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Amicus Brief to BIA CIMT AUG. 2015

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Amicus Brief to BIA CIMT AUG. 2015

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Amicus Brief to BIA CIMT AUG. 2015

  1. 1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 1 OF 27 Submitted by: REQUEST TO APPEAR AS AMICUS CURIAE Joseph P. Whalen ON BRIEF ONLY 238 Ontario Street, No. 6 Buffalo, NY 14207 (716) 604-4322 (cell) (716) 768-6506 (land-line) joseph.whalen774@gmail.com DEPARTMENT OF JUSTICE (DOJ) EXECUTIVE OFFICE OF IMMIGRATION REVIEW (EOIR) BOARD OF IMMIGRATION APPEALS (BIA) ATTN: Amicus Clerk 5107 Leesburg Pike, Suite 2000 Falls Church, VA 22041 AMICUS BRIEF IN RESPONSE TO AMICUS INVITATION NO. 15-08-041 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION I. INTRODUCTION On August 4, 2015, the Board of Immigration Appeals (BIA or Board) issued an invitation to interested members of the public to file amicus curiae briefs discussing the below issues. This solicitation is as per: Matter of SILVA-Trevino, 26 I&N Dec. 550 (A.G. 2015), which vacated the earlier case at: 24 I&N Dec. 687 (A.G. 2008). The invitation intimated that the Board would limit who may file a brief. Therefore, this brief is being publicly posted and distributed so that the general public may see it regardless 1 See http://www.justice.gov/sites/default/files/pages/attachments/2015/08/04/amicus_invitation_no._15-08- 04_crime_involving_moral_turpitude_due_15-08-25.pdf
  2. 2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 2 OF 27 of whether it is considered by the BIA or not. The Board specified the subject matter to be addressed via the following three (3) related issues taken from the Attorney General’s vacatur order of April 10, 2015, Matter of SILVA-Trevino, 26 I&N Dec. 550 (A.G. 2015). ISSUES PRESENTED: 1) How adjudicators are to determine whether a particular criminal offense is a crime involving moral turpitude [CIMT] under the Act; 2) When, and to what extent, adjudicators may use a modified categorical approach and consider a record of conviction in determining whether an alien has been “convicted of . . . a crime involving moral turpitude” in applying section 212(a)(2) of the Act and similar provisions; and 3) Whether an alien who seeks a favorable exercise of discretion under the Act after having engaged in criminal acts constituting the sexual abuse of a minor should be required to make a heightened evidentiary showing of hardship or other factors that would warrant a favorable exercise of discretion. See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) (addressing the exercise of discretion in view of alien’s criminal acts). II. ABOUT THE AUTHOR OF THIS AMICUS BRIEF This amicus brief is submitted by a non-attorney who does, however, possess approximately twelve (12) years of experience as an Immigration Adjudications Officer. I began working for Legacy I.N.S. in July 1998, and progressed through various collateral duties with USCIS until January 2010. Since then, I have contributed to three immigration law texts and been widely read online, especially in Immigration Daily
  3. 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 3 OF 27 from ilw.com2 where I have been published approximately 150 times since March 2011. I have also consulted and provided training to attorneys on immigration law. Finally, my brief to AAO on the proper application of the Kazarian decision from the Ninth Circuit is posted on the USCIS website as fifth of the five posted Amicus Curiae Briefs.3 III. DEFINING CIMT Crimes involving moral turpitude (CIMTs) can lead to a finding of inadmissibility or deportability. While the term moral turpitude is used in the statute, it is not defined in the statute. The meaning of the term remains elusive. Instead of being defined, it has only been interpreted by the courts and administrative appellate bodies. An exploration of the various interpretations follows in the next section. The two principle portions of the statute which describe the inadmissibility or deportability are presented side-by-side below. INADMISSIBILITY DEPORTABILITY INA §212(a)(2) [8 U.S.C. §1182(a)(2)] INA §237 (a)(2) [8 U.S.C. § 1227(a)(2)] (a) Classes of aliens ineligible for visas or admission Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States: (a) Classes of deportable aliens Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: 2 http://www.ilw.com/immigrationdaily/archives.shtm has a simple search function, merely search by my last name: Whalen; or visit http://www.slideshare.net/BigJoe5 and browse at your leisure. 3 See http://www.uscis.gov/sites/default/files/USCIS/About%20Us/Directorates%20and%20Program%20Offices/AAO/Brief%205.PDF
  4. 4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 4 OF 27 (2) Criminal and related grounds (A) Conviction of certain crimes (i) In general Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of- (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21), is inadmissible. (ii) Exception Clause (i)(I) shall not apply to an alien who committed only one crime if- (I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not (2) Criminal offenses (A) General crimes (i) Crimes of moral turpitude Any alien who- (I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section [INA 245(j) ] [8 U.S.C.] 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable. ++++++ (vi) Waiver authorized Clauses (i), (ii), (iii), and (iv) shall not apply in the case of an alien with respect to a criminal conviction if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States.
  5. 5. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 5 OF 27 sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed). ++++++ (F) Waiver authorized For provision authorizing waiver of certain subparagraphs of this paragraph, see subsection (h) of this section. ++++++ (h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E) The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) of this section and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if- (1)(A) in the case of any immigrant it is established to the satisfaction of the Attorney General that- (i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien's application for a visa, admission, or adjustment of status, (ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and (iii) the alien has been rehabilitated; or (B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence The authority to grant waivers shifted from the Attorney General to the Secretary of Homeland Security.
