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Interim Decision #3631

Matter of Cristoval SILVA-TREVINO, Respondent

File A013 014 303 - Los Fresnos, Texas

Decided by Attorney General November 7, 2008

U.S. Department of Justice

Office of the Attorney General

(1) To determine whether a conviction is for a crime involving moral turpitude, immigration

judges and the Board of Immigration Appeals should: (1) look to the statute of

conviction under the categorical inquiry and determine whether there is a “realistic

probability” that the State or Federal criminal statute pursuant to which the alien was

convicted would be applied to reach conduct that does not involve moral turpitude; (2) if

the categorical inquiry does not resolve the question, engage in a modified categorical

inquiry and examine the record of conviction, including documents such as the

indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the

plea transcript; and (3) if the record of conviction is inconclusive, consider any additional

evidence deemed necessary or appropriate to resolve accurately the moral turpitude

question.

(2) It is proper to make a categorical finding that a defendant’s conduct involves moral

turpitude when that conduct results in conviction on the charge of intentional sexual

contact with a person the defendant knew or should have known was a child.

(3) To qualify as a crime involving moral turpitude for purposes of the Immigration and

Nationality Act, a crime must involve both reprehensible conduct and some degree of

scienter, whether specific intent, deliberateness, willfulness, or recklessness.

FOR RESPONDENT: Jaime M. Diez, Esquire, Weslaco, Texas

FOR THE DEPARTMENT OF HOMELAND SECURITY: Dyann Bernstein, Assistant

Chief Counsel

BEFORE THE ATTORNEY GENERAL

(November 7, 2008)

On July 10, 2007, pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2007), Attorney

General Gonzales directed the Board of Immigration Appeals to refer to him

for review its decision in this matter. For the reasons set forth in the

accompanying opinion, I vacate the Board’s decision and remand this matter

for further proceedings in accordance with the opinion.

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OPINION

The issue in this case is whether respondent’s conviction under a Texas

statute that criminalizes acts of “indecency with a child” should be deemed a

conviction for a “crime involving moral turpitude” that renders respondent

inadmissible, and therefore ineligible for discretionary relief from deportation,

under the Immigration and Nationality Act. See section 212(a)(2) of the Act,

8 U.S.C. § 1182(a)(2) (2006). The Board of Immigration Appeals and the

Federal courts have long struggled in administering and applying the Act’s

moral turpitude provisions, and there now exists a patchwork of different

approaches across the nation. My review of this case presents an opportunity

to establish a uniform framework for ensuring that the Act’s moral turpitude

provisions are fairly and accurately applied.

There are a few basics on which the Board and the Federal courts

have generally agreed. To begin with, they generally agree that in

deciding whether an alien’s prior criminal conviction constitutes a

conviction for a crime involving moral turpitude—that is, whether moral

turpitude “necessarily inheres” in a violation of a particular State or Federal

criminal statute, Matter of Torres-Varela, 23 I&N Dec. 78, 84 (BIA

2001)—immigration judges and the Board should engage in a “categorical”

inquiry and look first to the statute of conviction rather than to the specific

facts of the alien’s crime. Where this categorical inquiry does not establish

that an alien’s prior crime necessarily involved moral turpitude, the Board and

most Federal courts permit some inquiry into the particular facts of the alien’s

prior offense. This secondary inquiry is sometimes referred to as a “modified”

categorical analysis.

Although each of the Federal courts of appeals has endorsed some form of

this two-step categorical inquiry (and the Board typically employs the form

endorsed by the circuit in which a case arises), the courts have not uniformly

applied it. Instead, courts have applied a wide range of approaches with

respect to both prongs of the test, resulting in a patchwork of conflicting legal

and evidentiary standards. Moreover, many of these approaches do not

adequately perform the function they are supposed to serve: distinguishing

aliens who have committed crimes involving moral turpitude from those who

have not. These shortcomings point to the need for a new, standardized

approach—one that accords with the statutory text, is administratively

workable, and furthers the policy goals underlying the Act.

The Act delegates to the Department of Justice—the agency charged with

interpreting and implementing many of its provisions—the authority to craft

such an approach. See section 103(a)(1) of the Act, 8 U.S.C. § 1103(a)(1)

(2006) (providing that the “determination and ruling by the Attorney General

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with respect to all questions of law shall be controlling”); National Cable

& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)

(“Chevron’s premise is that it is for the agencies, not courts, to fill statutory

gaps.”). Accordingly, this opinion establishes an administrative framework for

determining whether an alien has been convicted of a crime involving moral

turpitude.1 First, in evaluating whether an alien’s prior offense is one that

categorically involves moral turpitude, immigration judges must determine

1

As discussed below, the Act refers to “crimes involving moral turpitude” in two separate

provisions, see section 212(a)(2)(A)(i)(I); section 237(a)(2)(A)(i)(I)-(II) of the Act, 8 U.S.C.

§ 1227(a)(2)(A)(i)(I)-(II) (2006), but the statute does not define the term. The absence of

a statutory definition dates back to 1891, when the term first appeared in the immigration

context, see Act of March 3, 1891, 26 Stat. 1084, Ch. 551, and courts and the Department

have long agreed that this omission reflects Congress’s decision to commit the definition of

the term to “administrative and judicial interpretation.” Cabral v. INS, 15 F.3d 193, 195 (1st

Cir. 1994); see also, e.g., Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir. 2008); 23 A.L.R. Fed.

480, § 9(e) (2008 Supp.) (collecting authorities).

Although the Board has long filled this statutory gap by defining and applying the term

“crime involving moral turpitude” in deciding immigration cases, some courts have

recently stated that the Board’s approach has been neither specific enough nor tailored

enough to “policies embodied in the immigration statutes” to merit Chevron deference. E.g.,

Wei Cong Mei v. Ashcroft, 393 F.3d 737, 740 (7th Cir. 2005). I believe the definition in

existing Board precedent merits judicial deference under controlling Supreme Court

decisions. See, e.g., Brand X, 545 U.S. at 982. That said, this opinion rearticulates the

Department’s definition of the term in a manner that responds specifically to the judicial

criticism. As detailed in Part III and footnote 5 below, this opinion makes clear that, to

qualify as a crime involving moral turpitude for purposes of the Act, a crime must

involve both reprehensible conduct and some degree of scienter, whether specific intent,

deliberateness, willfulness, or recklessness. This definition rearticulates with greater clarity

the definition that the Board (and many courts) have in fact long applied. See Part III and

n.5 infra (citing cases); see also, e.g., Jordan v. DeGeorge, 341 U.S. 223, 228 n.13, 230

(1951) (discussing the historical use of the term “moral turpitude” as a proxy for a flawed

character that rendered an individual unfit for immigration benefits and defending the

Court’s categorical characterization of fraud crimes as crimes involving moral turpitude by

focusing on a litany of fraud offenses requiring proof of specific intent or at least “wilful”

commission). The definition also faithfully implements the Act’s distinction between crimes

involving moral turpitude (which trigger specific immigration consequences) and criminal

conduct generally (which the Government has a valid interest in punishing whether or not

it qualifies as morally offensive or involves scienter) by more clearly articulating the

subjective, or intent, element that has long characterized judicial and administrative

recognition of crimes involving moral turpitude in the immigration context. Additionally,

the definition in this opinion advances important aspects of immigration policy because it

will provide aliens with clearer notice of which criminal convictions will trigger certain

immigration consequences and will help ensure, both on its own terms and as a consequence

of proper judicial deference, uniform application of the Act’s moral turpitude provisions to

similar cases no matter where they arise.

