971 F.3d 96
2d Cir.2020Background
- Petitioner Aderito Ferraz Mota, a lawful permanent resident, pleaded guilty to two counts of felony possession of narcotics with intent to sell under Connecticut Gen. Stat. § 21a-277(a)(1) based on 2015–2016 arrests for crack cocaine.
- DHS charged Mota as removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having two or more crimes involving moral turpitude (CIMTs) not arising from a single scheme.
- The BIA affirmed the removal charge, reasoning the statute requires knowingly unlawful distribution or possession with intent to distribute, and that unlawful drug distribution is inherently reprehensible.
- Mota argued his convictions are not categorical CIMTs because Connecticut’s broad definition of “sale” includes exchanges, gifts, or offers (e.g., gifting a small amount to a friend) that may lack morally reprehensible conduct.
- The Second Circuit applied the categorical approach, found the statute contains the requisite mens rea (intent/knowledge), and held unlawful distribution/possession-with-intent is inherently base and thus a CIMT.
- The petition for review was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether convictions under CGS § 21a-277(a)(1) are CIMTs | Mota: statute can reach non‑reprehensible conduct (gifts/offers), so not categorical CIMT | Gov't/BIA: statute requires intent to distribute/offer, so involves culpable mental state and reprehensible conduct | Convictions are CIMTs and removability upheld |
| Whether the statute satisfies the CIMT mens rea requirement | Mota: statute may cover conduct without evil intent | Gov't: statute explicitly requires intent to sell/dispense or to offer/give, meeting mens rea prong | Mens rea requirement met (knowing/intentional conduct) |
| Whether the breadth of Connecticut’s definition of “sale” defeats categorical analysis | Mota: broad definition (includes gifts/offers) creates hypothetical non‑reprehensible means | Gov't/BIA: categorical approach focuses on elements; even small/low‑value transfers can be morally culpable in distribution context | Breadth does not defeat CIMT classification under categorical approach |
| Whether Mendez v. Barr controls | Mota: Mendez held misprision lacks evil intent, so analogous | Gov't: Mendez turned on absence of intent element; here intent is explicit and distribution is reprehensible | Mendez inapposite; statute includes intent, so outcome differs |
Key Cases Cited
- Gill v. INS, 420 F.3d 82 (2d Cir. 2005) (review de novo of BIA’s finding that conviction elements constitute a CIMT)
- Mendez v. Barr, 960 F.3d 80 (2d Cir. 2020) (misprision of felony not a CIMT where statute lacks evil‑intent element)
- Mendez v. Mukasey, 547 F.3d 345 (2d Cir. 2008) (mens rea generally required for CIMT)
- Michel v. INS, 206 F.3d 263 (2d Cir. 2000) (minority/low‑value offenses can nonetheless be CIMTs)
- Carmona v. Ward, 576 F.2d 405 (2d Cir. 1978) (drug distribution’s social harm supports finding of moral turpitude)
- Rodriguez v. Gonzales, 451 F.3d 60 (2d Cir. 2006) (definition and scope of moral turpitude)
- Guevara-Solorzano v. Sessions, 891 F.3d 125 (4th Cir. 2018) (possession with intent to deliver is a CIMT)
- Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007) (drug trafficking offenses generally involve moral turpitude)