A sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude where the victim is particularly young—that is, under 14 years of age—or is under 16 and the age differential between the perpetrator and victim is significant, or both, even though the statute requires no culpable mental state as to the age of the child. Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016), clarified.
Matter of TIMA, 26 I&N Dec. 839 (BIA 2016)
A fraud waiver under section 237(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H) (2012), cannot waive an alien’s removability under section 237(a)(2)(A)(i) for having been convicted of a crime involving moral turpitude, even if the conviction is based on the underlying fraud.
The Ninth Circuit granted the petition for review of the BIA’s precedent decision in Matter of Almanza-Arenas, which held that a conviction for vehicle theft under California Vehicle Code §10851(a) constitutes a crime involving moral turpitude (CIMT). The court remanded to the BIA, holding that, because the least of the acts criminalized under §10851(a) is a temporary taking, the statute is overbroad and thus not categorically a CIMT. The court also found that §10851(a) is an indivisible statute under Descamps v. United States.
The Ninth Circuit granted the petitioners’ petitions for review, holding that the BIA erred in finding that their convictions for identity theft under California Penal Code §§530.5(a) and (d)(2) were categorically crimes involving moral turpitude, because violations of those subsections do not constitute fraud-based crimes, nor do they necessarily involve vile, base, or depraved conduct.
The Second Circuit held that the BIA should determine on remand whether it still adheres to the position that concealment of a felony qualifies as a “crime involving moral turpitude.” If so, the BIA should determine whether its position can be applied retroactively to the petitioner’s case.