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whether there is a “realistic probability, not a theoretical possibility,” that the

State or Federal criminal statute pursuant to which the alien was convicted

would be applied to reach conduct that does not involve moral turpitude. Cf.

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).

Second, where this categorical analysis does not resolve the moral turpitude

inquiry in a particular case, an adjudicator should proceed with a “modified

categorical” inquiry. In so doing, immigration judges should first examine

whether the alien’s record of conviction—including documents such as the

indictment, the judgment of conviction, jury instructions, a signed guilty

plea and the plea transcript—evidences a crime that in fact involved moral

turpitude. When the record of conviction is inconclusive, judges may, to the

extent they deem it necessary and appropriate, consider evidence beyond the

formal record of conviction. The goal of this inquiry is to discern the nature

of the underlying conviction where a mere examination of the statute itself

does not yield the necessary information; it is not an occasion to relitigate facts

or determinations made in the earlier criminal proceeding.

Because the Board did not have the benefit of this analysis when it issued

the opinion below, I vacate the decision in this case and remand for further

proceedings consistent with this opinion.

I.

Respondent is a native and citizen of Mexico who was admitted to the

United States as a lawful permanent resident in 1962. On October 6, 2004,

respondent entered a plea of no contest to the criminal offense of “indecency

with a child” under Title 5, Section 21.11(a)(1) of the Texas Penal Code, a

second-degree felony punishable by a 2- to 20-year prison term. Matter of

Cristoval Silva-Trevino, A13 014 303 at 1 (BIA Aug. 8, 2006) (hereinafter

“Bd. Op.”); Matter of Cristoval Silva-Trevino, A13 014 303 at 3 (Oral Dec. of

Immig. Judge, Feb. 9, 2006) (hereinafter “IJ Dec.”). Section 21.11(a)(1)

makes it illegal for a person to engage in “sexual contact” with a child younger

than 17 years old who is not the person’s spouse, unless the person is “not

more than three years older than the victim and of the opposite sex.” Texas

Penal Code § 21.11(a)(1), (b)(1) (2003). The statute defines “sexual contact”

to mean “any touching by a person, including touching through clothing, of the

anus, breast, or any part of the genitals of a child” or “any touching of any part

of the body of a child, including touching through clothing, with the anus,

breast, or any part of the genitals of a person,” if “committed with the intent

to arouse or gratify the sexual desire of any person.” Id. § 21.11(c). The State

court found that there was sufficient evidence to accept respondent’s plea and

further found that respondent committed the offense in question on April 13,

2002, when the respondent was approximately 64 years old. IJ Dec. at 3. The

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court then deferred further proceedings, fined respondent $250, placed him

under community supervision for a period of 5 years, and ordered him to

attend sex offender counseling sessions. Id. at 3-4.

In November 2005, the Department of Homeland Security initiated

removal proceedings against respondent on the ground that he had been

convicted of an “aggravated felony.” Section 237(a)(2)(A)(iii) of the Act,

8 U.S.C. § 1227(a)(2)(A)(iii) (2006). The Immigration Judge held, inter alia,

that respondent’s State conviction constituted a conviction for “sexual abuse

of a minor”—an “aggravated felony” that renders an alien removable under

section 101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A) (2006). IJ Dec.

at 5-6.

Respondent then requested discretionary relief from removal through

adjustment of status to lawful permanent resident under section 245(a) of the

Act, 8 U.S.C. § 1255(a) (2006). Respondent contended that his “aggravated

felony” conviction did not bar adjustment of status because the conviction did

not fall within one of the specific grounds for inadmissibility listed in section

212(a)(2) of the Act, one of which is conviction of a crime involving moral

turpitude. IJ Dec. at 9-12. Respondent argued that his State conviction should

not be considered a conviction for a crime involving moral turpitude because

(1) both the Board and the United States Court of Appeals for the Fifth Circuit

focus on whether the entire category of offenses covered by a State criminal

statute involves moral turpitude; and (2) the Texas statute under which he was

convicted does not require “that a person have knowledge that the individual

with whom the perpetrator has sexual contact is a child” and thus permits

convictions in cases that do not involve moral turpitude where the defendant

honestly and reasonably believed his sexual contact was with a consenting

adult. Id. at 9.

The Immigration Judge rejected respondent’s arguments, denied

respondent’s request for adjustment of status, and ordered him removed to

Mexico. Id. at 12. The offenses covered by the Texas law, the Immigration

Judge concluded, were “analogous to a statutory rape offense,” an offense that

many courts and the Board have categorically “held to be a crime involving

moral turpitude” whether or not the conviction required that a defendant knew

or should have known his victim’s age. Id. at 9-10 (citing Castle v. INS, 541

F.2d 1064, 1066 (4th Cir. 1976); Marciano v. INS, 450 F.2d 1022 (8th Cir.

1971); Matter of Torres-Varela, 23 I&N Dec. 78, 84 (BIA 2001); Matter of

Imber, 16 I&N Dec. 256, 258 (BIA 1977)). Because, in the Immigration

Judge’s view, respondent had been convicted of a crime involving moral

turpitude, respondent was ineligible for adjustment of status.

On appeal to the Board, respondent conceded removability and challenged

only the Immigration Judge’s determination that he was ineligible for the

discretionary relief of adjustment of status. In addressing this contention, the

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Board agreed that the moral turpitude inquiry turns on the “statutory crime

definition as interpreted by the state’s courts, without regard to the particular

circumstances surrounding the specific offender’s violation.” Bd. Op. at 3.

Believing it was “constrained” by Fifth Circuit law to “consider the minimum

circumstances possible for a conviction,” id. at 3-4 (citing Rodriguez-Castro

v. Gonzales, 427 F.3d 316, 320 (5th Cir. 2005)), the Board found that not

every crime potentially “covered under . . . § 21.11(a)(1) involve[s] conduct

so depr[a]ved as to warrant classifying the statute as a whole as one involving

moral turpitude,” id. at 4. The Board noted that Texas Penal Code

§ 21.11(a)(1) “presents a wide range of scenarios which could support a

conviction,” some of which “clearly involve reprehensible conduct which is

contrary to the accepted rules of morality.” Bd. Op. at 4. But it concluded:

In contrast to statutory rape, . . . which typically involves penetration or something

similar, the sexual conduct encompassed by [Texas Penal Code] § 21.11(a)(1)

potentially involves much less intrusive contact. For example, a defendant in Texas

has been convicted under the statute for touching the chest/breast of a 10-year-old

boy. See Sullivan v. State, 986 S.W. 2d 708 (Tex. Crim. App. 1999). This raises the

possibility that a 20-year-old woman dancing suggestively with a youth just under the

age of 17, who represents himself as older and can reasonably be believed to be such,

could be liable under the statute if she acted on a desire to arouse herself or a

spectator. This is so even if she touched the victim through his clothing. This does

not strike us as the type of behavior which would be classified as involving moral

turpitude under the Act.

Bd. Op. at 3-4 (footnote omitted). Based on this analysis, the Board held that

respondent’s conviction, whatever its actual facts, should not be considered a

conviction for a crime involving moral turpitude because section 21.11(a)(1)

of the Texas Penal Code criminalizes at least some conduct that does not

involve moral turpitude. Bd. Op. at 3-4. Thus, having reversed the

Immigration Judge’s moral turpitude determination, the Board remanded for

consideration of respondent’s claim for discretionary adjustment of status.

