Julie Kruger is an Attorney and Partner at Richards & Kruger, with a practice limited to Immigration Law. She is admitted to practice in New York State, and is a member of the American Immigration Lawyers Association, New York State Bar Association, and Erie County Bar Association.

Richards & Kruger Immigration Law
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Wednesday, June 6, 2012

Eighth Circuit on Crimes Involving Moral Turpitude

The United States Court of Appeals for the Eighth Circuit recently issued a new decision analyzing the methodology used to determine whether a conviction is a crime involving moral turpitude.  Bobadilla v. Holder, 11-1590 (8th Cir. May 29, 2012). 

A crime involving moral turpitude refers generally to "conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general . . . an act which is per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.”  Matter of Franklin, 20 I. & N. Dec. 867, 878 (BIA 1994). 

In this case, the Petitioner was convicted in Minnesota of giving a false name to a police officer.  The Immigration Judge found that he was convicted of a crime involving moral turpitude, because fraud was "an element of the offense."  The Board of Immigration Appeals affirmed, relying on Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008). 

In Silva-Trevino, the Attorney General set forth a three step framework for the analysis of whether a crime is one that involves moral turpitude.  A court "should engage in a categorial inquiry and look first to the statute of conviction rather than to the specific facts of the alien’s crime."  Id. at 688.  The Attorney General adopted a "realistic probability" standard: "It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime."  Id. at 697.  Where there is a realistic possibility that the crime could be applied to conduct that does not involve moral turpitude, judges “should proceed with a ‘modified categorical’ inquiry," examining "whether the alien’s record of conviction – including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea and the plea transcript – evidences a crime that in fact involved moral turpitude."  If the modified categorical approach is still inconclusive, "judges may, to the extent they deem it necessary and appropriate, consider evidence beyond the formal record of conviction.”  Id. at 690.

The Eighth Circuit found that the Attorney General's analysis in Silva-Trevino is a reasonable construction of the statute, and must be given deference.  The Court found that the BIA failed to follow the methodology set forth in Silva-Trevino, and remanded for further proceedings. 

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