Cite as 25 I&N Dec. 426 (BIA 2011) Interim Decision #3706
1 The proceedings were originally terminated on October 30, 2006, by an oral order, which
the DHS appealed. On November 25, 2008, we returned the record to the Immigration
Judge to prepare a full decision because we were unable to effectively review the oral order.
The DHS now appeals from the Immigration Judge’s subsequent written order.
426
Matter of Khanh Hoang VO, Respondent
Decided March 4, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where the substantive offense underlying an alien’s conviction for an attempt offense
is a crime involving moral turpitude, the alien is considered to have been convicted
of a crime involving moral turpitude for purposes of section 237(a)(2)(A) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(2)(A) (2006), even though that section makes
no reference to attempt offenses.
FOR RESPONDENT: Timothy E. Hu, Esquire, Westminster, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter R. Lee, Assistant Chief
Counsel
BEFORE: Board Panel: FILPPU, PAULEY, and WENDTLAND, Board Members.
PAULEY, Board Member:
In a decision dated January 29, 2009, an Immigration Judge terminated
the removal proceedings against the respondent.1 The Department
of Homeland Security (“DHS”) has appealed from that decision. The appeal
will be sustained, the proceedings will be reinstated, and the record will
be remanded to the Immigration Judge for further proceedings.
The respondent is a native and citizen of Vietnam who was admitted to the
United States as a lawful permanent resident on September 27, 1989. The
record reflects that he was convicted in California on July 10, 1995, of grand
theft and receipt of stolen property. He was also convicted on April 23, 1996,
of attempted grand theft.
The DHS initiated removal proceedings against the respondent, charging
that he is deportable under section 237(a)(2)(A)(ii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2006), as an alien convicted
of two or more crimes involving moral turpitude that did not arise outCite as 25 I&N Dec. 426 (BIA 2011) Interim Decision #3706
2
Section 237(a)(2)(A)(ii) of the Act provides as follows:
Any alien who at any time after admission is convicted of two or more crimes
involving moral turpitude, not arising out of a single scheme of criminal misconduct,
regardless of whether confined therefor and regardless of whether the convictions
were in a single trial, is deportable.
Similarly, section 237(a)(2)(A)(i)(I), which relates to a single crime involving moral
turpitude, does not include any reference to attempt offenses.
3
Section 212(a)(2)(A)(i)(I) of the Act provides, in pertinent part, as follows:
[A]ny alien convicted of . . . a crime involving moral turpitude . . . or an attempt
or conspiracy to commit such a crime . . . is inadmissible.
427
of a single scheme of misconduct. The Immigration Judge first found that
there was insufficient evidence that the respondent’s two 1995 convictions
arose out of separate schemes of criminal misconduct and concluded that only
one offense, the grand theft, could be considered. He further determined that
the respondent’s 1996 attempted grand theft offense did not qualify as a crime
involving moral turpitude under section 237(a)(2)(A)(ii) of the Act, because
the statute does not expressly apply to convictions for attempt offenses.2
We note first that the DHS has not meaningfullychallenged the Immigration
Judge’s finding that there was insufficient evidence that the respondent’s two
1995 convictions did not arise out of a single scheme of criminal misconduct.
We therefore affirm his conclusion that the DHS failed to meet its burden
of proof in that regard. Accordingly, only one of these convictions may
be considered as a crime involving moral turpitude for purposes of section
237(a)(2)(A)(ii) of the Act.
In finding that attempt offenses are not included in section 237(a)(2)(A)(ii),
the Immigration Judge noted our decisions in Matter of Awaijane, 14 I&N
Dec. 117, 118-19 (BIA 1972), and Matter of Katsanis, 14 I&N Dec. 266, 269
(BIA 1973), where we held that there is no distinction between a crime
involving moral turpitude and an attempt to commit such a crime. However,
he determined that those decisions had been superseded by subsequent
amendments to the sections of the Act concerning the inadmissibility and
deportability of aliens convicted of crimes involving moral turpitude.
Specifically, the Immigration Judge contrasted section 212(a)(2)(A)(i)(I) of the
Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006),3 which expressly includes as
a ground of inadmissibility the attempt to commit a crime involving moral
turpitude, with section 237(a)(2)(A)(ii), which makes no reference to attempts.
In the Immigration Judge’s view, including attempt offenses within the scopeCite as 25 I&N Dec. 426 (BIA 2011) Interim Decision #3706
428
of section 237(a)(2)(A)(ii) would render the explicit reference to attempts
in section 212(a)(2)(A)(i)(I) superfluous.