II.

A.

This opinion begins, as it must, with the statutory text. See, e.g., Duncan

v. Walker, 533 U.S. 167, 172 (2001). The Act refers to “moral turpitude” in

two separate provisions. Section 212(a)(2)(A)(i)(I), one of the provisions at

issue here, provides that “any alien convicted of, or who admits having

committed, or who admits committing acts which constitute the essential

elements of . . . a crime involving moral turpitude (other than a purely political

offense) or an attempt or conspiracy to commit such a crime” is inadmissible.

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Section 245(a), in turn, provides that an inadmissible alien is ineligible for

discretionary adjustment of status. Section 237(a)(2)(A)(i) of the Act

separately provides that “[a]ny alien who . . . is convicted of a crime involving

moral turpitude committed within five years . . . after the date of admission,

and . . . for which a sentence of one year or longer may be imposed” is

deportable.

The statute does not define the term “crime involving moral turpitude.”

See supra note 1. It is also silent on the precise method that immigration

judges and courts should use to determine if a prior conviction is for a crime

involving moral turpitude. To the extent it suggests a method, the text actually

cuts in different directions. Some statutory language—for example, use of the

phrase “convicted of” rather than “committed”—suggests that the relevant

inquiry should be categorical and focus on whether moral turpitude inheres in

the statutory elements required for conviction rather than in the particularized

facts of the alien’s crime. Section 212(a)(2)(A)(i)(I) of the Act; cf.

Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130 n.9 (9th Cir. 2007) (making

a similar point about the aggravated felony bar in the context of cancellation

of removal). Other language—for example, use of the word “involving” and

the reference in section 212(a)(2)(A)(i)(I) to aliens who admit “committing”

certain “acts”—seems to call for, or at least allow, inquiry into the

particularized facts of the crime. See Marciano, 450 F.2d at 1028 (Eisele, J.,

dissenting) (“[Congress] said that deportation was the consequence when the

crime involved moral turpitude, and I can only assume that it meant when

moral turpitude was in fact involved.” (emphasis added)).

Faced with this ambiguity, the Board and the Federal courts have long

taken the view that judges should begin by engaging in some sort of

“categorical” inquiry to determine whether moral turpitude “necessarily

inheres” in a conviction under a particular State or Federal criminal statute.

Matter of Torres-Varela, supra, at 84. To date, however, the Department has

not adopted a preferred methodology for conducting that categorical inquiry,

and the Board has chosen instead to make such determinations in accordance

with the law of the circuit in which an alien’s case arises. See, e.g., Bd. Op.

at 4.

The absence of an authoritative administrative methodology for resolving

moral turpitude inquiries has resulted in different approaches across the

country. The Third and Fifth Circuits, for example, have held that convictions

under a criminal statute may categorically be considered crimes involving

moral turpitude only if an examination of the statute reveals that even the most

minimal conduct that could hypothetically permit a conviction necessarily

would involve moral turpitude. See, e.g., Amouzadeh v. Winfrey, 467 F.3d

451, 455 (5th Cir. 2006) (analyzing the “minimum criminal conduct necessary

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to sustain a conviction under the statute”); Partyka v. Att’y Gen., 417 F.3d 408,

411 (3d Cir. 2005) (considering whether the “least culpable conduct” covered

by the criminal statute in issue would necessarily involve moral turpitude);

see also, e.g., Quintero-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir. 2007)

(analyzing “whether the full range of conduct encompassed by the statute”

involves moral turpitude). The First and Eighth Circuits, by contrast, have

considered the “general nature” of the crime and its classification in “common

usage.” See, e.g., Marciano, 450 F.2d at 1025; Pino v. Nicolls, 215 F.2d 237,

245 (1st Cir. 1954), rev’d on other grounds sub nom. Pino v. Landon, 349 U.S.

901 (1955). Most recently, the Ninth Circuit has suggested that the test should

be whether moral turpitude necessarily inheres in all cases that have a

“realistic probability” of being prosecuted. See, e.g., Nicanor-Romero

v. Mukasey, 523 F.3d 992, 1004-05 (9th Cir. 2008).

Moreover, even in circuits that agree that moral turpitude cases should

begin with a categorical inquiry, confusion remains about what, if anything,

may follow such an inquiry where categorical analysis does not resolve the

question. Some courts allow for further inquiry in a second step; some do not.

The circumstances under which courts that permit a second-stage inquiry will

allow that inquiry to proceed, and the facts they will consider in such an

inquiry, also vary widely. For example, some courts have refused to allow an

immigration judge to inquire at all into the specific facts of a case. See, e.g.,

Rodriguez-Castro v. Gonzales, 427 F.3d 316, 320-21 (5th Cir. 2005);

Rodriquez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995). Others have looked

to the record of conviction for the alien’s prior offense—but not beyond that

record—in all cases where the criminal statute at issue “prohibits conduct that

may not necessarily involve moral turpitude.” Nicanor-Romero, 523 F.3d at

1007. And still others have considered the record of conviction only if the

statute of conviction is “divisible” into multiple subsections. Amouzadeh, 467

F.3d at 455. Most recently, the Seventh Circuit rejected any evidentiary

limitation, concluding that the Department may in its discretion consider all

relevant evidence bearing on the particular facts of an alien’s prior criminal

conviction. See Ali v. Mukasey, 521 F.3d 737, 742-43 (7th Cir. 2008).

The resulting patchwork is problematic. As the Board and the courts have

observed, because our immigration laws “often affect individuals in the most

fundamental ways,” those laws “to the greatest extent possible . . . should be

applied in a uniform manner nationwide.” Matter of Cerna, 20 I&N Dec. 399,

408 (BIA 1991); see also Rosendo-Ramirez v. INS, 32 F.3d 1085, 1091 (7th

Cir. 1994) (“National uniformity in the immigration and naturalization laws is

paramount: rarely is the vision of a unitary nation so pronounced as in the

laws that determine who may cross our national borders and who may become

a citizen.”). Yet under the existing arrangement, aliens who commit identical

offenses may be treated differently with respect to eligibility for admissibility

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and adjustment of status. An alien who resides in one circuit might be

eligible for adjustment of status even though he committed the same crime as

an alien who lives in a different circuit and is ineligible for such relief. Such

significant determinations should not be “tied to the mere happenstance of

where [an alien’s] case[] arise[s] geographically.” Matter of Cerna, supra, at

408; see also Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir. 2004)

(emphasizing the importance of “national uniformity of federal law”); The

Federalist No. 32, at 199 (Alexander Hamilton) (Clinton Rossiter ed., 1961)

(the power over naturalization must “necessarily be exclusive; because if each

State had power to prescribe a Distinct Rule, there could not be a Uniform

Rule”).

Moreover, even on their own terms, many of the circuits’ approaches are

poorly designed to distinguish crimes that involve moral turpitude from those

that do not. For example, a categorical moral turpitude analysis that turns on

whether moral turpitude inheres in the hypothetical “minimum conduct” that

could result in conviction under a particular criminal statute is likely to result

in under-inclusive application of the Act’s moral turpitude provisions. Such

an analysis would require a judge to refrain from applying those provisions

with respect to criminal offenses that do involve moral turpitude if the judge

simply hypothesizes some theoretical situation in which the statute might

be applied to conduct that does not involve moral turpitude. See, e.g.,

Marciano, 450 F.2d at 1027 (Eisele, J., dissenting) (“I cannot believe that

Congress intended for [persons who have actually committed crimes

involving moral turpitude] to be allowed to remain simply because there might

have been no moral turpitude in the commission by other individuals (real or

hypothetical) of crimes described by the wording of the same statute under an

identical indictment.”). By contrast, an approach that applies the Act’s moral

turpitude provisions to all convictions under a particular criminal statute if

moral turpitude inheres in the “usual” or “common” case is likely to be

over-inclusive, because it would allow judges to apply the moral turpitude

provisions to aliens whose crimes did not in fact “involve moral turpitude.”

