SALAD
FOR RESPONDENT: John Robert Bruning, Esquire, St. Paul, Minnesota
FOR THE DEPARTMENT OF HOMELAND SECURITY: Laura W. Trosen, Assistant Chief Counsel
BEFORE: Board Panel: MALPHRUS, Acting Chairman; LIEBOWITZ, Board Member; NOFERI, Temporary Board Member.
NOFERI, Temporary Board Member:
In a decision dated January 17, 2019, an Immigration Judge found the respondent removable under
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Somalia, who was admitted to the United States as a refugee in 2001 and adjusted his status to that of a lawful permanent resident on October 4, 2005. On June 15, 2010, he was convicted of burglary in violation of
During the pendency of the appeal, the respondent filed a motion to remand and terminate the proceedings, accompanied by supporting documentation. He argues that because the two convictions that the Immigration Judge found were for crimes involving moral turpitude have since been vacated by the Minnesota criminal courts, we should terminate his proceedings or remand with instructions to terminate. The DHS opposes termination and seeks a remand for the Immigration Judge to make findings in the first instance regarding the vacatur of those two convictions. With its opposition, the DHS also lodged an additional charge that the respondent is removable as an alien convicted of an aggravated felony under
We will address the unsettled issue appealed by the DHS. In light of our determination that the offense of making terroristic threats in violation of
II. ANALYSIS
A. Crimes Involving Moral Turpitude
To determine whether a particular offense involves moral turpitude, we employ the categorical approach, which requires us to focus on the elements of the offense and the minimum conduct that has a realistic probability of being prosecuted under the statute at issue, rather than the alien‘s actual conduct. Matter of Silva-Trevino, 26 I&N Dec. 826, 831 (BIA 2016); accord Gomez-Gutierrez v. Lynch, 811 F.3d 1053, 1058 (8th Cir. 2016). Under this
A crime involves moral turpitude if its elements require reprehensible conduct and a culpable mental state. Matter of Silva-Trevino, 26 I&N Dec. at 834; accord Alonzo v. Lynch, 821 F.3d 951, 958 (8th Cir. 2016). Conduct is “reprehensible” if it is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Matter of Leal, 26 I&N Dec. 20, 25 (BIA 2012) (citation omitted); accord Adame-Hernandez v. Barr, 929 F.3d 1020, 1022 (8th Cir. 2019) (quoting Guardado-Garcia v. Holder, 615 F.3d 900, 902 (8th Cir. 2010)).
A culpable mental state requires “some degree of scienter, either specific intent, deliberateness, willfulness, or recklessness.” Matter of Louissaint, 24 I&N Dec. 754, 756-57 (BIA 2009). Crimes that require specific intent are more likely to be considered to involve moral turpitude because they are committed with the evil intent or depraved mind associated with moral turpitude. See Matter of Ajami, 22 I&N Dec. 949, 950 (BIA 1999) (“Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.“); see also Matter of J-G-P-, 27 I&N Dec. 642, 650 (BIA 2019) (finding that the crime of menacing involved moral turpitude because it required “the specific intent to cause fear of imminent serious physical injury“); cf. Matter of Solon, 24 I&N Dec. 239, 241 (BIA 2007) (stating that simple assault crimes “are generally not considered to be crimes involving moral turpitude . . . because they require general intent only“).
However, we have held that “[m]oral turpitude may also inhere in criminally reckless conduct.” Matter of Solon, 24 I&N Dec. at 240; see also Matter of Torres-Varela, 23 I&N Dec. 78, 83 (BIA 2001) (collecting cases and stating that “a specific intent is not a prerequisite to finding that a crime involves moral turpitude“). Recklessness is a sufficiently “culpable mental state for moral turpitude purposes where it entails a conscious disregard of a substantial and unjustifiable risk posed by one‘s conduct.” Matter of Leal, 26 I&N Dec. at 23 (collecting cases).
