BIA Holds That The “Offense Clause” Of The Federal Conspiracy Statute, 18 U.S.C. § 371, Is Divisible And The Underlying Substantive Crime Is An Element Of The Offense. Because The Substantive Offense Underlying This Federal Conspiracy Conviction – Namely, Selling Counterfeit Currency In Violation Of 18 U.S.C. §473 – Is A Crime Involving Moral Turpitude (CIMT), Respondent’s Conviction For Conspiring To Commit This Offense Is Likewise A CIMT.
On March 29, 2021, the Board of Immigration Appeals (BIA or Board) sustained the DHS appeal of an order by the Immigration Judge (IJ) terminating removal proceedings and remanded the record for further proceedings. Respondent, a lawful permanent resident, was convicted of conspiracy in violation of 18 U.S.C. §371 and was charged with removability by DHS under INA §237(a)(2)(A)(i) as one who, within 5 years of admission, was convicted of a crime involving moral turpitude (CIMT). The IJ found that DHS did not meet its burden of establishing Respondent was removable as charged, determining that 18 U.S.C.§371 is indivisible because its statutory language criminalizes only conspiracy and the underlying criminal object of the conspiracy is merely a means of committing conspiracy. On appeal, DHS argued that the IJ erred because Respondent was convicted of conspiring to sell counterfeit currency and the underlying substantive offense is a CIMT. Holding that the IJ committed error by applying the categorical approach to only the conspiracy statute without considering the turpitudinous nature of the underlying offense Respondent actually conspired to commit, the BIA vacated the IJ’s decision, concluding that Respondent was, in fact, convicted of a CIMT and is removable.
Initially noting that whether an offense is a CIMT is a question of law that is reviewed de novo, the Board stated in beginning its opinion that it applies the categorical approach to determine if a criminal offense qualifies as a CIMT. As recently explained in Matter of Nemis, 28 I&N Dec. 250 (BIA 2021), the Federal conspiracy statute can be violated “either by conspiring to defraud the United States or one of its agencies (the ‘defraud clause’) or by conspiring to commit another federal offense (the ‘offense clause’).” The decision found that Respondent’s conviction record reflects that he was convicted under the “offense clause” and that this clause is divisible, with the underlying crime an element of the offense.
The BIA next explained that jury instructions in the Tenth Circuit, where this matter arose, state that a defendant must have not only agreed with at least one other person to violate the law, by counterfeiting but also that the defendant “knew the essential objective of the conspiracy”, which requires a jury to determine whether he or she had knowledge of a specific unlawful objective. Additionally, U.S. Sentencing Guidelines premise the base offense level for a guidelines sentence under §371 on the offense that the defendant was convicted of conspiring to commit. This conclusion, found the opinion, is consistent with its’ traditional approach under which IJs look to the counterfeiting offense underlying a conspiracy conviction to determine the immigration consequences of that conviction.
The Board, therefore, concluded that under §371’s offense clause, “the underlying offense that formed the criminal object of the conspiracy is an element of the conspiracy offense” and it follows that a conspiracy is an element of the conspiracy offense” and it follows that conspiracy is categorically a CIMT if the underlying criminal object of the conspiracy is itself a CIMT. Further, found the opinion, some categories of crimes are inherently turpirtidinous, e.g., crimes in which fraud is an ingredient are regarded as involving moral turpitude- although “fraud need not be an explicit element of offense”; of particular relevance here, fraud that impairs a governmental function has been held to constitute a CIMT by both the Tenth Circuit and the Board.
Thus, the BIA held that “a conviction under §473 inherently involves both fraud generally and fraud resulting in the impairment of a governmental function.” Noting that the U.S. Supreme Court has long held that counterfeiting is “plainly” a CIMT, the decision found that a §473 conviction is no different – it requires an intent to defraud. In fact, counterfeiting currency on a large enough scale may even diminish the Government’s ability to implement monetary policy or have “destabilizing effects.”A §473 conviction is therefore a categorical CIMT. The appeal was sustained, the IJ’s decision vacated, and proceedings reinstated with the record remanded to the IJ. Matter of Al Sabsabi, 28 I&N Dec. 269 (BIA 2021).
