Defining “crime involving moral turpitude.”  One area of controversy has been the approach that courts and agencies should take to decide if a noncitizen has been convicted of a “crime involving moral turpitude.”  The following decision established a framework for answering that question, followed by a Note that features a contrasting view from the Third Circuit

Matter of Silva-Trevino

Attorney General of the United States, 2008
24 I & N Dec. 687

Attorney General Mukasey:
* * * Attorney General Gonzales directed the Board of Immigration Appeals to refer to him for review its decision in this matter. * * * I vacate the Board’s decision and remand this matter for further proceedings in accordance with the opinion.
* * *
[T]his opinion establishes an administrative framework for determining whether an alien has been convicted of a crime involving moral turpitude. First, in evaluating whether an alien’s prior offense is one that categorically involves moral turpitude, immigration judges must determine whether there is a “realistic probability, not a theoretical possibility,” that the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude.
Second, where this categorical analysis does not resolve the moral turpitude inquiry in a particular case, an adjudicator should proceed with a “modified categorical” inquiry. In so doing, immigration judges should first examine 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. When the record of conviction is inconclusive, judges may, to the extent they deem it necessary and appropriate, consider evidence beyond the formal record of conviction. The goal of this inquiry is to discern the nature of the underlying conviction where a mere examination of the statute itself does not yield the necessary information; it is not an occasion to relitigate facts or determinations made in the earlier criminal proceeding.
* * *
I.
Respondent is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident in 1962. On October 6, 2004, respondent entered a plea of no contest to the criminal offense of “indecency with a child” under Title 5, Section 21.11(a)(1) of the Texas Penal Code, a second-degree felony punishable by a 2- to 20-year prison term. Section 21.11(a)(1) makes it illegal for a person to engage in “sexual contact” with a child younger than 17 years old who is not the person’s spouse, unless the person is “not more than three years older than the victim and of the opposite sex.” Texas Penal Code § 21.11(a)(1), (b)(1) (2003). The statute defines “sexual contact” to mean “any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child” or “any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person,” if “committed with the intent to arouse or gratify the sexual desire of any person.”  The State court [accepted the plea, fined respondent $ 250, placed him under community supervision for a period of 5 years, and ordered him to attend sex offender counseling sessions.]
DHS initiated removal proceedings against respondent on the ground that he had been convicted of an “aggravated felony.” The Immigration Judge held, inter alia, that respondent’s State conviction constituted a conviction for “sexual abuse of a minor”—an “aggravated felony” that renders an alien removable.
Respondent then requested discretionary relief from removal through adjustment of status to lawful permanent resident under section 245(a) of the Act. Respondent contended that his “aggravated felony” conviction did not bar adjustment of status because the conviction did not fall within one of the specific grounds for inadmissibility listed in section 212(a)(2) of the Act, one of which is conviction of a crime involving moral turpitude. Respondent argued that his State conviction should not be considered a conviction for a crime involving moral turpitude because (1) both the Board and the United States Court of Appeals for the Fifth Circuit focus on whether the entire category of offenses covered by a State criminal statute involves moral turpitude; and (2) the Texas statute under which he was convicted does not require “that a person have knowledge that the individual with whom the perpetrator has sexual contact is a child” and thus permits convictions in cases that do not involve moral turpitude where the defendant honestly and reasonably believed his sexual contact was with a consenting adult.
The Immigration Judge * * * concluded [that this crime was] “analogous to a statutory rape offense,” an offense that many courts and the Board have categorically “held to be a crime involving moral turpitude” whether or not the conviction required that a defendant knew or should have known his victim’s age. [This crime made him ineligible for adjustment of status.]
On appeal to the Board, respondent conceded removability and challenged only the Immigration Judge’s determination that he was ineligible for the discretionary relief of adjustment of status. [Relying on Fifth Circuit law, the Board noted that Texas Penal Code § 21.11(a)(1) “presents a wide range of scenarios which could support a conviction,” some of which “clearly involve reprehensible conduct which is contrary to the accepted rules of morality.” But * * * the Board held that respondent’s conviction, whatever its actual facts, should not be considered a conviction for a crime involving moral turpitude because section 21.11(a)(1) of the Texas Penal Code criminalizes at least some conduct that does not involve moral turpitude.  Thus, having reversed the Immigration Judge’s moral turpitude determination, the Board remanded for consideration of respondent’s claim for discretionary adjustment of status.
II.
A.
This opinion begins, as it must, with the statutory text. The Act refers to “moral turpitude” in two separate provisions. Section 212(a)(2)(A)(i)(I) provides that “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of . . . a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime” is inadmissible.  Section 245(a), in turn, provides that an inadmissible alien is ineligible for discretionary adjustment of status. Section 237(a)(2)(A)(i) of the Act separately provides that “[a]ny alien who . . . is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission, and . . . for which a sentence of one year or longer may be imposed” is deportable.
