Olivas-Motta v. Holder

“Involving moral turpitude” is an element of a “crime involving moral turpitude,” and an Immigration Judge's determination of whether a conviction qualifies as such a crime should be confined to the formal record of the conviction.

Manuel Olivas-Motta was charged with removal under 8 U.S.C. § 1227(a)(2)(A)(ii), which provides that any alien “convicted of two or more crimes involving moral turpitude… is deportable.” Olivas-Motto argued that while his 2003 conviction for facilitation of unlawful possession of marijuana was a “crime involving moral turpitude” (“CIMT”), his 2007 conviction for endangerment was not. The evidence at Olivas-Motto’s removal hearing contained the 2007 conviction plea agreement, three related police reports, and the charging document. In 2008, the Attorney General (“AG”) in Matter of Silva-Trevino held that an Immigration Judge (“IJ”) may look outside the conviction record when determining whether a petitioner has been “convicted of” a CIMT. Relying in part on police reports, the IJ and the Board of Immigration Appeals both found that Olivas-Motto’s second conviction was a CIMT; Olivas-Motta petitioned for review. Reviewing Silva-Trevino under Chevron U.S.A. Inc. v. Natural Res. Def. Council, the Ninth Circuit disagreed with the AG’s interpretation of the statute. First, the AG’s clarification of “crime involving moral turpitude” was irrelevant to whether an IJ may look to evidence outside the record when determining if an alien has been “convicted of” a CIMT. Second, the AG’s definition of “convicted of” allowed an IJ to consider crimes an alien “may have committed but of which he was not convicted,” which conflicts with the “clear and long-established definition of ‘conviction.’” Third, the AG erroneously concluded that “moral turpitude” is not “an element” of a CIMT. The panel found that since the relevant parts of the immigration statute were not ambiguous, it did not owe deference to the AG’s opinion under Chevron. Additionally, the panel held that a CIMT includes moral turpitude as an element of the offense, and the correct determination is one confined to the record of the conviction. Petition GRANTED and REMANDED.