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Matter of Khanh Hoang VO, Respondent

Decided March 4, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Where the substantive offense underlying an alien’s conviction for an attempt offense

is a crime involving moral turpitude, the alien is considered to have been convicted

of a crime involving moral turpitude for purposes of section 237(a)(2)(A) of the Immigration

and Nationality Act, 8 U.S.C. § 1227(a)(2)(A) (2006), even though that section makes

no reference to attempt offenses.

FOR RESPONDENT: Timothy E. Hu, Esquire, Westminster, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter R. Lee, Assistant Chief

Counsel

BEFORE: Board Panel: FILPPU, PAULEY, and WENDTLAND, Board Members.

PAULEY, Board Member:

In a decision dated January 29, 2009, an Immigration Judge terminated

the removal proceedings against the respondent.1 The Department

of Homeland Security (“DHS”) has appealed from that decision. The appeal

will be sustained, the proceedings will be reinstated, and the record will

be remanded to the Immigration Judge for further proceedings.

The respondent is a native and citizen of Vietnam who was admitted to the

United States as a lawful permanent resident on September 27, 1989. The

record reflects that he was convicted in California on July 10, 1995, of grand

theft and receipt of stolen property. He was also convicted on April 23, 1996,

of attempted grand theft.

The DHS initiated removal proceedings against the respondent, charging

that he is deportable under section 237(a)(2)(A)(ii) of the Immigration and

Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2006), as an alien convicted

of two or more crimes involving moral turpitude that did not arise out

1

The proceedings were originally terminated on October 30, 2006, by an oral order, which

the DHS appealed. On November 25, 2008, we returned the record to the Immigration

Judge to prepare a full decision because we were unable to effectively review the oral order.

The DHS now appeals from the Immigration Judge’s subsequent written order.

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of a single scheme of misconduct. The Immigration Judge first found that

there was insufficient evidence that the respondent’s two 1995 convictions

arose out of separate schemes of criminal misconduct and concluded that only

one offense, the grand theft, could be considered. He further determined that

the respondent’s 1996 attempted grand theft offense did not qualify as a crime

involving moral turpitude under section 237(a)(2)(A)(ii) of the Act, because

the statute does not expressly apply to convictions for attempt offenses.2

We note first that the DHS has not meaningfully challenged the Immigration

Judge’s finding that there was insufficient evidence that the respondent’s two

1995 convictions did not arise out of a single scheme of criminal misconduct.

We therefore affirm his conclusion that the DHS failed to meet its burden

of proof in that regard. Accordingly, only one of these convictions may

be considered as a crime involving moral turpitude for purposes of section

237(a)(2)(A)(ii) of the Act.

In finding that attempt offenses are not included in section 237(a)(2)(A)(ii),

the Immigration Judge noted our decisions in Matter of Awaijane, 14 I&N

Dec. 117, 118-19 (BIA 1972), and Matter of Katsanis, 14 I&N Dec. 266, 269

(BIA 1973), where we held that there is no distinction between a crime

involving moral turpitude and an attempt to commit such a crime. However,

he determined that those decisions had been superseded by subsequent

amendments to the sections of the Act concerning the inadmissibility and

deportability of aliens convicted of crimes involving moral turpitude.

Specifically, the Immigration Judge contrasted section 212(a)(2)(A)(i)(I) of the

Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006),3 which expressly includes as

a ground of inadmissibility the attempt to commit a crime involving moral

turpitude, with section 237(a)(2)(A)(ii), which makes no reference to attempts.

In the Immigration Judge’s view, including attempt offenses within the scope

2

Section 237(a)(2)(A)(ii) of the Act provides as follows:

Any alien who at any time after admission is convicted of two or more crimes

involving moral turpitude, not arising out of a single scheme of criminal misconduct,

regardless of whether confined therefor and regardless of whether the convictions

were in a single trial, is deportable.

Similarly, section 237(a)(2)(A)(i)(I), which relates to a single crime involving moral

turpitude, does not include any reference to attempt offenses.

3

Section 212(a)(2)(A)(i)(I) of the Act provides, in pertinent part, as follows:

[A]ny alien convicted of . . . a crime involving moral turpitude . . . or an attempt

or conspiracy to commit such a crime . . . is inadmissible.

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of section 237(a)(2)(A)(ii) would render the explicit reference to attempts

in section 212(a)(2)(A)(i)(I) superfluous.

