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Crimmigration Law Research: The Categorical Approach

This guide highlights sources to help determine if/when a client's criminal conviction triggers a ground for removal.

Alabama

Arizona

California

Connecticut

Florida

Fla. Stat. §893.13(6)(b), drug abuse prevention and control

Gonzalez v. Wilkinson, 990 F.3d 654 (8th Cir. March 9, 2021)

Plain language of Florida statute showed it was unambiguously overbroad. No need for noncitizen to also prove a “realistic probability of prosecution” to meet the minimum conduct test.

Iowa

Iowa Code § 710.10, enticing a Minor

Subsection (3)

Peh v. Garland, 5 F.4th 867 (8th Cir. July 16, 2021)

BIA’s decision was not clear about how it understood the “realistic probability” requirement, so 8th Circuit vacated BIA decision and sent the case back to the BIA “to determine on remand whether § 710.10(3), so understood, constitutes a crime of child abuse” under the federal removal statute.

Maryland

Massachusetts

Minnesota

Minn. Stat. § 152.025, controlled substance crime in the fifth degree

Subdivision 2(1)

Ahmed v. Garland, 993 F.3d 1029 (8th Cir. April 8, 2021)

Statute is divisible (per earlier Rendon decision). Applying modified categorical approach, “allows us to look at ‘a limited class of judicial records’ to determine the specific controlled substance possessed. If the juridical records identify a specific controlled substance, then the alien is removable if the substance also appears on one of the federal schedules….Ahmed’s guilty-plea petition reveals that he was convicted of possessing khat, which contains at least one of two substances listed on the federal schedules...What this means for Ahmed is that he, just like Rendon, is removable.

Minn. Stat. § 609.222, assault in the second degree

Subdivision 1

Jama v. Wilkinson, 990 F.3d 1109 (8th Cir. March 11, 2021)

Affirmed BIA decision that statute of conviction was an aggravated felony and a categorical match to the generic definition of a crime of violence

Minn. Stat. § 243.166, registration of predatory offenders

Subdivision 5(a)

Bakor v. Barr, 958 F.3d 732 (8th Cir. 2020)

An offender who knowingly fails to register as a sex offender similarly evades a regulation that is designed to protect vulnerable victims against recidivist sex offenders, and does so with a culpable mental state…Given the compelling societal purpose behind sex offender registration statutes, and the fact that knowing violations of the law facilitate recidivism and frustrate public safety, we are satisfied that the Board permissibly classified a knowing failure to comply as morally turpitudinous

Minn. Stat. § 609.324, patrons; prostitutes; housing individuals engaged in prostitution; penalties

Subdivision 2

Gomez-Gutierrez v. Lynch, 811 F.3d 1053 (8th Cir. 2016)

Gomez–Gutierrez pled guilty to solicitation in connection with his agreement to purchase oral sex from an undercover police officer posing as a prostitute… Because Gomez–Gutierrez failed to establish a realistic probability Minnesota courts would apply § 609.324, subd. 2, to crimes that did not involve moral turpitude, the Board did not err in deciding Gomez–Gutierrez's solicitation conviction constituted a crime involving moral turpitude.

Minn. Stat. § 609.3451, criminal sexual conduct in the fifth degree

Subdivision 1

Bakor v. Barr, 958 F.3d 732 (8th Cir. 2020)

This Minnesota offense falls within the generic definition of a CIMT, because the conduct it covers is reprehensible… [and] committed with a culpable mental state even if it does not cause bodily injury.

Minn. Stat. § 609.50, obstructing legal process, arrest or firefighting

Subdivision 2(2)

Ortiz v. Lynch, 796 F.3d 932 (8th Cir. 2015)

Because Minnesota's interpretation of the phrase “force or violence” in its obstruction of legal process statute is broader than the definition of “physical force” in section 16, a conviction under Minn. Stat. § 609.50, subd. 2(2) is not categorically a “crime of violence [and thus not an aggravated felony] Accordingly, the BIA erred …Order of removal was vacated and case remanded back to BIA to decide if prior conviction nonetheless subjected him to removal as a crime involving moral turpitude

Ortiz v. Barr, 962 F.3d 1045 (8th Cir. 2020)

the Minnesota Court of Appeals has explained that Minn. Stat. § 609.50 is a general intent crimeBIA case law establishes that an offense that requires general intent only is not considered to be a crime involving moral turpitude. Further, the plain language of the gross-misdemeanor penalty provision [subdivision 2(2)], imposes no mens rea requirement…Minn. Stat. § 609.50, subdivision 2(2) is not categorically a crime involving moral turpitude

Minn. Stat. § 609.713, threats of violence

Subdivision 1. Threaten violence; intent to terrorize.

