text of United States v. Lopez can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202112709.pdf

Ninth Circuit Remands for Further Analysis of Washington Conviction for Attempting to Elude a Police Vehicle

The Ninth Circuit has remanded a case for further analysis of whether a Washington conviction for attempting to elude a police vehicle is a crime involving moral turpitude, in light of changes to mens rea requirement in the statute. Although the Board of Immigration Appeals has previously held that the statute is categorically a crime involving moral turpitude in Matter of Ruiz-Lopez, since that time, the legislature has changed the mens rea from “wanton or willful disregard for the lives or property of others” to mere recklessness.

The full text of Zhovtonizhko v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/07/21-584.pdf

Eleventh Circuit Reverses Finding that FL Burglary of an Unoccupied Dwelling is CIMT

The Eleventh Circuit has reversed a finding that a Florida conviction for burglary of an unoccupied dwelling is a crime involving moral turpitude because there is no requirement that the dwelling be intermittently occupied. The court remanded for further analysis by the Board of Immigration Appeals.

The full text of Lauture v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/201913165.pdf

Second Circuit Finds that Making False Statements is a CIMT

The Second Circuit has determined that making false statements in violation of 18 U.S.C. § 1001(a) is a crime involving moral turpitude because the conviction “necessarily requires ‘deceit and an intent to impair the efficiency and lawful functioning of the government.’”

The full text of Cupete v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/caf0e426-7c20-43be-be1c-90754628fc71/7/doc/20-3441_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/caf0e426-7c20-43be-be1c-90754628fc71/7/hilite/

Eleventh Circuit Addresses Whether Misuse of a SSN is a CIMT

The Eleventh Circuit has remanded a case to the Board for further analysis about whether a federal conviction for misuse of a social security number is a crime involving moral turpitude. In so doing, the court noted that fraud requires that a misrepresentation be made to obtain a benefit from someone or cause a detriment to someone. “A violation of § 408(a)(7)(B) can sometimes be for the ‘purpose of obtaining anything of value from any person’—which would involve fraud—but under the categorical approach the ‘least culpable conduct necessary to sustain a conviction’ is the false representation of the Social Security number for ‘any other purpose,’ i.e., for a nonfraudulent purpose.”

“Our holding today does not foreclose the possibility that a conviction for a violation of § 408(a)(7)(B) may be a CIMT. But if the BIA is going to hold that it is, it will need to do what it has so far failed to do in Mr. Zarate’s case—it will have to apply its two pronged moral turpitude standard in toto and decide whether the statute, under the categorical approach, involves conduct that is ‘reprehensible,’ i.e., conduct that is ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’”

The full text of Zarate v. U.S. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202011654.pdf

Ninth Circuit Finds Impermissible Retroactive Application of CIMT Case Law on Indecent Exposure

The Ninth Circuit has determined that the Board of Immigration Appeals’ 2013 decision in Cortes Medina (finding that a California conviction for indecent exposure is a crime involving moral turpitude) presumptively cannot be retroactively applied to a 2011 conviction because the Ninth Circuit held in 2010 in Nunez that the conviction was not a crime involving moral turpitude.

The full text of Reyes Afandor v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/25/19-72890.pdf

Ninth Circuit Defers to BIA's Interpretation of CIMT Deportability

The Ninth Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of Alyazji, which held that the five year period for deportability based on a conviction for a crime involving moral turpitude (CIMT) starts with the last admission to the US that puts the person physically in the US. Thus, if a person enters on a temporary visa, then adjusts status, and then is convicted of a CIMT, the five years began at the time of admission on the temporary visa.

The full text of Route v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/06/19-72854.pdf

BIA Finds that NY Conviction for First-Degree Aggravated Unlicensed Operation of a Motor Vehicle is a CIMT

The Board of Immigration Appeals has determined that New York conviction for first-degree aggravated unlicensed operation of a motor vehicle is a crime involving moral turpitude because it requires the defendant to drive under the influence of alcohol or drugs while knowing or having reason to know that his or her license is suspended.

The full text of Matter of Vucetic can be found here:

https://www.justice.gov/eoir/file/1381766/download

BIA Finds Offense Clause of Federal Conspiracy Statute to be Divisible

The Board of Immigration Appeals (BIA) has determined that the “offense clause” of the federal conspiracy statute (which criminalizes conspiracy to commit an offense against the United States) is divisible with respect to the object of the conspiracy. The BIA then concluded that conspiracy to sell counterfeited currency is a crime involving moral turpitude.

The full text of Matter of Al Sabsabi can be found here:

https://www.justice.gov/eoir/page/file/1380821/download

Ninth Circuit Determines that Oregon Conviction for First-Degree Burglary is CIMT

The Ninth Circuit has concluded that the Oregon statute governing first-degree burglary is overbroad as compared to the generic definition of a crime involving moral turpitude because it proscribes any unlawful entry into any “building,” including a commercial space, with any criminal intent. However, the court determined that the statute is divisible between two distinct crimes: (1) first-degree burglary of a dwelling; and (2) first-degree burglary of a non-dwelling involving an aggravating factor. The court also deferred to Matter of J-G-D-F and found that burglary of a regularly or intermittently occupied dwelling is a crime involving moral turpitude.