  6. 6. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 6 OF 27 if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; or (C) the alien is a VAWA self-petitioner; and (2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status. No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture. No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection.
  7. 7. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 7 OF 27 IV. WHAT IS “MORAL TURPITUDE”? The Supreme Court of the United States (SCOTUS) has given us some oft-cited buzzwords by describing crimes of moral turpitude as including acts of shameful wickedness, baseness, vileness, depravity, fraud, theft, or evil intent. Matter of Jose Luis LOPEZ-Meza, 22 I&N Dec. 1188 (BIA 1999), provides a collection of cases addressing the potential meaning(s) of moral turpitude, as shown in this excerpt. “IV. ANALYSIS The issue presented in this case involves the meaning and scope of the phrase “crime involving moral turpitude” in section 237(a)(2)(A)(ii) of the Act. “Moral turpitude” is a term that has deep roots in the law.3 Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997). While this term has been the subject of interpretation for many years, its precise meaning and scope have never been fully settled. Nearly 50 years ago, the phrase “crime involving moral turpitude” was challenged as being unconstitutionally vague, but a divided Supreme Court found that its meaning was sufficiently definite to withstand constitutional scrutiny, in part because, even at that time, the phrase had been part of the immigration laws for more than 60 years. Jordan v. De George, 341 U.S. 223, 229-32 (1951). The Court noted that “difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness.” Id. at 231.4 Subsequent to the Supreme Court’s decision in Jordan, both the courts and this Board have referred to moral turpitude as a “nebulous concept” with ample room for differing definitions of the term. Franklin v. INS, 72 F.3d 571, 573 (8th Cir. 1995), aff’g Matter of Franklin, 20 I&N Dec. 867 (BIA 1994); see also Matter of Perez-Contreras, 20 I&N Dec. 615, 617-20 (BIA 1992), and cases cited therein. It is clear, however, that the meaning of this phrase is a matter of federal law and that any analysis of whether a crime involves moral turpitude necessarily will entail agency and judicial construction.5 We have held that moral turpitude refers generally to 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. Matter of L-V-C-, [22 I&N Dec.] 594 (BIA 1999); Matter of Danesh, 19 I&N Dec. 669 (BIA 1988); see also Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995); Grageda v. INS, 12 F.3d 919, 921 (9th Cir. 1993) (noting that courts have described moral turpitude in general terms as “an ‘act of baseness or depravity contrary to accepted moral standards’” (quoting Guerrero de Nodahl v. INS, 407 F.2d 1405, 1406 (9th Cir.
  8. 8. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 8 OF 27 1969)), and as “‘basically offensive to American ethics and accepted moral standards’” (quoting Castle v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976))). Under this standard, the nature of a crime is measured against contemporary moral standards and may be susceptible to change based on the prevailing views in society. See generally United States v. Francioso, 164 F.2d 163 (2d Cir. 1947); Ng Sui Wing v. United States, 46 F.2d 755 (7th Cir. 1931); Matter of G-, 1 I&N Dec. 59, 60 (BIA 1941) (stating that the standard by which an offense is to be judged is “that prevailing in the United States as a whole, regarding the common view of our people concerning its moral character”). Furthermore, while crimes involving moral turpitude often involve an evil intent, such a specific intent is not a prerequisite to finding that a crime involves moral turpitude. See Rodriguez-Herrera v. INS, supra, at 240 (noting that the United States Court of Appeals for the Ninth Circuit has “held only that without an evil intent, a statute does not necessarily involve moral turpitude”); Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (noting that “[a] crime involving the willful commission of a base or depraved act is a crime involving moral turpitude, whether or not the statute requires proof of evil intent”); Grageda v. INS, supra, at 922 (holding that the “combination of the base or depraved act and the willfulness of the action . . . makes the crime one of moral turpitude”); Guerrero de Nodahl v. INS, supra, at 1406; Matter of Franklin, supra, at 868 (“Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.”); Matter of Danesh, supra; Matter of Wojtkow, 18 I&N Dec. 111 (BIA 1981); Matter of Medina, 15 I&N Dec. 611, 614 (BIA 1976) (stating that the “presence or absence of a corrupt or vicious mind is not controlling” and that criminally reckless behavior may be a basis for a finding of moral turpitude), aff’d sub nom. Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977). But see Matter of Khourn, supra, at 1046 (“The Board has held that ‘evil intent’ is a requisite element for a crime involving moral turpitude.”); Matter of Flores, 17 I&N Dec. 225, 227 (BIA 1980) (holding that an “evil or malicious intent is said to be the essence of moral turpitude”); Matter of Abreu-Semino, 12 I&N Dec. 775, 777 (BIA 1968) (finding that “crimes in which evil intent is not an element, no matter how serious the act or harmful the consequences, do not involve moral turpitude”). Certain crimes have been readily categorized as involving moral turpitude. For example, the Supreme Court has noted that “fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude.” Jordan v. De George, supra, at 229. Other crimes involving acts of baseness or depravity have been found to be crimes involving moral turpitude even though they have no element of fraud and, in some cases, no explicit element of evil intent (e.g., murder, rape, robbery, kidnaping, voluntary manslaughter, some involuntary manslaughter offenses, aggravated assaults, mayhem, theft offenses, spousal abuse, child abuse, and incest). See 6 Charles