Matter of Salad, 27 I&N Dec. 733 (BIA 2020)

“The offense of making terroristic threats in violation of section 609.713, subdivision 1, of the Minnesota Statutes is categorically a crime involving moral turpitude.” Remanded back to IJ.

Missouri

Mo. Rev. Stat. § 195.211, possessing marijuana with intent to deliver transferred and modified by Mo. Rev. Stat. § 579.055.

Lopez-Chavez v. Garland, 991 F.3d 960 (8th Cir. March 22, 2021).

As the BIA explained, Lopez-Chavez’s 2003 Missouri marijuana conviction – the basis for his removal – was considered an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) at the time of removal It is undisputed that this is no longer the case…[B]ecause the Missouri statute Lopez-Chavez was convicted under in 2003 criminalized ‘conduct that may fit under either the felony or the misdemeanor provisions of the [CSA], it is not a categorical match for the corresponding federal offense in §1101(a)(43)(B).

Mo. Rev. Stat. § 570.120, Crime of passing bad checks

Subsection 1.

Dolic v. Barr, 916 F.3d 680 (8th Cir., Feb. 20, 2019)

§ 570.120.1 is overbroad, but divisible. § 570.120.1(1) includes “purpose to defraud” as an element “and so is categorically a CIMT.”  Even though the record did not specify which subsection Dolic was charged under, the 8th Circuit said “each of [Dolic’s] charging documents contains language that tracks the language of § 570.120.1(1) and includes the element “with the purpose to defraud.” Therefore, we conclude that § 570.120.1(1) was in fact Dolic’s crime of conviction in each instance. Dolic’s four Missouri convictions for passing a bad check qualify as crimes involving moral turpitude.

Nebraska

Neb. Rev. Stat. § 28-517, theft by receiving stolen property

Reyna v. Barr, 935 F.3d 630 (8th Cir. 2019) 

Reyna’s offense of theft by receiving under Neb. Rev. Stat. § 28-517 is categorically a crime involving moral turpitude… Reyna has failed to establish a realistic probability that the State would apply § 28-517 to non-turpitudinous conduct. The Board therefore properly concluded that Reyna’s offense is categorically a crime involving moral turpitude and that he is ineligible for cancellation of removal.

Neb. Rev. Stat. §28– 608 (2008), attempted criminal impersonation. (since amended and moved to Neb. Rev. Stat. §28–638).

Pereida v. Wilkinson, 141 S.Ct. 754 (March 2021) 

…the Nebraska statute, subsections (a), (b), and (d) each stated a crime involving fraud, and thus each constituted a disqualifying offense of moral turpitude. That left only subsection (c)’s prohibition against carrying on a business without a required license..The government presented a copy of the criminal complaint against Mr. Pereida showing that Nebraska had charged him with using a fraudulent social security card to obtain employment. Meanwhile, Mr. Pereida declined to offer any competing evidence of his own…Under the INA, certain nonpermanent aliens seeking to cancel a lawful removal order must prove that they have not been convicted of a disqualifying crime. The Eighth Circuit correctly held that Mr. Pereida failed to carry this burden. Its judgment is affirmed.

Neb. Rev. Stat. 28-907 – False reporting; penalty

Subsection (1)(a)

Adame-Hernandez v. Barr, 929 F.3d 1020 (8th Cir. 2019)

The Nebraska Supreme Court has interpreted false reporting under Neb. Rev. Stat. § 28-907(1)(a) to include three elements…Under the Nebraska Supreme Court’s own explanation, a conviction under this subsection requires that the defendant act with some intent to deceive a peace officer. A conviction under Neb. Rev. Stat. §28-907(1)(a) is thus a crime involving moral turpitude that renders a petitioner statutorily ineligible for cancellation of removal.

New York

North Carolina

Pennsylvania

Virginia


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