See, e.g., id. at 1028 (“The statute says deportation shall follow when the crime

committed involves moral turpitude, not when that type of crime ‘commonly’

or ‘usually’ does.”).

These conditions call for a reexamination of the current, fractured approach

judges have applied in reviewing moral turpitude determinations, and for

implementation of a uniform approach. Although to date the Department

generally has deferred to the relevant circuit court in deciding which approach

to use in a given case, providing a consistent, authoritative, nationwide

method for interpreting and applying ambiguous provisions of the

immigration laws, such as those involved here, is one of the Department’s key

duties. See, e.g., section 103(a)(1) of the Act (a “determination and ruling by

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the Attorney General with respect to all questions of law shall be controlling”);

8 C.F.R. § 1003.1(d)(1) (2008) (“[T]he Board, through precedent decisions,

shall provide clear and uniform guidance to [the Department of Homeland

Security], the immigration judges, and the general public on the proper

interpretation and administration of the Act and its implementing

regulations.”); INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (“[W]e have

recognized that judicial deference to the Executive Branch is especially

appropriate in the immigration context where officials ‘exercise especially

sensitive political functions that implicate questions of foreign relations.’”

(quoting INS v. Abudu, 485 U.S. 94, 110 (1988))); Jian Hui Shao v. BIA, 465

F.3d 497, 502 (2d Cir. 2006) (noting that “only a precedential decision by the

[Board]—or the Supreme Court of the United States—can ensure the

uniformity that seems to us especially desirable in [asylum] cases such as

these”).

Moreover, the Supreme Court has made clear that administrative agencies

are not bound by prior judicial interpretations of ambiguous statutory

provisions, because there is “a ‘presumption that Congress, when it left

ambiguity in a statute meant for implementation by an agency, understood that

the ambiguity would be resolved, first and foremost, by the agency, and

desired the agency (rather than the courts) to possess whatever degree of

discretion the ambiguity allows.’” Brand X, 545 U.S. at 982 (quoting Smiley

v. Citibank (South Dakota), N.A., 517 U.S. 735, 740-41 (1996); citing

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984)); see Ali, 521 F.3d at 742-43 (observing that where the Department

has “fully developed its own position” regarding the method for determining

whether a prior conviction constitutes a crime involving moral turpitude, that

position is entitled to deference notwithstanding prior judicial precedent).

With these background principles in mind, I turn to the methodology

adjudicators should use to determine whether a prior conviction constitutes a

crime involving moral turpitude under the Act.

B.

The Department and the Federal courts agree that, to determine whether a

crime involves moral turpitude, immigration judges should first engage in a

“categorical” inquiry and look to the statute of conviction rather than to the

specific facts of an alien’s crime. As noted, the courts of appeals have to date

adopted three basic approaches: (1) the “minimum conduct” approach, which

looks to whether moral turpitude inheres in the most minimal conduct that

could hypothetically permit a conviction; (2) the “common case” approach,

which looks to whether moral turpitude inheres in the “usual” case or in the

general nature of a crime; and (3) the “realistic probability” approach, which

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asks whether moral turpitude necessarily inheres in all cases that have a

realistic probability of being prosecuted.

As also noted, the “minimum conduct” and “common case” approaches,

especially when combined with evidentiary limitations, can result in under- or

over-inclusive application of the Act’s moral turpitude provisions. The

“realistic probability” method mitigates these problems by taking a more

refined approach to immigration inquiries. Specifically, it focuses the

adjudicator on a criminal statute’s actual scope and application and tailors the

categorical moral turpitude inquiry by asking whether, at the time of an alien’s

removal proceeding, any actual (as opposed to hypothetical) case exists in

which the relevant criminal statute was applied to conduct that did not involve

moral turpitude. Cf. Duenas-Alvarez, 549 U.S. at 193. If the statute has not

been so applied in any case (including the alien’s own case), the adjudicator

can reasonably conclude that all convictions under the statute may

categorically be treated as ones involving moral turpitude. In such

circumstances, the history of adjudication generally establishes no realistic

probability that the statute, whatever its language may hypothetically allow,

would actually be applied to acts that do not involve moral turpitude. See id.

By contrast, if the language of the criminal statute could encompass both

conduct that involves moral turpitude and conduct that does not, and there is

a case in which the relevant criminal statute has been applied to the latter

category of conduct, the adjudicator cannot categorically treat all convictions

under that statute as convictions for crimes that involve moral turpitude. See

id. at 185-88, 193.

The Supreme Court recently adopted the “realistic probability” approach

in Duenas-Alvarez, where the question was whether a conviction under a

California theft statute constituted a “theft offense” within the meaning of

section 101(a)(43)(G) of the Act, rendering the alien removable under section

237(a). The alien contended that the theft crime did not necessarily constitute

such an offense, because the California statute was broader in scope than the

“theft offense” category covered by section 101(a)(43)(G). In support of that

argument the alien cited several cases in which California courts had used

expansive language in describing the statute. After parsing these cases, the

Court rejected the alien’s reliance on them:

[I]n our view, to find that a state statute creates a crime outside the generic definition

of a listed crime in a federal statute requires more than the application of legal

imagination to a state statute’s language. It requires a realistic probability, not a

theoretical possibility, that the State would apply its statute to conduct that falls

outside the generic definition of a crime. To show that realistic possibility, an

offender, of course, may show that the statute was so applied in his own case. But he

must at least point to his own case or other cases in which the state courts in fact did

apply the statute in the special (nongeneric) manner for which he argues.

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Duenas-Alvarez, 549 U.S. at 193. The Court concluded that the alien had

failed to show anything “special” about the California statute that would

support its application outside the general scope of the relevant Federal crime,

and thus found him removable. Id.

Duenas-Alvarez was not a moral turpitude case, and in any event its

approach to categorical inquiries would not bind the Department here because

moral turpitude determinations turn on the Department’s application of

ambiguous statutory text. See Brand X, 545 U.S. at 982. That said, the

Duenas-Alvarez Court’s adoption of the “realistic probability” approach is

grounded in the realization that immigration penalties ought to be based on

criminal laws as they are actually applied. See, e.g., Jordan v. DeGeorge, 341

U.S. 223, 227 (1951) (“In deciding the case before the Court, we look to the

manner in which the term ‘moral turpitude’ has been applied by judicial

decision.”). And the question in Duenas-Alvarez—whether a conviction under

a particular State statute was within the scope of a general category of offenses

for immigration purposes—is similar to the question presented here. I thus

find the analysis in Duenas-Alvarez persuasive and conclude that, in

evaluating whether an alien’s prior offense is categorically one that involved

moral turpitude, immigration judges should determine whether there is a

“realistic probability, not a theoretical possibility,” that a State or Federal

criminal statute would be applied to reach conduct that does not involve moral

turpitude. Duenas-Alvarez, 549 U.S. at 193.