  9. 9. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 9 OF 27 Gordon, et al., Immigration Law and Procedure § 71.05[1][d] (rev. ed. 1999), and cases cited therein. Statutory rape has been found to involve moral turpitude even though it has no intent element. See Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971), cert. denied, 405 U.S. 997 (1972); Castle v. INS, supra, at 1066 (stating that the “inherent nature” of the offense “is so basically offensive to American ethics and accepted moral standards as to constitute moral turpitude per se”); Matter of Dingena, 11 I&N Dec. 723 (BIA 1966). While it is generally the case that a crime that is “malum in se” involves moral turpitude and that a “malum prohibitum” offense does not, this categorization is more a general rule than an absolute standard. See Kempe v. United States, 151 F.2d 680, 688 (8th Cir. 1945). In determining whether a crime involves moral turpitude, the specific statute under which the conviction occurred is controlling. See Matter of Khourn, supra, at 1044; Matter of Franklin, supra, at 868-69. If the statute defines a crime in which turpitude necessarily inheres, then, for immigration purposes, the offense is a crime involving moral turpitude. Matter of Short, 20 I&N Dec. 136, 137 (BIA 1989). Thus, whether a particular crime involves moral turpitude “is determined by the statutory definition or by the nature of the crime not by the specific conduct that resulted in the conviction.” McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980). The crime must be one that necessarily involves moral turpitude without consideration of the circumstances under which the crime was, in fact, committed. See Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir. 1993).” _________ “ 3 As stated by the Supreme Court, “the term ‘moral turpitude’ first appeared in the immigration laws in the Act of March 3, 1891, 26 Stat. 1084, ch. 551, which directed the exclusion of ‘persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude.’” Jordan v. De George, 341 U.S. 223, 229 n.14 (1951). 4 In dissent, Justice Jackson noted the “wearisome repetition of cliches attempting to define ‘moral turpitude,’” Jordan v. De George, supra, at 239 (Jackson, J., dissenting), and concluded that the phrase “crime involving moral turpitude” had “no sufficiently definite meaning to be a constitutional standard for deportation.” Id. at 232. 5 There is little available legislative history to provide guidance regarding the meaning of the phrase “crime involving moral turpitude.” See Cabral v. INS, 15 F.3d 193, 195 (1st Cir. 1994) (concluding that the “legislative history leaves no doubt . . . that Congress left the term ‘crime involving moral turpitude’ to future administrative and judicial interpretation”).” Id. at pp. 1191-1194.
  10. 10. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 10 OF 27 Wow! That is a great deal to absorb. The critical point, however, is that “… Congress left the term ‘crime involving moral turpitude’ to future administrative and judicial interpretation.” Cabral, supra. at 195. The keen and astute reader may have noticed that while a variety of adjectives or wildly descriptive words are used in an effort to move one to more or less experience a feeling of disgust when discussing the meaning of a CIMT; there is no definition, only a loose frame of reference. If the crime disgusts you, it is more likely than not a CIMT. With other subjective determinations in the guise of “a mixed question of fact and law”; this decision can boil down to a judgment call. V. HOW DO YOU “DIVINE” MORAL TURPITUDE? While the exact meaning of moral turpitude may never be pinned down, the courts and the BIA have constructed methods to discern a CIMT. It has turned into a concept akin to obscenity; we know it when we see. I went to a recent unpublished 9th Circuit memorandum decision that I knew dealt with CIMT methodology in search of a framework to follow and plenty of citations. Joel Oved SOTO-Rodriguez v. Eric HOLDER, Jr., No. 14-71419 (9th Cir. April 14, 2015), the three-judge panel found that “[t]he BIA’s determination that the Washington witness tampering statute is categorically a CIMT merits no deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944).” at p. 2. The judges clarified that “[b]ecause the BIA “erred at step one” of the categorical approach by failing to identify the elements of the witness tampering statute correctly, we “owe[] its CIMT analysis at step two no deference.” Hernandez-Cruz v. Holder, 651 F.3d 1094, 1106 (9th Cir. 2011).” Supra. at p. 3. Finally, the judges inform us that “[u]nder step two of the
  11. 11. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 11 OF 27 categorical approach, this Court determines “whether all of the conduct proscribed by [the statute] falls within [the] generic definition of moral turpitude.” Nunez v. Holder, 594 F.3d 1124, 1133 (9th Cir. 2010).” Supra. at p. 3. When I read the reference to a “generic definition of moral turpitude”, I was thrilled. I began tracing the case references backward through time until I realized that I could spend weeks tracing that reference all the way back to its first appearance in the Act of March 3, 1891. The precise wording used in 1891 was as follows: “Be it enacted by the Senate and· House of Representatives of the United States of America in Congress assembled, That the following classes of aliens shall be excluded from admission into the United States; …... persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude, …”.4 I find it telling that moral turpitude was used as a descriptor of the term misdemeanor, while felony is separate, and the 51st Congress also denoted a third group of crimes as “infamous crimes”. While the 1891 Act can be read as I have just presented it; as three disparate terms, some might lump infamous or morally turpitudinous together as a compound descriptor for misdemeanors. Regardless of how we dissect it, taken together or separately, these are still the crimes that make you feel disgusted. In answer to the question posed as the title of this section; you don’t “divine” moral turpitude, you feel it and it makes you sick. 4 I find it noteworthy that even in such bigoted times, there was already an exception for “political offenses” in other words, political asylum has a long history in the U.S.
