In re Acosta

• Decision Date: 29 August 2018
• Docket Number: Interim Decision #3934
• Citation: 27 I&N Dec. 420
• Parties: Matter of J. M. ACOSTA, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

27 I&N Dec. 420

Matter of J. M. ACOSTA, Respondent

Interim Decision #3934

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

August 29, 2018

(1) A conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived.

(2) Once the Department of Homeland Security has established that a respondent has a criminal conviction at the trial level and that the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes, which the respondent can rebut with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court, and that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings.

(3) Appeals, including direct appeals, and collateral attacks that do not relate to the underlying merits of a conviction will not be given effect to eliminate the finality of the conviction.

FOR RESPONDENT: Nicholas John Phillips, Esquire, Albany, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Adam Perl, Assistant Chief Counsel

BEFORE: Board Panel: KELLY and GREER, Board Members. Concurring and Dissenting Opinion: MALPHRUS, Board Member.

KELLY, Board Member:

In a decision dated August 31, 2017, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2012), as an alien convicted of a crime involving moral turpitude.¹ The Immigration Judge denied the respondent's motion to terminate, as well as his applications for cancellationof removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2012), and for a waiver of inadmissibility under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), and ordered him removed from the United States. The respondent has appealed from that decision and has filed a motion to remand based on new evidence. The Department of Homeland Security ("DHS") opposes both the appeal and the motion to remand. The appeal will be dismissed in part, and the record will be remanded to the Immigration Judge for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of the Dominican Republic who was admitted to the United States as a lawful permanent resident on March 11, 1992. On May 18, 1993, he pled guilty to attempted criminal sale of a controlled substance in the third degree in violation of section 110-220.39 of the New York Penal Law. On April 7, 2016, the respondent pled guilty to criminal possession of a controlled substance (narcotic) in the third degree in violation of section 220.16(12) of the New York Penal Law.

Based on the respondent's 1993 conviction, the Immigration Judge found him removable under section 237(a)(2)(A)(i) of the Act for having been convicted of a crime involving moral turpitude committed within 5 years after admission, for which a sentence of 1 year or longer may be imposed.² The respondent has appealed from that finding, arguing that his offense is not a crime involving moral turpitude.

While his appeal was pending, the respondent filed a motion to remand. In support of his motion, he submitted evidence that on October 10, 2017, the Appellate Division of the Supreme Court for the First Judicial Department in the County of New York granted his motion for leave to file a late appeal of his 2016 conviction and deemed his notice of appeal to be timely filed. The respondent argues that because a direct appeal of that conviction is now pending, it lacks the requisite finality to qualify as a "conviction" for immigration purposes under section 101(a)(48)(A) of the Act, 8 U.S.C. § 1101(a)(48)(A) (2012).³ The respondent therefore contendsthat since his 2016 conviction does not support the controlled substance charge, he is eligible under former section 212(c) to waive removability based on his 1993 conviction for a crime involving moral turpitude.⁴

II. CRIME INVOLVING MORAL TURPITUDE

To determine whether the respondent's State drug offense is a crime involving moral turpitude, we employ the categorical approach, which requires us to "focus on the minimum conduct that has a realistic probability of being prosecuted under the [elements of a] statute of conviction, rather than on the facts underlying the respondent's particular violation of that statute," to see whether those elements categorically "fit[] within the generic definition of a crime involving moral turpitude." Matter of Silva-Trevino, 26 I&N Dec. 826, 831 (BIA 2016); see also Efstathiadis v. Holder, 752 F.3d 591, 595 (2d Cir. 2014) (per curiam).

"To involve moral turpitude, a crime requires two essential elements: reprehensible conduct and a culpable mental state." Matter of Silva-Trevino, 26 I&N Dec. at 834; see also Efstathiadis, 752 F.3d at 595. Conduct is "reprehensible" if it 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." Matter of Silva-Trevino, 26 I&N Dec. at 833 (citation omitted). A "culpable" mental state is one that requires deliberation or consciousness, such as specific intent, knowledge, willfulness, or recklessness. Id. at 834.

