Maghsoudi v. INS, 98-1264

• Citation: 181 F.3d 8
• Decision Date: 02 March 1999
• Docket Number: No. 98-1264,98-1264
• Parties: (1st Cir. 1999) SASAN MAGHSOUDI, Petitioner, Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, Appellee. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 8

181 F.3d 8 (1st Cir. 1999)

SASAN MAGHSOUDI, Petitioner, Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, Appellee.

No. 98-1264

United States Court of Appeals For the First Circuit

Heard March 2, 1999

Decided June 10, 1999

[Copyrighted Material Omitted] Gary Silbiger, with whom Silbiger & Honig was on brief for appellant.

Brenda M. O'Malley, with whom Karen Ann Hunold, Senior Litigation Counsel, Frank W. Hunger, Assistant Attorney General, and the Office of Immigration Litigation, Department of Justice, were on brief for appellee.

Before Stahl, Circuit Judge, Magill, Senior Circuit Judge,^* and Lipez, Circuit Judge.

LIPEZ, Circuit Judge.

Sasan Maghsoudi, an alien, seeks direct judicial review of a final order of deportation from the Board of Immigration Appeals (BIA). The BIA found Maghsoudi deportable (under 8 U.S.C. § 1227(a)(2)(A)(ii)) because it held that he had two prior convictions for crimes involving moral turpitude. If both crimes were indeed crimes of moral turpitude, we lack jurisdiction to review the deportation order. Finding that Maghsoudi had been convicted of two such crimes, we conclude that we lack jurisdiction over his appeal.

I. Background

Maghsoudi came to the United States from Iran as a high school student on February 5, 1978, and remained in this country after the Islamic Revolution. His relevant criminal history for purposes of this case consists of a 1985 Massachusetts conviction for assault and robbery (stemming from a fare dispute with a passenger in his taxi on May 22, 1983, and resulting in a ten year suspended sentence), and a 1989 Massachusetts conviction for indecent assault and battery (stemming from his relationship with a sixteen year old girl, and resulting in a two and one half year suspended sentence).¹ An immigration judge (IJ) found him deportable on the ground that both convictions involved moral turpitude (pursuant to Immigration and Nationality Act (INA) § 241(a)(4)²) but granted discretionary relief from deportation (pursuant to INA § 212(c)³) on the ground that specific factual circumstances of the two convictions were mitigating.⁴ The INS noticed and briefed an appeal to the BIA on the ground that granting relief in these circumstances was an abuse of discretion by the IJ. For reasons unexplained, the INS's appeal to the BIA remained pending for six years. In the interim, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)⁵ was passed, and the Attorney General issued her opinion in Matter of Soriano, Interim Decision 3289 (A.G. Feb. 2, 1997),⁶ ruling that the AEDPA retroactively barred relief to any alien deportable for having committed any of the offenses listed in § 212(c). The BIA subsequently reversed the IJ's grant of § 212(c) relief to Maghsoudi on the sole ground that AEDPA § 440(d)⁷ made those convicted of "two crimes of moral turpitude" ineligible (retroactively) for § 212(c) relief. See In re Sasan Maghsoudi, Order, A 24-581-482 (BIA March 25, 1997).

On appeal, Maghsoudi contends that the BIA erred in holding that the AEDPA retroactively barred eligibility for § 212(c) relief,⁸ citing Goncalves v. Reno 144 F.3d 110, 133 (1st Cir. 1998), cert. denied, 119 S. Ct. 1140 (1999). However, Maghsoudi must first establish our appellate jurisdiction before we can reach the merits of that issue on direct appeal. Under § 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),⁹ we have no jurisdiction to hear a direct appeal from a decision of the BIA in the case of an alien who is deportable by reason of having committed two crimes involving moral turpitude, where each conviction resulted in a sentence to confinement for one year or longer.¹⁰ On appeal, Maghsoudi claims that his indecent assault conviction was not in fact a conviction of a crime involving moral turpitude, and thus the jurisdictional provisions of IIRIRA § 309(c)(4)(G) eliminating resort to the Courts of Appeals do not apply to the current appeal.

II. Analysis

The INS claims that Maghsoudi conceded that his indecent assault conviction was a conviction involving moral turpitude before the IJ, and therefore should be held to have waived the issue for purposes of this appeal. Maghsoudi, acting pro se, initially contested his deportability in preliminary proceedings before the IJ and essentially protested his innocence of the crimes notwithstanding his guilty pleas. See C.R. 108-09. However, the oral decision of the IJ states:

Respondent [Maghsoudi], through his attorney, conceded the truthfulness of the allegation of fact contained in the Order to Show Cause and conceded that he was subject to deportation on the charge contained therein. Based on the foregoing and what is contained in the record, I find that the respondent is subject to deportation on the charge contained in his Order to Show Cause by evidence which is clear, convincing, and unequivocal.

