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TOUTOUNJIAN v. INS

February 12, 1997

PAULIK TOUTOUNJIAN, Petitioner, -vs- IMMIGRATION AND NATURALIZATION SERVICE, Respondent.


The opinion of the court was delivered by: CURTIN

 CURTIN, DISTRICT JUDGE

 BACKGROUND

 Petitioner, Paulik Toutounjian, petitioned this court for review of the Board of Immigration Appeals' final order of exclusion. He seeks a writ ordering the United States government to allow him to enter as a nonimmigrant for pleasure.

 Petitioner is a Syrian citizen and a landed immigrant of Canada. He was granted a visa on June 12, 1989 to come to the United States indefinitely as a nonimmigrant visitor for pleasure. However, upon entering the United States on November 11, 1993, he was served with a Form I-122, Notice to Applicant For Admission Detained For Hearing Before Immigration Judge. The Notice stated that petitioner would not be admitted because he had committed a crime of sexual assault involving moral turpitude (Item 2, p.2). Subsequently, an exclusion hearing was held before the immigration court on June 30 and October 30, 1994.

 At the hearing, it was discovered that petitioner had two convictions in Canada. The first conviction was for a sexual assault, an offense punishable under Canadian Criminal Code § 271(1)(b). The second conviction was for the willful commission of an indecent act in a public place in the presence of one or more persons, an offense punishable under Canadian Criminal Code § 173(1)(a). Both convictions arose out of the same incident. Counsel for petitioner made an offer of proof before the immigration court that petitioner grabbed a woman on her buttocks on a Montreal street while petitioner was drunk (Item 2, p.2). Although the government did not dispute these facts before the immigration court, the record of conviction does not specify the facts, and the immigration court's decision made no specific finding of fact. Petitioner's case was handled as a summary conviction in Canada, which is the procedure for handling misdemeanor offenses (Item 2, p.3). Petitioner was sentenced to two years probation and two years of suspension for each conviction (Item 1, Ex. 4). The two years of probation was unsupervised (Item 2, p.3). Furthermore, he was neither fined nor sentenced to any term of imprisonment (Id.).

 Section 173(1)(a) of the Canadian Criminal Code provides: "1) Every one who wilfully does an indecent act (a) in a public place in the presence of one or more persons, . . . is guilty of an offence punishable on summary conviction." MARTIN'S ANNUAL CRIMINAL CODE (1983), attached at Item 4, p. 107

 The Immigration and Naturalization Service (INS) conceded that the sexual assault conviction fell under the petty offense exception of the Immigration Act. Thus, only the indecent act conviction was relevant to the issue of whether petitioner was excludable pursuant to INA § 212(a)(2)(A)(I)(I), 8 U.S.C. § 1182(a)(2)(A)(I)(I), for a crime involving moral turpitude.

 The immigration judge did not squarely address the issue of whether the petitioner's crime involved moral turpitude. Rather, the immigration judge held that the Canadian statute proscribing the indecent act required a showing of "wilfulness," or intent, and that the cases cited by the petitioner were inapposite because the laws they construed did not require a showing of intent. Item 4, p. 67.

 The immigration judge went on to observe that a Canadian court interpreting section 173 held: "In order for the act to be indecent, there must be moral turpitude to some degree. Toutounjian, at Item 4, p.66 (Citing MARTIN'S ANNOTATED CRIMINAL CODE § 173; R. v. Springer (1975), 24 C.C.C.(2d) 56, 31 C.R.N.S. 48 (Sask. Dist. Dist. Ct.)). Consequently, the immigration judge held that this interpretation must be adopted, and petitioner's crime found to be one of moral turpitude, "for to hold otherwise would entail disrespect for the judgments of another sovereign, and thus undermine the principle of international comity." Toutounjian at Item 4, p. 67.

 The Board of Immigration Appeals affirmed the decision of the immigration court without any discussion of moral turpitude. Item 4, p. 3.

 DISCUSSION

 I. Standard of Review

 Final orders of exclusion of an alien may be reviewed only in a habeas corpus proceeding before the district court. Castillo-Magallon v. I.N.S., 729 F.2d 1227 (9th Cir. 1984). A district court is not required to conduct a de novo hearing as part of its habeas corpus review of an exclusion order. De Brown v. Department of Justice, 18 F.3d 774 (9th Cir. 1994). The Board of Immigration Appeal's conclusions of law are reviewed de novo, but its factual findings are given considerable deference. Si v. Slattery, 864 F. Supp. 397 (S.D.N.Y. 1994). It is well settled that a reviewing court may not reweigh the factors relevant to a discretionary determination by the BIA. I.N.S. v. Rios-Pineda, 471 U.S. 444, 452, 85 L. Ed. 2d 452, 105 S. Ct. 2098 (1985).

 However, when the BIA's decision is fact-sensitive and failure to address relevant factors is of sufficient magnitude, the court may reconsider the merits of the decision. See Mejia-Carrillo v. United States Immigration and Naturalization Service, 656 F.2d 520, 522 (9th Cir.1981) (BIA's decision may be reversed only for an abuse of discretion, such as failure to consider all relevant facts).

 In discussing the standard of review of the decisions of an unrelated agency the Second Circuit Court of Appeals has held that an agency's conclusions of law are reviewable under a higher standard than that of "abuse of discretion." H.W. Wilson Co. v. United States Postal Service, 580 F.2d 33, 37 (2d Cir.1978). In H.W. Wilson, the Court of Appeals overturned the decision of the Postal Service that the petitioner's publications were not periodicals. The court held that "when the question is one of law and does not implicate the expertise of the agency, we must provide a stricter standard of review. This is particularly true when, as in the present case, 'the administrator's legal decision is based on his interpretation of a judicial opinion that in turn construes a statute.'" Id. (Citations omitted).

 II. Petitioner was not necessarily convicted of a crime of moral turpitude.

 Throughout its existence, the BIA has defined a crime of moral turpitude as "conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and men." Matter of Danesh, 19 I. & N. Dec. 669, 670 (1988); Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA 1980); Matter of J, 2 I. & N. Dec. 99 (BIA 1944).

 In Matter of P., the Board set out the framework for an inquiry into whether a prior conviction was for a crime of moral turpitude:

 
In determining whether a crime involves moral turpitude, we are limited in the first instance to an examination of the statute wherein the crime is defined. If the crime as defined does not necessarily of its essence comprehend moral turpitude, then the alien cannot be said to have committed a crime involving moral turpitude. Where, however, the statute is divisible or separable and so drawn as to include within its definition crimes which do and some which do not involve moral turpitude, the record of conviction, i.e., the information ...

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