August 14, 2018

Tenth Circuit: “Crime Involving Moral Turpitude” is Conduct Which Is Inherently Base, Vile, or Depraved Under Categorical Approach

The Tenth Circuit Court of Appeals issued its opinion in Afamasaga v. Sessions on March 19, 2018.

Paulo Afamasaga, a native and citizen of Samoa, was admitted to the United States on a nonimmigrant, B-2 tourist visa in February 1998, with authorization to remain until that August. He stayed much longer. In 2011, Mr. Afamasaga pleaded guilty in federal court to violating 18 U.S.C. § 1542, which prohibits “willfully and knowingly making any false statement in an application for a passport with intent to induce or secure the issuance of a passport under the authority of the United States.” The indictment charged that Mr. Afamasaga falsely stated in his passport application that he was born in American Samoa; had that been true, he would have been a United States citizen. Shortly thereafter, the Department of Homeland Security (DHS) issued a Notice to Appear, charging him with removability as an alien who had remained in the United States longer than permitted. The immigration judge (IJ) sustained the change of removability.

Mr. Afamasaga applied for cancellation for removal and adjustment of status, or, in the alternative, for voluntary departure. The IJ dropped his cancellation application after deeming him inadmissible because he had been convicted of a crime involving moral turpitude. The IJ did, however, grant voluntary departure to Samoa. In a decision issued by a single board member the Board of Immigration Appeals (BIA) agreed that Mr. Afamasaga’s conviction for a violation of § 1542 constitutes a crime involving moral turpitude and affirmed the IJ’s decision.

A noncitizen applying for cancellation of removal must show, among other things, that he has not been convicted of a crime involving moral turpitude. In determining whether an alien’s offense was a crime involving moral turpitude, it is not enough that his actual conduct would qualify. Instead, courts apply the “categorical approach” and “compare the statutory definition of that offense with the generic definition of crimes involving moral turpitude and consider whether the minimum conduct that would satisfy the former would necessarily also satisfy the latter.”

Although the Immigration and Nationality Act (INA) does not define “crime involving moral turpitude,” courts have guidance for defining it because “the contours of the term have been shaped through interpretation and application by the Attorney General, the BIA, and federal courts.” The Tenth Circuit Court of Appeals has previously said that the term “refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality.” Previous Attorneys General have described offenses that qualify as crimes involving moral turpitude as those entailing both “reprehensible conduct and some form of scienter.” Precedents established rules for assessing specific types of conducts. Specifically, “crimes in which fraud is an ingredient are regarded as involving moral turpitude.” The BIA has identified three categories of deceit-related offenses that qualify as crimes involving moral turpitude: (1) offenses containing an explicit fraudulent intent element; (2) offenses containing an inherent fraudulent intent element; and (3) offenses containing a specific intent element. In particular, the BIA has found an offense implicitly fraudulent – and thus a crime involving moral turpitude – where it involved impairing or obstructing an important function of the government by defeating its efficiency or destroying the value of its lawful operations by deceit, graft, trickery, or dishonest means.

The BIA held in 1956 that fraud is an “essential element” of § 1542 because “the applicant must knowingly make a false statement with the specific intent that the false statement should be acted upon the Government.” More recently, a precedential opinion of the BIA held that a conviction for making false statements to obtain a passport in another person’s name is a crime involving moral turpitude because “convictions for making false statements have been found to involve moral turpitude.” Additionally, the Second Circuit has also concluded that an offense under § 1542 categorically constitutes a crime involving moral turpitude.

Agreeing with the above interpretations of the meaning of crime involving moral turpitude, the Tenth Circuit Court of Appeals concluded that a violation of § 1542 is categorically a crime involving moral turpitude.

Mr. Afamasaga made the conclusory statement that § 1542 is not categorically a crime involving moral turpitude because “there is a realistic possibility, not a theoretical possibility, that section 1542 applies to conduct that falls outside the well-established definitions of crime involving moral turpitude.” But he did not proffer a single example of such conduct, nor could the Tenth Circuit Court of Appeals come up with one.