  12. 12. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 12 OF 27 VI. TO MODIFY OR NOT TO MODIFY, THAT IS THE QUESTION The object of this section is to ponder the proper inquisitorial approach to apply to determine the character of the crime. Which approach is necessary in order to determine if the crime involves moral turpitude or not? It seems to be fairly well settled that the standard starting point is to apply the categorical approach to the elements of the crime. Some criminal statutes contain an element that represent a specific intent; in general, an “evil” intent. Probably the easiest example would be something like, premeditated murder, by arson. If all inquiries were so easy, there would be nothing to ponder here, but there is. Some statutes are broad enough to encompass acts that do involve moral turpitude and other acts that do not. For example, crimes of homicide are defined in the Model Penal Code (MPC) in more than one section; §§ 210.1 through 210.5. Here are two of them. MPC § 210.3. Manslaughter. (1) Criminal homicide constitutes manslaughter when: (a) it is committed recklessly; or (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be. (2) Manslaughter is a felony of the second degree. Many jurisdictions divide manslaughter as either voluntary or involuntary. The MPC does not use that terminology to describe “criminal homicide” but does have gradations, wiggle-room, and a separate charge covering negligence. MPC § 210.4. Negligent Homicide. (1) Criminal homicide constitutes negligent homicide when it is committed negligently. (2) Negligent homicide is a felony of the third degree.
  13. 13. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 13 OF 27 When a particular statute leaves room for more than a single interpretation, the finder of facts on the question of the proper characterization of the crime has more of a challenge. The MPC includes a rather interesting section as an aid to the Court when the judge must make judgements based on various far-reaching aggravating and mitigating circumstances. [MPC § 210.6. Sentence of Death for Murder; Further Proceedings to Determine Sentence. (1) Death Sentence Excluded. When a defendant is found guilty of murder, the Court shall impose sentence for a felony of the first degree if it is satisfied that: (a) none of the aggravating circumstances enumerated in Subsection (3) of this Section was established by the evidence at the trial or will be established if further proceedings are initiated under Subsection (2) of this Section; or (b) substantial mitigating circumstances, established by the evidence at the trial, call for leniency; or (c) the defendant, with the consent of the prosecuting attorney and the approval of the Court, pleaded guilty to murder as a felony of the first degree; or (d) the defendant was under 18 years of age at the time of the commission of the crime; or (e) the defendant's physical or mental condition calls for leniency; or (f) although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendant's guilt. (2) Determination by Court or by Court and Jury. Unless the Court imposes sentence under Subsection (1) of this Section, it shall conduct a separate proceeding to determine whether the defendant should be sentenced for a felony of the first degree or sentenced to death. The proceeding shall be conducted before the Court alone if the defendant was convicted by a Court sitting without a jury or upon his plea of guilty or if the prosecuting attorney and the defendant waive a jury with respect to sentence. In other cases it shall be conducted before the Court sitting with the jury which determined the defendant's guilt or, if the Court for good cause shown discharges that jury, with a new jury empanelled for the purpose. In the proceeding, evidence may be presented as to any matter that the Court deems relevant to sentence, including but not limited to the nature and circumstances of the crime, the defendant's character, background, history, mental and physical condition and any of the aggravating or mitigating circumstances enumerated in Subsections (3) and (4) of this Section. Any such evidence, not legally privileged, which the Court deems to have probative force, may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant's counsel is accorded a fair opportunity to rebut such evidence. The prosecuting attorney and the defendant or his counsel shall be permitted to present argument for or against sentence of death. The determination whether sentence of death shall be imposed shall be in the discretion of the Court, except that when the proceeding is conducted before the Court sitting with a jury, the Court shall not impose sentence of death unless it submits to the jury the issue whether the defendant should be sentenced to death or to imprisonment and the jury returns a verdict that the sentence should be death. If the jury is unable to reach a unanimous verdict, the Court shall dismiss the jury and impose sentence for a felony of the first degree.
