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Hamid Choudhry, A073 538 314 (BIA Sept. 4, 2013)

Hamid Choudhry, A073 538 314 (BIA Sept. 4, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) dismissed a DHS appeal and upheld the termination of proceedings after finding that selling contraband cigarettes in violation of 18 U.S.C. 371 was not an aggravated felony under INA 101(a)(43)(M) or a crime involving moral turpitude because fraud or deceit were not necessary elements of the offense. The decision was written by Member Roger Pauley.
In this unpublished decision, the Board of Immigration Appeals (BIA) dismissed a DHS appeal and upheld the termination of proceedings after finding that selling contraband cigarettes in violation of 18 U.S.C. 371 was not an aggravated felony under INA 101(a)(43)(M) or a crime involving moral turpitude because fraud or deceit were not necessary elements of the offense. The decision was written by Member Roger Pauley.

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06/14/2014

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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk
5107 Leesburg Pike, Suite 2000 Falls Church, Virgi11in 22041

Griffin, Thomas M., Esq. Surin & Griffin, P.C. 325 Chestnut Street, Suite 1305 Philadelphia, PA 19106

OHS LIT.Nork Co. PrisonNOR

3400 Concord Road York, PA 17402

Immigrant & Refugee Appellate Center | www.irac.net

Name: CHOUDHRY, HAMID

A 073·538-314

Date of this notice: 9/4/2013

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

DCinltL ct1/VU
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger

yungc Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Hamid Choudhry, A073 538 314 (BIA Sept. 4, 2013)

U.S. Department of Justice
·

Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review
I

Falls Church, Virginia 22041

File: A073 538 314 - York, PA

Date:

In re: HAMID CHOUDHRY a.k.a. Muhammad Hamid a.k.a. Hamit Choudhry
IN

SEP

-

4 2013

REMOVAL PROCEEDINGS

APPEAL ON BEHALF OF RESPONDENT: Thomas M. Griffin, Esquire ON BEHALF OF DHS: William E. Lore Senior Attorney

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CHARGE: Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] Convicted of aggravated felony (as defined in section 10l (a)(43)(M)) 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] Convicted of aggravated felony (as defined in section 10l (a)(43)(U)) 23-7(a)(2)(A)(ii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(ii)] Convicted of two or more crimes involving moral turpitude

Sec.

Lodged: Sec.

APPLICATION: Termination

The respondent, a lawful permanent resident of the United States, is a native and citizen of Pakistan. The Department of Homeland Security ("DHS"), appeals the April 4, 2013, decision of the Immigration Judge terminating these proceedings. The appeal will be dismissed. On July 13, 2011, the respondent was convicted of Attempted Obstructing Governmental Administration in the Second Degree in violation of New York Penal Law § § 110.00 and 195.05 (l.J. at I; Exh. 2, Tab F). Subsequently, on October 3, 2012, the respondent was convicted of Conspiracy to Sell Contraband Cigarettes in violation of 18 U.S.C. § 371 (I.J. at 1; Exh. 2, Tab C). The DHS asserts that the 2012 conviction is for an aggravated felony, to wit, a conspiracy offense involving fraud or deceit in which the loss to the victim exceeded $JO,OOO. See sections 10l (a)(43)(M) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(M) and (U). The DHS thus argues that the Immigration Judge erred in dismissing the charge of removability under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (l.J. at 4-5). In addition, the DHS claims that the respondent's convictions are for crimes involving moral turpitude ("CIMT") not arising out of the same scheme of criminal misconduct. Therefore, the DHS contends that the Immigration Judge erred in dismissing the charge of removability pursuant to section 237(a)(2)(A)(ii) of the Act.