B. Minnesota Terroristic Threats Statute
At all relevant times,
Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, vehicle or facility of public transportation or otherwise to cause serious public inconvenience, or in a reckless disregard of the risk of causing such terror or inconvenience may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both. As used in this subdivision, “crime of violence” has the meaning given “violent crime” in section 609.1095, subdivision 1, paragraph (d).2
Minnesota model jury instructions distill this offense into the following actus reus and mens rea elements: (1) a direct or indirect threat to commit a crime of violence, which was (2) made with the intent to terrorize another—or in reckless disregard of the risk of causing such terror, or with the purpose to cause evacuation of a building, place of assembly, or facility of public transportation, or to cause serious public inconvenience—or in reckless disregard of the risk of causing such evacuation or inconvenience. 10 Minnesota Practice, CRIMJIG 13.107; see also State v. Schweppe, 237 N.W.2d 609, 613 (Minn. 1975) (reviewing and addressing the “essential elements of this offense“). The statute is patterned after the relevant Model Penal Code section, which remains substantively similar today. Schweppe, 237 N.W.2d at 613 (citing
The Minnesota Supreme Court has defined the element of “threat” as a “declaration of an intention to injure another or his property by some unlawful act.” Id. The threat is not limited to spoken or written threats and includes “communication” that, when perceived in context, would “have a reasonable tendency to create apprehension that its originator will act according to its tenor.” Id. (citation omitted); see also State v. Murphy, 545 N.W.2d 909, 915 (Minn. 1996) (per curiam). As the Minnesota terroristic
The Minnesota statute‘s two possible forms of scienter are “purpose,” which “in this context means aim, objective, or intention,” Schweppe, 237 N.W.2d at 614, and “recklessness,” which “requires deliberate action in disregard of a known, substantial risk,” State v. Bjergum, 771 N.W.2d 53, 57 (Minn. App. 2009). The term “terrorize” has been construed as meaning “to cause extreme fear by use of violence or threats.” State v. Franks, 765 N.W.2d 68, 74 (Minn. 2009) (quoting Schweppe, 237 N.W.2d at 614). The Minnesota courts have not had occasion to construe the terms “cause evacuation” or “otherwise to cause serious public inconvenience.”
Applying the categorical analysis articulated in Matter of Silva-Trevino for determining whether a crime involves moral turpitude, we conclude that making terroristic threats in violation of
C. Eighth Circuit Case Law
In reaching our conclusion, we do not write on a blank slate. The United States Court of Appeals for the Eighth Circuit, in whose jurisdiction this matter arises, has twice issued precedential decisions holding that in certain instances, the conduct prohibited under
More recently, the Eighth Circuit affirmed that acting with reckless disregard of the risk of terrorizing a victim was also “sufficient to satisfy the scienter requirement for turpitudinous offenses.” Avendano v. Holder, 770 F.3d 731, 735 (8th Cir. 2014). In so holding, the court noted that it had previously found reasonable our determination that crimes involving moral turpitude “encompass offenses committed with a mental state of recklessness” and need not necessarily be accompanied by a vicious motive or a corrupt mind or an “aggravating factor.” Id. at 735-36 (citing Franklin v. INS, 72 F.3d 571, 573 (8th Cir. 1995)).6
We understand Chanmouny and Avendano to stand for the proposition that threatening to commit a crime of violence is also inherently reprehensible when the purpose or natural tendency of the threat is “to terrorize another,” regardless of whether anyone is actually terrorized by it. However, the Avendano court did not address whether threatening a crime of violence with reckless disregard of the risk of causing terror is “reprehensible conduct,” because the petitioner waived that issue. Avendano, 770 F.3d at 736. Likewise, the Eighth Circuit has left open whether it is necessarily reprehensible to violate that part of the Minnesota statute that prohibits making threats “with purpose . . . to cause evacuation of a building, place of assembly, vehicle or facility of public transportation or otherwise to cause serious public inconvenience, or in a reckless disregard of the risk of causing such . . . inconvenience.” Id.; see also Chanmouny, 376 F.3d at 812-13. We hold that the full range of conduct prohibited by
D. Threats to Terrorize Another
First, we conclude that the communication of an intent to injure another by use of violence involves sufficiently reprehensible conduct to constitute a crime involving moral turpitude. We have previously held that crimes involving the intentional transmission of threats entail turpitudinous conduct. See Matter of Ajami, 22 I&N Dec. at 952; see also Matter of C-, 5 I&N Dec. 370, 376 (BIA 1953)
We conclude that the transmission of threats to commit a crime of violence, made either with the specific intent to “terrorize” another or with a conscious disregard of a substantial and unjustifiable risk of terrorizing another, is reprehensible conduct. Matter of Ajami, 22 I&N Dec. at 950, 952. In Matter of J-G-P-, 27 I&N Dec. at 647, we held that menacing under Oregon law is categorically a crime involving moral turpitude, in part because “the level of threatened harm, or magnitude of menace implicit in the threat, is serious and immediate.” Similarly, the Minnesota statute at issue here necessarily entails reprehensible conduct, because “terrorizing” has been defined as involving a level of fear that is “extreme,” caused by use of violence or threats. See Javier v. Att‘y Gen. of U.S., 826 F.3d 127, 131 (3d Cir. 2016) (stating that the purpose of statutes criminalizing terroristic threats is to prevent the harm of “psychological distress that follows from an invasion of another‘s sense of personal security” (citations omitted)).