  14. 14. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 14 OF 27 The Court, in exercising its discretion as to sentence, and the jury, in determining upon its verdict, shall take into account the aggravating and mitigating circumstances enumerated in Subsections (3) and (4) and any other facts that it deems relevant, but it shall not impose or recommend sentence of death unless it finds one of the aggravating circumstances enumerated in Subsection (3) and further finds that there are no mitigating circumstances sufficiently substantial to call for leniency. When the issue is submitted to the jury, the Court shall so instruct and also shall inform the jury of the nature of the sentence of imprisonment that may be imposed, including its implication with respect to possible release upon parole, if the jury verdict is against sentence of death. Alternative formulation of Subsection (2): (2) Determination by Court. Unless the Court imposes sentence under Subsection (1) of this Section, it shall conduct a separate proceeding to determine whether the defendant should be sentenced for a felony of the first degree or sentenced to death. In the proceeding, the Court, in accordance with Section 7.07, shall consider the report of the pre-sentence investigation and, if a psychiatric examination has been ordered, the report of such examination. In addition, evidence may be presented as to any matter that the Court deems relevant to sentence, including but not limited to the nature and circumstances of the crime, the defendant's character, background, history, mental and physical condition and any of the aggravating or mitigating circumstances enumerated in Subsections (3) and (4) of this Section. Any such evidence, not legally privileged, which the Court deems to have probative force, may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant's counsel is accorded a fair opportunity to rebut such evidence. The prosecuting attorney and the defendant or his counsel shall be permitted to present argument for or against sentence of death. The determination whether sentence of death shall be imposed shall be in the discretion of the Court. In exercising such discretion, the Court shall take into account the aggravating and mitigating circumstances enumerated in Subsections (3) and (4) and any other facts that it deems relevant but shall not impose sentence of death unless it finds one of the aggravating circumstances enumerated in Subsection (3) and further finds that there are no mitigating circumstances sufficiently substantial to call for leniency. (3) Aggravating Circumstances. (a) The murder was committed by a convict under sentence of imprisonment. (b) The defendant was previously convicted of another murder or of a felony involving the use or threat of violence to the person. (c) At the time the murder was committed the defendant also committed another murder. (d) The defendant knowingly created a great risk of death to many persons. (e) The murder was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, or kidnapping. (f) The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from lawful custody. (g) The murder was committed for pecuniary gain. (h) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
  15. 15. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 15 OF 27 (4) Mitigating Circumstances. (a) The defendant has no significant history of prior criminal activity. (b) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance. (c) The victim was a participant in the defendant's homicidal conduct or consented to the homicidal act. (d) The murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct. (e) The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor. (f) The defendant acted under duress or under the domination of another person. (g) At the time of the murder, the capacity of the defendant to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication. (h) The youth of the defendant at the time of the crime. While the administrative adjudicator is not making a direct life or death decision, if they get it wrong and order removal to a hostile place of return, it could happen. The portion of the MPC reproduced above does contain numerous factors to consider when weighing the gravity and depravity of a particular crime or circumstances for the purpose of characterizing an act as involving moral turpitude or not. The categorical approach is described in case law as is the modified categorical approach. These are addressed further in Section IX., below. The Supreme Court revisited the modified categorical approach, in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and Descamps v. United States, 133 S. Ct. 2276 (2013). Descamps simply held that the modified categorical approach does not apply to statutes that contain a single, indivisible set of elements. SCOTUS reversed the 9th Circuit’s more expansive reading of Taylor v. United States, 495 U. S. 575, (1990) and Shepard v. United States, 544 U. S. 13 (2005) which focused the inquiry squarely on the elements of the crime as written, to be reconciled with the “generic” federal and/or common-law offense through the examination of a limited list of documents to the exclusion of others.
  16. 16. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 16 OF 27 In Shepard, SCOTUS held that “… a later court5 determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented” id at 16. However, there are limits to how far that later inquiry may go, police reports and complaint applications are excluded. Moncrieffe was an exercise in common sense. SCOTUS determined that the criminalized ‘social sharing of a small amount of marijuana’ under a state statute was not a drug trafficking offense under federal law and therefore, not an aggravated felony under the INA which would have precluded any discretionary relief from removal. Moncrieffe at 1682. VII. INADMISSIBLE, DEPORTABLE, or REMOVEABLE? The major cases from the Supreme Court relate to grounds of deportation under INA § 237 [8 U.S.C. § 1227]. The BIA has asked for thoughts relating to INA § 212 [8 U.S.C. § 1182], grounds of inadmissibility. These two slightly incongruent sections have been mixed together into “Removal Proceedings” which themselves are divided and sub-divided. CBP can initiate and execute “Expedited Removal”; ICE routinely “Reinstates” earlier removal orders; CBP can, and USCIS does (rarely) also do so. When an Asylum Officer finds a credible fear but not a proper basis for asylum, the alien may be referred to Immigration Court for a “Withholding or Asylum Only” proceeding. And then there is the possibility of “Rescission” of LPR Status, the consequences of “Waivers”, other forms of “Relief from 5 In administrative immigration adjudications there are various potential individuals who may become the decision-maker. CBP, ICE, USCIS, or Consular - Officers, IJs, and BIA Members, or AAO Appeals Officers may have to ponder these issues in their decisions.
