Hamdan v. I.N.S.
| Citation | 98 F.3d 183 |
| Decision Date | 25 October 1996 |
| Docket Number | No. 95-60022,95-60022 |
| Parties | Jorge M. HAMDAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Thomas Perrill Adams, New Orleans, LA, for petitioner.
Carl Henry McIntyre, John J. Andre, David V. Bernal, David J. Kline, Philemina McNeill Jones, United States Department of Justice, Office of Immigration Litigation, Washington, DC, Janet Reno, Office of the United States Attorney General, Civil Division, Appellate Staff, Washington, DC, Robert L. Bombough, Director, Office of Immigration Litigation, Civil Division, Washington, DC, John B.Z. Caplinger, Director, Immigration and Naturalization Service, New Orleans, LA, for respondent.
Petition for Review of an Order of the Board of Immigration Appeals.
Before POLITZ, Chief Judge, and DeMOSS and DENNIS, Circuit Judges.
JORGE M. HAMDAN ("HAMDAN"), a citizen of Nicaragua, entered the United States as a lawful permanent resident. HAMDAN petitions this court for review of the Board of Immigration Appeals' ("BIA") determination that the appellant is deportable because he was convicted of two crimes involving moral turpitude pursuant to 8 U.S.C. § 1251(a)(2)(A)(ii). HAMDAN claims that the BIA erred in finding that his conviction under the Louisiana simple kidnapping statute constitutes a "crime involving moral turpitude" ("CIMT") for purposes of United States immigration laws.
On August 17, 1988, the Immigration and Naturalization Service ("INS") issued an order to show cause against Hamdan, charging him with deportability for the conviction of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. The convictions considered by the INS were petitioner's March 22, 1985, conviction for indecent behavior with a juvenile and his May 20, 1987, conviction on two counts of attempted simple kidnapping, the latter of which resulted in a concurrent 2-year sentence. Hamdan did not dispute that his 1985 conviction was a CIMT, but argued that his 1987 conviction record did not support a finding of moral turpitude. In his oral decision on October 24, 1990, the immigration judge ("IJ") found that both convictions were CIMTs and denied petitioner's applications for asylum and withholding of deportation. The IJ also denied Hamdan's request for voluntary departure, ordering him to be deported. In its January 5, 1995, order the BIA dismissed Hamdan's appeal of the IJ's order. Hamdan petitions for review of the BIA's order.
In reviewing the decision of an administrative agency, we accord substantial deference to the agency's interpretations of the statutes and regulations it administers. INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987). We must uphold the BIA's determination of what conduct constitutes moral turpitude for purposes of deportation if it is reasonable. Iredia v. INS, 981 F.2d 847, 848 (5th Cir.), cert. denied, 510 U.S. 872, 114 S.Ct. 203, 126 L.Ed.2d 160 (1993). However, a determination that the elements of a crime constitute moral turpitude for purposes of deportation pursuant to Section 1251(a)(2)(A)(i) is a question of law, which we review de novo. INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987); Cabral v. INS, 15 F.3d 193, 196 n. 5 (1st Cir.1994).
We accord deference to the BIA's interpretation of questions such as those before us here, applying a two-prong standard of review, as we said in Animashaun v. INS:
We first consider the legal standard under which the INS should make the particular deportability decision. If the governing statute does not speak clearly to the question at hand, this court has applied the standard announced in Chevron, U.S.A. Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and upheld agency interpretations of ambiguous law when that interpretation is reasonable. Id. After determining the controlling legal standard, we will next examine the Board's findings under the substantial evidence test to determine whether the legal standard has been satisfied. Rojas v. INS, 937 F.2d 186, 189 (5th Cir.1991). The substantial evidence standard requires only that the Board's conclusion be based upon the evidence presented and that it be substantially reasonable. Silwany-Rodriguez v. INS, 975 F.2d 1157, 1160 (5th Cir.1992).
Animashaun v. INS, 990 F.2d 234, 237 (5th Cir.1993). See also Carbajal-Gonzalez v. INS, 78 F.3d 194 (5th Cir.1996).