On appeal, the respondent urges us to adopt the Immigration Judge’s
reasoning. He argues that section 237(a)(2)(A)(ii) of the Act clearly does
not encompass attempt offenses, which are expressly included in the ground
of inadmissibility for crimes involving moral turpitude at section
212(a)(2)(A)(i)(I), as well as the grounds of deportability for controlled
substances, firearms, and miscellaneous offenses at sections 237(a)(2)(B), (C),
and (D) of the Act.
We acknowledge that section 237(a)(2)(A)(ii) does not expressly
refer to attempt offenses. However, it is well established that for immigration
purposes, with respect to moral turpitude there is no distinction between the
commission of the substantive crime and the attempt to commit it. Matter
of Katsanis, 14 I&N Dec. at 269; Matter of Awaijane, 14 I&N Dec. at 118-19;
see also Matter of Davis, 20 I&N Dec. 536, 545 (BIA 1992), modified on other
grounds, Matter of Yanez, 23 I&N Dec. 390, 396 (BIA 2002). An attempt
involves the specific intent to commit the substantive crime, and if commission
of the substantive crime involves moral turpitude, then so does the attempt,
because moral turpitude inheres in the intent. Matter of Katsanis, 14 I&N Dec.
at 269; see also Matter of Bronsztejn, 15 I&N Dec. 281, 282 (BIA 1974)
(stating that attempt “takes its character and its quality from the nature of the
law toward whose violation it is or was directed”), aff’d, 526 F.2d 1290 (2d
Cir. 1975).
Accordingly, we have only looked at the substantive crimes to determine
whether inchoate offenses, such as attempt, conspiracy, accessory before the
fact, or solicitation, constitute crimes involving moral turpitude. See Matter
of Short, 20 I&N Dec. 136, 138 n.1 (BIA 1989); Matter of Flores, 17 I&N
Dec. 225, 228 (BIA 1980); Matter of Westman, 17 I&N Dec. 50 (BIA 1979);
Matter of McNaughton, 16 I&N Dec. 569, 573 n.2 (BIA 1978), aff’d, 612 F.2d
457 (9th Cir. 1980); see also Matter of Zorilla-Vidal, 24 I&N Dec 768 (BIA
2009) (reaffirming Matter of Beltran, 20 I&N Dec. 521 (BIA 1992), in holding
that criminal solicitation to deliver a controlled substance is a deportable
offense). But see Matter of Hou, 20 I&N Dec. 513 (BIA 1992), superseded
by statute, Immigration and Nationality Technical Corrections Act of 1994,
Pub. L. No. 103-416, § 203(b), 108 Stat. 4305, 4311, and disapproved
by Mizrahi v. Gonzales, 492 F.3d 156, 166-67 (2d Cir. 2007). See generally
Matter of Batista-Hernandez, 21 I&N Dec. 955, 958 (BIA 1997) (discussing
inchoate crimes).
Agreeing with this approach, the Ninth Circuit has stated, “We have
previously looked to underlying crimes in determining whether convictions
for inchoate offenses constitute crimes involving moral turpitude.”
Barragan-Lopez v. Mukasey, 508 F.3d 899, 903 (9th Cir. 2007) (citingCite as 25 I&N Dec. 426 (BIA 2011) Interim Decision #3706
4
In effect, the Ninth Circuit has indicated that section 237(a)(2)(A) is broader in its
coverage of crimes involving moral turpitude than section 212(a)(2)(A)(i)(I), because
it would include inchoate offenses, such as solicitation and facilitation, that are not
specifically enumerated in the inadmissibility statute, which lists only attempts and
conspiracies. We observe, however, in this regard, that section 212(a)(2)(A)(i)(I) also
excludes any “purely political offense” from being considered a crime involving moral
turpitude, but that no such exclusion is reflected in section 237(a)(2)(A)(i)(I) or (ii). We
do not intend to imply any view on whether a purely political offense that is a crime
involving moral turpitude would support a finding of deportability under section
237(a)(2)(A)(i)(I) or (ii).
429
Goldeshtein v. INS, 8 F.3d 645, 647 n.6 (9th Cir. 1993); McNaughton v. INS,
612 F.2d at 459). In Barragan-Lopez, the court held that because
drug-trafficking offenses, including possession of unlawful substances for sale,
generally involve moral turpitude, solicitation to commit such an offense was
a crime involving moral turpitude. It therefore concluded that the alien was
deportable under section 237(a)(2)(A)(i) of the Act based on his conviction for
a crime involving moral turpitude, despite the lack of a specific reference
to “solicitation” offenses in the statute.
