25 I. & N. Dec. 426
BIA2011Background
- Respondent Khanh Hoang VO is a Vietnamese native and U.S. permanent resident since 1989.
- Respondent was convicted in California in 1995 of grand theft and receipt of stolen property.
- Respondent was convicted in 1996 of attempted grand theft.
- DHS charged deportability under 8 U.S.C. § 1227(a)(2)(A)(ii) based on two or more crimes involving moral turpitude not arising from a single scheme.
- Immigration Judge found the 1995 convictions did not arise from separate schemes and that the 1996 attempt was not a CMT under § 237(a)(2)(A)(ii).
- Board sustained DHS appeal, reinstated removal, and remanded for further proceedings to consider relief from removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two 1995 convictions arose from separate schemes | VO | DHS | Affirmed that DHS failed to prove separate schemes; only one CMT may be considered |
| Whether an attempt crime can be a crime involving moral turpitude for § 237(a)(2)(A)(ii) purposes | VO adopts IJ reasoning that attempts are not considered under § 237(a)(2)(A)(ii) | DHS argues underlying moral turpitude in attempted grand theft should count | We hold that underlying CMT applies to attempts; VO deportable for both 1995 grand theft and 1996 attempted grand theft |
Key Cases Cited
- Matter of Katsanis, 14 I. & N. Dec. 266 (BIA 1973) (holds no distinction between substantive crime and attempt for moral turpitude)
- Matter of Awaijane, 14 I. & N. Dec. 117 (BIA 1972) (no distinction between crime involving moral turpitude and its attempt)
- Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992) (treats moral turpitude inhering in intent of the crime)
- Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007) (solicitation may support deportability where underlying crime involves MT)
- Caroleo v. Gonzales, 476 F.3d 158 (3d Cir. 2007) (attempted murder can be MT for removability)