27 I. & N. Dec. 733
BIA2020Background
- Respondent Haji Osman Salad, a Somali native and U.S. lawful permanent resident, was convicted in 2010 of burglary (Minn. §609.582), making terroristic threats (Minn. §609.713, subd. 1), and giving a false name to a police officer.
- An Immigration Judge found Salad removable under INA §237(a)(2)(A)(ii) based on two or more crimes involving moral turpitude (CIMT) and denied relief.
- The Department of Homeland Security (DHS) appealed the IJ’s ruling that Minnesota’s terroristic‑threats statute was not categorically a CIMT; Salad challenged removability by arguing that giving a false name is not a CIMT.
- Salad later moved to remand and terminate proceedings, asserting two convictions had been vacated; DHS opposed termination and lodged an additional aggravated‑felony charge on appeal.
- The Board of Immigration Appeals sustained DHS’s appeal, held Minnesota’s terroristic‑threats statute (Minn. §609.713(1)) is categorically a crime involving moral turpitude, vacated the IJ decision, and remanded for further proceedings on removability and any amended charges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Minn. §609.713(1) (terroristic threats) is categorically a crime involving moral turpitude | DHS: Yes — threats made with purpose to terrorize, or in reckless disregard, are reprehensible and carry culpable mental state | Respondent/IJ: No — IJ had found some conduct under the statute (e.g., threats tied to certain listed "crimes of violence") might not be CIMT | Held: Yes. The Board held the statute is categorically a CIMT; reprehensibility inheres in the communicated threat and in threats to cause evacuation/serious public inconvenience, independent of the underlying threatened crime. |
| Whether giving a false name to police is a CIMT (challenge to removability) | Respondent: Giving a false name is not a crime involving moral turpitude | DHS: Relied on the IJ’s initial removability finding that included this conviction | Held: Not finally decided by the Board here; the record was remanded to the IJ to address removability and the current status of convictions (including any vacaturs). |
| Whether proceedings should be terminated because convictions were vacated and whether DHS’s lodged additional aggravated‑felony charge should stand | Respondent: Vacatur requires termination or remand with instructions to terminate | DHS: Opposed termination; lodged an additional aggravated‑felony charge and sought remand for IJ findings | Held: Board declined to terminate; remanded to the IJ to consider the vacatur evidence, current status of convictions, and any amended charges. |
Key Cases Cited
- Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir. 2004) (threats made with purpose to terrorize fall within offenses requiring vicious motive/evil intent)
- Avendano v. Holder, 770 F.3d 731 (8th Cir. 2014) (reckless disregard can satisfy scienter for moral turpitude in threat statutes)
- Moncrieffe v. Holder, 569 U.S. 184 (U.S. 2013) (categorical approach; realistic‑probability test)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (U.S. 2007) (limits use of legal imagination in categorical analysis)
- Javier v. Att’y Gen. of U.S., 826 F.3d 127 (3d Cir. 2016) (focus on the communication of the threat and scienter, not the underlying threatened offense)
- United States v. McFee, 842 F.3d 572 (8th Cir. 2016) (discussing indivisibility of Minnesota’s "crime of violence" definition in a related statutory context)