Crime Involving Moral Turpitude | The Insightful Immigration Blog

In Kovacs v. United States, the United States Court of Appeals for the Second Circuit reversed a lower district court’s decision denying a writ of error coram nobis to vacate a 1999 guilty plea to misprision of felony on the ground that his lawyer rendered ineffective assistance.

While the outcome of the Second Circuit’s decision is extremely beneficial for the petitioner Stephen Kovacs, who would otherwise suffer adverse immigration consequences, it does not appear that his attorney Robert Fink rendered ineffective assistance. When Kovacs, a lawful permanent resident, took the guilty plea for misprision of felony in 1999 it was not considered a crime involving moral turpitude, and would not have then resulted in adverse immigration consequences. Indeed, after taking the plea in 1999, Kovacs, an Australian national, continued to travel internationally without incident when in 2009 immigration officials questioned his ability to reenter the country on the ground that misprision of felony is considered a crime of moral turpitude.

The writ of coram nobis is an extraordinary remedy that is sought to correct errors, such as a criminal conviction, based on the following three factors: 1) there are circumstances compelling such action to achieve justice, 2) sound reasons exist for failure to seek appropriate earlier relief, and 3) the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting the writ. See Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996).

Kovacs’ key argument for why he deserved to be granted the writ of coram nobis is that his attorney at that time, when he took the guilty plea for misprision of felony, was ineffective under Strickland v. Washington, 466 U.S. 668 (1984). A claim of Strickland ineffectiveness involves a demonstration that: 1) the defense counsel’s performance was objectively unreasonable; and 2) the deficient performance prejudiced the defense.

The Second Circuit agreed that Fink’s representation of Kovacs, when he took the guilty plea for misprision of felony, was ineffective under the Strickland test. The Court relied on United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002), which held that an affirmative misrepresentation of the deportation consequences of a guilty plea fell outside the range of professional competence and thus met the Stricklandtest.

There is, however, surprisingly no discussion in the Court’s decision on why Fink’s assistance of Kovacs was ineffective in 1999. It was only in 2006 when the Board of Immigration Appeals in Matter of Robles, 24 I&N Dec. 22 (BIA 2006) determined that a misprision of felony conviction under 18 U.S.C. §4 was a crime involving moral turpitude. In 1999, when Kovacs took the misprision plea, the BIA’s holding in Matter of Sloan, 12 I&N Dec. 840 (A.G. 1968, BIA 1966), established that misprision of felony was not a crime involving moral turpitude. Matter of Sloan was only overruled by Matter of Robles many years later! Robles also retroactively applied to non-citizens previously convicted of misprision of felony. Any competent and diligent attorney in 1999 could have relied on Matter of Sloanin advising the non-citizen client to take a plea for misprision for felony as it did not have adverse deportation consequences at that time. To make this more bizarre, the Ninth Circuit in Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir.2012), ultimately overturned the BIA in the same case by holding that misprision is not categorically a crime involving moral turpitude because it does not require a specific intent to conceal the felony, but only knowledge of the felony. Therefore, based upon an analysis of minimal conduct necessary to be implicated under the misprision statute, the Ninth Circuit held that such conduct is not inherently base, vile or depraved to be considered morally turpitudinous. Even if a Circuit Court has overruled a BIA decision, it would only be inapplicable within the jurisdiction of that Circuit Court, which in Robles-Urrea is the Ninth Circuit, but the overruled BIA decision is still applicable everywhere else in the country.

