In re Khourn

Decision Date31 October 1997
Docket NumberFile A22 483 512.,Interim Decision No. 3330.
Citation21 I&N Dec. 1041
PartiesIn re Thay KHOURN, Respondent.
CourtU.S. DOJ Board of Immigration Appeals

In a decision dated January 16, 1996, the Immigration Judge found that the Immigration and Naturalization Service failed to establish that the respondent was deportable as charged and terminated the proceedings. The Immigration and Naturalization Service has appealed. The issue raised by the Service is whether the offense of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) (1988), constitutes a crime involving moral turpitude for purposes of section 241(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(ii) (1994).1 We hold that it does. Therefore, the appeal will be sustained. The record will be remanded to the Immigration Judge to continue with the respondent's deportation hearing.

I. FACTUAL AND PROCEDURAL BACKGROUND

The respondent is a native and citizen of Cambodia who entered the United States on or about February 22, 1977. The record reflects that as a result of a guilty plea, the respondent was convicted on April 27, 1990, in the United States District Court for the Northern District of Texas, on one count of possession with the intent to distribute and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) (1988). The respondent was sentenced to 33 months' imprisonment.

On July 22, 1992, the Service issued an Order to Show Cause and Notice of Hearing (Form I-221) charging the respondent with deportability under section 241(a)(2)(B)(i) of the Act, as an alien convicted of violating a law relating to a controlled substance, and under section 241(a)(2)(A)(iii) of the Act, for an aggravated felony conviction. The respondent was subsequently granted a waiver of these grounds of deportability under section 212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. V 1993), and his deportation proceedings were terminated.

The record further reflects that on February 2, 1995, the respondent was convicted in the Criminal District Court in Dallas, Texas, of theft of property and was sentenced to 10 years' imprisonment.2 On October 11, 1995, the Service issued another Order to Show Cause charging the respondent with deportability under section 241(a)(2)(A)(ii) of the Act, for conviction of two or more crimes involving moral turpitude.

At his deportation hearing, the respondent admitted the factual allegations in the Order to Show Cause but denied deportability. He argued that his conviction for possession with intent to distribute and distribution of cocaine under 21 U.S.C. § 841(a)(1) was not for a crime involving moral turpitude. The Service argued to the contrary.

The Immigration Judge relied on Matter of Serna, 20 I&N Dec. 579 (BIA 1992), to determine whether the conviction for possession with intent to distribute and distribution of cocaine was for a crime involving moral turpitude. Although the Federal statute required proof that the perpetrator "knowingly or intentionally" committed the offense, the Immigration Judge found that the respondent's conviction was not for a crime involving moral turpitude because the underlying behavior was not "inherently base and vile so as to shock the conscience of the community." Therefore, the Immigration Judge found that the Service had not met its burden of proving by clear, unequivocal, and convincing evidence that the respondent had been convicted of two crimes involving moral turpitude in violation of section 241(a)(2)(A)(ii) of the Act.

II. CONTENTIONS ON APPEAL

On appeal, the Service contends that the respondent's violation of 21 U.S.C. § 841(a)(1), for knowing or intentional distribution of a controlled substance and possession with intent to distribute, is a crime involving moral turpitude because it is knowing or intentional participation in the distribution of drugs. The Service cites Federal and State cases where the courts have found convictions for possession with intent to sell and distribution of illicit drugs to involve moral turpitude. The Service argues that the respondent's conviction is distinguishable from those in Matter of Abreu-Semino, 12 I&N Dec. 775 (BIA 1968), where the Board held that convictions for unlawful possession and sale of LSD under 21 U.S.C. §§ 331(q)(2) and (3)3 were not convictions for crimes involving moral turpitude because intent was nowhere mentioned in defining the prohibited acts.

The respondent argues that Matter of Abreu-Semino, supra, and Matter of Serna, supra, clearly establish that a conviction for the sale and delivery of drugs is not a conviction for a crime involving moral turpitude. However, the respondent did not address the Service's argument that the respondent's conviction under 21 U.S.C. § 841(a)(1) is distinguishable from the convictions under 21 U.S.C. §§ 331(q)(2) and (3) in Matter of Abreu-Semino, supra. Nor did the respondent address the Service's contention that the respondent's conviction under 21 U.S.C. § 841(a)(1) met the requirement of "evil intent" set forth in Matter of Serna, supra.

