In a surprising published decision, the BIA held that sexual intercourse with a minor (statutory rape), Cal. Penal Code § 261.5(d), does not categorically constitute a crime involving moral turpitude. Matter of Guevara Alfaro, 25 I&N Dec. 417 (BIA 2011) (Pauley, Greer, and Wendtland, Board Members). Board member Wendtland wrote the BIA’s opinion. This should have been a straightforward decision given that, as the BIA acknowledges, the Ninth Circuit, from which this case arose, held just two years ago that § 261.5(d) is not categorically a CIMT. See Quintero-Salazar v. Keisler, 506 F.3d [...]
7th Circuit: BIA must use Silva-Treviño analysis; can’t rely on categorical approach alone
The Seventh Circuit Court of Appeals recently held that it was improper for the BIA to rely on a precedential decision in which it used a categorical analysis to determine whether a crime involving moral turpitude. Mata-Guerrero v. Holder, No. 10-1664, slip op. (7th Cir. Nov. 24, 2010) (Manion, Tinder, and Hamilton). Instead, the Seventh Circuit panel held, the BIA must use the three-step analysis mandated by Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008), to determine whether a criminal offense involves moral turpitude. Mata-Guerrero v. Holder, No. 10-1664, slip op. at 8-9. Judge [...]
9th Circuit: Cal. credit card fraud involves moral turpitude
In a decision released last week, the Ninth Circuit Court of Appeals held that a conviction for credit card fraud, Cal. Penal Code § 532a(1), is a crime involving moral turpitude. Tijani v. Holder, No. 05-70195, slip op. (9th Cir. March 11, 2010) (Noonan, Tashima, Callahan). Judge Noonan wrote the opinion for the panel. Judges Tashima and Callahan each wrote separate opinions concurring in part and dissenting in part. Judges Noonan and Callahan concluded that credit card fraud is a CIMT; Judge Tashima dissented on this issue. As stated by Noonan, the California credit card fraud statute [...]
9th Cir: Cal. Indecent exposure not CIMT; criticizes CIMT category altogether
In a widely circulated published decision, the Ninth Circuit Court of Appeals held that indecent exposure in California, Cal. Penal Code § 314, is not categorically a crime involving moral turpitude. Ocegueda-Nuñez v. Holder, No. 06-70219, slip op. (Feb. 10, 2010) (Reinhardt, Bybee, and Smith). Judge Reinhardt wrote for the majority of the panel, joined by Judge Smith. Judge Bybee dissented. Ocegueda Nuñez entered without inspection. Ocegueda-Nuñez, No. 06-70219, slip op. at 2377. He was later convicted of petty theft and, several years after that, indecent exposure. [...]
3d Circuit: Rejects CIMT analysis announced in Matter of Silva-Treviño and holds that PA simple assault conviction is not CIMT
In an otherwise ordinary case the U.S. Court of Appeals for the Third Circuit this week announced its rejection of the Attorney General's analysis of crimes involving moral turpitude announced in Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008). Jean-Louis v. Attorney General, No. 07-3311, slip op. (3d Cir. Oct. 6, 2009) (Rendell, Roth, and Hayden). Judge Rendell issued the panel's unanimous decision. This case concerned a conviction under Pennsylvania's simple assault statute, 18 Pa. Cons. Stat. § 2701(b)(2), for purposes of Cancellation of Removal. Jean-Louis, No. 07-3311, slip [...]