Like any categorical approach, however, the realistic probability approach

cannot assure proper resolution of all moral turpitude inquiries: It provides no

answer where a statute encompasses both conduct that involves moral

turpitude and conduct that does not (as evidenced by its application to the

latter category in an actual case). Recognizing this weakness of a pure

categorical approach, the Department and many courts have proceeded to a

second stage, or “modified categorical,” inquiry pursuant to which adjudicators

consider whether the alien’s record of conviction evidences a crime that in fact

involved moral turpitude. See, e.g., Wala v. Mukasey, 511 F.3d 102, 109 (2d

Cir. 2007) (where an alien’s statute of conviction “encompasses offenses that

may or may not involve moral turpitude . . . . [we] proceed under the modified

categorical approach to examine whether [the alien’s] record of conviction

necessarily admits facts establishing the elements of a [crime involving moral

turpitude]”).

I agree that adjudicators should engage in such a second-stage inquiry

when necessary and conclude (as have many courts) that they should do so in

every case where (because the criminal statute in issue has at some point been

applied to conduct that did not involve moral turpitude) the categorical

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analysis does not end the moral turpitude inquiry.2 Most courts, however, have

limited this second-stage inquiry to the alien’s record of conviction, including

documents such as the indictment, the judgment of conviction, jury

instructions, a signed guilty plea, or the plea transcript. See, e.g.,

Nicanor-Romero, 523 F.3d at 1007 (“We do not look beyond such

documents . . . to determine what particular underlying facts might have

supported [the prior] conviction.”) (internal quotation marks and citations

omitted). In my view, when the record of conviction fails to show whether the

alien was convicted of a crime involving moral turpitude, immigration judges

should be permitted to consider evidence beyond that record if doing so is

necessary and appropriate to ensure proper application of the Act’s moral

turpitude provisions. I reach these conclusions for several reasons.

First, the documents generally considered part of the formal record of

conviction typically focus only on the charging elements of a specific criminal

offense. But moral turpitude is not an element of an offense. See, e.g., Ali,

521 F.3d at 742. And although in many, if not most, cases (for example, cases

in which proof of fraudulent intent is required for conviction), examination of

the alien’s record of conviction may establish that the alien was in fact

convicted of a crime involving moral turpitude, there are other cases (such as

the instant one) in which an examination of the formal record by itself does not

yield an answer to the question. See Bd. Op. at 4 n.5 (noting that respondent’s

“record of conviction does not contain any information regarding the

underlying conduct which gave rise to respondent’s conviction”); see also Part

III infra. To limit the information available to immigration judges in such

cases means that they will be unable to determine whether an alien’s crime

actually “involv[ed]” moral turpitude. Section 212(a)(2)(A)(i)(I) of the Act;

see, e.g., Bd. Op. at 4 n.5; Nicanor-Romero, 523 F.3d at 1007-08.

This restriction is hard to square with the text of the Act. See, e.g.,

Limtiaco v. Camacho, 127 S. Ct. 1413, 1418 (2007). The relevant provisions

contemplate a finding that the particular alien did or did not commit a crime

involving moral turpitude before immigration penalties are or are not applied.

Section 212(a)(2)(A)(i)(I), the inadmissibility provision at issue in this

case, refers to “any alien convicted of, or who admits having committed, or

who admits committing acts which constitute the essential elements of a crime

involving moral turpitude.” (Emphasis added.) Section 237’s removability

2

If an immigration judge determines, based on application of the realistic probability

approach, that a prior conviction is categorically a crime involving moral turpitude, there is

no reason to proceed to a second stage. The same would be true if the immigration judge

were able to determine at the first stage that a prior conviction categorically was not a crime

involving moral turpitude—i.e., if none of the circumstances in which there is a realistic

probability of conviction involves moral turpitude.

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provisions similarly pertain only to “[a]ny alien who is convicted of a crime

involving moral turpitude” under certain enumerated circumstances, one of

which relates to the alien’s date of admission—a fact that would not typically

be reflected in a criminal record of conviction. Sections 237(a)(2)(A)(i)-(ii)

of the Act. To impose evidentiary limitations with the result that immigration

penalties under section 212(a) or section 237 apply to aliens whose crimes did

not involve moral turpitude, or with the result that aliens whose crimes did

involve moral turpitude escape those penalties, is in tension with the text of

those sections.

Related provisions of the Act further support the conclusion that an

individualized moral turpitude inquiry is warranted where a categorical

analysis is not conclusive. See King v. St. Vincent’s Hosp., 502 U.S. 215, 221

(1991) (stating that it is a “cardinal rule that a statute is to be read as a whole

since the meaning of statutory language, plain or not, depends on context”)

(citation omitted). The Act’s evidentiary provisions, for example, call for

analysis of whether “the alien” in a particular proceeding is or is not subject

to the Act’s moral turpitude provisions. Section 240(c)(2)-(3) of the Act,

8 U.S.C. § 1229a(c)(2)-(3) (2006). By their terms, these provisions indicate

that the statute should be applied only to aliens who have themselves

committed acts that trigger the provisions and their associated immigration

consequences.

Because restricting administrative moral turpitude inquiries to an alien’s

formal record of conviction is not compelled by the Act—and indeed, appears

to be in some tension with it—it is worth examining the grounds on which the

Department and the courts have justified this restriction. There are two. First,

courts have carried over to the immigration context the Supreme Court’s

holdings in Taylor v. United States, 495 U.S. 575 (1990), and Shepard

v. United States, 544 U.S. 13 (2005), which limit a sentencing court’s inquiry

into the nature of prior convictions for purposes of recidivist enhancements

in Federal criminal cases. See Ali, 521 F.3d at 743 (citing cases that “carry

over to immigration proceedings an approach familiar to the federal

judiciary from criminal prosecutions”). Second, courts have judged that

further administrative inquiry would, even if allowed, impose on the

Department an unacceptably “oppressive administrative burden of

scrutinizing the specific conduct giving rise to criminal offenses.” Michel

v. INS, 206 F.3d 253, 264 (2d Cir. 2000) (citing Matter of Pichardo, 21 I&N

Dec. 330, 335-36 (BIA 1996)). As the Seventh Circuit recently held in an

opinion by Judge Easterbrook, however, neither of these grounds withstands

close scrutiny. See Ali, 521 F.3d at 741-42.

To begin with, the rationale for the limits Taylor and Shepard impose on

factual inquiries in criminal sentencing cases does not carry over to the

immigration question at hand. As Judge Easterbrook explained, the Supreme

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Court gave “two principal reasons” for limiting inquiry into prior convictions

in the sentencing context: “[I]n Taylor it stressed the benefits of simple

application, so that sentencing not be burdened by a retrial of the original

prosecution, and in Shepard it stressed the allocation of tasks between judge

and jury under the Sixth Amendment.” Id. at 741. But “[n]either of these

reasons applies to immigration proceedings.” Id. First, immigration

proceedings “are not criminal prosecutions, so the Sixth Amendment . . .

[does] not come into play.” Id. (citations omitted). Second, “how much time

the agency wants to devote to the resolution of particular issues is . . .

a question for the agency itself rather than the judiciary.” Id. (citations

omitted).

Moreover, there is good reason not to apply Taylor and Shepard when

assessing moral turpitude. Limiting inquiry to the record of conviction—and

little else—makes some sense when a simple examination of the elements of

a prior conviction usually will yield the necessary answer, as is true in the

criminal sentencing cases governed by Taylor and Shepard. But limiting

inquiry in that manner makes much less sense when the answer turns on

factors beyond the elements of the prior crime. That is true here, because

“moral turpitude” is not an element of any criminal offense. As Judge

Easterbrook explained in Ali, “[t]he need to decide whether a crime is one of

‘moral turpitude’ does not have a parallel in criminal cases and may require

some additional information, since the charging papers that led to the prior

conviction are not framed with such classifications in mind (for ‘moral

turpitude’ just isn’t relevant to the criminal prosecution; it is not as if

‘turpitude’ were an element of an offense).” Ali, 521 F.3d at 741-42.

