§ 3.3 Crime-related Removal Grounds

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 3.3 CRIME-RELATED REMOVAL GROUNDS

§ 3.3-1 Crimes Involving Moral Turpitude

Any noncitizen who is convicted of a "crime involving moral turpitude" (CIMT) faces potential immigration consequences depending on when he or she is convicted. 8 USC § 1227(a)(2)(A)(i)-(ii). A crime involving moral turpitude "is generally defined as a crime that encompasses a reprehensible act with some form of scienter." Matter of Silva-Trevino, 26 I&N Dec 826, 831 (BIA 2016). An offense may be a CIMT if the act is depraved, wicked, bad, or evil. But because this is a subjective analysis, immigration case law, most importantly decisions from the Board of Immigration Appeals, has set forth a scheme to determine whether an offense is a CIMT. Under the first step of the analysis, an immigration judge should determine whether there is a realistic probability that the criminal statute under which the noncitizen was convicted would be applied to reach conduct that does not involve moral turpitude. Matter of Silva-Trevino, 26 I&N Dec at 831. If not, then the noncitizen's conviction is a CIMT, and no further inquiry is necessary. If so, the immigration judge must determine whether the statute is divisible, that is, whether

(1) it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of "elements," more than one combination of which could support a conviction and (2) at least one, but not all, of those listed offenses or combinations of disjunctive elements is a categorical match to the relevant generic standard.

Silva-Trevino, 26 I&N Dec at 833. If the statute is divisible, then the immigration judge must look to the noncitizen's record of conviction to determine whether the noncitizen's conduct that resulted in the conviction involved moral turpitude. Silva-Trevino, 26 I&N Dec at 833.

For example, the offense of menacing, in violation of ORS 163.190 is categorically a CIMT. Burboa-Rocha v. Sessions, 725 F App'x 588, 589 (9th Cir 2018). Burglary of a dwelling in violation of ORS 164.225 is also a CIMT, even though the statute does not require the victim's presence at the time of the offense, because the statute requires that the dwelling be at least intermittently occupied. Matter of J-G-D-F-, 27 I&N Dec 82, 88 (BIA 2017) (petition for review pending).

In Garcia-Martinez v. Sessions, 886 F3d 1291 (9th Cir 2018), the court held that the BIA erred in concluding that Garcia's Oregon theft convictions were CIMTs. The court noted that the theft offenses for which Garcia was convicted did not require a permanent taking of property. The court concluded that at the time Garcia committed the offenses, they were not CIMTs because for many decades the BIA had required a permanent intent to deprive for a theft offense to be a CIMT. Garcia-Martinez, 886 F3d at 1294. The court observed that the BIA had changed the law by no longer requiring a permanent intent to deprive, but it declined to apply that change retroactively. Garcia-Martinez, 886 F3d at 1295-96.

§ 3.3-1(a) Within Five Years of Admission

If a noncitizen (1) commits a CIMT within five years of the date of admission (or 10 years for a noncitizen granted LPR status under 8 USC § 1255(j)) and (2) is convicted of that CIMT for which a sentence of one year or longer may be imposed, the noncitizen is removable. 8 USC § 1227(a)(2)(A)(i). See § 3.3-1 for a discussion of how an immigration judge determines whether a crime involves moral turpitude.

NOTE: The commission of the CIMT must be within the five-year period following admission, but the conviction can be outside the five years. 8 USC § 1227(a)(2)(A)(i)).

The date of admission for purposes of calculating the five years is the date of the noncitizen's lawful entry to the United States upon inspection and authorization by an immigration officer. Shivaraman v. Ashcroft, 360 F3d 1142, 1148 (9th Cir 2004). The noncitizen's subsequent adjustment to LPR status will not trigger the five-year provision if he or she continued to maintain lawful presence in the United States after an initial lawful entry. Shivaraman, 360 F3d at 1149 (noncitizen was not removable because the CIMT was not committed within five years of his initial lawful admission).

Thus, the criminal defense attorney must review two issues when dealing with a potential CIMT conviction for a noncitizen: whether the crime is a CIMT, and whether the crime may result in a sentence of one year or longer. For example, Oregon's theft statutes include a mix of felonies and misdemeanors. See ORS 164.043-164.140. As of August 15, 2017, convictions for Oregon's Class A misdemeanors carry a maximum of 364 days in jail, so they no longer meet this second requirement. Or Laws 2017, ch 706, § 22 (amending ORS 161.615); see § 3.2-2 (misdemeanor versus felony). But if the charge is felony theft, the analysis changes. See ORS 161.605 (maximum terms of imprisonment for felonies).

PRACTICE TIP: The criminal defense attorney should ensure that a noncitizen client charged with a Class C felony pleads to an attempt, thus reducing the crime of conviction to a Class A misdemeanor with a 364-day maximum sentence. ORS 161.405(2)(d); ORS 161.615(1). This may avoid the possibility that the conviction also qualifies as an aggravated felony for removal purposes. See § 3.3-2.

§ 3.3-1(b) Multiple Criminal Convictions

Having multiple (two or more) criminal convictions for CIMTs at any time after entry is also a ground for removal, unless the convictions arise out of "a single scheme of criminal misconduct." 8 USC § 1227(a)(2)(A)(ii). For example, if a noncitizen pleads guilty to two theft offenses that arose from the same act or transaction, the offenses would arguably be a single scheme of criminal...