Hamdan was found deportable pursuant to 8 U.S.C. § 1251 1 for having been convicted of two crimes involving moral turpitude. Hamdan's 1985 conviction for indecent behavior with a juvenile is uncontested. The issue before us is whether Hamdan's 1987 conviction for attempted simple kidnapping under the Louisiana statute constitutes a crime involving moral turpitude.
The INS Act does not define moral turpitude, and legislative history does not reveal Congress' intent. Cabral v. INS, 15 F.3d 193, 195 (1st Cir.1994). "Congress left the [term] to future administrative and judicial interpretation." Id. A section of the regulations discussing moral turpitude for purposes of deportation generalizes as follows:
§ 40.21 Crimes involving moral turpitude and controlled substance violators.
(a) Crimes involving moral turpitude--
(1) Acts must constitute a crime under criminal law of jurisdiction where they occurred. Before a finding of ineligibility under INA 212(a)(2)(A)(I)(I) may be made because of an admission of the commission of acts which constitute the essential elements of a crime involving moral turpitude, it must first be established that the acts constitute a crime under the criminal law of the jurisdiction where they occurred. A determination that a crime involves moral turpitude shall be based upon the moral standards generally prevailing in the United States.
22 C.F.R. § 40.21 (1996). This broad definition requires that a finding of deportability rest on a determination 1) that the petitioner committed an act considered a crime in the jurisdiction of occurrence and 2) that it is a crime of moral turpitude.
In Hamdan's case, the BIA aptly summarizes the body of judicial and administrative interpretation of the general definition:
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. See Matter of Franklin, Interim Decision 3228 (BIA 1994); Matter of Short, [Interim Decision 3125 (BIA 1989) ]; Matter or Danesh, 19 I & N Dec. 669 (BIA 1989); Matter of Flores, supra. 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. Matter of Franklin, supra; Matter of P-, 6 I & N Dec. 795 (BIA 1955). 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 Matter of Perez-Contreras, Interim Decision 3194 (BIA 1992); Matter of Serna; supra; Matter of Short, supra; Matter of Danesh, supra; Matter of Flores, supra.
BIA Decision at 4. We find no error in the BIA's definition of moral turpitude.
The petitioner does not argue that a conviction for kidnapping cannot constitute a crime of moral turpitude. Instead, Hamdan argues that the cases relied on by the INS for the premise that kidnapping is a CIMT 2 involve the federal kidnapping statute, 18 U.S.C. § 1201, 3 which is substantively distinguishable from the Louisiana kidnapping statute. Hamdan does not specify particular sections of the statute; instead, he argues:
All or most of the subsections of the statute here at bar, any one of which Mr. Hamdan may have been convicted under, reach various misdeeds that do not involve moral turpitude, and he therefore may not be deported as charged.
The Louisiana simple kidnapping statute provides for five categories:
A. Simple kidnapping is:
(1) The intentional and forcible seizing and carrying of any person from one place to another without his consent; or
(2) The intentional taking, enticing or decoying away, for an unlawful purpose, of any child not his own and under the age of fourteen years, without the consent of its parent or the person charged with its custody; or
(3) The intentional taking, enticing or decoying away, without the consent of the proper authority, of any person who has been lawfully committed to any orphan, insane, feeble-minded or other similar institution.
(4) The intentional taking, enticing or decoying away and removing from the state, by any parent of his or her child, from the custody of any person to whom custody has been awarded by any court of competent jurisdiction of any state, without the consent of the legal custodian, with intent to defeat the jurisdiction of the said court over the custody of the child.
(5) The taking, enticing or decoying away and removing from the state, by any person, other than the parent, of a child temporarily placed in his custody 14 L.A.Rev.Stat. § 45A (1986). Hamdan correctly notes that, unlike the federal statute, the Louisiana kidnapping statute does not include ransom and expressly includes removal by a parent. Hamdan claims that, since the statute at issue encompasses conduct that does not constitute moral turpitude, a finding of moral turpitude cannot lie unless the evidence shows which section of the statute he was convicted under.
by any court of competent jurisdiction in the state, with intent to defeat the jurisdiction of said court over the custody of the child.
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