On appeal, the respondent urges us to adopt the Immigration Judge’s

reasoning. He argues that section 237(a)(2)(A)(ii) of the Act clearly does

not encompass attempt offenses, which are expressly included in the ground

of inadmissibility for crimes involving moral turpitude at section

212(a)(2)(A)(i)(I), as well as the grounds of deportability for controlled

substances, firearms, and miscellaneous offenses at sections 237(a)(2)(B), (C),

and (D) of the Act.

We acknowledge that section 237(a)(2)(A)(ii) does not expressly

refer to attempt offenses. However, it is well established that for immigration

purposes, with respect to moral turpitude there is no distinction between the

commission of the substantive crime and the attempt to commit it. Matter

of Katsanis, 14 I&N Dec. at 269; Matter of Awaijane, 14 I&N Dec. at 118-19;

see also Matter of Davis, 20 I&N Dec. 536, 545 (BIA 1992), modified on other

grounds, Matter of Yanez, 23 I&N Dec. 390, 396 (BIA 2002). An attempt

involves the specific intent to commit the substantive crime, and if commission

of the substantive crime involves moral turpitude, then so does the attempt,

because moral turpitude inheres in the intent. Matter of Katsanis, 14 I&N Dec.

at 269; see also Matter of Bronsztejn, 15 I&N Dec. 281, 282 (BIA 1974)

(stating that attempt “takes its character and its quality from the nature of the

law toward whose violation it is or was directed”), aff’d, 526 F.2d 1290 (2d

Cir. 1975).

Accordingly, we have only looked at the substantive crimes to determine

whether inchoate offenses, such as attempt, conspiracy, accessory before the

fact, or solicitation, constitute crimes involving moral turpitude. See Matter

of Short, 20 I&N Dec. 136, 138 n.1 (BIA 1989); Matter of Flores, 17 I&N

Dec. 225, 228 (BIA 1980); Matter of Westman, 17 I&N Dec. 50 (BIA 1979);

Matter of McNaughton, 16 I&N Dec. 569, 573 n.2 (BIA 1978), aff’d, 612 F.2d

457 (9th Cir. 1980); see also Matter of Zorilla-Vidal, 24 I&N Dec 768 (BIA

2009) (reaffirming Matter of Beltran, 20 I&N Dec. 521 (BIA 1992), in holding

that criminal solicitation to deliver a controlled substance is a deportable

offense). But see Matter of Hou, 20 I&N Dec. 513 (BIA 1992), superseded

by statute, Immigration and Nationality Technical Corrections Act of 1994,

Pub. L. No. 103-416, § 203(b), 108 Stat. 4305, 4311, and disapproved

by Mizrahi v. Gonzales, 492 F.3d 156, 166-67 (2d Cir. 2007). See generally

Matter of Batista-Hernandez, 21 I&N Dec. 955, 958 (BIA 1997) (discussing

inchoate crimes).

Agreeing with this approach, the Ninth Circuit has stated, “We have

previously looked to underlying crimes in determining whether convictions

for inchoate offenses constitute crimes involving moral turpitude.”

Barragan-Lopez v. Mukasey, 508 F.3d 899, 903 (9th Cir. 2007) (citing

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Goldeshtein v. INS, 8 F.3d 645, 647 n.6 (9th Cir. 1993); McNaughton v. INS,

612 F.2d at 459). In Barragan-Lopez, the court held that because

drug-trafficking offenses, including possession of unlawful substances for sale,

generally involve moral turpitude, solicitation to commit such an offense was

a crime involving moral turpitude. It therefore concluded that the alien was

deportable under section 237(a)(2)(A)(i) of the Act based on his conviction for

a crime involving moral turpitude, despite the lack of a specific reference

to “solicitation” offenses in the statute.

In reaching that conclusion, the Ninth Circuit distinguished section

237(a)(2)(A)(i) from other parts of the Act that specifically include attempt

and conspiracy. The court noted its prior holding that where a statute, such

as section 237(a)(2)(B)(i) of the Act, which relates to drug offenses, lists

some generic offenses (i.e., attempt or conspiracy) but omits others (e.g.,

solicitation), the statute only covers the generic offenses that are expressly

listed. Barragan-Lopez v. Mukasey, 508 F.3d at 904 (citing Coronado-Durazo

v. INS, 123 F.3d 1322 (9th Cir. 1997)). Finding that situation inapplicable,

however, the Ninth Circuit found that because section 237(a)(2)(A)(i) does not

list certain generic offenses, there is no such limitation on the offenses

it covers. The court therefore concluded that a solicitation offense would

support a finding of deportability under section 237(a)(2)(A)(i) if the

underlying crime involved moral turpitude.4 See id. at 903-04.