Cite as: Hamid Choudhry, A073 538 314 (BIA Sept. 4, 2013)

A073.538 314

The OHS bears the burden of proving removability by clear and convincing evidence. 8 C.F.R. § 1240.8(a). The determination of whether an alien's conviction is for an aggravated felony entails application of the categorical approach articulated in Taylor v. U.S. , 495 U.S. 575 (1990). Borrome v. Attorney General of U.S., 687 F.3d 150, 155 (3d Cir. 2012). Likewise, deciding whether a conviction is for a CIMT requires application of the categorical approach. Jean-Louis v. Attorney General of U.S. , 582 F.3d 462, 471 (3d Cir. 2009) (declining to defer to Matter of Silva-Trevino, 24 l&N Dec. 687 (A.G. 2008)). This involves looking to the elements of the statutory offense (and not the alien's conduct) to ascertain the least culpable conduct hypothetically necessary to sustain a conviction. Partyka v. Attorney General of U.S., 417 F.3d 408, 411 (3d Cir. 2005). The statute wider which the respondent was convicted in 2012 provides: If two or more persons conspire to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. 18 U.S.C. § 371 (emphasis added). The Immigration Judge correctly found that this statute is divisible because it lists potential elements in the alternative (l.J. at 4). See Descamps v. United States, 133 S.Ct. 2276, 2283 (2013); United States v. Rigas, 605 F.3d 194, 208 (3d Cir. 2010). It is thus necessary to apply the modified categorical approach, by examining certain documents comprising the "record of conviction" to determine whether the respondent was convicted of an aggravated felony. Jean-Louis, supra, at 466 (citing Shepard v. U.S. , 544 U.S. 13, 26 (2005)). The Judgment shows that the respondent pied guilty to "18 U.S.C. § 371 Conspire to Sell Contraband Cigarettes" (Exh. 2, Tab C). Moreover, the Plea Agreement provides: I will enter a plea of guilty to Cowits [sic) 1 of the Indictment. Cowit 1 charges that I knowingly and willfully conspired with other persons to knowingly ship, transport, receive, possess, sell, distribute and purchase contraband cigarettes, as that term is defined in Title 18, United States Code, Section 2341, to wit: a quantity of more than 10,000 cigarettes which bore no evidence of the payment of applicable State cigarette taxes, in violation of 18 USC § 2342(a), all in violation of 18 U.S.C. § 371. (Exh. 2, Tab C). We agree with the Immigration Judge that the conviction documents submitted by the DHS show that the respondent was convicted of conspiring to commit an offense against the United States (i.e., violation of a regulatory statute), as opposed to "defrauding" the United States (l.J. at 5). See 18 U.S.C. § 371. Thus, the OHS has not shown that fraud or deceit were necessary elements of the respondent's conviction under 18 U.S.C. § 371. Furthermore, the respondent pied guilty to an underlying offense stating that "[i]t shall be unlawful for any person knowingly to ship, transport, receive, possess, sell, distribute, or purchase contraband cigarettes or contraband smokeless tobacco." 18 U.S.C. § 2342(a); see Matter of Vo, 25 l&N Dec. 426, 428-30 (BIA 2011) (concluding that it is necessary to examine 2
Cite as: Hamid Choudhry, A073 538 314 (BIA Sept. 4, 2013)