The Tenth Circuit Court of Appeals recognized that one of its recent opinions, which thoroughly explored when offenses involving statements constitute crimes involving moral turpitude, held that a violation of a city ordinance prohibiting the knowing and willful providing of false information to a public official conducting an investigation is not a crime involving moral turpitude. But, the critical feature of the ordinance was that it did not require an intent to affect the official’s decision. Section 1542, in contrast, requires the “intent to induce or secure the issuance of a passport.”

Mr. Afamasaga did not satisfy his burden “to prove the absence of any impediment to discretionary relief.” The Tenth Circuit Court of Appeals DENIED his petition for review and upheld the BIA’s determination that he is not eligible for cancellation of removal.

Tenth Circuit: Petitioner Ineligible for Cancellation of Removal After Theft Convictions

The Tenth Circuit Court of Appeals Issued its opinion in Lucio-Rayos v. Sessions on Tuesday, November 14, 2017.

The issue presented in this case was whether petitioner Lucio-Rayos’s municipal theft conviction qualified as a crime involving moral turpitude (CIMT). If so, it would make him ineligible for cancellation of removal. Lucio-Rayos is a citizen of Mexico who entered the United States without authorization. Although he conceded that he was subject to removal, he sought discretionary relief in the form of cancellation of removal.

Lucio-Rayos first contended that the immigration judge erred in refusing to recuse from his case because the immigration judge’s spouse works with the Denver Immigration and Customs Enforcement office that initiated this removal proceeding. The Tenth Circuit rejected this argument.

In order to prevail on this argument, Lucio-Rayos had to establish that he was deprived of due process and that the deprivation prejudiced him. Lucio-Rayos presented extrajudicial-influence and inherent-bias arguments relying on law that requires a federal judge to recuse in any proceeding in which his impartiality might reasonably be questioned. However, the Immigration and Customs Enforcement office had a plan in place to ensure that the immigration judge’s spouse had no involvement in the case. Further, there is no evidence suggesting that the immigration judge’s spouse played any role in Lucio-Rayos’ removal proceedings. The immigration judge’s spouse was not a party, officer, director, or trustee of a party in this matter.

In addition, Lucio-Rayos has not shown that he was prejudiced by the immigration judge’s refusal to recuse; that is, Lucio-Rayos has not shown that his rights were violated in a manner so as potentially to affect the outcome of the proceedings.

Next, the Tenth Circuit concluded that Lucio-Rayos is ineligible for cancellation of removal. To be eligible for cancellation of removal, Lucio-Rayos had to meet four requirements. The only one at issue was whether Lucio-Rayos’s conviction for theft is a CIMT.

The Tenth Circuit applied the categorical approach by comparing the elements of Lucio-Rayos’s offense to the definition of CIMT, which refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality, and conduct that is inherently wrong, rather than conduct deemed wrong only because of a statutory proscription. The lower court found that a conviction like Lucio-Rayos’s qualifies as a CIMT only if one element of the offense is that the perpetrator intended to deprive the victim permanently of his property. The Tenth Circuit found, however, that not all convictions under the applicable theft provision require proof that the defendant intended to deprive the victim of his property permanently. The applicable code was found to be divisible.

The Tenth Circuit found that the undocumented alien bears the burden of proof to show that his conviction was not a CIMT. The Tenth Circuit held that, because it was unclear from Lucio-Rayos’s record whether he committed a CIMT, he did not prove eligibility for cancellation of removal.

Lastly, Lucio-Rayos contended that if his conviction was a CIMT, he nevertheless met an exception to ineligibility available for petty offenses. However, the Tenth Circuit held that in this situation, the petty offense exception did not prevent an immigrant’s CIMT conviction from disqualifying him from eligibility for discretionary cancellation of removal.

The Tenth Circuit Court of Appeals DENIED Lucio-Rayos’s petition for review and found he was not eligible for cancellation of removal.