We likewise conclude that where the substantive offense underlying

an alien’s conviction for an attempt is a crime involving moral turpitude, the

alien is considered to have been convicted of a crime involving moral turpitude

for purposes of section 237(a)(2)(A) of the Act, even though that section

makes no reference to attempt offenses. Our conclusion does not render

superfluous the “attempt” language that Congress included in other sections

of the Act. Congress may have added this language as a point of special

emphasis to remove any doubt that those sections included such offenses. Ali

v. Federal Bureau of Prisons, 552 U.S. 214, 226 (2008); Peters v. Ashcroft,

383 F.3d 302, 308 (5th Cir. 2004) (stating that “the statutory references

4

In effect, the Ninth Circuit has indicated that section 237(a)(2)(A) is broader in its

coverage of crimes involving moral turpitude than section 212(a)(2)(A)(i)(I), because

it would include inchoate offenses, such as solicitation and facilitation, that are not

specifically enumerated in the inadmissibility statute, which lists only attempts and

conspiracies. We observe, however, in this regard, that section 212(a)(2)(A)(i)(I) also

excludes any “purely political offense” from being considered a crime involving moral

turpitude, but that no such exclusion is reflected in section 237(a)(2)(A)(i)(I) or (ii). We

do not intend to imply any view on whether a purely political offense that is a crime

involving moral turpitude would support a finding of deportability under section

237(a)(2)(A)(i)(I) or (ii).

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to conspiracy and attempt are illustrative without being exclusive”).

Furthermore, the legislative history is silent as to Congress’ intent in adding

the “attempt” language in those particular sections, but not to others such

as section 237(a)(2)(A). Since the “attempt” language was added to the

various sections of the Act at different times, its inclusion does not represent

a unified design to effectuate a single intent.5 Therefore we cannot reasonably

conclude that Congress’ express inclusion of attempt offenses in other sections

of the Act was actually an intentional exclusion of them from section

237(a)(2)(A). See United States v. Atlantic Research Corp., 551 U.S. 128, 137

(2007) (“[O]ur hesitancy to construe statutes to render language superfluous

does not require us to avoid surplusage at all costs.”); Mizrahi v. Gonzales, 492

F.3d at 174 (relying on Matter of Beltran, 20 I&N Dec. at 526 n.12, in stating

that “Congress’s explicit reference to certain inchoate offenses as grounds for

deportation did not indicate its intent to exclude others not so referenced”).

It is clear that grand theft is a crime involving moral turpitude. Rashtabadi

v. INS, 23 F.3d 1562, 1568 (9th Cir. 1994). The respondent’s attempted grand

theft offense is therefore a crime involving moral turpitude. See Caroleo

v. Gonzales, 476 F.3d 158, 164-65 (3d Cir. 2007) (stating that attempted

murder “can be characterized as a crime involving moral turpitude for the

purposes of determining removability”). Consequently, we conclude that

he is deportable under section 237(a)(2)(A)(ii) of the Act based on his

convictions for grand theft in 1995 and for attempted grand theft in 1996.

Accordingly, the DHS’s appeal will be sustained and the removal proceedings

will be reinstated. The record will be remanded to the Immigration Judge

to give the respondent an opportunity to seek any relief from removal for

which he may be eligible.

ORDER: The appeal of the Department of Homeland Security is sustained,

the decision of the Immigration Judge is vacated, and the removal proceedings

5

The “attempt” language was added to the ground of deportability for controlled substances,

which is currently at section 237(a)(2)(B)(i) of the Act, by section 508(a) of the

Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5051. See H.R. Rep. No.

101-955, at 132 (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6797. It was later added

to the miscellaneous offenses ground of deportability, currently at section 237(a)(2)(D),

by section 307(h)(7) of the Miscellaneous and Technical Immigration and Naturalization

Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733, 1756. See H.R. Rep.

No. 102-383, at 27 (1991), reprinted in 1991 U.S.C.C.A.N. 1372, 1380, 1991 WL 257487.

Section 203 of the Immigration and Nationality Technical Corrections Act of 1994,

108 Stat. at 4311, added attempt offenses to both the ground of inadmissibility for crimes

involving moral turpitude at section 212(a)(2)(A)(i)(I) of the Act and to the grounds

of deportability for firearms offenses and for failure to register and falsification

of documents, which are now at sections 237(a)(2)(C) and (3)(B)(ii) and (iii).

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against the respondent are reinstated.

FURTHER ORDER: The record is remanded to the Immigration Judge

for further proceedings consistent with the foregoing opinion and for the entry

of a new decision.

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