Immigrant & Refugee Appellate Center | www.irac.net

A073.538 314 the underlying substantive crime in detennining whether a conviction for an inchoate offense renders an alien removable). This statute contains no element of fraud or deceit (I.J. at 5). Similarly, the definition of "contraband cigarettes" does not reference fraud or deceit, describing cigarettes: bear[ing] no evidence of the payment of applicable State or local cigarette taxes in the State or locality where such cigarettes are found, if the State or local government requires a stamp, impression, or other indication to be placed on packages or other containers of cigarettes to evidence payment of cigarette taxes. · 18 u.S.C. § 2341(2). While the DHS claims that legislative history demonstrates that Congress enacted 18 U.S.C. § 2342(a) to stop trafficking by elements of organized crime seeking to evade truces, legislative history is irrelevant where the language of the statute is plain. Matter of Anifowoshe, 24 I&N Dec. 442, 444 (BIA 2008) (citing United States v. Gonzales, 520 U.S. 1, 6 (1997)). The DHS also has not cited case law holding that 18 U.S.C. § 2342(a) necessarily involves fraud or deceit. Cf Kawashima v. Holder, 132 S.Ct. 1166 (2012) (finding that aliens' convictions for willfully making and subscribing a false tax return qualified as aggravated felonies under section 101(a)(43)(M) of the Act because they necessarily entailed fraudulent or deceitful conduct). For these reasons, we affinn the holding that the DHS has not proven removability under section 237(a)(2)(A)(iii) of the Act by clear and convincing evidence. With regard to the remaining charge, the Board has defined "moral turpitude" as "conduct that is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed to other persons, either individually or to society in general." Knapik v. Ashcroft, 384 F.3d 84, 89 (3d Cir. 2004) (citing Matter of Franklin, 20 l&N Dec. 867, 868 (BIA 1994)). It has long been recognized that crimes involving fraud amount to CIMT's. Matter of Flores, 17 I&N Dec. 225, 228 (BIA 1980). As noted above, an application of the modified categorical approach shows that the respondent was not convicted of the prong of 18 U.S. C. § 371 involving conspiracy to defraud the United States (Exh. 2, Tab C). Furthennore, neither fraud nor deceit is an element of 18 U.S.C. § 2342(a), the statute underlying the respondent's conviction for conspiracy (l.J. at 6; Exh. 2, Tab C). We agree with the Immigration Judge that 18 U.S.C. §2342(a) does not come within the definition of "moral turpitude" because it is a regulatory statute designed to regulate the taxes, licensing and administrative requirements for commercial distributers of cigarettes (l.J. at 6-7). See Matter of L-V-C-, 22 l&N Dec. 594 (BIA 1999) (ruling that a currency structuring offense was not a CIMT); Matter of G-, 7 I&N Dec. 114, 115, 118 (BIA 1956) (holding that a conviction for the "possession and transportation of distilled spirits without tax stamps affixed thereto" in violation of "licensing and regulating provisions of the Internal Revenue Code" was not a CIMT because the "violation of statutes which merely license or regulate and impose criminal liability without regard to evil intent do not involve moral turpitude."); see also Matter of J-, 2 l&N Dec. 99, 104 (BIA 1944); Matter of V-, I I&N Dec. 293, 294 (BIA 1942); Matter of G-, l l&N Dec. 59, 62 (BIA 1941). Concerning the DHS's argument that 18 U.S.C. § 2342(a) is a tax evasion crime, the statute does not require proof that a defendant knew that a State requires that cigarette taxes be paid, or that he or she knew that taxes had not been paid (l.J. at 7). It is sufficient that the defendant knowingly possessed cigarettes on which truces have not been paid (l.J. at 7). Moreover, 18 U.S.C. § 2342(a) 3
Cite as: Hamid Choudhry, A073 538 314 (BIA Sept. 4, 2013)

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A073.538 314

does not list alternative elements in a manner that would permit application of the modified categorical approach to determine whether the respondent was convicted of tax evasion, which might qualify as a CIMT. See Descamps, supra, at 2283. Therefore, we affirm the conclusion that the DHS has not demonstrated removability under section 237(a)(2)(A)(ii) of the Act by clear and convincing evidence. 1 Accordingly, the following order is entered. ORDER: The appeal is dismissed.

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The Immigration Judge did not determine whether the respondent's 2011 conviction was for a CIMT. We need not address this issue because even assuming that the respondent's 2011 conviction was for a CIMT, he has not been convicted of a second CI MT as necessary to find him removable pursuant to section 237(a)(2)(A)(ii) of the Act. 4

1

Cite as: Hamid Choudhry, A073 538 314 (BIA Sept. 4, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT YORK, PENNSYLVANIA IN THE MATTER OF: CHOUDHRY, Hamid Respondent ) IN REMOVAL PROCEEDINGS

) ) ) )
File# A 073-538-314

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�������-- )
On Behalf of Respondent: On Behalf of DHS

Thomas Brannen, Esq.

William Lore Senior Attorney

Grounds of Removal: INA§ 237(a)(2(A)(iii); (a)(2)(A)(ii) Motion: Tennination by Respondent

Ruling on Motion and Order Procedural History
This respondent is a 44-year-old male alien, a citizen of Pakistan, who was neither admitted nor paroled into the United States. He adjusted status to lawful permanent resident on July 14, 2000. He was placed into these Removal Proceedings by personal service of a Notice to Appear (NTA) on February 4, 2013, charging him with two counts of removability pursuant to INA§237(a)(2)(A)(iii) for having committed an aggravated felony as defined in section 1 O l (a)(43)(M)(i), an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; and as defined in INA§ 101(a)(43)(U), an attempt or conspiracy to commit an offense described in 101(a)(43). On March 14, 2013, respondent filed a motion to terminate proceedings, arguing that the government failed to meet its burden in establishing that his conviction is an aggravated felony as defined in§ 101(a)(43)(M)(i). See Respondent's Brief. On March 21, 2013, in addition to filing a memorandum in opposition to respondent's motion to tenninate, government counsel filed Fonn 1-261, lodging an additional charge of removability under INA § 237(a)(2)(A)(ii), as an alien convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. See Form 1-261; DHS Memorandum of Law. On July 13, 2011, respondent was convicted of Attempted Obstructing Governmental