The respondent was convicted of attempted criminal sale of a controlled substance in the third degree under New York law. Section 220.39 of the New York Penal Law provides that a person is guilty of criminal sale "when he knowingly and unlawfully sells" a specified controlled substance. Under section 110.00, "[a] person is guilty of an attempt to commit a crime [under New York law] when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime."⁵

We have held that the Federal offense of possession of a controlled substance with the intent to distribute is a crime involving moral turpitude because 21 U.S.C. § 841(a)(1) (1988) requires a mental state of knowledge or intent, and the unlawful distribution of drugs is inherently reprehensible conduct. Matter of Khourn, 21 I&N Dec. 1041, 1045-47 (BIA 1997); see also Matter of Gonzalez Romo, 26 I&N Dec. 743, 746-47 (BIA 2016) (holding that solicitation to possess marijuana for sale under Arizona law is categorically a crime involving moral turpitude); Matter of Y-, 2 I&N Dec. 600, 602 (BIA 1946) (holding that the unlawful sale of opium is a crime involving moral turpitude, because it is an act that "creates human misery, corruption, and moral ruin in the lives of individuals [and] is "necessarily . . . base and shameful" (citation omitted)). Because the minimum conduct that has a realistic probability of being prosecuted under the respondent's State statute of conviction necessarily involves inherently reprehensible conduct committed with a mental state of knowledge or intent, we conclude that it is categorically a crime involving moral turpitude. See Matter of Silva-Trevino, 26 I&N Dec. at 831.

We are unpersuaded by the respondent's assertion that the intent in selling a drug may not be evil, such as where the seller's intent is to relieve another person's medical condition. This argument is unavailing, particularly where, as here, a law that specifically prohibits the intentional unauthorized sale of drugs has been enacted in order to prevent harm to the general population. See Matter of Y-, 2 I&N Dec. at 603 ("Because so many persons become addicts, most of the States, if not all of them, have enacted laws restricting the right to dispense or prescribe such drugs to registered pharmacists and physicians for medicinal purposes only and inflicting very severe penalties for their violation."); cf. Matter of Kochlani, 24 I&N Dec. 128, 131 (BIA 2007) (holding that trafficking in counterfeit goods or services in violation of 18 U.S.C. § 2320 (2000) is a crime involving moral turpitude because it requires proof of intent to traffic and results in significant societal harm).

The respondent's argument that his offense is not a crime involving moral turpitude because it has no Federal analogue is also misplaced. It is not necessary to compare a Federal statute to the respondent's statute of conviction because the Federal controlled substances schedules and statutes are not controlling for purposes of determining whether a crime involves moral turpitude. It is the respondent's act of attempting to sell a controlled substance that is morally turpitudinous, not the specific drug involved. See Matter of Khourn, 21 I&N Dec. at 1047 (stating that "an evil intent is inherent in the crime of distribution of a controlled substance"). We therefore affirmthe Immigration Judge's determination that the respondent is removable under section 237(a)(2)(A)(i) of the Act.⁶

We also affirm the Immigration Judge's denial of the respondent's application for cancellation of removal for lawful permanent residents under section 240A(a) of the Act. The respondent was admitted in 1992, but he stopped accruing continuous residence about a year later in 1993, when he was convicted of "an offense referred to in section 212(a)(2) that render[ed] [him] . . . removable from the United States under section 237(a)(2)" of the Act. Section 240A(d)(1) of the Act. Because the respondent cannot establish that he has continuously resided in the United States for 7 years after being admitted in any status, he is unable to show that he is eligible for cancellation of removal pursuant to section 240A(a)(2) of the Act.⁷

III. FINALITY OF A CONVICTION

The respondent also seeks a remand based on new evidence that he timely appealed his 2016 State drug conviction after the New York court granted him permission to file a late-reinstated appeal. He argues that because his conviction is now on direct appeal, it is not sufficiently final for immigration purposes, so it...