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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.

by | May 17, 2013 | Firm News |

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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Big News- Firm Merger and Consolidation to Oakland!

Bean + Lloyd, LLP and Park & Taylor has formed Bean, Lloyd, Mukherji, & Taylor, LLP

San Francisco Office has Moved to Join Oakland Office

We are thrilled to announce the merger of Bean + Lloyd, LLP and Park & Taylor, two highly respected Bay Area immigration law firms, which took place in April 2021. The new firm, Bean, Lloyd, Mukherji, & Taylor, LLP, combines decades of immigration experience in the subfields of family-based immigration, removal defense, asylum, humanitarian visas, and criminal immigration.

Additionally, the former Park & Taylor office in San Francisco has moved to join the Oakland office at 110 11th Street, Oakland, CA 94607. While the office is temporarily closed to the public due to COVID-19, our staff is still available by phone, email, and text message, and all consultations and client appointments will continue by phone or video. We look forward to physically reopening our expanded and improved Oakland office when it is safe to do so.

Partners Jesse Lloyd and Anita Mukherji, both certified specialists in immigration and nationality law by the California State Bar, lead the firm. Karyn Taylor has joined as Of Counsel, and Angela Bean remains as partner and Anna von Herrmann as Of Counsel. The Park & Taylor staff have brought their two decades of experience to the team.

Please contact us at (510) 433-1900 or www.beanlloyd.com with any inquiries.

¡Anuncio importante- Unión y Consolidación de Dos Bufetes! Bean + Lloyd, LLP y Park & Taylor han Formado Bean, Lloyd, Mukherji, & Taylor, LLP

La oficina de Park & Taylor se ha mudado para unirse a la oficina de Oakland

Estamos emocionados de anunciar la unión entre Bean + Lloyd, LLP y Park & Taylor, dos bufetes de inmigración muy respetados en el Área de la Bahía, lo cual ocurrió en abril del 2021. El bufete nuevo, Bean, Lloyd, Mukherji, & Taylor, LLP, combina décadas de experiencia en inmigración familiar, defensa de deportación, asilo, visas humanitarias, e inmigración criminal.

Además, la antigua oficina de Park & Taylor en San Francisco se ha mudado para unirse a la oficina de Oakland en 110 11th Street, Oakland, CA 94607. Nuestra oficina está temporalmente cerrada al público debido a COVID-19. Nuestro personal seguirá estando disponible por teléfono, correo electrónico y texto. Todas las consultas y citas de clientes, continuarán por teléfono o videollamada. Estamos emocionados para reabrir físicamente nuestra ampliada y mejorada oficina de Oakland cuando sea seguro hacerlo.

Los socios Jesse Lloyd y Anita Mukherji, dos especialistas certificados en ley de inmigración y nacionalidad por la Barra del Estado de California, dirigen el bufete. Karyn Taylor es abogada retirada pero se ha unido al bufete, Angela Bean permanece como socia y Anna von Herrmann sigue siendo parte del bufete. El personal de Park & Taylor ha compartido sus dos décadas de experiencia con el equipo.

Por favor contáctenos al (510) 433-1900 o www.beanlloyd.com con sus preguntas.

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