In reaching that conclusion, the Ninth Circuit distinguished section
237(a)(2)(A)(i) from other parts of the Act that specifically include attempt
and conspiracy. The court noted its prior holding that where a statute, such
as section 237(a)(2)(B)(i) of the Act, which relates to drug offenses, lists
some generic offenses (i.e., attempt or conspiracy) but omits others (e.g.,
solicitation), the statute only covers the generic offenses that are expressly
listed. Barragan-Lopez v. Mukasey, 508 F.3d at 904 (citingCoronado-Durazo
v. INS, 123 F.3d 1322 (9th Cir. 1997)). Finding that situation inapplicable,
however, the Ninth Circuit found that because section 237(a)(2)(A)(i) does not
list certain generic offenses, there is no such limitation on the offenses
it covers. The court therefore concluded that a solicitation offense would
support a finding of deportability under section 237(a)(2)(A)(i) if the
underlying crime involved moral turpitude.4
See id. at 903-04.
We likewise conclude that where the substantive offense underlying
an alien’s conviction for an attempt is a crime involving moral turpitude, the
alien is considered to have been convicted of a crime involving moral turpitude
for purposes of section 237(a)(2)(A) of the Act, even though that section
makes no reference to attempt offenses. Our conclusion does not render
superfluous the “attempt” language that Congress included in other sections
of the Act. Congress may have added this language as a point of special
emphasis to remove any doubt that those sections included such offenses. Ali
v. Federal Bureau of Prisons, 552 U.S. 214, 226 (2008); Peters v. Ashcroft,
383 F.3d 302, 308 (5th Cir. 2004) (stating that “the statutory referencesCite as 25 I&N Dec. 426 (BIA 2011) Interim Decision #3706
5The “attempt” language was added to the ground of deportability for controlled substances,
which is currently at section 237(a)(2)(B)(i) of the Act, by section 508(a) of the
Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5051. See H.R. Rep. No.
101-955, at 132 (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6797. It was later added
to the miscellaneous offenses ground of deportability, currently at section 237(a)(2)(D),
by section 307(h)(7) of the Miscellaneous and Technical Immigration and Naturalization
Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733, 1756. See H.R. Rep.
No. 102-383, at 27 (1991), reprinted in 1991 U.S.C.C.A.N. 1372, 1380, 1991 WL 257487.
Section 203 of the Immigration and Nationality Technical Corrections Act of 1994,
108 Stat. at 4311, added attempt offenses to both the ground of inadmissibility for crimes
involving moral turpitude at section 212(a)(2)(A)(i)(I) of the Act and to the grounds
of deportability for firearms offenses and for failure to register and falsification
of documents, which are now at sections 237(a)(2)(C) and (3)(B)(ii) and (iii).
430
to conspiracy and attempt are illustrative without being exclusive”).
Furthermore, the legislative history is silent as to Congress’ intent in adding
the “attempt” language in those particular sections, but not to others such
as section 237(a)(2)(A). Since the “attempt” language was added to the
various sections of the Act at different times, its inclusion does not represent
a unified design to effectuate a single intent.5 Therefore we cannot reasonably
conclude that Congress’ expressinclusion of attempt offenses in other sections
of the Act was actually an intentional exclusion of them from section
237(a)(2)(A). See United States v. Atlantic Research Corp., 551 U.S. 128, 137
(2007) (“[O]ur hesitancy to construe statutes to render language superfluous
does not require us to avoid surplusage at all costs.”); Mizrahi v. Gonzales, 492
F.3d at 174 (relying on Matter of Beltran, 20 I&N Dec. at 526 n.12, in stating
that “Congress’s explicit reference to certain inchoate offenses as grounds for
deportation did not indicate its intent to exclude others not so referenced”).
It is clear that grand theft is a crime involving moral turpitude. Rashtabadi
v. INS, 23 F.3d 1562, 1568 (9th Cir. 1994). The respondent’s attempted grand
theft offense is therefore a crime involving moral turpitude. See Caroleo
v. Gonzales, 476 F.3d 158, 164-65 (3d Cir. 2007) (stating that attempted
murder “can be characterized as a crime involving moral turpitude for the
purposes of determining removability”). Consequently, we conclude that
he is deportable under section 237(a)(2)(A)(ii) of the Act based on his
convictions for grand theft in 1995 and for attempted grand theft in 1996.
Accordingly, the DHS’s appeal will be sustained and the removal proceedings
will be reinstated. The record will be remanded to the Immigration Judge
to give the respondent an opportunity to seek any relief from removal for
which he may be eligible.
ORDER: The appeal of the Department of Homeland Securityis sustained,
the decision of the Immigration Judge is vacated, and the removal proceedingsCite as 25 I&N Dec. 426 (BIA 2011) Interim Decision #3706
431
against the respondent are reinstated.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.