Monday, April 7, 2008

Split Created: Can an Immigration Judge Consider Matters Outside the Record of Conviction When Classifying an Offense as a Crime of Moral Turpitude?

Per Ali v. Mukasey, 2008 WL 901467, *5-*11 (7th Cir. Apr. 4, 2008).

This Seventh Circuit decision, not to be confused this one (cert pending, considered reasonable - SCOTUSBlog) of the same name and circuit, resolves an intra-circuit split and creates a split between the circuits. Moreover, it does so convincingly; not one active judge requested that the case be taken en banc despite the fact that it does so.

Ibrahim Ali, a Jordanian citizen, has resided in the United States for more than twenty years and is married to a U.S. citizen. He also sold guns, without a license, to people not authorized to own them. He was convicted of violating 18 U.S.C. § 371, which prohibits conspiring either to commit a crime against the United States or to defraud the same. This conviction blocks most avenues of discretionary relief from removal; Ali is only eligible for readmission to the United States (and therefore to seek adjustment of status) if his crime is not one ‘involving moral turpitude.’

Fraud has long been recognized as a crime of moral turpitude. The formal crime for which Ali was convicted, however, did not require fraud – it only required either fraud or a conspiracy to commit a crime against the United States. “The presentence report adds: ‘it was further part of the conspiracy that the defendants misrepresented, concealed and hid, and caused to be misrepresented[,] concealed and hidden, the purpose of and the acts done in furtherance of the conspiracy’.” *6. Based on the consideration of this document, the immigration judge decided that this crime was one involving moral turpitude. The question that the Seventh Circuit reviews is whether such consideration is permissible.

This panel was confronted by conflicting circuit precedent – one case had permitted such consideration while two others found it impermissible. All of the other circuits had all previously forbidden consideration of materials outside the indictment and record of conviction. Their reasoning was based, in large part, on the Supreme Court criminal law precedents of Taylor and Shepard, which limit consideration of previous convictions to the statutory elements of the offense and the official record of conviction.

This panel reaches a different conclusion. Judge Easterbrook starts his opinion, on behalf of a unanimous panel, by noting that the classification of an offense as one involving moral turpitude is entitled to Chevron deference. The Board of Immigration Appeals has recently decided that an immigration judge may take additional evidence as needed to characterize an already proven offense. In Matter of Babaisakov (*5-*13), the BIA reasoned that when the characterization of the offense does not depend solely on the elements of the offense, the categorical approach does not apply. Judge Easterbrook continues to distinguish the precedents of the other circuits by noting their criminal law genesis – neither Sixth Amendment nor jury concerns are at issue in the immigration context.

I believe that this decision (or, more importantly, the change in the BIA position it notes) will prove influential if the question arises again in other circuits or is granted certiorari. That said, this case took me longer than normal to summarize because I am not at all familiar with the area, so I may be missing something big. Any and all input to correct my errors would be welcomed.

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