In this regard, we clarify that making a threat to commit a crime of violence in violation of Minnesota‘s terroristic threats statute is a crime involving moral turpitude, even if the threatened crime would not necessarily qualify as a crime involving moral turpitude.7
The Immigration Judge‘s analysis centered upon whether moral turpitude inheres in the underlying threatened “crime of violence.”8 But this overlooks the reprehensibility of a terroristic threat itself, which exists regardless of the particular underlying threatened crime. As the Third Circuit explained,
Our focus in determining whether [a terroristic threat] is categorically a crime involving moral turpitude is not the threatened ‘crime of violence,’ but the communication of the threat and its requisite scienter. After all, the harm that [a terroristic threat statute] seeks to prevent is not the ‘crime of violence,’ but rather the consequences of the threat . . . .
Javier, 826 F.3d at 131. We believe this complements the Eighth Circuit‘s analysis in Chanmouny and Avendano, which rested on the tendency of a threat to terrorize the victim, rather than on the underlying threatened “crime of violence.” See id. at 131-32 (citing Chanmouny, 376 F.3d at 814-15).
Our review of Minnesota case law bears out our determination that making terroristic threats with a specific intent or recklessness towards terrorizing another person is reprehensible conduct and that there is no realistic probability that the State would successfully prosecute conduct that is not reprehensible. See, e.g., State v. Smith, 825 N.W.2d 131, 135-37 (Minn. 2012) (upholding a conviction where the defendant‘s conduct during an ongoing confrontation—waving a knife four feet away from the victim and demanding money—constituted a “threat” to the assault victim in the future if he did not give the defendant money); State v. Dick, 638 N.W.2d 486 (Minn. 2002) (upholding a conviction where the defendant threatened to kill the arresting police officers, to find out where they lived, and to “skin” an officer while spitting and trying to bite and kick him); State v. Begbie, 415 N.W.2d 103 (Minn. 1987) (upholding a conviction where the defendant telephoned his victims at home and made threats that, unless they assumed his debt, a member of Australian Mafia organization would execute them).
Nor are we persuaded that the cases cited by the Immigration Judge and the respondent demonstrate a realistic probability that the Minnesota terroristic threats statute would be applied to conduct that is not reprehensible. See Avendano, 770 F.3d at 739 (Kelly, J., concurring and dissenting in part) (raising similar concerns). In State v. Balster, No. A06-1742, 2008 WL 134984 at *1-2 & n.3 (Minn. Ct. App. Jan. 15, 2008), the defendant, angry about his arrest, threatened to harm the arresting police officer in a recorded phone call and later, when the same officer served the defendant with a forfeiture notice for his truck, told him, “You‘re a dead [expletive] when I get out!”
In State v. Sailee, No. C3-98-1744, 1999 WL 486597, at *1 (Minn. Ct. App. July 13, 1999), the defendant threatened a police officer at the courthouse that he was “going to be hung after this” and later, in the parking lot, flashed a gang sign at him, which an expert witness testified was “meant to show that the threat was serious.” Although the Immigration Judge described the defendant‘s conduct as “vague hand gestures,” the court concluded that his “words and his hand gesture, considered together and in context, had a reasonable tendency to cause fear of a future act of violence.” Id. at *2. Finally, in State v. Rund, 896 N.W.2d 527, 530 (Minn. 2017), the defendant tweeted a series of threats to “hunt and kill cops,” to find the trooper with whom he had a disagreement during a vehicle stop, and to throw a grenade at police officers. Contrary to the respondent‘s assertion, these were not mere “sophomoric threats.”9 We consider the conduct in the above cases to be “inherently base, vile, or depraved.” Matter of Leal, 26 I&N Dec. at 25.
We further hold that making threats “with purpose . . . to cause evacuation of a building, place of assembly, vehicle or facility of public transportation or otherwise to cause serious public inconvenience, or in a reckless disregard of the risk of causing such . . . inconvenience” is reprehensible conduct. From the beginning of our jurisprudence on “moral turpitude,” we have defined that term as a violation of the “duties owed between persons or to society in general.” Matter of Leal, 26 I&N Dec. at 25; see also, e.g., Matter of Serna, 20 I&N Dec. 579, 582 (BIA 1992); Matter of Danesh, 19 I&N Dec. 669, 670 (BIA 1988); accord Adame-Hernandez, 929 F.3d at 1022.10
Here, we find that making terroristic threats under Minnesota law with the specific intent or recklessness to cause evacuation or serious public inconvenience categorically violates the accepted rules of morality and duties owed between persons or to society in general, to an extent that necessarily entails reprehensible conduct. Cf. Schenck v. United States, 249 U.S. 47, 52 (1919) (Holmes, J.) (stating that “falsely shouting fire in a theatre and causing a panic” is not constitutionally protected behavior because the words are “used in such circumstances and are of such a nature as to create a clear and present danger“). We have previously held that conspiracy to defraud the United States by impeding or obstructing lawful Government functions is a crime involving moral turpitude. See Matter of Flores, 17 I&N Dec. 225, 229-30 (BIA 1980); Matter of E-, 9 I&N Dec. 421, 427 (BIA 1961) (collecting cases). The nature of that crime is similar to the respondent‘s offense in that it entails interference with societal public order serious enough to violate the duties owed to society.
