On October 12, 2016, the Board of Immigration Appeals (BIA or Board), on remand from the Attorney General, developed a uniform standard to determine whether a particular criminal offense is a crime involving moral turpitude (CIMT). Respondent had been convicted of indecency with a child under Texas Penal Code §21.11(a)(1) and consequently charged by the Department of Homeland Security (DHS) with removability as an aggravated felon per INA§§101(a)(43)(A) and 237(a)(2)(A)(iii). He requested adjustment of status relief but the Immigration Judge (IJ) found him ineligible for a CIMT conviction, making him inadmissible per §212(a)(2)(A)(i)(I). On initial appeal to the BIA, the Board held that he was not inadmissible because §21.11(a)(1) penalizes non-moral turpitudinous conduct and the record of conviction (ROC) did not contain any information about his conduct; the case was remanded to the IJ.
About one year later, the Attorney General directed the BIA to refer the case to him, vacated the decision and instructed IJs and the Board that, when examining whether a conviction is for a CIMT , they should use the categorical approach and see if there is a “realistic probability” the criminal law would be applied to non-turpitudinous conduct; if the categorical approach does not answer the inquiry, they should use the modified categorical approach and, if that is inconclusive, consider “any relevant evidence outside the record of conviction” to resolve the question. After addressing the “realistic probability” issue himself and holding that in cases of sexual misconduct with children there should be a “categorical finding” that the crime is a CIMT if it involves “intentional sexual conduct with a person the defendant knew or should have known was a child”, the Attorney General remanded the record to the BIA, which returned the case to the IJ to apply that new analytical framework.
The IJ found respondent had been convicted of a CIMT and thus ineligible to adjust, a decision affirmed by the Board on appeal. At the Fifth Circuit, however the Court of Appeals held that the phrase “convicted of” prevents one from examining evidence outside The record of conviction, vacated The BIA’s opinion and reminded. Subsequently, The Attorney General vacated the Board’s decision and remanded the record to the BIA “to develop a uniform standard for the proper construction and application” of rules as to, among other issues, when an offense involves moral turpitude; when – and to what extent – the modified categorical approach can be used and the ROC considered in such an inquiry; and, whether one seeking discretionary relief after sexually abusing a minor must make a heightened evidentiary showing of hardship or other factors to warrant a favorable exercise of discretion.
In developing a uniform standard for the proper construction and application of INA §212(a)(2)(A)(i)(I) as it applies to those “convicted of” a CIMT, the Board in the instant opinion concluded that the categorical and modified categorical approaches apply as defined by recent U.S. Supreme Court precedent. As to the categorical approach, IJs and the Board will examine the applicable criminal statute to see if it fits within the generic definition of a CIMT, using the realistic probability test (focusing on the minimum conduct with a realistic probability of being prosecuted, rather than the facts of a specific case), unless controlling circuit law expressly dictates otherwise. Where the criminal statute includes CIMTs and other crimes that do not involve moral turpitude, the statute must be reviewed to see if it is divisible and therefore susceptible to the modified categorical approach, which involves analyzing the ROC to identify the exact provision a respondent has been convicted of. The Board, citing Matter of Chairez, 26 I&N Dec. 819 (BIA 2016) and Descamps v. United States, 133 S.Ct. 2276 (2013), discoursed on when a criminal statute may be seen as divisible but held that in the instant case, “respondent’s statute of conviction is indivisible”.
Applied to the matter before the Board, the new analysis held that a CIMT requires reprehensible conduct and a culpable mental state; reaffirmed the original holding that a crime involving sexual conduct by an adult with a child involves moral turpitude if the defendant knew or have known the victim was a minor; and, applied the minimum reading approach to its categorical inquiry. Thus, the BIA held that respondent’s conviction under 221.11(a)(1) is not a categorical CIMT because it punishes behavior that does not require the perpetrator to know the victim was a minor. Because the statute is not divisible, respondent is not inadmissible for conviction of a CIMT.
Collaterally, the Board concluded that it is not necessary to devise an additional framework regarding a heightened evidentiary showing because there already exists a “well – established framework for evaluating discretionary determinations” under which IJs examine the actual facts of a crime, considering evidence outside the ROC to “balance positive and negative factors” and under which the applicant “bears the ultimate burden of showing that he or she merits a favorable exercise of discretion.” Because the IJ has broad latitude in this regard, he or she can consider the victim’s age as well as other factors to determine “the full scope of the conduct and the harm involved”, according the factors appropriate weight in coming to a conclusion. The record was thus remanded to the IJ to adjudicate respondent’s application for relief in proceedings consistent with this opinion. Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016).
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