Wednesday, May 22, 2013
Last week, the U.S. Court of Appeals for the Ninth Circuit rejected the Attorney General’s ruling that immigration courts can look beyond the record of conviction to determine if a conviction is a “crime involving moral turpitude.” See Olivas-Motta v. Holder, No. 10-72459 (9th Cir. May 17, 2013). Judge Willie Fletcher, joined by Judge Procter Hug, wrote the opinion. Judge Andrew Kleinfeld wrote a concurrence.
The Attorney General in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (2008) departed from well-established law and directed immigration judges to look at evidence outside of the record of a criminal conviction to determine if a noncitizen had been convicted of a “crime involving moral turpitude” (CIMT), which may subject him to removal.
Joining the Third, Fourth, and Eleventh Circuits, see Jean-Louis v. Attorney General, 582 F.3d 462 (3d Cir. 2009); Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012); Fajardo v. U.S. Attorney General, 659 F.3d 1303 (11th Cir. 2011), the Ninth Circuit rejected the Attorney General’s ruling. The court specifically found that, even if an ambiguity exists about a crime, the immigration court cannot go beyond the record of conviction to determine whether the crime is one “involving moral turpitude.”
Factual and Procedural Background
Olivas-Motta was brought by his parents to the U.S. when he was only ten days old. At the time of his removal hearing, he was a married, 33 year old lawful permanent resident. The Department of Homeland Security alleged that Olivas-Motta was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(ii) based on two convictions of CIMTs. Olivas-Motta conceded that a 2003 conviction in Arizona for a facilitation of unlawful possession of marijuana was a CIMT. Four years later, he pled guilty to “endangerment” under Arizona law. Olivas-Motta argued that the endangerment offense was not a CIMT. After considering police reports, which are not a part of the record of conviction, the immigration court ruled that the offense was a CIMT. The BIA dismissed the appeal.
Silva-Trevino’s Invitation to Look Beyond the Record of Conviction
In Silva-Trevino, the Attorney General interpreted the immigration statute to conclude that immigration judges could go beyond the record of conviction. The ruling established a 3-step test. First, the immigration court applies Taylor v. United States, 495 U.S. 575, 602 (1990) to determine whether the crime is categorically a CIMT, an approach reaffirmed in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). Second, if the crime is not a CIMT, the immigration court applies the modified categorical approach, evaluating the record of conviction to determine if the conviction carries immigration consequences. Third, the immigration court could consider evidence outside the record of conviction. Rejecting this third step of Silva-Trevino, the Ninth Circuit determined that nothing in the relevant statutory provisions allows the immigration court to look beyond the record of conviction.
Ambiguity in the Term CIMT Does Not Alter the Procedure
The Attorney General mistakenly relied on ambiguity in the phrase “crime involving moral turpitude” as a justification for permitting judges to go beyond the record of conviction. The Ninth Circuit specifically disagreed with the conclusion that 8 U.S.C. § 1182(a)(2)(A)(i)(I) and 8 U.S.C. § 1227(a)(2)(A)(i-ii) allowed the immigration court to go beyond the record of conviction to determine whether a crime involved moral turpitude. Even if the phrase “crime involving moral turpitude” was “famously ambiguous,” that did not alter the appropriate method for immigration courts to determine if an offense is a CIMT.
The Ninth Circuit explained that the ambiguity of the phrase CIMT does not mean that outside evidence may be considered to determine if a noncitizen has been “convicted of” a CIMT. The court stated that, “[t]o state the obvious, substance and procedure are not the same thing.”
Conviction = Conviction
The Ninth Circuit also examined the Attorney General’s definition of “conviction,” which the immigration court had concluded referred to conduct or behavior. By stretching the definition of “convicted of,” the Attorney General deviated from the well-established categorical and modified categorical approaches and invited immigration courts to consider criminal behavior for which the noncitizen was never convicted.
The statute, however, does not define “conviction” as criminal acts. Conviction means conviction. A conviction of, or being “convicted of,” a CIMT is required by 8 U.S.C. § 1101(a)(48)(A). Moreover, 28 U.S.C. § 1229(c)(3)(B) sets forth what documents can be used to establish a “conviction.” Nothing in either statutory provision offers support for the Attorney General’s approach in Silva-Trevino.
The Attorney General reasoned in part, that “involving” in the definition of a CIMT is what permitted the immigration court to go beyond the record of conviction. The Ninth Circuit rejected this interpretation.
By redefining the term “conviction,” the Attorney General reasoned that the immigration court could look outside the record of conviction for evidence of CIMTs a noncitizen may have committed. The Ninth Circuit made clear that the “conviction,” not “conduct,” is all the courts may consider in evaluating whether a conviction is a CIMT.
“Moral Turpitude” is an Element of the Offense
Applying Nijhawan v. Holder, 129 S. Ct. 2294, 2298 (2009), the Ninth Circuit found that the word “involving” in the generic definition of a crime does not signify a “circumstance” but is instead an element, permitting only consideration of the record of conviction. The court agreed with the Supreme Court’s conclusion that the word “involving” does not suggest that the court can look to specific facts underlying a conviction. Instead, in determining whether a criminal statute involves moral turpitude, courts have historically considered whether the elements of that statute refer to conduct that is “inherently base, vile or depraved, and contrary to private and social duties.” Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1068 (9th Cir. 2007) (en banc).
By incorrectly characterizing “moral turpitude” as a circumstance, rather than an element, the Attorney General opened the door to evidence outside the record of conviction. Looking to the Supreme Court’s consideration of whether a term was an element in similar contexts, the Ninth Circuit concluded that, because “crime involving moral turpitude” is only a description of the elements of the generic crime, the words “moral turpitude” do not describe a circumstance of the crime.
Moreover, “involving moral turpitude” is not a “circumstance” because there is no “separately described generic crime for which ‘involving moral turpitude’ is a circumstance.” Put differently, without the words “involving moral turpitude,” all that is left is the word “crime,” a broad term encompassing any and every type of crime.. The phrase “crime involving moral turpitude” cannot exist without the last three words, words that do not merely describe a circumstance, but are integral to the definition.
The Ninth Circuit also relied on the Supreme Court’s analysis in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2586 (2010), in which the Court held that the immigration court may look only at the conviction, not uncharged conduct or “what might have been or could have been charged.”
Significance of the Ruling
The impacts of the court’s ruling Olivas-Motta v. Holder in the jurisdiction of the Ninth Circuit will be significant. Immigration courts can no longer review evidence outside of the record of conviction to determine if the noncitizen has been convicted of a CIMT. As emphasized by the Supreme Court in Moncrieffe v. Holder, the appropriate focus of the immigration court in cases involving removal on criminal grounds is on the conviction, not the underlying conduct. The court, however, did not expressly rule on whether courts can review evidence outside the record to determine if a noncitizen is eligible for relief when the record of conviction is ambiguous.
Put simply, in a time when the Department of Homeland Security focuses on the removal of “criminal aliens,” the Ninth Circuit decision in Olivas-Motta v. Holder will impact thousands of removal cases.
Carrie Rosenbaum is an attorney in private practice and adjunct immigration professor at Golden Gate University.