The grant of a writ of coram nobis is undoubtedly a wonderful outcome for Kovacs whose circumstances were very sympathetic, but the question is whether his attorney was ineffective in 1999, and affirmatively misrepresented the deportation consequences so as to be judged to have rendered ineffective assistance. This did not appear to be the case on the part of his attorney under Matter of Sloan, the precedential decision at that time. Moreover, the holding in Matter of Sloan is still considered good law in the Ninth Circuit. Perhaps there may have been some sort of strategic collusion here that is not readily apparent to an objective reader of the decision. Fink may have wanted to help his former client and did not come in the way. The government also may not have wanted to impede the retroactive applicability of Matter of Robles. When an attorney’s incompetence is not so clear cut, the non-citizen affected by the criminal conviction may consider seeking alternative remedies such as challenging the retroactive holding of the BIA. It may sometimes be impermissible for an agency to make a retroactive ruling that affects reasonable reliance interests. SeeHeckler v. Community Health Servs. of Crawford County, Inc., 467 U.S. 51, 60 n.12 (1984), Miguel-Miguel v. Gonzales, 500 F.3d 941, 950-953 (9th Cir. 2007), Lehman v. Burnley, 866 F.2d 33, 37-38 (2d Cir. 1989). If the plea occurred before the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), then non-citizen LPRs who have been convicted of crimes involving moral turpitude can still be admitted if their trips overseas were brief, casual and innocent. See Vartelas v. Holder, 132 S. Ct. 1479 (2012). If the conviction occurred after the passage of IIRIRA, then a non-citizen may still seek a waiver under INA 212(h) to overcome the inadmissibility caused by the crime of moral turpitude.

This is not to suggest that non-citizens should be reluctant to seek to vacate their criminal convictions based on ineffective assistance of counsel. In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court allowed a non-citizen’s plea to be vacated upon ineffective assistance of counsel when his attorney did not advise him about the immigration consequences of his plea. Later, in Chaidez v. United States, 133 S. Ct. 1103 (2013), the Supreme Court clarified that Padilla would not be applied retroactively to criminal cases that were already final when Padilla was decided. However, Chaidez’s preclusion against retroactivity is inapplicable when the attorney affirmatively misadvised the non-citizen about the immigration consequences of the criminal plea, as was the case in Kovacs, rather than fail to provide any advice. Still, that advice ought to have been wrong before an ineffective assistance claim can pass muster. While an attorney who is found to have rendered ineffective assistance in the criminal context will likely not be disciplined, one would not want to be publicly found by a Court of Appeals to have been incompetent and rendered ineffective assistance several years later just because the law changed retroactively. An attorney, besides being expected to thoroughly research the prevailing law at a given point in time, ought not to be expected to gaze into a crystal ball to determine whether the law can change many years later in order to avoid being ambushed by an ineffective finding!

By Myriam Jaidi

In a fascinating recent decision (courtesy of attorney Stephen Heller), the Office of Administrative Appeals determined that a visa waiver applicant is not expected to know the meaning of a “crime involving moral turpitude” (“CIMT”), with the welcome recognition that “the term ‘moral turpitude’ is not in common usage and it is unlikely that the average person is aware of its meaning and application in U.S. immigration law.” Amen to that. The case involved an individual who had initially been denied a waiver of inadmissibility for “willfully misrepresenting” on his Form I-94W (the Nonimmigrant Visa Waiver Arrival/Departure Record, which requested biographic information and answers to a series of unfortunate questions) that he had not been convicted of a CIMT. Although the AAO determined that the individual had in fact been convicted of a CIMT, it also found that he could not be expected to know that and should therefore not be found inadmissible for not stating it on the form.

Since 2008, instead of having to complete a Form I-94W, travelers from Visa Waiver countries to the United States must answer the same set of bizarre questions to obtain permission to travel to the United States via the Electronic System for Travel Authorization (“ESTA”). In his New York Times Op-Ed piece “How Not to Attract Tourists”, writer and airline pilot Mark Vanhoenacker perfectly captures the absurdity of many of the questions on the form quipping, “Naturally, no one with anything to hide will answer honestly.” I would add that with regard to the question “have you ever been arrested or convicted for an offense or crime involving moral turpitude . . . ” it is nearly impossible for the average person to answer at all.

