Circuit Split: Looking Beyond The Record To Determine Whether A Conviction Involves "Moral Turpitude"

The Ninth Circuit joins the Third, Fourth and Eleventh Circuits in rejecting an Immigration Judge's look outside the record to determine if an acknowledged conviction was one "involving moral turpitude" under the immigration laws, creating a split from the Seventh and Eighth Circuits which have not rejected application of the Attorney General’s decision in Matter of Silva-Trevino, 24 I&N Dec. 287 (AG 2008), that in alien removal proceedings the administrative court may rely on alleged facts about the alien's criminal conduct that were never established in the criminal case record, in Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir. May 17, 2013) (No. 10–72459)

The Federal Evidence Blog has considered a variety of cases exploring the differing evidence protocols that often apply in the context of administrative law proceedings, such as immigration. See, e.g., Newspapers Were Self-Authenticating Under FRE 902(6) (corroboration of the murder of petitioner’s father in newspaper articles, which were self-authenticating under FRE 902(6)). The Ninth Circuit's recent decision in Olivas-Motta v. Holder, provides another example of how statutory law affects the evidence that is admissible in the administrative law context.

In the case, the Department of Homeland Security (DHS) alleged that alien Olivas-Motta was a permanent resident subject to removal, pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) (admitted alien shall be removed if the alien has been “convicted of two or more crimes involving moral turpitude”). DHS cited two state-law convictions suffered by the alien. The first conviction, in 2003 for facilitating unlawful possession of marijuana, was clearly defined as a Crime Involving Moral Turpitude ("CIMT"). The second conviction in 2007 was a bit more difficult to pin down. The record indicated the alien had “committed endangerment by recklessly endangering another person with a substantial risk of imminent death." Yet, this conviction made no findings that this was a CIMT. The immigration law judge winded up reviewing police reports containing information about the alien's conduct in an effort to resolve the nature of the defendant's second conviction. In using this material outside the record, the judge concluded that "Olivas–Motta had been 'convicted of' a [second] CIMT and was therefore removable." Olivas-Motta, 716 F.3d at __.

The Ninth Circuit, disagreeing with this approach, granted the alien's petition and remanded the case. The circuit had "explicitly rejected ... that we may look to conduct that an alien 'committed' to determine the acts he has been 'convicted of.'" Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004) ("We are required to determine whether Tokatly has been 'convicted of a crime of domestic violence'—not whether he in fact committed such a crime...."). But this was precisely what the circuit seemed to fear was happening in Olivas-Motta's case. The immigration judge there erred, according to the circuit, by giving effect to the Attorney General's guidance from Matter of Silva-Trevino, 24 I&N Dec. 287 (AG 2008), that if unable to categorically (or by use of a modified categorical approach) determine whether a conviction was a CIMT, the immigration judge could go outside the record. Olivas-Motta v. Holder, 716 F.3d at __.

The circuit concluded that Silva-Trevino's, application so as to allow the immigration judge, in the absence of using more categorical means, to "consult evidence outside the record of conviction in determining whether an alien has been 'convicted of' a CIMT," was erroneous. The circuit was reinforced in this determination by noting that it would join "[t]hree of our sister circuits agree that Silva–Trevino was wrongly decided." The Ninth Circuit cited a recent case from each of the three circuits to this effect, including:

  • Third Circuit: Jean–Louis v. Attorney Gen., 582 F.3d 462, 477 (3d Cir. 2009) (the entire phrase “crime involving moral turpitude” is a “term of art” so that "[i]t could not be clearer from the text of the statute—which defines 'conviction' as a “formal judgment of guilt,” and which explicitly limits the inquiry to the record of conviction or comparable judicial record evidence—that the CIMT determination focuses on the crime of which the alien was convicted—not the specific acts that the alien may have committed.")
  • Fourth Circuit: Prudencio v. Holder, 669 F.3d 472, 482 (4th Cir. 2012) ("[W]e conclude that the plain language of the moral turpitude statute is not ambiguous. Because the relevant statutory language refers only to convictions, not to conduct or to “committing” acts, there is no uncertainty in the statutory language created by the use of the phrase “convicted of” in the same statute as the words “committing” and “involving.” Thus, in a case such as the present one in which the only issue is the alien's prior conviction, the statute unambiguously directs that an adjudicator consider only the conviction itself, and not any underlying conduct.")
  • Eleventh Circuit: Fajardo v. U.S. Atty. Gen., 659 F.3d 1303, 1309-10 (11th Cir. 2011) (the phrase “convicted of” is unambiguous, explicitly agreeing with the Third Circuit that the phrase “crime involving moral turpitude” is a “term of art” describing a generic crime, and therefore resort to evidence outside the record is unwarranted)
Olivas-Motta v. Holder, 716 F.3d at __.

