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In deciding that an alien’s conviction for false imprisonment was a crime involving moral turpitude, the Immigration Judge erred by considering evidence that was extraneous to the record of his conviction.

In Fajardo v. U.S. Attorney General the court of appeals reversed an order of removal. Soon after he entered the U.S. from Cuba, Fajardo was arrested and convicted of false imprisonment, misdemeanor assault and misdemeanor battery as a result of an altercation with his wife. Three years later when Fajardo was returning from a visit abroad, he was stopped at the Miami International Airport and placed in removal proceedings by the Department of Homeland Securities on the ground that his conviction for false imprisonment qualified as a crime involving moral turpitude. The Immigration Judge concluded that the assault and battery convictions were not crimes involving moral turpitude. It did however find the conviction for false imprisonment did constitute a crime of moral turpitude and ordered his removal on that ground.

To determine whether a crime constitutes a conviction of a crime involving moral turpitude, the 11th Circuit Court of appeals and the Board of Immigration Appeals has historically looked to the inherent nature of the offense as defined by the statute, rather than the circumstances surrounding the defendants’ particular conduct. Thus the “focus of the immigration authorities must be on the crime which the alien was convicted, to the exclusion of any other criminal or morally reprehensible acts he may have committed.” This is known as the categorical approach. Stated another way, the categorical approach requires “looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.”

However, if the statutory definition of a crime encompasses some conduct that categorically would be ground for removal as well as other conduct that would not, then the record of conviction, that is the charging document, the plea, verdict and the sentence may also be considered. This has been referred to as the modified categorical approach.

In reviewing the underlying state conviction, the appellate court found Fajado’s false imprisonment charge merely tracked the general language of the false imprisonment statute. The state court record was not clear whether Fajardo’s false imprisonment conviction resulted from the uses of forcible threats or merely nonviolent restraint. Under the categorical approach if either forcible threats or secret confinement did not constitute a crime involving moral turpitude, Fajardo could not be removed.

However, the Immigration Judge considered and relied upon extraneous information outside the record of his false imprisonment conviction. The Immigration Judge considered the information regarding his misdemeanor assault and battery convictions to determine that his false imprisonment conviction involved the restraint of another by force or threats. Thus it found he qualified as a conviction of a crime involving moral turpitude by considering additional information outside of the conviction.

The appellate court found the Immigration Judge committed error in considering evidence beyond the record of Fajardo’s false imprisonment conviction to determine if he had been convicted of a crime of moral turpitude. The court affirmed the categorical and modified categorical approach in determining whether a person was convicted of a crime of moral turpitude. The appellate court remanded the case to the Immigration Judge directing it to apply the categorical approach to determine if the false imprisonment conviction qualifies as a conviction of a crime involving moral turpitude.

A criminal defense attorney with experience and expertise in handling criminal matters can assist a person who is charged with a crime to successfully resolve the case in a way that will avoid hamful immigration consequences such as removal or deportation from the United States.