This conclusion is supported by a recent Board decision on a different

but related issue. In Matter of Babaisakov, 24 I&N Dec. 306, 309-10 (BIA

2007), the Board held that an immigration judge may look beyond the

record of conviction in determining whether an alien has committed a

certain type of aggravated felony, namely, “an offense that involves fraud or

deceit in which the loss to the victim or victims exceeds $10,000.”

Section 101(a)(43)(M)(i) of the Act. The Board justified this holding based

on the fact that the statute “requires a separate finding as to loss that is not

tied to the elements of any State or Federal criminal statute.” Matter of

Babaisakov, supra, at 309 (emphasis added). With respect to this “additional

‘nonelement’ factor of victim loss,” the Board reasoned, the evidentiary

limitations of Taylor and Shepard neither apply nor make sense. The evidence

allowed by Taylor and Shepard “may serve as the best source of information

for nonelement facts about a crime,” the Board wrote, but “[n]o wooden

rule . . . can answer that question in advance.” Id. at 318 (emphasis added).

Thus, the Board held that immigration judges are free, in cases involving the

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loss provision, to “consider any evidence, otherwise admissible in removal

proceedings, including witness testimony, bearing on the loss to the victim.”

Id. at 321.

Babaisakov involved the definition of an aggravated felony, not a

determination of whether a prior crime is a crime involving moral

turpitude, and as a result is not directly applicable. Nevertheless, I find the

Board’s analysis in that case persuasive and appropriate here as well: Like

the determination of loss at issue in Babaisakov, “the moral-turpitude

classification” at issue in this case “stands apart from the elements of the [prior

criminal] offense.” Ali, 521 F.3d at 743. Thus, for the foregoing reasons I

conclude that the evidentiary limitations of Taylor and Shepard do not apply

for purposes of making moral turpitude determinations. That leaves only the

second justification for limiting inquiry in moral turpitude cases: that inquiry

beyond the record of conviction would impose on the Department an

unacceptably “oppressive administrative burden of scrutinizing the specific

conduct giving rise to criminal offenses.” Michel, 206 F.3d at 264. As Judge

Easterbrook noted in Ali, however, how much time the Department wants to

devote to these inquiries is “a question for the agency itself rather than the

judiciary.” 521 F.3d at 741.

I turn therefore to whether the administrative burdens associated with

inquiries beyond the record of conviction should preclude such inquiries (as

the Board and some courts have suggested) and conclude that those burdens

should not for several reasons. First, although administrative efficiency is

undeniably important, it is “secondary to the determination and enforcement

of” statutory language and “obvious legislative intent.” Marciano, 450 F.2d

at 1029 (Eisele, J., dissenting). As noted, reading the Act’s provisions to apply

to aliens whose individual crimes did not actually involve moral turpitude—or

failing to apply these provisions to aliens whose crimes actually did involve

moral turpitude—is in tension with the statutory language. Allowing for

inquiry beyond the record of conviction would result in more accurate

determinations of who falls within the scope of the statute, and would better

accord with the statute’s demands for individualized adjudications. It would

also produce more uniform results nationwide, because the answer to whether

an alien’s prior conviction was for a crime involving moral turpitude would be

less likely to turn on the drafting of a particular criminal statute or a

jurisdiction’s record-keeping practices.

Moreover, I do not believe, as the Board has suggested, that limiting

inquiry to the record of conviction is the “only” administratively workable

solution to deciding moral turpitude cases that cannot be decided at the

categorical stage, or that permitting inquiry beyond the record of conviction

in such cases would provide “no clear stopping point” to complete relitigation

of past crimes. Matter of Pichardo, supra, at 336. Immigration judges are

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well versed in case management, and as this case demonstrates, see Part III

infra, the answer to a single question (here, whether respondent knew or

should have known his victim’s age) may reveal a critical piece of information

that is not in the record of conviction and that would ensure correct application

of the Act’s moral turpitude provisions. And in any event, allowing inquiry

beyond the record of conviction does not mean that the parties would be free

to present “any and all evidence bearing on an alien’s conduct leading to the

conviction.” Matter of Pichardo, supra, at 335. The sole purpose of the

inquiry is to ascertain the nature of a prior conviction; it is not an invitation to

relitigate the conviction itself.3

Further, although Matter of Babaisakov, supra, at 318, correctly stated that

“[n]o wooden rule” should govern an immigration judge’s resort to

information beyond the record of conviction, a hierarchy of evidence certainly

may be appropriate to ensure administrative workability and to avoid engaging

in a retrial of the alien’s prior crime. In many, if not most, cases, the judge

will not have to go beyond the record of conviction, which includes the

transcript of any plea. And where a party meets, or fails to meet, its burden of

proof on an issue related to application of the Act’s moral turpitude provisions

based solely on the record of conviction and documentary evidence, the

immigration judge need not consider additional evidence or testimony except

when and to the extent he or she determines that it is necessary.4

3

For example, an alien who was convicted under a criminal statute that requires proof of

fraudulent intent (which has universally been considered evidence of moral turpitude,

see, e.g., Jordan v. DeGeorge, 341 U.S. 223) cannot avoid categorical treatment of his

conviction as a crime involving moral turpitude by arguing that he did not actually have such

intent when he committed the crime. In such a case, an immigration judge is entitled to rely

on the fact of conviction as evidence that the judge or jury in the prior criminal proceeding

determined that the alien committed all elements required for conviction, including the

element of intent to defraud. Similarly, an alien convicted under a child sex offense statute

that allows for a mistake-of-age defense, see infra Part III, cannot avoid categorical treatment

of his conviction as a crime involving moral turpitude by arguing that he believed his victim

was a consenting adult. The immigration judge in that case is entitled to rely on the fact of

conviction as evidence that the judge or jury in the criminal proceeding properly determined

that the alien knew, or reasonably should have known, his victim was a child, and thus that

the alien committed a crime involving moral turpitude.

4

Whether the alien or the Government bears the burden of proof on the immigration

question in issue may have some bearing on application of the moral turpitude framework

outlined in this opinion. In inadmissibility cases such as this one, where the alien bears the

burden of proof, see section 240(c)(2)(A) of the Act, application of the framework will be

relatively straightforward: It would be the alien’s burden, in the first stage of the inquiry,

to show that the criminal statute under which he had been convicted has actually been

(continued...)

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In short, to determine whether an alien’s prior conviction triggers

application of the Act’s moral turpitude provisions, adjudicators should:

(1) look first to the statute of conviction under the categorical inquiry set forth

in this opinion and recently applied by the Supreme Court in Duenas-Alvarez;

(2) if the categorical inquiry does not resolve the question, look to the alien’s

record of conviction, including documents such as the indictment, the

judgment of conviction, jury instructions, a signed guilty plea, and the plea

transcript; and (3) if the record of conviction does not resolve the inquiry,

consider any additional evidence the adjudicator determines is necessary or

appropriate to resolve accurately the moral turpitude question. This opinion

does not, of course, extend beyond the moral turpitude issue—an issue that

justifies a departure from the Taylor/Shepard framework because moral

turpitude is a non-element aggravating factor that “stands apart from the

elements of the [underlying criminal] offense.” Ali, 521 F.3d at 743. And,

again, looking to the facts of an individual case to determine moral

turpitude for immigration purposes does not mean that courts or immigration

judges may relitigate or redetermine issues decided in prior criminal

proceedings. Aliens may not challenge—at any stage of the moral turpitude

inquiry—determinations or facts that were necessary to their prior convictions.