  17. 17. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 17 OF 27 Removal”, and “Visa Interviews” abroad. Confusion abounds. The reader may wonder where this discussion is going, well, it is going to reiterate the preliminary text to the CIMT grounds of inadmissibility versus deportability. Inadmissibility is broader than deportability. INA § 212 [8 U.S.C. § 1182] Inadmissible aliens (a) Classes of aliens ineligible for visas or admission Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States: ……. (2) Criminal and related grounds (A) Conviction of certain crimes (i) In general Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of- (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, +++++ is inadmissible. +++++ INA § 237 [8 U.S.C. § 1227] Deportable aliens (a) Classes of deportable aliens Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: …….. (2) Criminal offenses (A) General crimes (i) Crimes of moral turpitude Any alien who- (I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable. Inadmissibility applies to admissions of having committed, attempted to commit, or conspired to commit acts, regardless of success or failure; that constitute a crime involving moral turpitude as well as convictions. Deportability only applies to convictions. Now, one
  18. 18. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 18 OF 27 might say, so what? Inadmissibility goes beyond convictions and therefore the inquiry is more fact-oriented. Inadmissibility inquiries often demand a deeper examination of the facts in order to determine if “actions” equate to “crimes involving moral turpitude” instead of only examining elements of the criminal statute. This situation very often requires use of a modified categorical approach. In such a case, it may be necessary to examine additional documents as well as testimony both oral and written. VIII. A BALANCING ACT In Shepard, SCOTUS envisioned a later “court” attempting to characterize an admitted act, a burglary, for sentencing purposes. Subsequent immigration proceedings very often call for an Immigration Judge, DHS Officer, or Consular Officer to assess evidence, both documentary and testimonial, concerning past acts, in order to determine the character of those past acts. If moral turpitude is discerned, further assessment will be required. Does it meet an exception? Can it be waived? Is the alien eligible to apply for a waiver? Does he or she have a qualifying relative? Are there derogatory factors weighing against the alien? Does the alien have significant equities? Does the applicant deserve a favorable exercise of discretion based on the balancing of these factors? IX. SEXUAL ABUSE OF A MINOR In the course of a Removal Proceeding involving a charge of deportability, sexual abuse of a minor, is an undefined variety of criminal offense included in the definition of aggravated felony. See INA § 101(a)(43)(A) [8 U.S.C. § 1101(a)(43)(A)]: (a) As used in this chapter- (43) The term "aggravated felony" means- (A) murder, rape, or sexual abuse of a minor;
  19. 19. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 19 OF 27 Aggravated felonies are grounds for deportation and severely restrict the alien’s chances to obtain any form of relief from removal. However, aggravated felony is not listed among grounds of inadmissibility. In order for sexual abuse of a minor to make an alien inadmissible, the act must involve moral turpitude and not meet an exception. Even if technically eligible for a waiver, the alien must be deserving of a favorable exercise of discretion. Discretion is bestowed upon a cabinet level official and that official may dictate how to exercise discretion as a matter of policy. This situation is one that is deserving of being set as a matter of policy. In 2008, then-Attorney General, Michael Mukasey, attempted to set a framework for determining whether a crime could be characterized as involving moral turpitude. That case involved a supposed sex crime against the person of a minor. The A.G. incorporated the "realistic probability" component into the inquiry and expanded the scope of the inquiry to allow consideration of "any additional evidence" without limit. Of the various Circuit Courts that addressed this administrative precedent, one accepted and applied it at first blush; one evaded ruling on it as long as possible then at first rejected it, reversed itself, and accepted it; and the other six rejected it. It is that track-record that caused the 5th Circuit, wherein the case arose, to overrule & vacate, which finally forced A.G. Eric Holder to vacate the 2008 decision. Holder’s vacatur order directed the BIA to solicit these briefs. The amici were asked to also consider Matter of Jean, infra., but first a review of the contested case. Matter of SILVA-Trevino, 24 I&N Dec. 687 (A.G. 2008), (Vacated, 26 I&N Dec. 550 (A.G. 2015)), Originally Held: (1) To determine whether a conviction is for a crime involving moral turpitude, immigration judges and the Board of Immigration Appeals should:
  20. 20. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 20 OF 27 (1) look to the statute of conviction under the categorical inquiry and determine whether there is a "realistic probability" that the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude; (2) if the categorical inquiry does not resolve the question, engage in a modified categorical inquiry and examine the record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript; and (3) if the record of conviction is inconclusive, consider any additional evidence deemed necessary or appropriate to resolve accurately the moral turpitude question. (2) It is proper to make a categorical finding that a defendant's conduct involves moral turpitude when that conduct results in conviction on the charge of intentional sexual contact with a person the defendant knew or should have known was a child. (3) To qualify as a crime involving moral turpitude for purposes of the Immigration and Nationality Act, a crime must involve both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness.6 The Fifth Circuit determined that, like the majority of its sister circuits had found, the statute was unambiguous such that the A.G. did not have sufficient cause to expand the acceptable methodology for determining the presence of moral turpitude. USA v. Francisco Chan-Vicente, No. 14-41371, (5th Cir. Aug. 11, 2015) unpublished, was decided while this brief was being written and includes current thinking loosely relating to this topic. It deals head-on with the issue of deciding if a particular criminal statute equates to “sexual abuse of a minor” or not. In this case, the alien’s prior conviction for taking indecent liberties with [a child] under Code of Virginia § 18.2-370(A)(3) was assessed for sentence enhancement 6 Slight reformatting for clarity.
  21. 21. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 21 OF 27 purposes following conviction for illegal reentry. Under the Virginia Code, that offense, a “Class 5” felony, is considered a serious crime punishable by at least one year in prison. While the petitioner in that most recent 5th Circuit case, the convicted illegal reentrant was challenging the prior conviction’s characterization as a “crime of violence”, similar reasoning can apply to the assessment as a crime involving moral turpitude. Another case, but from a different Circuit, Miranda-Romero v. Lynch, __ F. 3d __(8th Cir. 2015), No. 14- 3387 Aug. 12, 2015, was also decided as this brief was being written. In this case, as per the 8th Circuit website’s unofficial case summary (which was prepared by the clerk's office as a courtesy to the reader, but is not part of the opinion of the court), the clerk provides the following. “The BIA did not err in determining that petitioner's California conviction under a statute that criminalizes forgery and related conduct was a crime of moral turpitude making him ineligible for cancellation of removal; the statute in question, which has remained unchanged since 1872, has always been interpreted to include the element of specific intent to defraud and is thus categorically a crime involving moral turpitude.” I ask the reader: Could any reasonable person not believe that “forgery” involves “fraud” and that fraud, inherently involves moral turpitude? Fraud entails, inter alia, purposeful deceptions, lying, and dishonesty, cheating, or substituting fakes for the genuine article. All of that is generally done for the financial or some other “advantage” of the perpetrator. All of the above listed samples of behavior associated with “fraud” can be summed as creepy. In short, fraud by its very nature is always a CIMT. Who would not feel disgusted at the crimes and/or actions that involve fraud? Consider if you will, the following examples. Grandma is cheated out of her life-savings by a charlatan, con artist, or perhaps a phony psychic or preacher. Junior is cheated by a sleazy used car salesman and tricked into buying a “lemon”.