Administration 2nd Degree, in violation of N.Y. P.L. §110-195.05. Exhibit 2-F. On October 3, 2012, he was convicted in federal district court of Conspiracy to Sell Contraband Cigarettes, in violation of 18 U.S.C.§371, and sentenced to three months incarceration. Exhibit 2-C.

Law and Analysis 1. Aggravated Felonies under !NA §JOJ(a)(43)(M)(i) and !NA §JOJ(a)(43)(U) a. Legal Standards
Under the INA, "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." INA§ 237(a)(2)(A)(iii). When analyzing a particular offense to determine whether it constitutes an aggravated felony, courts apply a "categorical approach" and look only to the statutory definition of the offense; they do not consider the factual circumstances surrounding the particular violation. Taylor v. U.S., 495 U.S. 575 (1990). See Kawashima v. Holder. -U.S.
--

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, 132 S.Ct. 1166, 1172 (2012) (To determine whether a crime involves fraud or deceit, courts

must employ a "categorical approach" in which it focuses on the crime's statutory elements "rather than ... the specific facts underlying the crime."). However, where a statute is "divisible," in that it encompasses diverse classes of criminal acts, some of which are grounds for removal and others which are not, courts examine the statute through a "modified categorical approach." Matter of Sweetser, 22 l&N Dec. 709, 713-14 (BIA 1999). The "modified categorical approach" permits a court to look beyond the statute and to the record of conviction for the limited purpose of determining whether the alien's conviction falls under the part of the statute that would render him removable. Alaka v. Att'y Gen., 456 F.3d 88, 105-106 (3d Cir. 2006); Matter of Vargas-Sarmiento, 23 I. & N. Dec. 651, 654 (BIA 2004) (where a statute is divisible, it is permissible to refer to the record of conviction for the limited purpose of determining under which part of the divisible statute the respondent has been convicted).

A. !NA § JOJ(a)(43)(U)

A finding of removability based on an aggravated felony under IN A§ 101(a)(43)(U) requires the government to demonstrate by clear and convincing evidence that (1) the alien was convicted of engaging in a "conspiracy" within the meaning of section 10l (a)(43)(U) of the Act; (2) that at least one of the unlawful acts that was the object of the conspiracy was an offense involving an aggravated felony; and (3) any other aspect of the ground of deportation occurred or was contemplated. Matter of S-1-K, 24 I&N Dec. 324, 327 (BIA 2007).

Since the term "conspiracy" is not defined in the Act, it is presumed that Congress intended to adopt the common law meaning of that term. Matter of Richardson, 25 l&N Dec. 226 (BIA 2010),

citing U.S. v. Shabani, 513 U.S. 10 (1994). In this regard, the Supreme Court has repeatedly held that ''the essence of a conspiracy is ' an agreement to commit an unlawful act."' E. g., United States
v. Jimenez Recio. 537 U.S. 270, 274 (2003) (quoting Iannelli v. United States. 420 U.S. 770, 777 2

(1975), and citing United States v. Shabani, 513 U.S. at 16)...

Therefore, while a conspiracy

conviction in some states may require an overt act, the term "conspiracy" in section 101(a)(43)(U) of the Act is not limited to conspiracies that require the commission of an overt act in furtherance of the conspiracy by one of the conspirators. Matter of Richardson, 25 I &N Dec. at 226.

B. INA§ IOI(a)(43)(M)(i)

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An aggravated felony under INA§ 10l(a)(43)(M)(i) has two distinct elements: (1) it must be a crime that "involves fraud or deceit," (2) "in which the loss to the victim or victims exceeds $10,000."
a.

"involvesfraud or deceit"

In Valansi v. Ashcroft, the Third Circuit examined whether the phrase "offense that-involves fraud or deceit" has a plain meaning. 278 F.3d 203 (3d Cir. 2002). It held:

that the word "involves" means "to have within or as part of itself' or "to require as a necessary accompaniment." Webster's Third New International Dictionary at 1191. Thus, an offense that "involves fraud or deceit" is most naturally interpreted as an offense that includes fraud or deceit as a necessary component or element. I t does not require, however, that the elements of the offense be coextensive with the crime of fraud.