We note that the Minnesota statute requires either evacuation or “serious” public inconvenience, which ensures that threats resulting in minor societal interference are not criminalized. Indeed, our review of Minnesota case law indicates that convictions that could fall under this prong of this statute involve, at minimum, reckless disregard that deployment of significant public resources would result from the violators’ actions. Cf. State v. Tanis, 247 S.W.3d 610, 614-15 (Mo. Ct. App. 2008)
Again, we are not persuaded that the cases cited by the Immigration Judge and the respondent demonstrate a realistic probability that Minnesota would successfully prosecute conduct that is not reprehensible under the statute. In In re J.P.M., No. C9-99-1760, 2000 WL 665682, at *1-3 (Minn. Ct. App. May 23, 2000), a juvenile told students that he was bringing a gun to school, which he had threatened to bomb, and he knew or had reason to know that his comments might cause terror or evacuation of the school because he was aware of the Columbine High School shooting the day before. Id. at *3.11
Moreover, while these convictions fall under the “evacuation” or “serious public inconvenience” prong of the statute, it is significant that each conviction also involved a threat to terrorize a victim or victims. Neither the Immigration Judge nor the respondent has identified, and we have not found, any Minnesota case where the conviction under section 609.713, subdivision 1, did not also involve a threat made with either the purpose to terrorize or conscious disregard of a substantial and unjustifiable risk of terrorizing, that is, causing extreme fear. See Matter of Lopez-Mesa, 22 I&N Dec. 1188, 1196 (BIA 1999) (“The finding of moral turpitude . . . results from a building together of elements by which the criminalized conduct deviates further and further from the private and social duties that persons owe to one another and to society in general.“). Clearly, terrorizing a neighborhood or school community is at least as reprehensible as terrorizing an individual. Cf. Matter of McNaughton, 16 I&N Dec. 569, 574 (BIA 1978) (“Intent to defraud the investing public, which is an entire segment of society, is at least as heinous as intent to defraud an individual or the Government . . . .“). Thus,
Finally, we note that in his motion to terminate, the respondent cited cases that did not result in a successful prosecution, either because the case never proceeded beyond charging or the conviction was ultimately vacated by a reviewing court for insufficient evidence. See State v. Thulin, No. K1-01-2048, 2002 WL 34091879 (Minn. Dist. Ct. Mar. 26, 2002); see also State v. Graf, No. A11-617, 2012 WL 987282 (Minn. Ct. App. Mar. 26, 2012). Such evidence is not sufficient to demonstrate a realistic probability. See Matter of Mendoza Osorio, 26 I&N Dec. 703, 707 & nn.3-4 (BIA 2016) (providing that only evidence of a successful prosecution establishes a realistic probability of prosecution and that a conviction vacated on appeal or evidence regarding the initiation of charges is insufficient).
In sum, having considered the case law implementing the “terrorizing,” and “evacuation or . . . serious public inconvenience” prongs of section 609.713, subdivision 1, we are convinced that moral turpitude inheres in the least culpable conduct that has a realistic probability of being prosecuted under the statute. A violation of the statute, which entails making threats to commit a crime of violence with the purpose or reckless disregard of terrorizing another or of causing an evacuation or other serious public inconvenience, is categorically a crime involving moral turpitude.
F. Remand
The respondent has filed a motion to remand and to terminate his removal proceedings, and the DHS has lodged an additional charge of removability on appeal. We will remand the record for further proceedings to consider the respondent‘s removability based on the original charges and any amended charges. On remand, both parties may proffer evidence of the current status of the respondent‘s criminal convictions and any other admissible evidence relevant to the issue of removability. In view of our disposition, we need not now address the respondent‘s challenge to the Immigration Judge‘s decision denying his applications for relief from removal.
ORDER: The appeal of the Department of Homeland Security is sustained and the decision of the Immigration Judge is vacated.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.
Notes
A person is guilty of a felony of the third degree if he threatens to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.