Neither party challenges the Immigration Judge's conclusion that the respondent has committed at least one crime involving moral turpitude, to wit, theft of property. In addition, it is clear that the respondent's conviction under 21 U.S.C. § 841(a)(1) may be alleged as one of the "two crimes involving moral turpitude" in this proceeding, even though he was previously granted a discretionary waiver of deportation under section 212(c) of the Act for this offense. Matter of Balderas, 20 I&N Dec. 389 (BIA 1991); Matter of Mascorro-Perales, 12 I&N Dec. 228 (BIA 1967).

III. ISSUE

The only issue on appeal is whether the respondent's conviction for possession with intent to distribute and distribution of cocaine under 21 U.S.C. § 841(a)(1) constitutes a second conviction for a crime involving moral turpitude. This question seldom arises as an issue of significance because a conviction for drug distribution in and of itself renders the alien inadmissible, deportable, and ineligible for relief in circumstances at least as restrictive as where an alien has a conviction for a crime involving moral turpitude. See sections 101(a)(43), (f), 212(a)(2)(C), 241(a)(2)(B), 244(a), (e) of the Act, 8 U.S.C. §§ 1101(a)(43), (f), 1182(a)(2)(C), 1251(a)(2)(B), 1254(a), (e) (1994).

IV. ANALYSIS
A. Moral Turpitude

The term "moral turpitude" has deep roots in the law. For example, the presence of moral turpitude has been used as a standard in legislation governing the disbarment of attorneys and the revocation of medical licenses. Jordan v. De George, 341 U.S. 223 (1951). Moral turpitude also has found judicial employment as a criterion in disqualifying and impeaching witnesses and in determining the measure of contribution owed between joint tortfeasors. Id.

In a determination whether a crime involves moral turpitude, the statute under which the conviction occurred is controlling. Matter of Franklin, 20 I&N Dec. 867 (BIA 1989), aff'd, 72 F.3d 571 (8th Cir. 1995), cert. denied, 117 S. Ct. 105 (1996); Matter of Short, 20 I&N Dec. 136 (BIA 1989). If the statute defines a crime in which turpitude necessarily inheres, then for immigration purposes, the conviction is for a crime involving moral turpitude. Matter of Short, supra, at 137. The first step, therefore, in determining whether a crime involves moral turpitude is to determine from the record of conviction what law, or portion of law, was violated. Matter of Esfandiary, 16 I&N Dec. 659 (BIA 1979).

The respondent was convicted on one count of violating 21 U.S.C. § 841(a)(1)4 which provides:

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.

B. Criminal Nature of The Statute

We first note that 21 U.S.C. § 841(a)(1) was enacted as section 401(a)(1) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236, reprinted in 1970 U.S.C.C.A.N. 1437, 1466. The criminal penalties, procedures, and sentencing guidelines for violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970 are described in titles 18 and 28 of the United States Code, entitled Crimes and Criminal Procedure and Judiciary and Judicial Procedure, respectively. See, e.g., 18 U.S.C. §§ 36(a)(3), 3553(f), 3559(c)(2)(H), 3582(d), 3592(c)(12), 3663(a)(1)(A), (c)(1) (1994); 28 U.S.C. §§ 994(h)(1)(B), (2)(B) (1994); see also 18 U.S.S.G. §§ 2D1.1(a)(1), (2), 2D1.11(b)(2), 5C1.2 (sentencing guidelines). The statute under which the respondent was convicted, 21 U.S.C. § 841(a)(1), is therefore a criminal statute.

The legislative history further suggests that the statute is criminal rather than regulatory legislation. The Senate Report indicates that one of the goals of the statute was to "collect the diverse drug control and enforcement laws under one piece of legislation to facilitate law enforcement, drug research, educational and related control activities." S. Rep. No. 91-613, at 3 (1969). The House Report indicates that the principal purpose of the bill was as follows:

The legislation is designed to deal in a comprehensive fashion with the growing menace of drug abuse in the United...

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