Id. at 209-1O; see also Bobb v. Att'y Gen, 458 F.3d 213, 218 (3d Cir. 2006) ("[W]e have held that
subsection (M)(i) covers all offenses that have as an essential element an intent to defraud or deceive."); Ki Se Lee v. Ashcroft. 368 F.3d 218, 222 (3d Cir. 2004) ("Subsection (M)(i) has a general application-the gamut of state and federal crimes involving fraud and deceit causing losses over $10,000.").

b.

"in which the loss to the victim or victims exceeds $10,000"

To determine whether the alien's offense involved a loss to a victim(s) exceeding $10,000, courts must use a "circumstance-specific" approach. Niihawan v. Holder. 557 U.S. 29 (2009); 3

Kaplun v. Att'y Gen, 602 F.3d 260, 265 (3d Cir.2010), wherein the loss must be "tethered" to the actual "offense of conviction," not "acquitted or dismissed counts or general conduct," Nijhawan. 129 S.Ct. at 2302; Alaka v. Att'y Gen., 456 F.3d at106-08 (3d Cir.2006).

B. Respondent's Conviction
The respondent was convicted for the offense of Conspiracy to Sell Contraband Cigarettes in violation of 18 U.S.C.§ 371, which states:

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If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. 18 U.S.C.A.§371. Respondent pleaded guilty to Count 1 of the Information, which indicates that the offense underlying his conspiracy conviction was 18 U.S.C. §2342(a), which states: It shall be unlawful for any person knowingly to ship, transport, receive, possess, sell, distribute, or purchase contraband cigarettes or contraband smokeless tobacco. 18 U.S.C.A.§2342. See Exhibit 2-C. The respondent first argues that, in order to determine if his conviction involves fraud or deceit, the "modified categorical approach" must be applied to§ 371 because the statute is divisible in that a person can conspire to either (1) commit an offense against the United States or (2) defraud the United States. See Respondent's Motion. He further argues that the only portion of the statute that contains an element of fraud is under the latter portion, conspiracy to defraud, and by looking at the conviction record, it is evident that his conviction does not fall under the conspiracy to "defraud the United States." By contrast, he argues that the categorical approach must be applied to 18 U.S.C. § 2342 given that the statute does not contain any element of fraud or deceit. Government counsel, however, argues that the respondent's conviction is of essence a conviction involving tax invasion, and consequently involves fraud and deceit. See OHS Brief. Respondent is correct that the modified categorical approach must be applied to § 371 because the statute contains elements which may or may not constitute fraud or deceit. Consequently, the Court must look to the record of conviction to make its determination. The "Judgment in Criminal Court" states that respondent was adjudged guilty of Count 1, Conspiracy to Sell Contraband Cigarettes. However, in order to determine which element of§371 respondent in fact was convicted for, the court must look to the Plea Agreement for assistance. The Plea Agreement states the respondent pleaded guilty to Count 1, and further states: I [Respondent] knowingly and willfully conspired with other persons to knowingly ship, transport, receive, possess, sell, distribute, and purchase contraband cigarettes, as the term as defined in Title 18, United States Code, Section 2341, to wit: a quantity of more than 4

10,000 cigarettes which bore no evidence of the payment of applicable State cigarette taxes, in violation of 18 U.S.C.§2342(a), all in violation of 18 U.S.C.§371.

See exhibit 2-C at Plea Agreement. p.1. By looking at this statement, it is concluded that respondent
pleaded guilty to "conspiracy to commit an offense against the United States" because the actions taken by the respondent were in violation of 18 U.S.C. §2342(a), which is the underlying offense. While the agreement states that taxes were not paid on these cigarettes, the Plea Agreement does not reflect any intent to defraud the United States. Therefore, this court must further analyze the

