On August 18, 2017, the Board of Immigration Appeals (BIA or Board), in a lengthy opinion, tweaked a longstanding precedent decision, Matter of M-, I&N Dec. 721 (BIA, A.G. 1946), to conclude that burglary of a regularly or intermittently occupied dwelling under Oregon law is a crime involving moral turpitude (CIMT). Respondent had been found removable by the Immigration Judge (IJ), in part as one convicted of CIMT because of two convictions for burglary in the first degree under Oregon Revised Statutes § 164.225. The IJ also denied respondent’s applications for cancellation, asylum, withholding and CAT protection. On appeal, respondent argued he is not removable as one inadmissible under INA § 212(a)(2)(A)(i)(I) for a CIMT conviction.
Applicant claimed that § 164.225 is broader than a generic CIMT, as a violation of the law does not necessary involve reprehensible conduct or a culpable mental state because the statute does not require that one unlawfully enter a dwelling or intend to commit a CIMT when he or she enters the building. DHS contended his conviction is for a categorical CIMT because it necessarily involved the burglary of a dwelling with the intent to commit a crime therein.
In its initial analysis, the BIA noted that in determining whether a particular offense qualifies as a CIMT, it employs the categorical approach, focusing “on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction.” Additionally, found the Board, CIMTs are generally crimes that 1) are vile based or depraved and 2) accepted moral standards or, alternatively, require two essential elements: reprehensible conduct and a culpable mental state.
Looking to Oregon’s definition of “dwelling,” the BIA stated that the term means “a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present.” As such, the Board found the statute divisible with respect to whether a first degree burglary involves entering or remaining unlawfully in a dwelling, as opposed to a building other than a “dwelling.” Because the statute is divisible, the IJ had employed the modified categorical approach to determine whether respondent’s crimes involved a “dwelling” and decided that both did, concluding that he had been convicted “under the prong of §164.225 that requires entering or remaining unlawfully in a ‘dwelling’ with the intent to commit a crime.”
Next, the opinion addressed Matter of M-, which had maintained that the operative factor in whether such offenses are CIMTs was whether the crime intended to be committed at the time of entry involved moral turpitude, e.g., because certain de minimis instances of unlawful entry, for instance, into an abandoned barn with the intention of playing cards in violation of state wagering laws, are not CIMTs. Subsequently, the BIA applied this holding in numerous cases, but emphasized that M- did not involve burglary of a dwelling, citing to the more current Matter of Louissaint, 24 § I&N Dec. 754 (BIA 2009). Louissaint held that burglary of an occupied dwelling in violation of Florida law is a categorical CIMT because the conscious act of unlawfully entering or remaining in an occupied dwelling with the intent to commit a crime constitutes “reprehensible conduct” committed with scienter. The case had recently been cited approvingly by the Fourth Circuit Court of Appeals in a case out of Maryland. The Board also recognized that the Ninth Circuit, where the instant matter arises, uses Matter of M- for the proposition that the act of entering is not itself base, vile or depraved and that it is the particular crime that accompanies the entry that determines whether a burglary offense involves moral turpitude.
However, held the BIA, M- was decided before Louissaint could clarify that unlawfully entering or remaining in an occupied dwelling to commit any crime categorically falls within the generic definition of a CIMT. This fact allows the Board, according to the opinion, to reconsider and refine Matter of M-‘s holding “after a reasoned analysis.” The BIA thus extended the Louissaint approach to first degree burglary under the Oregon Revised Statutes and concluded that Oregon “does not require the victim’s presence at the time of the offense,” merely that the dwelling be regularly or intermittently occupied. As this requirement raises the same concerns as the Florida burglary statute considered in Louissaint, the Board held that burglary of a regularly or intermittently occupied dwelling under Oregon law is morally turpitudinous regardless of whether anyone was present at the time of the offense.
After upholding the IJ’s findings as to respondent’s eligibility for cancellation, asylum, withholding and CAT relief, the BIA dismissed the appeal and reinstated a 60-day period of voluntary departure with warnings. Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017).
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