ATTACHMENT 6

Crimes Involving Moral Turpitude (CIMTs)

 

                        1.         Stalking. The Ninth Circuit found a conviction for stalking in violation of CPC § 646.9(b) to be a CIMT in Zavaleta-Gallegos v. INS, 261 F. 3d 951 (9th Cir. 2001); and sexual abuse of a minor to be a CIMT in United States v. Baron- Medina, 187 F. 3d 1144 (9th Cir. 1999). But see Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007) (Stalking is not per se a crime of violence).

 

                        2.         Section 240A Relief. An alien convicted of two misdemeanor CIMTs is not precluded from establishing the requisite seven years of continuous residence for cancellation of removal under § 240A(a)(2) where his first CIMT was a petty offense, and he had accrued seven years of physical presence before the second offense was committed. See Matter of Deanda-Romo, 23 I&N Dec. 597 (BIA 2003).

 

                        3.         Petty Offense Exception and § 240A(b)(1)(B) Relief. An alien convicted of a CIMT that falls within the “petty offense” exception in § 212(a)(2)(A)(ii)(II) of the Act remains eligible for cancellation of removal for purposes of § 240A(b)(1)(B) and (C) of the Act. See Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003).

 

                        4.         Petty Offense Exception and Grand Theft. An alien who pled guilty to grand theft in violation of CPC § 487.2, where the Court suspended proceedings, ordered probation for three years and sentenced the alien to 180 days in county jail, is subject to the petty offense exception under § 212(a)(2)(A)(ii)(II) of the Act. See Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003).

 

                        5.         Larceny. The Nevada Supreme Court as well as the Ninth Circuit have long held that larceny–which requires an intent to permanently deprive the owner of his/her property–is a CIMT. See Grant v. State, 24 P.3d 761, 766 (Nev.S.Ct. 2001); and United States v. Esparza-Ponce, 193 F.3d 1133, 1136 (9th Cir. 1999) (Larceny is a CIMT, including petty theft).

 

                        6.         False Representation of Identity to a Police Officer. False representation of identity to a police officer under CPC § 148.9(a) is not a CIMT because it is neither an act of baseness or depravity contrary to accepted moral standards or a crime involving evil intent. See Rodriquez-Herrera v. INS, 52 F.3d 238, 239 (9th Cir. 1995); and Matter of S-, 2 I&N Dec. 353 (BIA 1945). However, citing other Board and Ninth Circuit citations, the Board concluded in a July 2004 unpublished decision that a conviction for false representation of identity to a police officer in violation of CPC § 148.9(a) is a CIMT because the elements of the offense require the offender to provide a false identity to a police officer in an effort to evade the process of a court or to evade proper identification by the investigating officer. That is, the statute in question involves the intent to commit fraud upon an officer of the government. See Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993) ( requiring a showing of intent to defraud); McNaughton v. INS, 612 F.2d 457, 459 (9th Cir.1980) (intent to defraud is a CIMT); Bisaillon v. Hogan, 257 F.2d 435 (9th Cir. 1958), cert. denied, 358 U.S. 872 (1958) (false statements on passport application are a CIMT); Matter of Adetiba, 20 I&N Dec. 506 (BIA1992) (false representation of social security number is a CIMT); Matter of Acostoa, 14 I&N Dec. 338 (BIA 1973) (false statements on firearms application are a CIMT); and Matter of S-, 2 I&N Dec. 353 (BIA 1945) (false statements in an application for registration are a CIMT).

The California crimes of providing false information to a police officer and leaving the scene of an accident in which injury to another or death results is not a CIMT. See Blanco v. Mukasey, 518 F.3d 714, (9th Cir. 2008); and Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. 2008)(felony hit and run is not categorically a CIMT).

Citing Cerezo v. Mukasey, supra, the Ninth Circuit ruled that HRS § 291 C-14, which is similar to CVC §§ 2003-2004, can be violated by a vehicle driver merely failing to provide all information that is required at the accident scene; hence, such a violation falls outside the Federal definition of a CIMT. See Latu v. Mukasey, ____F.3d____(9th Cir. 2008). Decided November 4, 2008.