The Ninth Circuit also noted two other circuits with a different approach, as "both permit the IJ to consider evidence outside the record of conviction to determine whether an alien has been convicted of a CIMT." The circuit cited as support for this contention:

  • Seventh Circuit: Ali v. Mukasey, 521 F.3d 737, 741 (7th Cir. 2008) (with respect to “crimes involving moral turpitude,” there are two questions a court must answer: first, “the fact of the prior conviction,” for which the IJ cannot go outside the record of conviction, and second, “the appropriate classification of that conviction, which may require additional information.”) The Ninth circuit interpreted this to mean that "moral turpitude is not an element of the generic offense of a CIMT that can be proved only by evidence in the record of conviction, but rather a descriptive circumstance added to the separately defined particular crime of which the petitioner has actually been convicted.")
  • Eighth Circuit: Bobadilla v. Holder, 679 F.3d 1052, 1055 (8th Cir. 2012) ("Because ‘moral turpitude’ is not an element of any criminal offense,” the IJ can look beyond the fact of conviction to the circumstances of the crime to determine whether moral turpitude was involved.)
Olivas-Motta v. Holder, 716 F.3d at __.

In light of this analysis, the Ninth Circuit concluded:

We agree with the Third, Fourth, and Eleventh Circuits that the relevant provisions of the INA are not ambiguous and that we do not owe Chevron deference to the Attorney General's opinion in Silva–Trevino. A “crime involving moral turpitude” is a generic crime whose description is complete unto itself, such that “involving moral turpitude” is an element of the crime. Because it is an element of the generic crime, an IJ is limited to the record of conviction in determining whether an alien has been “convicted of” a CIMT. We conclude that Silva–Trevino was wrongly decided, and that the IJ and the BIA improperly considered evidence beyond the record of conviction in holding that Olivas–Motta was “convicted of” a “crime involving moral turpitude.”
Olivas-Motta v. Holder, 716 F.3d at __.

While concurring in the result, Judge Kleinfeld explained that the panel was going too far, so that " I respectfully disagree ... with the majority's wholesale rejection of deference to the Attorney General's opinion [in Silva–Trevino]. We owe deference to the agency charged with construing the statute. The Attorney General's opinion, reasonably construed, is not arbitrary or capricious. We need not decide in this case whether to accept or reject the opinion, because it was misapplied." Olivas-Motta v. Holder, 716 F.3d at __. One aspect of the concurrence's view redefined the isse and noted the logic of the FRE:

We need decide only whether police reports are “reasonable, substantial, and probative evidence” that can prove by “clear and convincing evidence” that Olivas–Motta committed a crime involving moral turpitude. We need not decide more generally whether Silva–Trevino merits Chevron deference.

It has long been clear that police reports are not generally “reasonable, substantial, and probative evidence” of what someone did. Despite their liberality toward public and business records, the Federal Rules of Evidence expressly make an exception, excluding police reports as evidence in criminal cases.
Olivas-Motta v. Holder, 716 F.3d at _ (citing FRE 803(8)(A)(ii)).

In connection with the FRE, the concurring judge particularly noted:

A police report is a device useful for many purposes, such as recording a contemporaneous recollection of what the officers observed and what they understood people to have told them. A police report usefully guides further investigation. The report helps prosecutors and defense lawyers locate useful witnesses. But police reports are not especially useful instruments for finding out what persons charged actually did. All the defects of hearsay, double hearsay, and triple hearsay apply, since people may speak to the police despite lack of personal knowledge and lack of adequate observation, may be misunderstood, and what they say may be misreported. People sometimes lie or exaggerate when they talk to the police.
Olivas-Motta v. Holder, 716 F.3d at __ (citing Prudencio, 669 F.3d at 483–84 (“[P]olice reports ... often contain little more than unsworn witness statements and initial impressions.... Further, because the[y] are generated early in an investigation, they do not account for later events, such as witness recantations, amendments, or corrections.”)).

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