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Base, vile, depraved... and still confusing. Ninth Circuit overturns Attorney General on crimes involving moral turpitude, but leaves questions and concerns.

On May 17th, the Ninth Circuit published Olivas- Motta v. Holder, overturning the Attorney General's method to determine if an offense is a "crime involving moral turpitude" ("CIMT"). The court limited which offenses would be categorized as CIMTs, and also restricted the documents which the government can review to make that determination.

This decision benefits many foreign nationals with criminal convictions. It may, however, also harm some others, and leaves several key questions still unanswered.

CIMTs have many immigration consequences.

Why is this important? CIMTs have many consequences in immigration law. They can be grounds for deportation, keep people from entering the U.S., and prevent benefits like residency or citizenship. Therefore, changes to rules regarding CIMTs impacts many foreign nationals with criminal convictions,.

When determining whether an offense is a "crime involving moral turpitude", there are two key questions to consider. First, what is the definition of a "crime involving moral turpitude"? Second, how do you determine whether an offense fits that definition?

The definition of a "crime involving moral turpitude" is still unclear.

What exactly is a "crime involving moral turpitude"? Unfortunately, this remains a tricky question as immigration law does not provide a definition. Generally, it is an offense which involves fraud or deceit, or is inherently "base, vile or depraved".

Whether an offense involves moral turpitude does not depend on the harm inflicted. For example, shoplifting is a CIMT, while involuntary manslaughter generally is not. Much of what counts as a CIMT is based on court or government decisions, but even that has inconsistent results. For example, the Ninth Circuit found "assault with a deadly weapon" to be a CIMT, but elsewhere determined that "assault with a firearm" was not.

Unfortunately, the new decision does not remedy this confusion. Olivas-Motta does not change how "moral turpitude" is defined and in fact notes the definition is "famously ambiguous" without adding any more clarity.

Olivas-Motta does, however, lend crucial guidance about what the government can review to decide if a crime fits that (ambiguous) definition.

Olivas-Motta limits documents the government can review to decide if a crime involves moral turpitude.

Olivas-Motta rejects a very important decision by the Attorney General, Matter of Silva-Trevino. In Silva-Trevino, the Attorney General said that in deciding whether a crime involved moral turpitude, the government could look not only to conviction documents, but nearly any other sort of probative evidence, such pre-sentence reports, or even testimony from the foreign national. Silva-Trevino departed from the usual "categorical approach", which limits government review to the conviction record- generally the complaint, disposition, and plea colloquy. A detailed description of the categorical approach is presented in an earlier blog post.

Olivas-Motta strikes down the expansion in Silva-Trevino, and again limits review to just the conviction record- meaning that immigration court testimony and other evidence outside the conviction record cannot be considered to determine whether a crime involves moral turpitude.

Olivas-Motta limits which offenses can be considered crimes involving moral turpitude.

Silva Trevino also extended potential CIMTS to include those which did not necessarily require moral turpitude, but could be committed in a manner involving moral turpitude. This means a defendant convicted under a criminal statute which did not involve moral turpitude could still be found to have committed a CIMT if the government determined the facts upon which that conviction was based involved moral turpitude.

Olivas-Motta also rejects the Attorney General's reasoning about this issue, and limits review only to the criminal statute under which the foreign national was convicted. The end result is that that under Olivas-Motta, fewer foreign nationals are deportable for committing crimes involving moral turpitude. While this is good news for a foreign national concerned about being placed in removal proceedings for a crime involving moral turpitude, the decision leaves some key uncertainties and concerns.

How long will this be good law?

At the outset, it's important to note that of the three judges who decided this case, only two thought Silva-Trevino needed to be overturned. Therefore, it is quite possible that this case will eventually be heard en banc, or by a larger panel of judges, which have the power to overrule this decision.

Furthermore, federal courts across the country are in disagreement about this issue. Currently, three circuits have decided like the Ninth, while two others have upheld Silva Trevino. Given this split, the issue could very well be decided by the Supreme Court. Therefore, while this is an important decision, foreign nationals should not make any plea agreements without recognizing the law could change in the future.

What if the foreign national must show a crime did not involve moral turpitude?

It is also important to keep in mind that often a foreign national must show an offense did not involve moral turpitude. In a decision explained at length in an earlier post, the Ninth Circuit noted that the government must prove that a foreign national in removal proceedings is actually removable. If the admissible evidence does not establish a conviction is a deportable offense, it cannot be a ground of deportation. Therefore, as discussed, Olivas-Motta will make it harder to establish a foreign national deportable for committing a crime involving moral turpitude.

In other situations, however, a foreign national with a criminal conviction has the burden to show he or she is eligible for an immigration benefit, which would include not having certain types of criminal convictions, like a CIMT. The Ninth Circuit found that in that situation, if the record shows a crime might bar the benefit, but is unclear, the foreign national cannot meet his or her burden of proof, and the application is to be denied.

In this scenario, Olivas-Motta may be harmful. A foreign national applying for an immigration benefit who has suffered an offense that could be a CIMT may have fewer ways to prove he or she is actually eligible. On the other hand, Olivas-Motta also reduces the types of offenses which can be considered a CIMT, so it will also help some foreign nationals applying for immigration benefits.

Conclusion

Therefore, while in many cases Olivas-Motta is a good case for many foreign nationals with criminal convictions, it still leaves key uncertainties, and may even be harmful to others. Therefore, it will remain important to consult with both an experienced attorney for an individualized assessment if this case may impact you or someone you know.

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