(...continued)

applied to conduct that did not involve moral turpitude and, in the second stage, that his own

conviction involved conduct that did not involve moral turpitude. In removal cases, where

the Government bears the burden of proof, see section 240(c)(3)(A) of the Act, application

of the framework may be more complicated. When the criminal statute requires proof of an

element or fact that evidences moral turpitude, it will be easy for the Government to sustain

its burden. Because such a statute will ordinarily be subject to categorical treatment under

the realistic probability approach, it is the alien who must “point to his own case or other

cases” in which a person was convicted without proof of the statutory element that evidences

moral turpitude. See Duenas-Alvarez, 549 U.S. at 193 (explaining that, because

Duenas-Alvarez conceded that the State theft statute in issue required proof that the

defendant intended to deprive a rightful owner of property—the same criminal intent as the

Federal predicate for the Government’s removal charge—he had to “show something special

about” California’s application of the statute to avoid categorical treatment) (emphasis in

original). By contrast, where a criminal statute (such as the one in issue in this case) does

not require proof of an element or fact that categorically evidences moral turpitude, it will

be more difficult for the Government to prove that moral turpitude necessarily inheres in a

conviction and thus that categorical treatment is appropriate. In such circumstances, the

Government can meet its burden by proving, in the second stage of the inquiry, that the

alien’s individual conviction was for a crime that in fact involved moral turpitude.

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III.

Applying the foregoing framework to the facts of this case, I vacate the

Board’s decision and remand for reconsideration consistent with this opinion.

The question whether respondent’s conviction pursuant to Texas Penal Code

§ 21.11(a)(1) triggers the Act’s bar on admissibility first requires a categorical

examination of that statute. Under the categorical approach outlined above,

see Part II.B, I must therefore determine whether moral turpitude necessarily

inheres in the cases that have a “realistic probability” of being prosecuted

pursuant to section 21.11(a)(1).

To answer this query, it is necessary briefly to address the proper definition

of moral turpitude, because that definition exposes a troubling element of the

Board’s analysis. The Board concluded that moral turpitude does not

necessarily inhere in a conviction under Texas Penal Code § 21.11(a)(1)

because the statute criminalizes sexual contact with minors that falls short of

rape. See Bd. Op. at 3-4 (“In contrast to statutory rape, which typically

involves penetration or something similar, the sexual conduct encompassed by

[Texas Penal Code] § 21.11(a)(1) potentially involves much less intrusive

contact.”). In so holding, the Board suggested that whether a sexual offense

with a minor involves moral turpitude turns on the severity of the sexual

contact at issue. See id. I disagree.

In my view, so long as the perpetrator knew or should have known that the

victim was a minor, any intentional sexual contact by an adult with a child

involves moral turpitude. Such contact is “inherently base, vile, or depraved,

and contrary to the accepted rules of morality and the duties owed between

persons or to society in general,” Hamdan v. INS, 98 F.3d 183, 185-86 (5th

Cir. 1996) (quoting Department precedent), when measured “in terms either

of the magnitude of the loss that [it] cause[s] or the indignation that [it]

arouse[s] in the law-abiding public,” Wei Cong Mei v. Ashcroft, 393 F.3d 737,

740 (7th Cir. 2004). The sexual abuse of children destroys, in a way that

cannot be described as anything other than “base” and “vile,” the trust and

innocence of society’s most vulnerable members. See, e.g., Eze v. Senkowski,

321 F.3d 110, 112 (2d Cir. 2003) (“The sexual abuse of children is heinous

beyond words. It is intolerable . . . reprehensible . . . [and] destructive of

young lives.”); Nicanor-Romero, 523 F.3d at 1013 (Bybee, J., dissenting)

(“Children in particular—because of their naiveté, their dependence on adults,

and their inability to understand, flee, or resist such advances—are vulnerable

to adults who seek to take advantage of them sexually. Thus, we find such

conduct especially repulsive and worthy of the severest moral opprobrium.”);

cf. New York v. Ferber, 458 U.S. 747, 756-57, 763 (1982) (“It is evident

beyond the need for elaboration that a State’s interest in ‘safeguarding the

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physical and psychological well-being of a minor’ is ‘compelling’”); Osborne

v. Ohio, 495 U.S. 103, 109 (1990) (concluding that child pornography, unlike

adult pornography, does not merit First Amendment protection).

That said, whether the perpetrator knew or should have known the victim’s

age is a critical factor in determining whether his or her crime involved moral

turpitude for immigration purposes. A finding of moral turpitude under the

Act requires that a perpetrator have committed the reprehensible act with some

form of scienter. See, e.g., Partyka, 417 F.3d at 414 (“[T]he hallmark of

moral turpitude is a reprehensible act committed with an appreciable level of

consciousness or deliberation”); Wei Cong Mei v. Ashcroft, 393 F.3d at 740

(“[A] person who deliberately commits a serious crime is regarded as behaving

immorally and not merely illegally”) (emphases omitted); Michel v. INS, 206

F.3d 253, 263 (2d Cir. 2000) (“corrupt scienter is the touchstone of moral

turpitude,” hence the Board’s “long-standing” rule that, “where knowledge is

a necessary element of a crime under a particular criminal statute, moral

turpitude inheres in that crime”).5 Sexual contact that could be legal and

morally acceptable between consenting adults constitutes criminal conduct

involving moral turpitude when visited upon someone the perpetrator knows

5

The foregoing general definition of a crime involving moral turpitude—namely, that a

crime involving moral turpitude involves both reprehensible conduct and some form of

scienter—encompasses and describes existing Board precedents classifying many different

crimes, including various species of fraud and corruption crimes, as crimes involving moral

turpitude when those crimes are committed willfully. See, e.g., Matter of Kochlani, 24 I&N

Dec. 128, 130-31 (BIA 2007) (explaining that, although “crimes that have a specific intent

to defraud as an element have always been found to involve moral turpitude, [the Board has]

also found that certain crimes are inherently fraudulent and involve moral turpitude even

though they can be committed without a specific intent to defraud” where a conviction

requires proof that the defendant willfully or knowingly committed an act (in Kochlani,

intentionally trafficking in known counterfeit goods) that causes “significant societal harm”);

Matter of Tejwani, 24 I&N Dec. 97, 98 (BIA 2007) (treating a conviction for money

laundering as a crime involving moral turpitude because the statute in question required both

that the perpetrator knew the money in issue represented the proceeds of criminal conduct

and that the person intentionally exchanged or handled the money “to conceal or disguise”

its criminal origins); Matter of Flores, 17 I&N Dec. 225, 229 (BIA 1980) (treating as a crime

involving moral turpitude the deliberate selling or use of counterfeit documents that the

perpetrator knew were counterfeit). The foregoing general definition also encompasses the

many judicial precedents recognizing that crimes involving moral turpitude involve

reprehensible conduct that is committed intentionally or with some other form of scienter

such as willfulness or recklessness. See, e.g., Partyka, 417 F.3d at 414 (approving of Board

decisions concluding that moral turpitude inheres in the commission of certain crimes “even

if one acts not with intent, but with recklessness, [where] ‘the definition of recklessness

requires an actual awareness of the risk created by the criminal violator’s actions’”) quoting

Matter of Medina, 15 I&N Dec. 611, 614 (BIA 1976))).