* * *
The Department and the Federal courts agree that, to determine whether a crime involves moral turpitude, immigration judges should first engage in a “categorical” inquiry and look to the statute of conviction rather than to the specific facts of an alien’s crime. As noted, the courts of appeals have to date adopted three basic approaches: (1) the “minimum conduct” approach, which looks to whether moral turpitude inheres in the most minimal conduct that could hypothetically permit a conviction; (2) the “common case” approach, which looks to whether moral turpitude inheres in the “usual” case or in the general nature of a crime; and (3) the “realistic probability” approach, which asks whether moral turpitude necessarily inheres in all cases that have a realistic probability of being prosecuted.
As also noted, the “minimum conduct” and “common case” approaches, especially when combined with evidentiary limitations, can result in under- or over-inclusive application of the Act’s moral turpitude provisions. The “realistic probability” method mitigates these problems by taking a more refined approach to immigration inquiries. Specifically, it focuses the adjudicator on a criminal statute’s actual scope and application and tailors the categorical moral turpitude inquiry by asking whether, at the time of an alien’s removal proceeding, any actual (as opposed to hypothetical) case exists in which the relevant criminal statute was applied to conduct that did not involve moral turpitude. If the statute has not been so applied in any case (including the alien’s own case), the adjudicator can reasonably conclude that all convictions under the statute may categorically be treated as ones involving moral turpitude. In such circumstances, the history of adjudication generally establishes no realistic probability that the statute, whatever its language may hypothetically allow, would actually be applied to acts that do not involve moral turpitude. By contrast, if the language of the criminal statute could encompass both conduct that involves moral turpitude and conduct that does not, and there is a case in which the relevant criminal statute has been applied to the latter category of conduct, the adjudicator cannot categorically treat all convictions under that statute as convictions for crimes that involve moral turpitude.
The Supreme Court recently adopted the “realistic probability” approach in Duenas-Alvarez, where the question was whether a conviction under a California theft statute constituted a “theft offense” within the meaning of section 101(a)(43)(G) of the Act, rendering the alien removable under section 237(a). * * *
Duenas-Alvarez was not a moral turpitude case, and in any event its approach to categorical inquiries would not bind the Department here because moral turpitude determinations turn on the Department’s application of ambiguous statutory text.  That said, the Duenas-Alvarez Court’s adoption of the “realistic probability” approach is grounded in the realization that immigration penalties ought to be based on criminal laws as they are actually applied. And the question in Duenas-Alvarez—whether a conviction under a particular State statute was within the scope of a general category of offenses for immigration purposes—is similar to the question presented here. I thus find the analysis in Duenas-Alvarez persuasive and conclude that, in evaluating whether an alien’s prior offense is categorically one that involved moral turpitude, immigration judges should determine whether there is a “realistic probability, not a theoretical possibility,” that a State or Federal criminal statute would be applied to reach conduct that does not involve moral turpitude.
Like any categorical approach, however, the realistic probability approach cannot assure proper resolution of all moral turpitude inquiries: It provides no answer where a statute encompasses both conduct that involves moral turpitude and conduct that does not (as evidenced by its application to the latter category in an actual case). Recognizing this weakness of a pure categorical approach, the Department and many courts have proceeded to a second stage, or “modified categorical,” inquiry pursuant to which adjudicators consider whether the alien’s record of conviction evidences a crime that in fact involved moral turpitude.
I agree that adjudicators should engage in such a second-stage inquiry when necessary and conclude (as have many courts) that they should do so in every case where (because the criminal statute in issue has at some point been applied to conduct that did not involve moral turpitude) the categorical analysis does not end the moral turpitude inquiry. Most courts, however, have limited this second-stage inquiry to the alien’s record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the plea transcript.  In my view, when the record of conviction fails to show whether the alien was convicted of a crime involving moral turpitude, immigration judges should be permitted to consider evidence beyond that record if doing so is necessary and appropriate to ensure proper application of the Act’s moral turpitude provisions. I reach these conclusions for several reasons.
First, the documents generally considered part of the formal record of conviction typically focus only on the charging elements of a specific criminal offense. But moral turpitude is not an element of an offense. And although in many, if not most, cases (for example, cases in which proof of fraudulent intent is required for conviction), examination of the alien’s record of conviction may establish that the alien was in fact convicted of a crime involving moral turpitude, there are other cases (such as the instant one) in which an examination of the formal record by itself does not yield an answer to the question.
This restriction is hard to square with the text of the Act. The relevant provisions contemplate a finding that the particular alien did or did not commit a crime involving moral turpitude before immigration penalties are or are not applied. Section 212(a)(2)(A)(i)(I), the inadmissibility provision at issue in this case, refers to “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude.” (Emphasis added.) Section 237’s removability provisions similarly pertain only to “[a]ny alien who is convicted of a crime involving moral turpitude” under certain enumerated circumstances, one of which relates to the alien’s date of admission—a fact that would not typically be reflected in a criminal record of conviction. Sections 237(a)(2)(A)(i)-(ii) of the Act. To impose evidentiary limitations with the result that immigration penalties under section 212(a) or section 237 apply to aliens whose crimes did not involve moral turpitude, or with the result that aliens whose crimes did involve moral turpitude escape those penalties, is in tension with the text of those sections.