Courts have long recognized that a CIMT is a “nebulous concept” and the determination of whether a crime is a CIMT depends on the judge, the wording of the particular statute at issue , and whether the judge applies the “categorical approach” (which requires consideration of the minimal conduct implicated by a penal law)or “modified categorical approach” (where the categorical approach does not yield an answer because a criminal statute includes offenses that fall outside the generic criminal category, this approach allows consideration of the record of conviction for clarification), among other things.

Take drug possession for example (though note that an arrest or conviction involving drugs will cause you a whole host of problems with trying to gain permission to enter or to remain in the United States outside the CIMT context, see here for an explanation). In its response to the question “How do I correct a mistake on my ESTA application”, ESTA includes “possession of narcotics” in its parenthetical summarizing CIMTs: “If you discover that you are not eligible to come to the U.S. under the visa waiver program because of a CIMT (such as fraud, or possession of narcotics) . . .” As an aside it is funny that the sentence starts with “if you discover” — how one is supposed to make such a discovery is not clear, especially given the extraordinary complexity of CIMTs and the disagreement among Circuit Courts with regard to how to determine whether something is a CIMT. Anyway, back to drug possession. The Board of Immigration Appeals has found that simple drug possession is not a CIMT, see, e.g., Matter of Abreu-Semino, 12 I & N Dec 775 (BIA 1968) – so tossing that general “possession of narcotics” in the parenthetical is inaccurate. On the other hand, drug possession with intent to sell or trafficking in narcotics has been found to be a CIMT. Another example of a CIMT given on the ESTA website is theft – but as noted in a previous blog by Cyrus Mehta, theft is not always a CIMT either!

Mr. Vanhoenacker’s assessment of the “uninviting” nature of the ESTA website rings true, especially with respect to individuals trying to get a sense of what a CIMT might be so that they can try to answer the question if they have been arrested or convicted of something (two other kettles of fish there on those two legal terms – “arrested” and “convicted”.). To be fair, ESTA’s website offers a help page providing guidance on various topics. Given there are 773 results accessible from the page, anyone trying to understand what a crime involving moral turpitude might be should search “CIMT” in the search box at the top of the page. This yields a much more manageable 4 results (though misses a fifth result and perhaps other questions where addressing CIMTs), but each result provides a slightly different summary of a CIMT, as noted above, and directs the reader to two different sections of the Foreign Affairs Manual(“FAM”) – the 8 pages of related statutory provisions in 9 FAM 40.21(a), rather than the apparently promised “list of crimes of moral turpitude”, and the other the 26 pages of 9 FAM 40.21(a) Notes providing further legal background on CIMTs, but researcher beware – the FAM is not precise with regard to CIMTs either, though it does provide a lot of information. It is unreasonable to expect the average person in a foreign country to analyze that information under the applicable United States law (9 FAM 40.21(a) N2.1 states “The presence of moral turpitude in a statutory offense is determined according to United States law”) and formulate an answer.

Obviously, the questions are there for various reasons including security, but including unanswerable questions like the one regarding CIMTs (not to mention the other absurd questions) in an automated questionnaire does not promote the security goal, as Mr. Vanhoenacker so aptly demonstrates. Any error could result in an unfair denial and significant inconvenience to a would-be traveler. If someone answers incorrectly by mistake and gets denied, his or her options are to email Customs and Border Protection, seek redress from the Department of Homeland Security’s Travel Redress Inquiry Program (DHS/TRIP), or to apply for a visa at a U.S. consulate. None of these options are likely to allow a traveler with ticket in hand to take her trip as planned.

If inquiries regarding criminal background must be included in the ESTA system, a better model might be to include a more simple question like this one from the Form N-400, Application for Naturalization: “Have you ever been convicted of a crime or offense,” include a drop down box to allow an explanation, and have applications ticked “yes” automatically sent to CBP for quick review without requiring the person to email or seek redress. This may make the system a touch more inviting and comprehensible.