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or should know is a child. Thus, it is proper to make a categorical finding that

a defendant’s conduct involves moral turpitude when that conduct results in

conviction on the charge of intentional sexual contact with a person the

defendant knew or should have known was a child.

Accordingly, convictions obtained under statutes that limit convictions

to defendants who knew, or reasonably should have known, that their

intentional sexual acts were directed at children categorically should be treated

as convictions for crimes involving moral turpitude.6 The inclusion of a

mistake-of-age defense—that is, an affirmative defense that the defendant

reasonably believed that his or her victim was not a child at the time of the

offense—ensures that individuals will be convicted only if they willfully or

knowingly directed sexual conduct towards someone they knew, or reasonably

should have known, was a child. See, e.g., 18 U.S.C. § 2243(c)(1) (2006)

(establishing as an affirmative defense to the charge of engaging in a sexual

act with a person under the age of 16 that “the defendant reasonably believed

that the other person had attained the age of 16 years”).

The Texas statute at issue in this case applies only to intentional sexual

contact. See Texas Penal Code § 21.11(a)(2) (requiring the “intent to arouse

or gratify the sexual desires of any person”). But it does not, on its face,

6

I recognize that some judicial decisions have relied on the “common” or “usual” case

version of the categorical approach to classify convictions for statutory rape as ones

involving moral turpitude whether or not the statutes of conviction allowed for a

mistake-of-age defense. See, e.g., Castle v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976);

Marciano, 450 F.2d at 1025; Pino v. Nicolls, 119 F. Supp. 122, 128 (D. Mass), aff’d, 215

F.2d 237, 240 (1st Cir.), rev’d on other grounds sub nom. Pino v. Landon, 349 U.S. 901

(1955). If a particular statute does not qualify categorically as a crime involving moral

turpitude under the “reasonable probability” approach adopted in this decision, the

adjudicator can consult the record of conviction or other evidence established in the case to

determine whether the conviction is for a crime involving moral turpitude. I also note that,

to the extent the foregoing judicial decisions concluded that aliens were deportable (rather

than inadmissible) for having committed crimes involving moral turpitude, application

of the moral turpitude methodology in this opinion would not necessarily change those

results. A statutory rape conviction may constitute “sexual abuse of a minor”—an

“aggravated felony” under section 101(a)(43)(A) of the Act that renders an alien

deportable—regardless of whether that conviction would qualify as a conviction for a crime

involving moral turpitude. See, e.g., Mugalli v. Ashcroft, 258 F.3d 52, 61 (2d Cir. 2001);

Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999); but cf. Estrada-Espinoza

v. Mukasey, ___ F.3d ___, 2008 WL 4615681 (9th Cir. Oct. 20, 2008) (en banc). And as this

opinion makes clear, the framework it adopts for moral turpitude cases governs only

immigration decisions based on the Act’s moral turpitude provisions and does not govern

the scope or application of the aggravated felony ground for sexual abuse of a minor under

section 101(a)(43)(A) of the Act.

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provide for a mistake-of-age defense. It is therefore possible to imagine, as the

Board did, a case in which a defendant could be convicted even though his

conduct did not involve moral turpitude. See, e.g., Nicanor-Romero, 523 F.3d

at 1001 (holding that certain acts of “sexual predation” of a minor criminalized

by a California statute did not involve moral turpitude under the Act because

the acts in question involved “sexual interest that would be natural and normal

if motivated by conduct directed at an 18-year old,” and because the statute did

not require that the defendant knew, or reasonably should have known, that the

acts were directed at a child); Quintero-Salazar v. Keisler, 506 F.3d 688 (9th

Cir. 2007) (similar). Imagination is not, however, the appropriate standard

under the framework set forth in this opinion. Instead, the question is whether

there is a “realistic probability, not a theoretical possibility,” that the Texas

statute would be applied to reach conduct that does not involve moral

turpitude. Duenas-Alvarez, 549 U.S. at 193.

In this case, the answer to that question is yes. In Johnson v. State, 967

S.W.2d 848, 849 (Tex. Crim. App. 1998) (en banc), the Texas Court of

Criminal Appeals rejected a 19-year-old defendant’s contention that he should

not be convicted of criminal sexual contact with a child under section

21.11(a)(1) because his victim and her friend both told him that the victim was

17, and because the victim in fact appeared older than her age. Because Texas

Penal Code § 21.11(a)(1) has been applied to conduct that does not involve

moral turpitude (the defendant in Johnson was convicted despite his contention

that he had no reason to know that his sexual conduct was directed at a child),

respondent’s conviction cannot categorically be treated as one that did involve

moral turpitude. See Duenas-Alvarez, 549 U.S. at 193. I therefore agree with

the Board that an analysis of Texas Penal Code § 21.11(a)(1) fails to establish

that respondent’s conviction qualifies categorically as a crime involving moral

turpitude, although not for the reasons given by the Board.

This categorical determination, however, does not end the moral

turpitude inquiry. Instead, where, as here, the categorical inquiry does not

resolve the moral turpitude question, an adjudicator should engage in a

modified categorical inquiry, considering whether the facts of the alien’s prior

conviction in fact involved moral turpitude. In so doing, the adjudicator

should look first to the alien’s record of conviction—including the indictment,

the judgment of conviction, jury instructions, a signed guilty plea, or the plea

transcript—and if the record of conviction does not resolve the inquiry,

consider any additional evidence or factfinding the adjudicator determines is

necessary or appropriate to resolve accurately the moral turpitude question.

In this case, the Board noted that respondent’s “record of conviction does

not contain any information regarding the underlying conduct which gave rise

to respondent’s conviction,” Bd. Op. at 4 n.5, but declined to engage in any

further inquiry because it believed that a beyond-the-record-of-conviction

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analysis was prohibited, id. at 4. Because the Board declined to consider

whether respondent’s crime actually involved moral turpitude, I remand this

case for further consideration by the Board. If the Board deems further inquiry

appropriate, it may in turn remand the case to the Immigration Judge for

additional proceedings consistent with this opinion.

The inquiry on remand need not be administratively burdensome. In a case

involving sexual abuse, a simple inquiry regarding the alien’s knowledge of

the victim’s age might conclusively resolve the moral turpitude question. If,

for example, probative evidence, such as a birth certificate or an admission by

the alien, establishes that the victim was a young child, this fact would prove

that the alien’s sexual acts were directed at a person he knew, or reasonably

should have known, was a child and thus that the alien’s conviction was for a

crime involving moral turpitude. The same would be true if the alien and the

victim had a relationship (familial or otherwise) from which it could be

shown that the alien knew or should have known the victim’s actual age. In

any such inquiries in this case, the burden is on respondent to establish “clearly

and beyond doubt” that he is “not inadmissible.” Section 240(c)(2)(A) of the

Act; see, e.g., Kirong v. Mukasey, 529 F.3d 800 (8th Cir. 2008).

CONCLUSION

For the reasons set forth above, I remand this matter to the Board so it

may reconsider, consistent with this opinion, whether the crime respondent

committed involved moral turpitude. In the event the Board determines

that respondent’s conviction does not qualify as a crime involving moral

turpitude that renders him inadmissible, it can and should consider the factual

circumstances of his crime in determining whether to grant his application for

discretionary relief from removal.

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