 

                        7.         False Statement under 18 U.S.C. § 1001. A false statement under 18 U.S.C. § 1001 is not a CIMT. See Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962); and Matter of S-, 2 I&N Dec. 353 (BIA 1945).

 

                        8.         Failure to File Taxes. The willful failure to file California tax returns with intent to evade taxes involves fraud, and thus constitutes a crime of moral turpitude for purposes of § 237(a)(2)(A)(ii) of the Act. See Carty v. Ashcroft, 395 F.3d 1081 (9th Cir. 2005).

 

                        9.         Shooting a Firearm at an Occupied Motor Vehicle. On March 9, 2005, the BIA ruled that shooting a firearm at an occupied motor vehicle is a CIMT. See Matter of Azurin, 23 I&N Dec. 695 (BIA 2005).

 

                        10.       Original Date of Admission. Where an alien has received an “admission” within the meaning of § 101(a)(13)(A) of the Act as an F-1 nonimmigrant student and maintains continuous lawful presence thereafter, the original date of admission rather than the subsequent admission as a LPR constitutes the triggering date for purposes of the five-year CIMT bar at § 237(a)(2)(A)(i) of the Act. See Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004). However, the BIA ruled in Matter of Shanu, 23 I&N Dec. 754 (BIA 2005) that “Congress intended with respect to aliens who have been admitted to the United States more than once-that each and every date of admission qualifies as potentially ‘relevant’ date of admission under § 237(a)(2)(A)(i) of the Act.”

 

                        11.       Attempted Entry by False Statement. A conviction under 18 U.S.C. § 542 for the offense of attempted entry by means of a false statement is not a CIMT because the record fails to disclose whether the defendant was convicted under paragraph one (a CIMT) or paragraph two (not a CIMT). See Notash v. Gonzales, 427 F.3d 693 (9th Cir. 2005).

 

                        12.       Burglary. The respondent’s admission in a plea statement that he intended to commit theft during the burglary is sufficient to prove that his crime was a CIMT. See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005). In addition, in Cuevas-Gaspar, an accomplice to residential burglary was found to be a CIMT under the modified categorical approach. Burglary of a dwelling is also a burglary for sentence enhancement purposes. See United States v. Reina-Rodriguez, 468 F.3d 1147 (9th Cir. 2006). See also James v. United States, 549 U.S. __ (2007) (attempted burglary as a crime of violence under 18 U.S.C. § 924(e)(2)(B)(ii)).

 

                        13.       Possession of Child Pornography. The offense of possession of child pornography in violation of § 827.071(5) of the Florida Statutes is a crime involving moral turpitude. See Matter of Olquin, 23 I&N 896 (BIA 2006).

 

                        14.       Accessory After the Fact. An accessory after the fact conviction under Cal. Penal Code § 32 requires a knowing, affirmative act to conceal a felony with the specific intent to hinder or avoid prosecution of the perpetrator; it is contrary to the duties owed society and constitutes a crime of moral turpitude. See Navarro-Lopez v. Gonzales, 455 F.3d 1055 (9th Cir. 2006), opinion withdrawn by en banc court on November 8, 2006 (pending).

On September 19, 2007, the en banc court issued a new decision, which reached the opposite conclusion: An accessory after the fact conviction under CPC § 32 is not a CIMT, because the moral turpitude, the requisite baseness or depravity, is lacking. Moreover, CPC § 32 refers to a potential set of crimes which is broader than the generic definition of a CIMT, i.e., vile, base or depraved conduct and the conduct violates societal moral standards. See Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc).

 

                        15.       Domestic Battery. An alien’s conviction for domestic battery in violation of §§ 242 and 243(e)(1) of the California Penal Code does not qualify categorically as a conviction for a crime involving moral turpitude within the meaning of section 237(a)(2)(A)(ii) of the Act. See Matter of Sanudo, 23 I&N Dec. 968 (BIA (2006). Nor is it a crime of violence. See Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006); and Galeana-Mendoza v. Gonzales, 465 F.3d 1054 (9th Cir. 2006) (§243(e) of CPC lacks any injury requirement and does not include an inherent element evidencing grave acts of baseness and depravity.).

