Author: Criminal Immigration attorney Alena Shautsova
Crime of Moral Turpitude in Immigration Court and Record of Conviction
Conviction of crime of moral turpitude may cause a permanent resident to be deportable if committed within 5 years from the date of admission. (Date of admission is the date when an alien was admitted to the US or paroled, but does not restart when an immigrant adjusts his or her status as per Matter of ALYAZJI, 25 I&N Dec. 397 (BIA 2011)).
However, what a crime of moral turpitude is, is decided in almost every case separately. Why? Because the term of “crime of moral turpitude” is a term of art. The Immigration and Nationality act does not provide a definition to it, and courts look at the conviction to determine whether a particular offense falls under the category of a CMIT.
In doing so, the courts follow the following analysis: first, they look at whether the statute a person was convicted of is divisible or not divisible. A statute is not divisible when it describes only one way to commit a crime. If the statute sets out a list of alternative ways to commit the crime, and where some of these “sub-violations” categorically meet the federal standard while others do not necessarily meet this federal standard, then the statute is divisible. A statute categorically meets federal standard when every violation of a particular criminal statute meets the generic federal definition.
If a non divisible State statute mimics the Federal definition, there is no reason to look at the record of conviction: the person will be found guilty of crime of moral turpitude for Immigration purposes. If not, the State statue includes acts that will not be punished under the Federal law, then the person will be “off” federal hook for Immigration purposes.
As for divisible statute: most likely the court will look at the record of conviction, which consists of criminal charge, the plea agreement, and any plea or sentencing colloquy. The record of conviction does not include arrest reports, the pre-sentence investigation, the testimony of witnesses, etc. Shepard v. U.S., 544 U.S. 13 (2005); U.S. v. Kovac, 367 F.3d 1116, 1120 (9th Cir. 2004).
In addition, currently, in several Circuits the courts are permitted to look beyond the record of conviction to see if the person committed a CMIT under the Matter of Silva-Trevino. This might present a problem for an immigrant who, essentially, will have to be re-tried in Immigration court for the same conduct he was tried in criminal court in. The court may look at any necessary and appropriate evidence to determine whether the foreign national’s conduct did, in fact, involve moral turpitude.
If you have questions regarding Immigration court proceedings, call office of Alena Shautsova 917-885-2261.
