Summary
The First Circuit held that Massachusetts General Laws chapter 272, section 16, prohibiting open and gross lewdness, is not categorically a crime involving moral turpitude under federal immigration law. Because the statute does not require proof of lewd or sexually motivated intent, the petitioner's two convictions under the statute did not make him deportable under 8 U.S.C. § 1227(a)(2)(A)(ii). The court granted the petition for review, reversed the Board of Immigration Appeals' decision, and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether Massachusetts General Laws chapter 272, section 16, categorically defines a crime involving moral turpitude under the Immigration and Nationality Act.
- Whether the First Circuit should reverse the BIA's legal determination rather than vacate and remand for further agency proceedings.
Holdings
- Section 16 is not categorically a crime involving moral turpitude because a conviction under the statute does not require proof of lewd intent or a sexual purpose.
- Reversal rather than remand for further agency consideration was appropriate because the issue was purely legal, subject to de novo review, did not implicate agency expertise, and required no fact-finding.
Key quotations
“On petition for review, we hold that § 16 is not a CIMT under the categorical approach. We thus grant the petition and reverse.” (3)
“Under the “categorical approach,” we determine whether a noncitizen's crime of conviction categorically involves moral turpitude by looking “only to the statutory definition of the offense, and not to the particular facts underlying the conviction.”” (4-5)
“For all these reasons, we hold that § 16 is not a categorical crime involving moral turpitude because a conviction under the statute does not require proof of lewd intent.” (19)
Factual background
Lucio Ivaldo Cabral Fortes Tomar, a citizen of Cape Verde, entered the United States as a lawful permanent resident in 2003. He was convicted twice under Massachusetts General Laws chapter 272, section 16, which prohibits open and gross lewdness and lascivious behavior. Following the second conviction, the government charged him as removable under 8 U.S.C. § 1227(a)(2)(A)(ii), based on two crimes allegedly involving moral turpitude.
Procedural history
The Department of Homeland Security charged Tomar, a lawful permanent resident, as removable after two Massachusetts convictions for open and gross lewdness under Massachusetts General Laws chapter 272, section 16. The immigration judge denied Tomar's motion to terminate the removal proceedings and ordered him removed. The Board of Immigration Appeals affirmed, concluding that section 16 categorically constitutes a crime involving moral turpitude. The First Circuit granted the petition for review, reversed the BIA's order, and remanded for further proceedings.
Remand instructions
The matter is remanded to the agency for further proceedings consistent with the opinion; Tomar's section 16 convictions may not serve as the basis for deportation under 8 U.S.C. § 1227(a)(2)(A)(ii) on the categorical-CIMT theory rejected by the court.