On July 25, 2007, the BIA decided two cases involving assault/assault and battery in the context of “domestic assault.” In Matter of Solon, 24 I&N Dec. 239 (BIA 2007), the BIA held that the offense of assault in the third degree in violation of NYPC § 120.00(1) is a CIMT because it requires specific intent to cause physical injury and such physical injury actually occurs. By contrast, a violation of Virginia Code § 18.2-57.2 (assault and battery against a family or household member) is not categorically a CIMT because it does not require the actual infliction of physical injury and may include any touching, however slight. See Matter of Sejas, 24 I&N Dec. 236 (BIA 2007).

On September 3, 2008, a panel of the Ninth Circuit held that a conviction under CPC § 273.6 for violating a protective order, pursuant to § 6320 of the California Family Code categorically qualifies as a violation of a “protection order” under § 237(a)(2)(E)(ii) of the Act, despite the generality of the protective order. Thus, the conviction qualifies as a conviction for purposes of § 237(a)(2)(E)(i) of the Act. See Alanis-Alvarado v. Mukasey, __ F.3d __ (9th Cir. 2008).

 

                        16.       Misprison of a Felony. A conviction under 18 U.S.C. § 4 for misprison of a felony is a CIMT. See Matter of Robles, 24 I&N Dec. 22 (BIA 2006). However, such a conviction does not constitute a conviction for an aggravated felony within the meaning of § 101(a)(43)(S) of the Act as an offense related to obstruction of justice. See Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999).

 

                        17.       Retail Theft and Unsworn Falsification to Authorities. Convictions under title 18, section 3929(a)(1) of the Pennsylvania Consolidated Statutes, for retail theft and under section 4904(a) of the same title 18 for unsworn falsification to authorities are both CIMTs. See Matter of Jurado, 24 I&N Dec. 29 (BIA 2006).

 

                        18.       Communicating with a Minor for Immoral Purposes. A violation of § 9.68A.090 of the WRC is a CIMT because the State crime requires: (1) communication through words or conduct; (2) with a minor or someone the perpetrator believes to be a minor; (3) for immoral purposes of a sexual nature. Since this conduct is “inherently wrong and contrary to the accepted rules of morality and the duties owed between persons,” it is a CIMT. See Morales v. Gonzales, 472 F.3d 689 (9th Cir. 2007).

 

                        19.       Money Laundering. The offense of money laundering in violation of § 470.10(1) of the NYPC is a CIMT because the crime in question involves the exchange of monetary instruments that are known to be the proceeds of “any criminal conduct” with the intent to conceal those proceeds. See Matter of Tejwani, 24 I&N Dec. 97 (BIA 2007).

 

                        20.       Trafficking in Counterfeit Goods or Services. The offense of trafficking in counterfeit goods or services by using a spurious trademark, in violation of 18 U.S.C. § 2320(a), is a CIMT. See Matter of Kochlani, 24 I&N Dec. 128 (BIA 2007).

 

                        21.       Wilful Failure to Register as a Sex Offender. Under the categorical approach, the BIA does not look to whether the “actual conduct constitutes a crime involving moral turpitude, but rather, whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude.” Matter of Tobar-Lobo, 24 I&N Dec. 143, 144-46 (BIA 2007) (citing Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir. 2006)). Because a violation of CPC § 290(g)(1) requires actual knowledge of the registration requirement and a wilful failure to register, the offense in question is a CIMT even if the statute does not require proof of evil intent. Moreover, a principal objective of the statute is to, “ . . . safeguard children and other citizens from exposure to danger from convicted sex offenders, a high percentage of whom are recidivists.” See Matter of Tobar-Lobo, supra. However, failing to register as a sex offender in violation of NRS § 179D.550 is not a CIMT because it is the sexual offense that is reprehensible, not the failure to register. Like the accessory crime at issue in Navarro-Lopez, 503 F.3d 1063 (9th Cir. 2007)(en banc), the requisite baseness or depravity element is missing. See Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. 2008).