Related provisions of the Act further support the conclusion that an individualized moral turpitude inquiry is warranted where a categorical analysis is not conclusive. The Act’s evidentiary provisions, for example, call for analysis of whether “the alien” in a particular proceeding is or is not subject to the Act’s moral turpitude provisions. By their terms, these provisions indicate that the statute should be applied only to aliens who have themselves committed acts that trigger the provisions and their associated immigration consequences.
Because restricting administrative moral turpitude inquiries to an alien’s formal record of conviction is not compelled by the Act—and indeed, appears to be in some tension with it—[ I reject this approach.] * * *
* * *
In short, to determine whether an alien’s prior conviction triggers application of the Act’s moral turpitude provisions, adjudicators should: (1) look first to the statute of conviction under the categorical inquiry set forth in this opinion and recently applied by the Supreme Court in Duenas-Alvarez; (2) if the categorical inquiry does not resolve the question, look to 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; and (3) if the record of conviction does not resolve the inquiry, consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question. * * *
III.
Applying the foregoing framework to the facts of this case, I vacate the Board’s decision and remand for reconsideration consistent with this opinion. * * * The Board concluded that moral turpitude does not necessarily inhere in a conviction under Texas Penal Code § 21.11(a)(1) because the statute criminalizes sexual contact with minors that falls short of rape. * * *
In my view, so long as the perpetrator knew or should have known that the victim was a minor, any intentional sexual contact by an adult with a child involves moral turpitude. Such contact 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,” when measured “in terms either of the magnitude of the loss that [it] cause[s] or the indignation that [it] arouse[s] in the law-abiding public,” The sexual abuse of children destroys, in a way that cannot [*44]  be described as anything other than “base” and “vile,” the trust and innocence of society’s most vulnerable members. * * *
That said, whether the perpetrator knew or should have known the victim’s age is a critical factor in determining whether his or her crime involved moral turpitude for immigration purposes. A finding of moral turpitude under the Act requires that a perpetrator have committed the reprehensible act with some form of scienter. * * *
Accordingly, convictions obtained under statutes that limit convictions to defendants who knew, or reasonably should have known, that their intentional sexual acts were directed at children categorically should be treated as convictions for crimes involving moral turpitude.   The inclusion of a mistake-of-age defense—that is, an affirmative defense that the defendant reasonably believed that his or her victim was not a child at the time of the offense—ensures that individuals will be convicted only if they willfully or knowingly directed sexual conduct towards someone they knew, or reasonably should have known, was a child. * * *
The Texas statute at issue in this case applies only to intentional sexual contact. But it does not, on its face,  provide for a mistake-of-age defense. It is therefore possible to imagine, as the Board did, a case in which a defendant could be convicted even though his conduct did not involve moral turpitude. * * * Imagination is not, however, the appropriate standard under the framework set forth in this opinion. Instead, the question is whether there is a “realistic probability, not a theoretical possibility,” that the Texas statute would be applied to reach conduct that does not involve moral turpitude.
In this case, the answer to that question is yes. In Johnson v. State, 967 S.W.2d 848, 849 (Tex. Crim. App. 1998) (en banc), the Texas Court of Criminal Appeals rejected a 19-year-old defendant’s contention that he should not be convicted of criminal sexual contact with a child under section 21.11(a)(1) because his victim and her friend both told him that the victim was 17, and because the victim in fact appeared older than her age. Because Texas Penal Code § 21.11(a)(1) has been applied to conduct that does not involve moral turpitude (the defendant in Johnson was convicted despite his contention that he had no reason to know that his sexual conduct was directed at a child), respondent’s conviction cannot categorically be treated as one that did involve moral turpitude. I therefore agree with the Board that an analysis of Texas Penal Code § 21.11(a)(1) fails to establish that respondent’s conviction qualifies categorically as a crime involving moral turpitude * * *. 
This categorical determination, however, does not end the moral turpitude inquiry. [The adjudicator must now] engage in a modified categorical inquiry, considering whether the facts of the alien’s prior conviction in fact involved moral turpitude. In so doing, the adjudicator should look first to the alien’s record of conviction—including the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the plea transcript—and if the record of conviction does not resolve the inquiry, consider any additional evidence or factfinding the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.
In this case, the Board * * * declined to engage in any further inquiry because it believed that a beyond-the-record-of-conviction analysis was prohibited,. * * * I remand this case for further consideration by the Board. If the Board deems further inquiry appropriate, it may in turn remand the case to the Immigration Judge for additional proceedings consistent with this opinion.