Groups Urge BIA To Continue Approach On ‘Moral Turpitude’
The American Immigration Lawyers Association, the Immigrant Defense Project and the National Immigration Project of the National Lawyers Guild have urged the Board of Immigration Appeals to continue using the so-called modified categorical approach in determining whether underlying criminal incidents are “reprehensible” and therefore subject an individual to deportation.
Responding to a call by the BIA in June seeking public input, the groups said in an amicus brief dated Aug. 2 that the board should continue to apply the modified categorical approach when figuring out if a conviction counts as a “crime involving moral turpitude” – which can be grounds for deportation under the Immigration and Nationality Act – to all aspects of CIMT determinations.
Under the categorical approach, an immigration court cannot look beyond the bare elements of a statute when determining whether someone can be deported due to a conviction, according to the Immigrant Defense Project. The modified categorical approach allows an immigration judge to dig up the facts of a particular case, examining things like charging papers or jury instructions.
The board asked attorneys and other interested parties in June to weigh in on whether it is barred by legal precedent from using the modified categorical approach when it is reviewing a state-level statute that either cannot be divided or that is means-based for determining whether the incident involves “moral turpitude.” It noted that determining whether an incident is “reprehensible” is a subjective process that may not be outlined within a state statute, and it asked for input on whether the reasons the U.S. Supreme Court outlined last year in Mathis v. U.S. for using an “elements-only inquiry” would affect a “moral turpitude” analysis.
“The board should adhere to its current position that the categorical approach applies to CIMT adjudications just as it does to all other ‘conviction’-based grounds of removability, including the ‘reprehensibility’ element of the CIMT generic definition,” the groups said.