  22. 22. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 22 OF 27 Finally, you are bamboozled (fast-talked) into buying a lousy insurance policy and far more than you need, besides. Can you feel the disgust? I can. Silva-Trevino v. Holder, 7, 42 F.3d 197 (5th Cir. 2014), overruled and vacated SILVA- Trevino, (A.G. 2008), supra. As mentioned above, the amici were asked to consider and address Matter of Jean in our briefs, so here is the holding from that precedent decision as a review and refresher, along with some other cases relating to both administrative precedent decisions. Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), held: (1) The 30-day period set forth in 8 C.F.R. § 3.38(b) (2002) for filing an appeal to the Board of Immigration Appeals is mandatory and jurisdictional, and it begins to run upon the issuance of a final disposition in the case. (2) The Board of Immigration Appeals’ authority under 8 C.F.R. § 3.1(c) (2002) to certify cases to itself in its discretion is limited to exceptional circumstances, and is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship. (3) In evaluating the propriety of granting an otherwise inadmissible alien a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Immigration and Nationality Act, 8 U.S.C. § 1159(c) (2000), any humanitarian, family unity preservation, or public interest considerations must be balanced against the seriousness of the criminal offense that rendered the alien inadmissible. (4) Aliens who have committed violent or dangerous crimes will not be granted a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Act except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien’s underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient. (5) Aliens who have committed violent or dangerous crimes will not be granted asylum, even if they are technically eligible for such relief, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status
  23. 23. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 23 OF 27 adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien’s underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient. Board Precedents and Related Court Decisions Chart Silva- Trevino, 24 I&N Dec. 687 (A.G. 2008) (A.G.'s holding) A. Creates a 3 - step process for CIMT determinations; adds a "realistic probability" requirement to the categorical approach. B. Categorical finding of CIMT proper where conviction was for intentional sexual contact w/one the defendant knew or should have known was a child. C. CIMT must involve both reprehensible conduct and some degree of scienter. Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014), overruled SILVA-Trevino, (A.G. 2008). A. 1. Jean-Louis v. Att'y Gen., 582 F.3d 462 (3d Cir. 2009) - does not accord deference to AG's "realistic prbability" requirement. A. 2. Mata-Guerrero v. Holder, 627 F. 3d 256 (7th Cir. 2010) -accords deference A. 3. Fajardo v. U.S. Att'y Gen., 2011 WL 4808171 (11th Cir. 2011) – does not accord deference A. 4. Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012) – does not accord Chevron deference; rejects reasoning. A. 5. Guardado-Garcia v. Holder, 615 F.3d 900 (8th Cir. 2010) – declined to apply A. 6. Da Silva-Neto v. Holder, 680 F.3d 25 (1st Cir. 2012) – declined to rule on 3rd prong of test, but noted its controversy among the circuits. A. 7. Nino v. Holder, 690 F.3d 691 (5th Cir. 2012) – declined to rule on A. 8. Marin-Rodriguez v. Holder, 2013 WL 819383 (7th Cir. 2013) – cites favorably
  24. 24. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 24 OF 27 Board Precedents and Related Court Decisions Chart A. 9. Olivas-Motta v. Holder, 2013 WL 2128318 (9th Cir. 2013) – disagrees with; does not accord Chevron deference Jean, 23 I&N Dec. 373 (A.G. 2002) aliens convicted of violent or dangerous criminal acts will not be allowed to adjust their status under §§ 1159(c) except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. 1. Jean v. Gonzales*, 452 F.3d 392, 396 (5th Cir.2006) - affirms. 2. Ali v. Achim, 468 F.3d 462 (7th Cir. 2006) - upholds. 3. Rivas-Gomez v. Gonzales, 441 F.3d 1072 (9th Cir.2006) - upholds. In Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), SCOTUS observed and incorporated into its jurisprudence, the terminology we use for the basic and extended forms of inquiry as seen here. “The Court further noted that a “few States’ burglary statutes,” “define burglary more broadly” to include both a (generically defined) listed crime and also one or more nonlisted crimes. Id., at 599. For example, Massachusetts defines “burglary” as including not only breaking into “‘a building’” but also breaking into a “vehicle” (which falls outside the generic definition of “burglary,” for a car is not a “‘building or structure’”). See Shepard v. United States, 544 U. S. 13, 16, 17 (2005); see also Taylor, 495 U. S., at 599 (discussing Missouri burglary statutes). In such cases the Court’s “categorical approach” permits the sentencing court “to go beyond the mere fact of conviction” in order to determine whether the earlier “jury was actually required to find all the elements of generic burglary.” Id., at 602; see also Conteh v. Gonzales, 461 F. 3d 45, 54 (CA1 2006) (observing that some courts refer to this step of the Taylor inquiry as a “modified categorical approach”). “For example,” the sentencing court might examine “the indictment or information and jury instructions” in the earlier case. 495 U. S., at 602. In Shepard, we added that, in a nonjury case, the sentencing court might examine not only the “charging document” but also “the terms of a plea agreement,” the “transcript of colloquy between judge and defendant,” or “some comparable judicial record” of information about the “factual basis for the plea.” 544 U. S., at 26.”