The full text of Diaz-Flores v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/06/17-72563.pdf

BIA Finds Federal Conspiracy and Visa Misuse Statutes are Overbroad and Divisible

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:

https://www.justice.gov/eoir/page/file/1374586/download

Tenth Circuit Concludes UT Terroristic Threats Conviction is CIMT; Affirms Matter of G-G-S-

The Tenth Circuit has determined that a Utah terroristic threats conviction is a crime involving moral turpitude. “We hold that recklessly threatening substantial property damage with the intent of interrupting public access to a portion of a building is a CIMT.” The court also affirmed Matter of G-G-S- and determined that the agency need not consider a petitioner’s mental health when determining whether the petitioner has been convicted of a particularly serious crime.

The full text of the extremely sad case of Birhanu v. Wilkinson can be found here:

https://www.ca10.uscourts.gov/opinions/19/19-9599.pdf

Fifth Circuit Concludes that Use of an Unauthorized Social Security Number is a CIMT

The Fifth Circuit has concluded that a conviction for unauthorized use of a social security number is a crime involving moral turpitude. The Court noted that “[a] § 408(a)(7)(B) offense necessarily involves intentional deception: a person commits the offense if, ‘with intent to deceive’, she ‘falsely represents a number to be the social security account number . . assigned . . . to [her] or to another person’ when that number has not been assigned to her or such other person.” The Court then concluded that “deceptive intent is sufficient for an offense to constitute a CIMT.”

The full text of Munoz-Rivera v. Wilkinson can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60376-CV0.pdf

Ninth Circuit Defers to BIA that Animal Conviction is a CIMT

The Ninth Circuit has deferred to the Board of Immigration Appeals’ (BIA) decision in Matter of Ortega-Lopez that a federal conviction for aiding and abetting another person who sponsored or exhibited an animal in an animal fighting venture is a crime involving moral turpitude. The court also deferred to the BIA’s conclusion that, pursuant to the cross-reference in § 1229b(b)(1)(C), an alien is ineligible for cancellation of removal if the alien has been convicted of a crime involving moral turpitude for which a sentence of one year or more may be imposed, regardless whether the alien meets the immigration prerequisites for inadmissibility or deportability.

The full text of Ortega-Lopez v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/20/18-72441.pdf

Ninth Circuit Finds that CA Conviction for Attempting to Communicate with a Child with Intent to Commit Lewd or Lascivious Acts Upon the Child is Overbroad and Divisible as a CIMT

The Ninth Circuit has determined that a California conviction for attempting to communicate with a child with intent to commit a lewd and lascivious upon the child is not categorically a crime involving moral turpitude because it includes the intent to commit certain enumerated offenses that are not morally turpitudinous (such as kidnapping). However, the court determined that the statute is divisible among the 15 enumerated offenses. The court then consulted the charging document, with charged the petitioner with intent to commit a violation of section 288 of the Penal Code. The document did not specify a subsection of section 288, and the Ninth Circuit has previously held that a violation of section 288(c)(1) is not a crime involving moral turpitude because it lacked a good-faith reasonable mistake of age defense. However, that concern is negated because section 288.3 of the Penal Code (the attempting to communicate statute) requires the person to know or reasonably know that the victim is a minor. Hence, that statute provides the good-faith reasonable mistake of age defense missing in section 288(c)(1) itself.

The full text of Syed v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/12/17-71727.pdf

Second Circuit Finds that CT Conviction for Possession of Controlled Substance with Intent to Sell is CIMT

The Second Circuit has determined that a Connecticut conviction for possession of a controlled substance with intent to sell is a crime involving moral turpitude. The court reached this conclusion while recognizing that the Connecticut statute criminalized the giving away of a small of a substance.

The full text of Mota v. Barr can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/439ddf3d-3b3c-4999-bfcc-e7cacdc4ec27/13/doc/19-1385_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/439ddf3d-3b3c-4999-bfcc-e7cacdc4ec27/13/hilite/

Ninth Circuit Affirms that CA Petty Theft is a CIMT (but with a Twist!)

The Ninth Circuit has reaffirmed its prior precedent that a conviction in California for petty theft is a crime involving moral turpitude (CIMT). Although the court recognized that the California Supreme Court had clarified that non-permanent takings are criminalized under the petty theft statute (a conclusion that would render any pre-Diaz Lizarraga convictions to be overbroad as CIMTs), it also held that it was bound by the court’s prior precedent that petty theft is a CIMT. Only an en banc court could reverse that precedent.

The full text of Silva v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/10/16-70130.pdf

An amended opinion can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/30/16-70130.pdf