Chanmouny v. Ashcroft, 03-1671.

• Decision Date: 16 July 2004
• Docket Number: No. 03-1671.,03-1671.
• Citation: 376 F.3d 810
• Parties: Keo CHANMOUNY, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 810

376 F.3d 810

Keo CHANMOUNY, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 03-1671.

United States Court of Appeals, Eighth Circuit.

Submitted: March 12, 2004.

Filed: July 16, 2004.

William E. Ford, argued, Hopkins, Minnesota, for petitioner.

Susan K. Houser, argued, Washington, D.C. (Peter D. Keisler and Richard M. Evans, on the brief), for respondent.

Before MURPHY, SMITH, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Keo Chanmouny, a native and citizen of Laos, petitions for review of the denial of his request for suspension of deportation. After finding that Chanmouny was removable as a non-immigrant who failed to maintain the conditions of his visas, an immigration judge ("IJ") further denied Chanmouny's request for suspension of deportation and voluntary departure because he had committed a crime involving moral turpitude. The Board of Immigration Appeals ("BIA") affirmed without opinion. After reviewing the decision of the IJ, see Palomino v. Ashcroft, 354 F.3d 942, 943-44 (8th Cir.2004), we deny Chanmouny's petition for review.

The Immigration and Naturalization Service instituted proceedings against Chanmouny on March 21, 1997. To avoid deportation, Chanmouny applied for suspension of deportation under the law in effect at the time of his application.¹ An alien who is deportable may be granted suspension of deportation if the alien (1) has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, (2) proves that during such period he was and is a person of good moral character, and (3) is a person whose deportation would result in extreme hardship to the alien or to his spouse, parent, or child who is a citizen of the United States or a lawful permanent resident. 8 U.S.C. § 1254(a)(1) (1994).

A person is not of "good moral character" if he or she is a member of the class of persons described in 8 U.S.C. § 1182(a)(2)(A). 8 U.S.C. § 1101(f)(3) (1994). That class includes "any alien convicted of ... a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime[.]" 8 U.S.C. § 1182(a)(2)(A)(i) (1994) (emphasis added). The IJ found that although Chanmouny established continuous physical presence and an extreme hardship to his child of United States citizenship if Chanmouny were deported, he was ineligible for suspension of deportation because he lacked good moral character. This finding was based on a 1996 conviction for terroristic threats under Minn.Stat. § 609.713, subd. 1, which the IJ deemed a crime involving moral turpitude. In his petition for review, Chanmouny contends that he was not convicted of a qualifying crime.

Congress has not defined the phrase "crime involving moral turpitude," and the meaning of that phrase was left "to future administrative and judicial interpretation." Franklin v. INS, 72 F.3d 571, 572 (8th Cir.1995) (quoting Cabral v. INS, 15 F.3d 193, 195 (1st Cir.1994)). In reviewing an administrative decision, therefore, we give deference to the agency's interpretation of the ambiguous statutory phrase, and we uphold its construction as long as it is reasonable. Id.; INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999).

Over the years, the BIA has developed an analytical framework to determine whether an alien's conviction under a particular statute is a crime involving moral turpitude. First, the BIA has developed a general definition of the statutory phrase:

We have observed that the definition of a crime involving moral turpitude is nebulous. Moral turpitude refers generally to conduct which 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. 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.

In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999) (internal citations omitted).

Second, the BIA has explained its methodology for examining a criminal conviction to determine whether the crime involved moral turpitude:

In deciding whether a crime involves moral turpitude, we must first examine the statute itself to determine whether the inherent nature of the crime involves moral turpitude. If the statute defines a crime in which moral turpitude necessarily inheres, then the conviction is for a crime involving moral turpitude for immigration purposes, and our analysis ends. However, if the statute contains some offenses which involve moral turpitude and others which do not, it is to be treated as a "divisible" statute, and we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense of which the respondent was convicted.