  25. 25. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 25 OF 27 Duenas-Alvarez, Slip Op. at 2-3. As mentioned earlier, the inquiry necessarily begins with a straight categorical approach. It only is modified if it is critical to do so. X. MATTERS OF JUDGEMENT & DISCRETION UPON REVIEW Although this amicus brief is directed to, and was solicited by, the BIA, I find something from one recent non-precedent from AAO7 to add some value to the present discussion. In this appeal dismissal of an H-3 nonimmigrant trainee petition, AAO made a point of clearly stating how it would proceed in the course of their appellate review. “I. MODE AND STANDARD OF REVIEW We conduct appellate review on a de novo basis (See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)). Thus, we base our decisions upon our independent review of the entire record of proceeding, without deference to contrary findings and conclusions that may have been reached by the Director. In conducting our de novo review, we apply the "preponderance of evidence" standard of review as articulated in the controlling precedent decision, Matter of Chawathe, 25 I&N Dec. 369, 375-376 (AAO 2010). Accordingly, we examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true. If the petitioner submits relevant, probative, and credible evidence that leads us to believe that the claim is "more likely than not" or "probably" true, the applicant or petitioner has satisfied the standard of proof.” JUL272015_01D5101.pdf,8 at p. 2. See also Siddiqui v. Holder, 670 F.3d 736, 741 (7th Cir. 2012) and Dor v. INS, 891 F.2d 997, 1002 n. 9 (2nd Cir. 1989), which also acknowledge how AAO conducts its reviews of cases. While AAO currently utilizes de novo review as much as it wants, the BIA has limited itself on certain issues. The BIA 7 AAO, the Administrative Appeals Office, is the primary administrative appellate body that has been delegated the vast majority of appellate authority in immigration matters assigned the Secretary of the Department of Homeland Security (DHS). AAO is housed within U.S. Citizenship and Immigration Services (USCIS). 8 http://www.uscis.gov/sites/default/files/err/D5%20-%20Alien%20Trainee%20(H-3)/Decisions_Issued_in_2015/JUL272015_01D5101.pdf
  26. 26. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 26 OF 27 usually decides cases based on the administrative record and briefs arising from adversarial Removal Proceedings that involved face-to-face interactions of the parties. The IJ was in a better position to judge the credibility of oral testimony, including demeanor. AAO generally performs a faceless paper-based review of a faceless paper-based inquisitorial adjudication of a benefit request, which calls for less deference, if any. The BIA on the other hand owes more deference to the IJ’s findings-of-fact drawn from the in- person aspects of the proceeding below. XI. LIMITING DISCRETION AS A MATTER OF POLICY Congress has bestowed the authority to waive certain grounds of inadmissibility, deportation, or removability on the Attorney General and/or the Secretary of Homeland Security. Generally, an alien must meet some basic criteria within the law in order to be considered technically, legally eligible to request and/or receive a discretionary waiver. If the alien meets the minimum eligibility threshold, he or she may ask for an exercise of discretion in their favor. There have been numerous administrative precedent decisions discussing the various factors to be considered in the exercise of this discretion. Many have been listed and linked above. The purpose of the current request for opinions on this subject matter demonstrates that the subject matter is not settled and indeed probably never will be. The best that can be done for now is to strive to express the current societal attitudes on this particular topic. For as long as it may be useful, the immigration authorities may set limits on the exercise of their respective statutorily delegated discretion on any particular subject matter. They may state such limits as a matter of policy.
  27. 27. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RE: CRIMES INVOLING MORAL TURPITUDE AND THE FAVORABLE EXERCISE OF DISCRETION TO WAIVE INA § 212(a)(2) OR SIMILAR PROVISION PAGE 27 OF 27 It is hereby strongly urged that the Attorney General, in consultation with the Secretary of Homeland Security, set discretionary limits on the availability of discretionary waivers of inadmissibility wherein the underlying behavior, regardless of whether criminal charges were filed, involves moral turpitude due to being classifiable as an aggravated felony sexual abuse of a minor. To paraphrase the third prong from the holding in Matter of Jean, supra,: “In…[determining]…the propriety of granting an otherwise inadmissible alien a discretionary waiver ...[any humanitarian interests]... must be balanced against the seriousness of the … [behavior] … that rendered the alien inadmissible.” Sexual abuse of a minor is considered to be heinous, and of great depravity and wickedness, truly base and vile conduct. When the technical classification as such runs counter to common sense, however, discretion may be exercised in the alien’s favor if a waiver is otherwise available; and is not barred for some other reason. There are certain statutes still on the books which criminalize consensual sex between individuals who are very close in age and even in cases where the parties have subsequently married or joined into a long-term monogamous relationship, and started a family. In order to avoid an otherwise ridiculous outcome discretion should be exercised in the alien’s favor. Additional factors to consider in determining sensibility of the result include: historical perspectives when evaluating an old statute; changes in societal standards of morality since its codification; and cultural differences between American society and that of the alien or aliens whose case is under review. Dated this 24th Day of August, 2015. /s/ Joseph P. Whalen Digitally signed by Joseph P. Whalen DN: cn=Joseph P. Whalen, o, ou, email=joseph.whalen774@gmail.com, c=US Date: 2015.08.24 11:38:32 -04'00'

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