 

                        22.       Aggravated DUI. A violation of ARS § 28-1383(A)(1) for aggravated DUI, involving actual driving while intoxicated when coupled with the knowledge that the defendant was specifically forbidden to drive because he lacked a valid license to drive is a CIMT. See Marmolejo-Campos v. Gonzales, 503 F.3d 922 (9th Cir. 2007), decided September 13, 2007. Caveat: On March 14, 2008, the Ninth Circuit vacated this panel decision and granted rehearing en banc.

 

                        23.       Solicitation to Possess Marijuana for Sale. A conviction for solicitation to possess at least four pounds of marijuana for sale in violation of ARS §§ 13-1002 (A) and (B)(2), and § 13-3405(A)(2) and (B)(6) constitutes a CIMT. Rationale: By pleading guilty to solicitation to possess at least four pounds of marijuana for sale, the defendant admitted that he had the specific intent to promote or facilitate the commission of a CIMT. See Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007).

 

                        24.       Leaving Scene of Accident Resulting in Bodily Harm or Death. A violation of CVC § 20001(a) for leaving the scene of an accident resulting in bodily injury or death is not a CIMT under § 237(a)(2)(A)(ii) of the Act, citing Navarro-Lopez, 503 F.3d 1063, 1067 (9th Cir. 2007) (en banc), because the California statute is divisible into several crimes, some of which may involve moral turpitude and some of which do not. The abstract of judgment was inconclusive. See Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. 2008).

 

                        25.       Conviction for False Identification to Border Patrol Agents. A violation of CPC § 148.9(a)(false identification to a peace officer) is not a CIMT because the crime does not require fraudulent intent. More specifically, in 2001, traveling back to the U.S. with his wife and a co-worker and applying for admission, the alien presented a California driver’s license, Social Security card, and various membership cards and asserted he was a U.S. citizen. A panel of the Ninth Circuit held that the conviction in question is not a CIMT because CPC § 148.9(a) requires a showing that the individual knowingly misrepresented his identity, but does not require that he knowingly attempted to obtain anything of value. See Blanco v. Mukasey, 518 F.3d 714 (9th Cir. 2008). By contrast, the panel ruled that the alien’s false claim to citizenship was supported by substantial evidence within the meaning of § 212(a)(b)(C)(ii) of the Act.

 

                        26.       Conviction for Possession and Use of Counterfeit Registered Mark. A conviction under CPC § 350(a)(2) for use of a registered mark is a CIMT within the meaning of § 212(a)(2)(A)(i)(I) of the Act because fraud is “inextricably woven into the statute.” See Tall v. Mukasey, 517 F.3d 1115 (9th Cir. 2008).

 

                        27.       Conviction for Annoying or Molesting a Child under 18. A conviction under CPC § 647.6(a) is not categorically a CIMT because there was a “realistic probability, not a theoretical possibility” that a misdemeanor conviction under this statute could be based on conduct that is not deemed a CIMT under the Act. See Nicanor-Romero v. Mukasey, 523 F.3d 992, (9th Cir. 2008).

 

                        28.       Conviction for Making False Statement in immigration Document. A violation of 18 U.S.C. § 1015(a), which criminalizes the making of a false statement in an immigration document - here, an I-485 application to adjust status - does not require that the false statement be “material” as an element of the offense. Here, the respondent swore under penalty of perjury on an I-485 adjustment application that he had never been “arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations,” even though, at the time when he executed the I-485 he had been convicted of knowingly disobeying or resisting the lawful order, process, or mandate of the court, in violation of 18 U.S.C. 1015(a). The Ninth Circuit panel held that disobeying or resisting the lawful order, process, or mandate of the court, in violation of § 13-2810(A)(2) of the ARS, does not have a materiality requirement. Hence, the conviction in question is deemed a conviction within the meaning of 18 U.S.C. § 1015(a). See United States v. Youssef, ____F.3d____(9th Cir. 2008). Decided November 5, 2008.