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statutory elements of 18 U.S.C.§ 2342(a) to determine if respondent's underlying offense involves fraud or deceit. In accordance with Valansi v. Ashcroft, supra, the Court employs the categorical approach to 18 U.S.C.§ 2342(a), and cannot go beyond the statutory language. Because none of the elements in this statute involves fraud or deceit, a conviction under 18 U.S.C. §2342(a) is not an aggravated felony offense for fraud or deceit as defined in INA §10l (a)(43)(M)(i). § 101(a)(43)(M)(i), the amount of loss to the victim is not relevant. Since respondent's conviction does not involve fraud or deceit as required for an aggravated felony as defined in INA Furthermore, because respondent's conviction does not meet the definition of an aggravated felony under INA § 10l (a)(43)(M), it therefore cannot constitute an attempt or conspiracy to commit an aggravated felony under INA§ 10l (a)(43)(U). The grounds of aggravated felony will therefore be dismissed.

2. Crimes Involving Moral Turpitude (CIMT) a. Legal Standard
In order to constitute morally turpitudinous behavior, the act must be reprehensible and involve some form of scienter-consciousness or deliberation. Matter of Silva-Trevino, 24 I &N Dec. 687 (A.G. 2008); Partyka v. Att'y Gen., 417 F.3d 408, 414 (3d Cir. 2005). Moral turpitude "refers generally to conduct which 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. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong. Matter of Franklin, 20 I &N Dec. 867, 868 (BIA 1994) (citations omitted). As the Board has observed, "[t]he test to determine if a crime involves moral turpitude is whether the act is accompanied by a motive or corrupt mind." Matter of Flores, 17 l&N Dec. 225 (BIA 1980). Moral turpitude "contains an honesty component ... which includes conduct that is contrary to justice, honesty, or morality." Smriko v. Ashcroft, 387 F.3d 279, 283 (3d Cir. 2004). In determining whether a state law conviction constitutes a CIMT, the Board and the Third Circuit have historically applied a "categorical" approach, "focusing on the underlying criminal statute 'rather than the alien's specific act."' Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004) (quoting Deleon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002)). Thus, as reiterated in Jean-Louis v. Att'y Gen., 582 F.3d 462 (3d Cir. 2009), the Third Circuit "look[s] to the elements of the statutory state offense, not to the specific facts." Knapik v. Ashcroft, 384 F.3d at 89 (quoting Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003)). 5

When a statute is "divisible," meaning that it prohibits several different types of conduct, we "look to the record of conviction to determine whether the alien was convicted under [a] part of the statute [which] defin[es] a crime involving moral turpitude.'' Partyka, 417 F.3d at 411. When no subsection is specified in the record of conviction, the court begins its categorical inquiry with the subsection requiring the "least culpability." Id. Accordingly, a crime involves moral turpitude when ''the least culpable conduct necessary to sustain a conviction under the statute" can be considered morally turpitudinous. Id.

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Documents comprising a respondent's record of conviction and thus admissible include the Information, charge or indictment, plea, verdict or judgment, sentence, and transcript from proceedings of arraignment. Matter of Teixeira, 21 I&N Dec. 316, 319 (BIA 1996); 8 C.F.R. § 1003.41. See also Partyka v. Att'y Gen., 417 F.3d 408, 414 (3d Cir. 2005) (record of conviction includes the "indictment, plea, verdict, and sentence"). The modified categorical approach has been applied even when clear sectional divisions do not delineate the statutory variations in order to determine the least culpable conduct sufficient for conviction, and where a CIMT is asserted, measures that conduct for depravity. Garcia v. Att'y Gen., 462 F.3d 287 (3d Cir. 2006). A court applying the modified categorical approach may only consider the charging document to the extent that the petitioner was actually convicted of the charges. Evanson v. Att'y Gen., 550 F. 3d 284, 293 (3d Cir. 2008).
b.

Respondent's Convictions

(1) Conviction forConspiracy to Sel/ContrabandCigaretles under 18 U.S.C. §371 and 18 us.c. §2342.
As discussed previously, respondent was convicted of conspiring to sell contraband cigarettes in violation of 18 U.S.C.§371, and the underlying regulatory offense was Trafficking in Contraband in violation of 18 U.S.C."§2342(a). Government counsel argues that this conviction is a CIMT because it involves fraud or deceit. See DHS Brief at 7. While government counsel recognizes that fraud or deceit are not express elements of the offense, he argues these offenses relate to an evasion of cigarette tax, which is a CIMT. Trafficking in Contraband in violation of 18 U.S.C. §2342(a) penalizes a person who

