BIA Holds That, In Applying The Categorical Approach, The Conspiracy Statute, 18 U.S.C. §371, Is Overbroad Relative To The Generic Definition Of A Crime Involving Moral Turpitude, And Divisible Between The Offense Clause Of The Statute, Which May Or May Not Involve Moral Turpitude, And The Defraud Clause Of The Statute, Which Is Categorically A Crime Involving Moral Turpitude. To Determine Whether A Conspiracy Conviction Under The Offense Clause Of §371 Constitutes A Crime Involving Moral Turpitude, The Underlying Statute Of Conviction Should Be Examined Under The Categorical, And If Applicable, Modified Categorical Approach. Respondent’s Conviction Under 18 U.S.C. §1546(a), Punishing Fraud And Misuse Of Visas, Permits, And Other Documents, Is Overbroad And Divisible Such That The Modified Categorical Approach Is Applicable And It Was Proper To Consider The Conviction Records. Matter of Serda, 20 I&N Dec. 579 (BIA 1992), Clarified. Respondent’s Conviction For Conspiracy To Commit Visa Fraud In Violation Of 18 U.S.C. §§371 And 1546(a) Is A Conviction For A Crime Involving Moral Turpitude Under The Modified Categorical Approach.
On March 8, 2021, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a decision by the Immigration Judge (IJ) finding Respondent inadmissible per INA §212(a)(2)(A)(i)(I) as one convicted of a crime involving moral turpitude (CIMT) and denying his application for cancellation of removal under INA §240A(a). Respondent, a lawful permanent resident who had been convicted of conspiracy to commit visa fraud in violation of 18 U.S.C. §§371 and 1546(A), subsequently traveled abroad and sought reentry; because of his conviction, he was deemed to be seeking admission and was placed into removal proceedings, charged under §212(a)(2)(A)(i)(I). The IJ upheld the charge of inadmissibility, concluding Respondent was statutorily ineligible for cancellation and, in the alternative, denied the application in the exercise of discretion. This appeal followed.
Initially, in analyzing Respondent’s inadmissibility, the BIA noted that DHS has the burden of proving by clear and convincing evidence that Respondent should be classified as seeking admission under §212(a)(2) because he has been convicted of a CIMT. First, the categorical approach must be applied, where the court looks “solely to the minimum criminal conduct necessary to satisfy the essential elements of the crime, not the particular circumstances” of Respondent’s behavior. If the law is overbroad, i.e., criminalizes some conduct that involves moral turpitude and some that does not, the adjudicator must next consider whether the statute is divisible, i.e., “comprises multiple, alternative versions of the crime”. If it is, the modified categorical approach is applied and permissible documents from the applicant’s record of conviction are examined to determine what crime, with what elements, a respondent was convicted of.
Next, looking at the conspiracy conviction under §371, the Board found the statute to be overbroad and divisible under the categorical approach, as it “punishes both crimes involving moral turpitude and crimes which may not involve moral turpitude” under §212(a)(2)(A)(i)(I). The law could be violated either by 1) conspiring to commit offenses that are specifically delineated in other federal laws or 2) conspiring to defraud the U.S. Whether §371 is divisible, found the decision, depends on whether the offense clause and the defraud clause are “simply separate means of committing the conspiracy offense, or whether the offense clause and the defraud clause each have unique elements that must be proven for a conviction” under the law.
Further, noted the BIA, the object of a conspiracy constitutes an essential element of the conspiracy offense. Additionally, the offense and defraud clauses of §371 each have a distinct object, that is, “each clause has its own unique element that must be proven for a conviction under that clause.” Thus, concluded the opinion, the defraud clause and the offense clause each have unique elements that must be proven for a conviction under §371; that statute “defines multiple crimes and is therefore divisible.”
The Board next found that Respondent had been convicted under the offense clause, explaining that because the offense is divisible, the modified categorical approach is used; here the single count indictment and judgment of conviction make it clear that Respondent pled guilty to, and was convicted of, conspiracy to commit an offense against the U.S. under §371’s offense clause. BIA precedent also requires that where as here, an applicant is convicted under that clause, the adjudicator must “conduct categorical and, if applicable, modified categorical analyses of the underlying statute of conviction to determine if the underlying offense involved moral turpitude.” The Board then analyzed, under the categorical approach, whether the underlying substantive crime of fraud and misuse of visas under §1546(a) constitutes a CIMT so as to determine whether the conviction for the inchoate offense (conspiracy under §371) renders Respondent removable. The opinion found that the very first phrase of the statute described, at a minimum, “conduct such as possessing with no illegal use or intent to illegally use, an altered or counterfeit immigrant document.”
Such conduct, concluded the BIA, is not a CIMT under a prior precedent decision, Matter of Serna, 20 I&N Dec. 579 (BIA 1992). The statute was therefore overbroad, as it encompassed non-turpitudinous conduct; it is thus not categorically a CIMT. However, the fourth and final phrase of the law outlines acts of fraud, containing the required mens rea and conduct which defines CIMTs. The next approach was to see if §1546(a) is divisible, “such that the modified categorical approach can be employed.”
The Board noted that the law contained “four distinct phrases”, each of which contains unique elements which the Government must prove to establish a conviction. As such, found the opinion, §1546(a)’s four phrases constitute “alternative elements settings fourth separate crimes” and, thus, the statute is divisible. The next step was to look to the record of conviction “to identify the statutory provision” Respondent was convicted of violating. The criminal indictment established that Respondent was convicted under the fourth phrase of §1546(a); because he knowingly prepared and submitted fraudulent visa applications, “undermining the immigration system,” and such conduct is inherently dishonest and fraudulent, his conviction involves moral turpitude.
Yet Respondent cited to Matter of Serna to contend that he is not inadmissible because visa fraud under §1546(a) is not a categorical CIMT; that precedent decision held that a §1546 conviction was not categorically a CIMT “since it may include possession, without the use or intent to use, an altered document.” However, stated the BIA, Serna discussed the statute as it existed in 1982, without considering the modified categorical approach. The version under which Respondent was convicted reads differently. While agreeing with the holding that possession of an altered or counterfeit document with no unlawful use or intent is not morally turpitudinous, the newer version of the law is divisible, requiring the use of a modified categorical analysis “to determine under which statutory phrase [Respondent] was convicted.” Consequently, the decision declined to disturb the IJ’s finding of inadmissibility under §212(a)(2)(A)(i)(I).
As to Respondent’s cancellation claim, the Board chose to deny the application as a matter of discretion balancing the adverse factors with the social and humane considerations present in the record. The opinion disagreed with Respondent’s argument that the IJ had disregarding his rehabilitation; the IJ’s decision, concluded that BIA, reflected consideration of the evidence presented, including rehabilitation efforts. The BIA concluded that Respondent’s repeated attempts to knowingly violate U.S. immigration law “reflect a lack of contrition and accountability for misconduct that undermines the integrity of our nation’s law.” The IJ’s discretionary denial was thus affirmed and the appeal dismissed. Matter of Nemis, 28 I&N Dec. 250 (BIA 2021).