On January 2, 2020, the Board of Immigration Appeals (BIA or Board) sustained a DHS appeal and remanded the record to the Immigration Judge (IJ), who had found Respondent removable under INA §237(a)(2)(A)(ii) as one convicted of two or more crimes involving moral turpitude not arising from a single scheme of misconduct and denied his applications for relief. Respond appealed the IJ’s finding that his conviction for burglary and giving a false name to a police officer barred him from relief, arguing that the latter offense is not a crime involving moral turpitude (CIMT). DHS appealed, noting Respondent’s conviction – contemporaneous with his burglary conviction – for making terroristic threats, asserting that the IJ improperly held that this third crime is not a categorical CIMT.
While the appeal was pending, Respondent filed a motion to remand and terminate proceedings, claiming that because the two convictions the IJ had found were CIMTs had been vacated by the Minnesota courts, the BIA must terminate or remand with instructions to do so; he also claimed that the IJ had to recuse himself because of an “inherent conflict of interest.” DHS opposed termination, seeking remand for the IJ to make findings regarding the vacatur of the two convictions and lodged an additional charge, arguing that Respondent is also removable as one convicted of an aggravated felony per INA §237(a)(2)(A)(iii) based on a fourth conviction. Because the Board found that the Minnesota offense of making terroristic threats is categorically a CIMT, the remand was for further proceedings to address Respondent’s removability under §237 (a)(2)(A)(ii), the amended charge, and the issue of recusal.
Initially, in analyzing the CIMT issue, the BIA noted the rule that, to determine whether an offense involves moral turpitude, an adjudicator must employ the categorical approach, focusing on the elements of the crime and the minimum conduct that has a realistic probability of being prosecuted under the statute, rather than a respondent’s actual conduct. The decision went on to opine that, while a culpable mental state requires “some degree of scienter, either specific intent, deliberateness, willfulness, or recklessness,” caselaw also holds that moral turpitude inheres “in criminally reckless conduct.”
As to the terroristic threats law, the opinion found that Minnesota had distilled the crime as requiring: 1) a direct or indirect threat to commit a crime of violence, which was 2) made with the intent to terrorize another – or in reckless disregard of the risk of causing such terror, or with the purpose to cause evacuation of a building, placing of assembly, or facility of public transportation, or to cause serious public inconvenience – or in reckless disregard of the risk of causing such evacuation or inconvenience. The Board went on to state that the statute’s “two possible forms of scienter” are “purpose” (aim, objective or intention) and “recklessness” (deliberate action in disregard of a known, substantial risk). As such, applying the categorical analysis to determine whether a crime involves moral turpitude, the decision concluded that the Minnesota offense of making terroristic threats is a categorical CIMT.
Additionally, noted the BIA, this case arose in the Eighth Circuit, which “has twice issued precedential decisions holding that in certain instances, the conduct prohibited under section 609.713, subdivision 1, of the Minnesota Statutes constitutes a crime involving moral turpitude.” Those cases stand for the proposition that “threatening to commit a crime of violence is also inherently reprehensible when the purpose or natural tendency of the threat” is to terrorize another person. The Board thus held that the full range of conduct prohibited by section 609.713, subdivision 1 entails “reprehensible conduct.” In turn, the opinion concluded that communicating an intent to injure another using violence “involves sufficiently reprehensible conduct” to constitute a CIMT and that the transmission of threats to commit a crime of violence, made either with the specific intent to terrorize or with conscious disregard “of a substantial and unjustifiable risk of terrorizing another,” also equates to reprehensible conduct. The decision also clarified that threatening to commit a crime of violence in violation of 609.713, subdivision 1 is a CIMT, “even if the threatened crime would not necessarily qualify as a crime involving moral turpitude.” The BIA further found that making threats with the purpose of causing evacuation or serious public inconvenience, or in reckless disregard of causing such inconvenience, is reprehensible conduct, noting that its “moral turpitude” jurisprudence has always defined that term as a violation of the “duties owed between persons or to society in general.” As such, the Board held that making such threats under Minnesota law with the required specific intent or recklessness categorically violates the accepted rules of morality and duties owed between persons or to society in general such that it necessarily entails reprehensible conduct. Additionally, the opinion found no realistic probability that Minnesota would use 609.713 “to criminalize conduct that is not reprehensible,” holding that the law categorically involves reprehensible conduct that is “contrary to accepted rules of morality and the duties owed between persons or to society in general.” Because moral turpitude was found to inhere in the least culpable conduct that has a realistic probability of being prosecuted under the statute, the BIA remanded the record to the IJ to consider Respondent’s removability under the original, and any amended, charges, allowing both parties to offer evidence of the current status of Respondent’s criminal convictions and any other relevant admissible evidence. The appeal was sustained and the IJ’s decision vacated. Matter of Salad, 27 I&N Dec. 733 (BIA 2020).