knowingly ships, transports, receives, possesses, sells, distributes, or purchases contraband cigarettes.
Notwithstanding, the court concurs with respondent that his crime is not morally turpitudinous because it is a regulatory statute designed to regulate the taxes, licensing and administrative requirements for commercial distributors of cigarettes, and furthermore, it lacks the requisite evil

intent needed to be per se morally reprehensible and intrinsically wrong.
The following Board decisions dictate against a finding of a CIMT in this instance: Matter of G-. 7 l&N Dec. 114 (BIA 1956), where the Board held that a conviction for the "possession and transportation of distilled spirits without tax stamps affixed thereto" in violation of "licensing and . regulating provisions of the Internal Revenue Code" was not a CIMT, because the "violation of 6

J

statutes which merely license or regulate and impose criminal liability without regard to evil intent do not involve moral turpitude." Id at 115, 118 (emphasis added). Even a knowing violation of the tax statute, then, would not be enough to transform a regulatory offense into a CIMT; Matter of J-, 2 l&N Dec. 99, I 04 (BIA 1944)(holding that a conviction under a federal statute prohibiting the sale of alcohol to Native Americans was not a CIMT because "[r]egulatory enactments of this nature do not create crimes involving moral turpitude."); Matter of V-. I I&N Dec. 293, 294 (BIA 1942)(holding that a conviction under the federal Narcotic Drugs Import and Export Act of 1909, which penalized "knowingly importing or participating in the importation of narcotic drugs," was

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not a CIMT because the Act "is a regulatory act and that the violation of it is therefore not a crime involving moral turpitude"); Matter of G-, I l&N Dec. 59, 62 (BIA 1941 )(holding that gambling in violation of New York's gaming law was a regulatory offense and so not a CIMT). Furthermore, the lack of a sufficiently evil intent also played the decisive role in Goldeshtein v. INS. 8 F.3d 645 (9th Cir.1993), where the court held that the regulatory offense of "willfully" structuring financial deposits in order to prevent a bank from filing currency reports in violation of federal law is not a CIMT, because "evil intent"-as opposed to willfulness or knowledge that the conduct is unlawful-is not
an

element of the crime. Id. at 648. The Board adopted Goldeshtein as

its rule nationwide in Matter ofL-V-C-, 22 I&N Dec. 594, 603 (BIA 1999), holding that a violation of the structuring statute involves "no per se morally reprehensible conduct." Furthermore, the legislative history of the Contraband Cigarettes Trafficking Act (CCTA), P.L. 95-575 (92 Stat. 2464), from which 18 U.S.C.§ 2342 is derived, exhibits the intent of Congress to enact legislation regulating the sale of cigarettes. See generally 1978 U .S.Code Cong. & Ad.News 5518. In order to be convicted under 18 U.S.C.§ 2342, the government is not required to show any evil intent. Instead, it is only required to show that the respondent knew the physical nature of what he possessed, "a quantity in excess of 60,000 cigarettes which [bore] no evidence of the payment of applicable state cigarette taxes." United States v. Elshenawy, 801 F.2d 856, 859 (6th Cir. 1986). Thus, in the present case, the government is not required to prove respondent knew that the State requires that cigarette taxes be paid, or that he knew that the truces had not been paid. It is sufficient that respondent knowingly possessed cigarettes the taxes of which has not been paid. Consequently, respondent's conduct is ma/um prohibitum in nature since it is merely prohibited by the law, rather than ma/um in se, being inherently wrong. Therefore, absent any conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality, respondent's conviction under 18 U.S.C. § 2342(a) is not a CIMT. Conclusion

7

Based on the foregoing, the court is constrained to concur with respondent that the government has failed to meet its burden of proof to establish a violation of either INA § 237(a)(2)(A)(iii), or INA§ 237(a)(2)(A)(ii).1 The motion to terminate will be granted.

Order: These removal proceedings are hereby terminated.

Immigrant & Refugee Appellate Center | www.irac.net

Walter A. Durling Immigration Judge April 4, 2013

1 While the court concurs that respondent's conviction for attempting to obstruct governmental administration is a

CIMT, Matter of Flores, 17 I&N Dec. 225 (BIA 1980), this singular conviction cannot stand because it was committed more than five years after his admission to the United States.

8

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