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Immigration Guide: Crimes Involving Moral Turpitude, Inadmissibility, and Categorical Analysis (3)

A trio of recent federal court decisions have repudiated the three-step Silva-Trevino CIMT analysis and given new hope to non-citizens burdened with convictions for crimes involving moral turpitude. [19] The first case, Olivas-Motta, decided by the Ninth Circuit on May 17, 2013, rejected the Attorney General’s “mini-trial" scheme to determine removability for a crime involving moral turpitude where the state criminal statute and record of conviction fail to establish a clear match with the generic CIMT offense. [20]

With Olivas-Motta reasserting the primacy of the traditional categorical and modified categorical analyses in the context of CIMT removability, it was left to the U.S. Supreme Court to clarify (again) the correct application of these two approaches,and correctthe confusion inspired by its earlier decision in Nijhawan, which permitted a limited factual inquiry beyond the modified categorical approach where removal must be established by circumstance specific elements not part of the generic removal offense. [21]

The Supreme Court in the summer of 2013 accomplished this in two decisions, Moncrieffe v. Holder and Descamps v. United States. [22]Together, these cases establish that a criminal offense statute is a categorical match with a generic federal offense only if a conviction for the criminal offense necessarily involves facts equating to the generic removal offense. If the minimum conduct necessary for conviction does not clearly match elements of the generic removal offense, i.e., the statute is overbroad, then there is no categorical match. Resort to the modified categorical approach is then permitted under very limited circumstances, where the criminal statute is “divisible", i.e., describing different crimes named separately under the same statutory provision and in the alternative. By contrast, other criminal statutes which may be violated by various means but not described disjunctively as alternative offenses are not “divisible" and therefore not appropriate for analysis under the modified categorical approach. [23]

Olivas-Motta leaves important aspects of Silva-Trevino undisturbed however, with the BIA’s authority under Chevron to determine whether a particular statutory criminal offense meets the CIMT definition remaining intact. [24] Olivas-Motta likewise leaves undisturbed the Ninth Circuit’s previous acceptance in Marmolejo-Campos of the minimal mens rea standard set forth in Silva-Trevino. This standard requires only “some form of scienter". [25] The Ninth Circuit will accordingly defer to Board doctrine that mens rea is satisfied for crimes characterized either by recklessness or a conscious disregard of a substantial and unjustifiable risk of harm to other persons constituting gross negligence. [26]

The Ninth Circuit however does not defer lightly. The Olivas-Motta decision left intact the court’s prior rulings in Robles-Urrea and Castrijon-Garcia defining the limits of Chevron deference. [27] Although the meaning of the term “crime involving moral turpitude" is accepted as vague and Congress has entrusted its interpretation to the Attorney General, the Ninth Circuit will review de novo on a case-by-case basis whether the Board’s interpretation of the generic CIMT definition is permissible. [28] In Robles-Urrea, the Court struck down the Board’s determination that misprision of a felony under 18 U.S.C. § 4 constitutes a CIMT. The Court held that the Board had impermissibly deviated from the generic CIMT definition by analyzing the criminal law statute under the wholly irrelevant factor of whether the crime “runs contrary to accepted social duties", while failing to consider in a meaningful way whether the offense under the generic CIMT definition constituted conduct that was base, vile or depraved or fraudulent. [29] The Robles-Urrea court, exercising its own non-deferential authority to interpret criminal statutes, reviewed de novo whether misprision of a felony may permissibly be interpreted to constitute a CIMT under that term’s proper generic definition. As the offense “lacks the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice," the Ninth Circuit concluded that it may not. [30]

In that same vein, the Ninth Circuit in Castrijon-Garcia declined to defer to the Board by reversing the BIA’s determination that simple kidnapping under Cal. Penal Code § 207(a) constitutes a categorical CIMT.[31] In that case, the Court determined that the offense did not categorically qualify as a CIMT. The Court placed heavy emphasis on the characterization by California court’s that simple kidnapping constitutes a general intent crime for which a conviction requires neither an intent to injure, actual injury, nor the intent to instill fear, nor a special class of victims.[32] The Court in Castrijon-Garcia reaffirmed that general intent under the circumstances would not support a CIMT, and following a line of Ninth Circuit decisions, ruled that where a CIMT is characterized by intent, that intent must generally involve “evil intent".[33]

Importantly, Castrijon-Garcia methodically established why no deference was owed under either a Chevron or Skidmore analysis to the Board’s underlying unpublished decision.[34] As explained by the Court, the Board concluded that Cal. Penal Code § 207(a) qualifies as a CIMT because the simple kidnapping “involves readiness to do evil and is an offense that grievously offends the moral code of mankind in its inherent nature." However, the BIA does not explain why simple kidnapping under CPC § 207(a) involves a readiness to do evil (or even what readiness to do evil means), or why it so deeply offends our moral code —especially as it is a general intent crime.[35]

*This article is for educational purposes only and does not constitute legal advice, nor does it create an attorney-client relationship between the author and any member of the reading public. If you have a legal problem, you must contact an experienced attorney at once.

[20] Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir. 2013).

[21] Nijhawan v. Holder, 557 U.S. 29, 129 S. Ct. 2294, 174 L. Ed. 2d 22 (2009).

[22] Moncrieffe v. Holder, 133 S. Ct. 1678, 1680, 185 L. Ed. 2d 727 (2013) (state law conviction for controlled substance distribution not categorically aggravated felony as minimum conduct necessary for conviction included non-remunerative social sharing thereby qualifying conviction as federal misdemeanor not subject to controlled substance trafficking definition); Descamps v. United States, 133 S. Ct. 2276, 2278, 186 L. Ed. 2d 438 (2013) (California burglary statute lacking essential element of unprivileged or unlawful entry will not align with federal generic definition of burglary for ACCA sentencing enhancement under categorical analysis as minimum facts for conviction fail to establish liability for essential element of generic offense).

[23] Notably, the Department of State Foreign Affairs Manual (FAM) which guides inadmissibility determinations at the consular posts has not embraced the Silva-Trevino three-Step analysis and hews to a strict categorical and modified categorical analysis for convictions within the jurisdiction of the United States. See 9 FAM 40.21(a) N6.1 (TL:VISA-129; 11-09-1995); 9 FAM 40.21(a) N6.2 (CT:VISA-753; 06-29-2005).

[24] Regarding the generic Silva-Trevino CIMT definition however, which requires that a perpetrator have committed [a] reprehensible act with some form of scienter") the Ninth Circuit has opted in favor of its own traditional Carty definition (crimes involving either fraud or those involving grave acts of baseness or depravity) See Marmolejo-Campos v. Holder, 558 F.3d 903, 910 (9th Cir. 2009), citing Matter of Silva–Trevino, 24 I. & N. Dec. 687, 688, 706 (2008); Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005).

[25] Silva–Trevino, 24 I. & N. Dec. at 706; Marmolejo-Campos, 558 F.3d at 916.

[26]See Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994); see also Matter of Leal, 26 I. & N. Dec. 20 (BIA 2012).

[27] Robles-Urrea v. Holder, 678 F.3d 702, 707 (9th Cir. 2012).

[28] Id.

[29] Id. at 709.

[30] Id. at 710.

[31] Cal. Penal Code § 207(a) (Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping); Castrijon-Garcia v. Holder, 704 F.3d 1205, 1210-11 (9th Cir. 2013).

[32] Id. at 1213.

[33] Id. at 1212-13.

[34] Id. at 1208; Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944).

[35] Castrijon-Garcia, 704 F.3d at 1211.

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