Id. (internal citations omitted); see also In re Franklin, 20 I. & N. Dec. 867, 868-69 (BIA 1994), aff'd, 72 F.3d 571 (8th Cir.1995).

The Minnesota statute under which Chanmouny was convicted provides, in part, that "[w]hoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another ... or in a reckless disregard of the risk of causing such terror ... 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." Minn.Stat. § 609.713, subd. 1.² As such, the statute provides for conviction based on at least two different mental states — "purpose to terrorize" and "reckless disregard of the risk of causing such terror." Id.

In considering Chanmouny's case, the IJ analyzed the statute as follows:

Looking at the statute at issue here it is clear that a threat to commit a crime of violence is the starting point. The purpose of the threat is to terrorize another person. The Court believes strongly that this is the type of base and depraved behavior that invokes the issues of moral turpitude. The statute on its face deals with an individual threatening violence against another person to terrorize them. The Court does not believe that this is really a divisible statute, considering that [Chanmouny] was convicted under that specific statutory language. See, the complaint in the criminal case at page 14 of Exhibit 11.

(Admin. R. at 50).

Even where an administrative decision embodies "less than ideal clarity," we may uphold the decision "if the agency's path may reasonably be discerned." Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). At first glance, it is not entirely clear from the IJ's analysis whether the IJ reached his conclusion on the ground that the "statute defines a crime in which moral turpitude necessarily inheres," Ajami, 22 I. & N. Dec. at 950, or, alternatively, that the statute contains some offenses that involve moral turpitude and others that do not, but that Chanmouny's violation did involve a crime of moral turpitude. On the one hand, the IJ said he did "not believe that this is really a divisible statute," suggesting perhaps that moral turpitude is inherent in all violations. At the same time, however, the IJ observed that the statute requires that "the purpose of the threat is to terrorize another person," and that Chanmouny was "convicted under that specific statutory language." The latter statements, together with citation of the record of conviction in Chanmouny's criminal case, lead us to conclude that the IJ treated the overall statute as potentially divisible, but concluded from the record of conviction that Chanmouny was convicted of acting with a "purpose to terrorize," rather than "reckless disregard of the risk of causing such terror." Having discerned the IJ's path, we must evaluate whether the agency's decision should be upheld.

Chanmouny argues that the Minnesota statute is divisible, that he was convicted based on the mental state of "recklessness," and that violations committed with that mental state do not constitute crimes of moral turpitude. We need not enter the thicket of determining whether the recklessness prong of the Minnesota statute implicates a crime of moral turpitude, cf. Franklin, 72 F.3d at 572-73; In re Fualaau, 21 I. & N. Dec. 475, 478 (BIA 1996), because we conclude that even assuming the statute is divisible, the record of Chanmouny's conviction shows that he was convicted of acting with "the purpose to terrorize," and that his violation was a crime of moral turpitude.

Where a criminal statute is divisible for purposes of the moral turpitude statute, the BIA looks to the record of conviction to determine whether the petitioner was convicted under the part of the statute that implicates moral turpitude. Ajami, 22 I. & N. Dec. at 950. The record of conviction typically includes the indictment or information, plea, verdict or judgment, and sentence. Id. We have held that an IJ is authorized to consider such records of conviction in determining deportability under a different section of the immigration statute, 8 U.S.C. § 1251(a)(2)(C), for a conviction involving the use of a firearm. Vue v. INS, 92 F.3d 696, 700 (8th Cir.1996). Similarly, we agree with other circuits that the record of conviction may be reviewed to determine whether an alien was convicted of a crime of moral turpitude under a divisible statute. See Wadman v. INS, 329 F.2d 812, 814 (9th Cir.1964) (quoted in Vue, 92 F.3d at 700); Smalley v. Ashcroft, 354 F.3d 332, 336 (5th Cir.2003).

The IJ in this case received the record of Chanmouny's criminal conviction into the administrative record at the removal proceeding, and specifically cited the criminal complaint in...