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.
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).
This court therefore reviews the legal conclusions of the immigration judge and the BIA de novo.
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 (complaint or indictment), plea, verdict and sentence may be examined to ascertain therefrom whether the requisite moral obloquy is present.
Matter of P., 2 I. & N. Dec. 117, 119 (BIA 1944). The framework set out by the Board in that decision has been applied in a number of subsequent cases. Consequently, it is well established that an offense must necessarily involve moral turpitude in order for a conviction for that crime to support an order of exclusion. Matter of Serna, Interim Decision 3188 (BIA 1992). Moreover "it is equally clear that any doubts in deciding whether or not the statute proscribed an act involving moral turpitude must be resolved in the alien's favor." Id., (citing Fong Haw Tan v. Phelan, 333 U.S. 6, 92 L. Ed. 433, 68 S. Ct. 374 (1948)).
Petitioner was convicted of a violation of Section 173(1)(a) of the Canadian Criminal Code, which states: "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 Board has held that the term "wilfully" did not necessarily denote a statutory intent requirement. In Matter of B, 2 I. & N. Dec. 867 (BIA 1947), the Board held that the crime of wilfully damaging mailboxes in violation of the Criminal Code of Canada did not involve moral turpitude where the statutory provision did not specifically require base or depraved conduct, and the record of conviction did not show base or depraved conduct. The Board noted that the term wilfully "as contained [in the statute] is defined so broadly that it covers a case of what courts in the United States would regard as gross or wanton negligence."
Therefore, the indecency statute does not necessarily involve moral turpitude as that term has been construed by the BIA. For example, in Matter of P, 2 I. & N. Dec. 117, 118 (BIA 1944), the Board found that where the defendant was convicted of contributing to the delinquency of a minor for relieving himself in the presence of a child, the conviction was not a crime of moral turpitude because he could have been convicted even if he had no intent to contribute to the delinquency of a minor. Id. At 121. But a person could be convicted under the indecency statute at issue in the present case, under precisely the same circumstances considered in by the BIA in Matter of P.
This court concludes that the indecency "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." Matter of P., 2 I. & N. Dec. at 118-19. Therefore, this court must turn to the record of conviction, "to ascertain therefrom whether the 'requisite moral obloquy' is present." Id. Pursuant to 22 C.F.R. § 40.21(a)(1), whether or not the "requisite moral obloquy" is present is determined by "the moral standards generally prevailing in the United States."
But the government took the position at oral argument that the record of conviction contains no facts which specify what, exactly, the petitioner did. Instead, the government argued that this court was bound by the determination of the Canadian court that a conviction under the Canadian indecency statute was necessarily a crime of moral turpitude. Petitioner argued that he made an offer of proof of the underlying facts before the immigration court, which were undisputed by the government. The government pointed out, correctly, that such an offer of proof, even if undisputed, is not a finding of fact by the immigration court.
For the reasons set out below, this court holds that it is not bound by the determination of the Canadian court as to moral turpitude. Therefore, faced with a statute which may or may not describe a crime of moral turpitude, and a record of conviction which does not specify the facts on which petitioner pleaded guilty, this court must resolve all doubts in favor of the petitioner and conclude that he did not plead guilty to a crime of moral turpitude.
II. This court is not bound by the findings of the Canadian court as to whether the foreign conviction was for a crime of moral turpitude.
The immigration court held that it was bound by the decision of the Saskatchewan district court to conclude that a conviction under section 173 of the Canadian Criminal Code is necessarily a conviction involving moral turpitude. In reaching this conclusion, the Immigration Court relied on the decision of the Second Circuit Court of Appeals in Chiaramonte v. INS, 626 F.2d 1093, 1095 (2d Cir. 1980). But the Chiaramonte decision did not state that comity binds a United States court to all legal interpretations of a foreign court. Rather, Chiaramonte held:
Neither the INS nor the courts may entertain a challenge to the legitimacy of a criminal conviction duly obtained under the laws of a foreign country. To hold otherwise would entail disrespect for the judgments of that sovereign, and thus undermine the principle of international comity. More significantly, such collateral attacks as a practical matter could not reasonably provide a fair forum for ascertaining the truth of the assertion. The proceeding would be conducted in a different court, in a different country, geographically and temporally far removed from the locus of the crime. Accordingly, both administrative and judicial review of such matters must be confined to the official records of the original proceedings, most particularly, the court's ultimate judgment.
In other words, a United States court should be bound by the factual findings of a foreign court and should not seek to retry a criminal conviction after the fact. But this court finds nothing in Chiaramonte which leads to a conclusion that all foreign legal pronouncements are binding on United States courts.
To the contrary, the Code of Federal Regulations provides:
Before a finding of ineligibility under INA 212(a)(2)(A)(I)(I) may be made because of an admission of the commission of acts which constitute the essential elements of a crime involving moral turpitude, it must first be established that the acts constitute a crime under the criminal law of the jurisdiction where they occurred. A determination that a crime involves moral turpitude shall be based upon the moral standards generally prevailing in the United States.