In the Matter of Maghsoudi, No. A24-581-482 (Feb. 13, 1991), at 2 (emphasis added). The charge contained in the order to show cause read as follows:

[O]n the basis of the foregoing allegations, it is charged that you are subject to deportation pursuant to the following provisions of law:

Section 241(a)(4) of the Immigration and Nationality Act, in that you at any time after entry have been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.

Order to Show Cause, C.R. 536, 538. Maghsoudi's current counsel claims in his brief on appeal that Maghsoudi's counsel in the proceedings before the IJ "never admitted the allegations or charge of deportability." Given the significance of the concession of deportability, the dispute over whether such a concession was made by Maghsoudi's counsel in proceedings before the IJ, our discretionary power to resolve issues arguably waived below, see Poliquin v. Garden Way, Inc., 989 F.2d 527, 531 (1st Cir. 1993); Singleton v. Wulff, 428 U.S. 106, 121 (1976),¹¹ and our jurisdiction to resolve jurisdictional facts to determine whether IIRIRA § 309(c)(4)(G) applies to preclude appellate jurisdiction in this case,¹² we shall resolve the issue of whether Maghsoudi's indecent assault conviction was for a crime of moral turpitude.

There is some uncertainty as to the exact statutory basis of Maghsoudi's 1989 "indecent assault" conviction. Maghsoudi was initially charged under Mass. Gen. Laws ch. 265, § 13F, "Indecent assault and battery on mentally retarded person." The docket reflects a conviction of "INDECENT A&B RETARDED PERSON C265 S13F" with the word "RETARDED" crossed out by hand. See C.R. 505. We assume that a conviction under ch. 265 § 13H, "Indecent assault and battery on person fourteen or older,"¹³ was thereby intended, and that the retention of the citation "S13F" is a mere clerical error. Maghsoudi's sentence (two and one half years in a house of correction, suspended) was consistent with the maximum allowable under § 13H. He was further sentenced to undergo sexual offender evaluation and treatment, which is inconsistent with his assertion that his conviction was for simple assault and battery (presumably under § 13A). (The INS describes Maghsoudi's conviction as one for "indecent assault" under ch. 265, without specifying a section, which is at least consistent with our interpretation. See C.R. 538.)

In making our de novo determination of whether or not a crime involves "moral turpitude" within the terms of 8 U.S.C. § 1227(a)(2)(A)(ii), we accord due deference to the BIA's interpretation of that statute. See Cabral v. INS, 15 F.3d 193, 194 (1st Cir. 1994). Since clear indications of congressional intent from the language of the immigration statute or the legislative history are absent, see id. at 194-95, BIA interpretations are "entitled to deference unless arbitrary, capricious, or manifestly contrary to the statute." Id. at 194. The inherent nature of the crime of conviction, as defined in the criminal statute, is relevant in this determination; the particular circumstances of Maghsoudi's acts and convictions are not. See Pichardo v. INS, 104 F.3d 756, 759 (5th Cir. 1997). We may, however, refer to the record of conviction, meaning the charge (indictment), plea, verdict, and sentence, in ascertaining exactly the criminal conduct to which Maghsoudi pled guilty. See Cabral, 15 F.3d at 195; Pichardo, 104 F.3d at 759.

The general definition of "moral turpitude" has been summarized by the BIA as follows:

Moral turpitude refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. 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.

Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996) (citations omitted) (quoting In re Hamdan, at 4 (BIA Jan. 5, 1995)).

Under the Massachusetts statute, indecent assault refers to acts "fundamentally offensive to contemporary moral values" and "there is no particular definition given for what constitutes the crime." Commonwealth v. Perretti, 477 N.E.2d 1061, 1066 (Mass. 1985) (quoting approved jury instructions). "A touching is indecent [within the meaning of § 13H] when, judged by the normative standard of societal mores, it is violative of social and behavioral expectations, in a manner which is fundamentally offensive to contemporary moral values and which the common sense of society would regard as immodest, immoral, and improper." Commonwealth v. Lavigne, 676 N.E.2d 1170, 1172 (Mass. App. Ct. 1997) (citations, alterations and internal quotation marks...